RAYNES & GRIGSBY
[2019] FCCA 1815
•3 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAYNES & GRIGSBY | [2019] FCCA 1815 |
| Catchwords: FAMILY LAW – Property settlement – de facto relationship – overwhelming initial and financial contributions by one party – “Kennon” claim – s.90SF(3) factors. |
| Legislation: Family Law Act 1975 (Cth), ss.90SM(1),(4), 90SF(3) |
| Cases cited: Kennon & Kennon (1997) FLC 92-757 |
| Applicant: | MS RAYNES |
| Respondent: | MR GRIGSBY |
| File Number: | LNC 626 of 2018 |
| Judgment of: | Judge McGuire |
| Hearing date: | 19 June 2019 |
| Date of Last Submission: | 19 June 2019 |
| Delivered at: | Launceston |
| Delivered on: | 3 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Mooney |
| Solicitors for the Applicant: | Philip Welch |
| Counsel for the Respondent: | Mr G Tucker |
| Solicitors for the Respondent: | Grant Tucker |
ORDERS
That the assets of the parties’ be divided as to a net 82.5% to the applicant and a net 17.5% to the respondent and for these purposes:
(a)The applicant retain to the exclusion of the respondent the following:
(i)Property at Street K, Suburb L in Tasmania;
(ii)Motor Vehicle A motor vehicle;
(iii)Sale proceeds of tractor (held in trust);
(iv)Furniture and contents in her possession and control;
(v)Shed contents including tools;
(vi)Quad bike and spray unit and trailer;
(vii)1 shipping container;
(viii)Aboriginal art piece;
(ix)Business [B];
(x)Monies in her bank; and
(xi)Sale proceeds of kayak.
(b)The respondent retain to the exclusion of the applicant the following:
(i)Motor Vehicle C motor vehicle;
(ii)Furniture and contents in his possession and control;
(iii)Tools in the possession or control of the respondent;
(iv)Caravan
(v)Monies in CBA bank account;
(vi)Monies in account at Business N; and
(vii)Motorbike.
That the applicant be solely responsible for and indemnify the respondent in respect of the following liabilities:
(a)Amex card;
(b)ANZ Visa card;
(c)NAB Visa card;
(d)Australian Taxation Office arrears (applicant);
(e)2017/2018 Taxation liability (applicant);
(f)Westpac Flexi loan (applicant);
(g)Division 7A Loan Agreement to Business [B] (applicant);
(h)Any and all liabilities attaching to any assets retained by the applicant pursuant to these Orders; and
(i)Any and all liabilities incurred by the applicant since separation in either joint names or in her name alone.
That the respondent be solely responsible for indemnify the applicant in respect of the following liabilities:
(a)The Visa card debt (respondent);
(b)Any and all liabilities attaching to any assets retained by the respondent pursuant to these Orders; and
(c)Any and all liabilities incurred by the respondent since separation in either joint names or in his name alone.
That within 60 days of the date of these Orders there be a cash adjustment by the applicant to the respondent in the sum of $53,129.27.
That the applicant be solely entitled to and to the exclusion of the respondent her superannuation entitlement with Super Fund D.
That there be a splitting Order in a base amount of $79,972 from the husband’s share of the corpus of the parties self-managed superannuation fund (SMSF) in favour of the applicant.
IT IS NOTED that publication of this judgment under the pseudonym Raynes & Grigsby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 626 of 2018
| MS RAYNES |
Applicant
And
| MR GRIGSBY |
Respondent
REASONS FOR JUDGMENT
Applications
Ms Raynes is the applicant for orders for property settlement pursuant to section 90SM of the Family Law Act 1975 (‘the Act’) in respect of a de facto relationship with Mr Grigsby between … 2006 and November 2017.
The applicant seeks an order broadly whereby she receive 90% of the property pool inclusive of superannuation.
The respondent asks for orders whereby the property pool, inclusive of superannuation, be divided as to 30% to himself and 70% to the applicant.
Background
The applicant is 66 years of age and the respondent is 67 years old.
The applicant has two adult children of a previous relationship.
The applicant's employment history is in professional positions with an expertise in …. She has more recently conducted her own business through a company trading as Business [B]. She has tertiary qualifications consistent with her work history. Ms Raynes' employment/self-employment has historically benefited her with a substantial income.
Mr Grigsby has no recent significant employment history. He comes from a … background. The evidence suggests that he has not been consistently gainfully employed for perhaps three decades. He volunteered in evidence that he suffered a spinal injury many years ago. However, no medical evidence was adduced in this trial.
It seems from the evidence that the parties met and commenced their relationship in Victoria. In late 2007 the applicant purchased a property at Suburb L in Tasmania and that appears to have become the parties’ primary place of residence although the applicant continued to engage in her employment in Victoria.
In about mid 2012 the applicant ceased her employment due to stress and anxiety issues. The evidence is that she was diagnosed with stress, anxiety and possibly post-traumatic stress disorder. From early 2013 until 2018 the applicant received the benefit of an income protection insurance policy. She has since returned to employment in her field with a current contract extending until … 2020.
The Issues
The applicant claims significant contributions by her from initial direct financial injections into this relationship and as the sole or, at least, overwhelmingly primary income provider during the relationship.
The applicant also argues what is colloquially known as a Kennon[1] argument in that she says that she suffered family violence during the relationship at the hands of the respondent and that this impacted on her contributions to that relationship.
[1] (1997) FLC 92-757
Specifically, the applicant seeks an award of a 40% loading to her for the more usual direct and indirect contributions by her to the relationship and a further 8% loading on account of the Kennon claim.
The applicant concedes an 8% adjustment in favour of the respondent in respect of the relevant s.90SF(3)factors.
The respondent, Mr Grigsby, concedes the superior initial financial contributions by Ms Raynes. He also concedes that she was the primary income earner during the relationship. He, however, claims significant indirect contributions by way of his labours to establishing and maintaining the property and gardens at the Suburb L property. He says he contributed to the support and care of the applicant during her period of illness and away from her employment and during her family law proceedings with her former husband. He says that he contributed to an extent financially by way of his earnings during the relationship albeit that he concedes that his income came through the applicant's trading company.
The respondent asks for an adjustment of 10% of the pool in his favour on account of the s.90SF(3) factors.
The Evidence
Both parties provided affidavits, sworn financial statements, gave evidence and were cross-examined by Counsel for the other party.
The applicant, Ms Raynes, presented as emotional but honest in the witness box and generally as having a reasonable historical recollection.
Similarly, Mr Grigsby was responsive and candid in cross-examination. He had reasonable historical recollection and presented generally as a witness of the truth.
The applicant adduced evidence from her long term general practitioner, Dr E who practices in Suburb M, Victoria. Dr E provided an affidavit sworn 11 June 2019 annexing a report to the applicant's lawyers dated 30 May 2019. She gave evidence by telephone and was briefly cross-examined.
Dr E confirms assisting the applicant for matters of stress and anxiety. Specifically at [6] of her report Dr E opines:
I think it is highly unlikely Ms Raynes will return to working in her full pre-morbid capacity. Her mental status been seriously undermined by: her relationship with Mr Grigsby; work incidents; her physical symptoms. I have encouraged, and will continue to encourage, Ms Raynes to continue to work in some capacity. However, her previous work was at an extremely high level with high levels of stress which Ms Raynes previously managed well. I don't believe she is capable of that level of work now or that she will be in the future.
During her cross-examination, Dr E confirmed, firstly, that the initial reports from Ms Raynes in respect of stress and anxiety issues were related to stresses and conflicts in her workplace. Secondly, Dr E confirms that Ms Raynes made only relatively recent complaints to her of family violence at the hands of the Mr Grigsby.
The Relevant Law
Relatively recent judicial considerations by the High Court in Stanford v Stanford[2] and soon after by the Full Court in Bevan v Bevan[3] have harmonised the course for trial judges in consideration of altering property interests of parties. Firstly, in respect of de facto relationships, the Act provides at s.90SM(1) that the Courts have a discretion:
In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property…
[2] (2012) 247 CLR 108
[3] (2013) FLC 93-545
Importantly, and following the decision in Stanford (supra), s.90SM(3) provides that the Court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to alter the parties’ property interests. The Court has emphasised that this consideration is not to be simply conflated with any claimed contributions by parties to the relationship. Nevertheless, for practical purposes and in matters such as that now before me, this consideration is a relatively easy and formal one. That is, Ms Raynes and Mr Grigsby were in a relationship of some 11 years duration. There were financial interactions and including claimed contributions. That relationship has ended. It is proper, just and equitable, in my view, that there be a consideration of the altering of their interests.
That being the case, it is well-established that it is of assistance to a trial judge to follow a ‘four-step' process as indicated some time ago in decisions of such as Hickey v Hickey[4] although not in any mandated formulaic way. Such a process addresses s.90SM(4) in causing the Court to consider firstly the makeup of the property pool and attributing value to that pool. The Court then considers the contributions of the parties to that pool. Contributions may be direct financial contributions, indirect financial contributions, or non-financial contributions including as homemaker or parent.
[4] [2003] FLC 93-143
After determining adjustments on the basis of contributions, the Court then turns to consider whether there should be any further adjustment to either of the parties by way of the relevant matters under s.90SM(4)(d-g) including the relevant factors under s.90SF(3).
Finally, it is proper for the Court to then 'stand back' so as to be satisfied that it is the orders to be made which are to be just and equitable and not just the underlying percentage division of the parties’ property[5].
[5] Russell v Russell (1999) FLC 92-877
The Property Pool
‘Property' for these purposes is to include assets, liabilities and financial resources of the parties or either of them. Superannuation is to be ‘treated’ as property for these purposes. The usual date for assessing the contents of the property pool is at the date of the hearing. Similarly, the Court is to attribute value to the items in the pool and hence a value for the pool itself and again the usual date for such valuations is the date of the hearing.
To their credit, the parties in this matter have agreed the property pool and have provided the Court with a table as follows:
Property at Street K, Suburb L, Tasmania
325,000
Motor Vehicle A
8,005
Sale proceeds of tractor (held in trust)
7,500
Furniture and contents (Applicant)
3,280
Shed contents including tools
5,500
Quad bike and spray unit & trailer
6,200
1 shipping container
1,200
Aboriginal art piece
450
Business [B]
71,532
Monies in bank account (Applicant)
24,436
Sale proceeds for kayaks
500
Motor Vehicle C (Respondent)
7,500
Furniture and contents (Respondent)
150
Tools (Respondent)
120
Caravan (Respondent)
10,000
Monies in CBA bank (Respondent)
4,650
Monies in account at Business N (Respondent)
1,400
Motorbike (Respondent)
1,000
Total
478,423
Liabilities
Amex car (Applicant)
21,061
ANZ Visa card (Applicant)
11,186
NAB Visa card (Applicant)
600
ATO arrears (Applicant)
24,000
2017/2018 Tax liability ATO (Applicant)
15,000
Westpac Flexi loan (Applicant)
30,999
Division 7A Loan Agreement to Business [B] (Applicant)
33,524
Visa card debt (Respondent)
22,000
Total
TOTAL NET ASSETS
158,370
$320,053
The parties during the relationship established a self-managed superannuation fund (SMSF). The corpus of that fund was provided primarily by the applicant from an industry fund in a quantum of $337,983. The respondent contributed from his own existing fund in a quantum of $3,484.
The parties engaged in share trading through the SMSF fund during their relationship at various levels of success. The SMSF fund has member balances currently as to the applicant of $109,283 and as to the respondent $120,117 giving a total value of $229,400.
Post separation, the applicant has contributed to her own industry fund, Super Fund D, with a current balance of $39,576.
Contributions
This was a relationship of approximately 11½ years duration. The applicant, Ms Raynes, gives unchallenged evidence that she brought into this relationship net assets and superannuation to a total value of $718,273 calculated after a property settlement with her former husband. That property pool included two pieces of real property being at Street F, Suburb G, in Victoria ($740,000) and Street H, Suburb J, Queensland ($191,750). The total mortgage liability was $252,000.
The applicant asserts that Mr Grigsby was essentially impecunious at the commencement of their relationship. She cites a bank statement with a balance of $600. She says that he brought into the relationship a liability of $26,043 in the form of a student loan and which was finalised from her funds during the relationship.
At [4] of his trial affidavit Mr Grigsby deposes:
At the time of the commencement of our relationship I took into the relationship an amount of cash, somewhere between $25,000 $50,000.
Mr Grigsby was challenged as to him having these funds at the commencement of the relationship. His evidence during the course of these proceedings has varied as to what he asserts to be his cash holdings at that time. In a previous affidavit he asserted a figure of $35,000. In his trial affidavit he says '$25,000 – $50,000'. In response to a challenge in cross-examination he said 'it's that far back that I can't remember what it was…'. Mr Grigsby was unconvincing and variable in his recollection in respect of this asserted amount. He is unable to produce any documentary evidence in respect of this asserted contribution. He does not give or adduce evidence as to the disbursement of these monies. He does not challenge the fact of his student debt or the applicant’s evidence that she satisfied that debt. On balance, I prefer the evidence of the applicant, Ms Raynes, in this respect. I find that the respondent had little in the way of savings but did enter the relationship with a debt of $26,043 such was satisfied effectively from the initial contributions of Ms Raynes.
The weight to be given these initial contributions in the course of what was not a long relationship should be viewed in respect of the property pool as it now stands. The parties agree that the net tangible assets have value of just $320,000E being less than the value of assets introduced by Ms Raynes.
Similarly, Ms Raynes brought net superannuation entitlement into the relationship of $227,983. The combined superannuation interest of the parties being primarily in their self-managed superannuation fund is just $269,000E of which $39,576 was contributed by Ms Raynes post separation to an industry fund.
The applicant continued to work through her business, Business [B], until mid 2012. Her income was substantial with the unchallenged evidence being that the gross business 'income' at times exceeded $500,000 per annum.
From 2013 until mid 2018 the applicant was in receipt of income protection insurance with the payments averaging approximately $150,000 per annum.
Between 2006 and 2011 Mr Grigsby received income from the Business [B] either in the form of consulting fees or as an employee. I am not persuaded on the evidence that he performed any actual substantive work for the company and certainly not of any substance or consistency. The suggestion is that the payments to Mr Grigsby constituted a form of income sharing through the company structure being, of course, a legitimate form of tax minimisation. The authorities suggest that this is a form of contribution made by Mr Grigsby.
A self-managed superannuation fund was established during the relationship with each of the parties being directors of the trustee company. The fund engaged in share trading. Mr Grigsby, in his evidence, claims some primary role in this respect. If so, then his efforts have been relatively unsuccessful and, I expect, were often speculative in their intent given what he says were the extraordinary variations in the value of the corpus of the fund. The simple mathematics is that the applicant introduced the corpus of the fund save and except approximately $3,500 rolled over from Mr Grigsby's personal fund. The unchallenged evidence of the applicant is that the current value of the fund is significantly less than her own contributions to it. Whilst Mr Grigsby's efforts and ambitions in respect of the fund may have been admirable, they have, as a contribution, not resulted in any real benefit to the parties. His contributions nevertheless must be seen in terms of their effort and not just their results.
In 2007 the applicant purchased a property at Suburb L in Tasmania. The title was transferred into the joint names of the parties in about 2012. It seems clear that some improvements were made to that property and, in particular, by the establishment of substantial gardens. Mr Grigsby claims a significant contribution in this respect. Ms Raynes graciously concedes some efforts put in by Mr Grigsby to this garden. She says, however, that she also assisted in the gardening and suggests that Mr Grigsby might overestimate his own contributions in circumstances where professional gardeners were employed. Mr Grigsby's cross-examination in this respect satisfies me that both parties made contributions to the gardens but in circumstances where Ms Raynes was engaged in her employment interstate, it is fair to assume that Mr Grigsby put more time into this enterprise. It is equally reasonable to conclude, however, that the monies for the establishment of these gardens came from the work and efforts of Ms Raynes. I am also satisfied that professionals were employed in the exercise.
Mr Grigsby also claims a contribution by way of his support and assistance for Ms Raynes during the period of her family law property settlement with her former husband. The parties were by then in a relationship and it is fair to assume that he was supportive but perhaps not to the extent claimed by Mr Grigsby where he suggests that he played a major role in the negotiating process.
The evidence generally in respect of Mr Grigsby’s own employment during the course of the relationship satisfies me that it was minimal and, indeed, he seems to suggest himself that he has not been gainfully and consistently employed or some 30 years.
Similarly, Mr Grigsby claims a contribution by 'managing' the applicant's properties at Street F, Suburb G, and at Street H, Suburb J. I prefer the evidence of the applicant that the properties were professionally managed and that Mr Grigsby tends to him exaggerate or embellish his contributions.
Mr Grigsby claims to have made a contribution by trading in jewellery, gold and silver during the relationship. After hearing his cross-examination, however, I am satisfied that these were enterprises which he himself suggests were a 'hobby' rather than a substantial remunerative exercise and notably were not so profitable as to bring the interest of the Australian Tax Office.
At [27)] of his affidavit, Mr Grigsby asserts particular payments to the benefit of the parties or the applicant. These must be seen in the context of him not being actively employed and that any 'income' to him was primarily by income distributions from the applicant's primary income.
Mr Grigsby claims a contribution by his care and support of the applicant when she was physically challenged following a hip operation. I have no doubt that he provided some support but, again, prefer the applicant's evidence which suggests something less than Mr Grigsby’s claimed efforts in this regard.
In mid 2012 Ms Raynes received an inheritance of $122,976. Again, the quantum of this inheritance must be seen against the quantum of the current asset pool which the parties agree has a value of approximately $320,000.
In summary, the evidence is unchallenged that the overwhelming and perhaps almost sole financial contribution to this relationship came from the applicant. It is also clear on the evidence that the parties together are now in a worse financial position than was the applicant herself at the commencement of cohabitation.
The direct financial contribution during the course of the relationship came almost solely from the applicant. Mr Grigsby's contributions were of a non-financial and homemaker type but should, of course, be given weight accordingly.
The Full court in Jabour & Jabour[6] has recently considered the historical authorities in respect of the weight to be given to uneven initial contributions against the various contributions made by parties during a relationship and post separation.
[6] [2019] FamCAFC 78
In Money & Money[7] Fogarty, J. observed:
The term 'off-setting contribution' does not necessarily mean 'greater contribution'. It simply reflects the circumstances that the respective contributions of the parties over a long period of marriage may 'offset' the significance which might otherwise be attached to a greater initial contribution by one party … The original contribution should not be carried forward as a mathematical proportion; ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is there will be later factors of significance, and in the ultimate the exercise is to weigh the original contribution with all other, later, factors, and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
[7] (1994) FLC 92-485 @ 81,054
In a later and often cited judgement, the Full Court in Pierce v Pierce[8] opined at [28]:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
[8] (1999) FLC 92-844
In respect of my comments above in relation to the success or otherwise of the share trading enterprise, the Full Court in Dickons v Dickons[9] rejected the notion that there must be some relationship between contributions and what those contributions produced. Their Honours said at [14]:
As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship are… But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial ‘product' or 'value'. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link accounts is no contribution at all.
[9] (2012) 50 Fam LR 244
Similarly, the Full Court in Singerson & Joans[10] noted:
Section 79 (4) of the Act is clear. There is nothing to suggest that any category of contributions needs to be quarantined and applied solely to particular assets. The Court is mandated to look at the totality of what the parties have contributed in a financial and non- financial sense, including contributions to the welfare of the family and to the acquisition, conservation and improvement of assets. The Court is required to evaluate the significance of all the various contributions to the property, notwithstanding there may be different categories of that property.
[10] [2014] FamCAFC 238 @ [66]
Consequently, I am required to approach the assessment of contributions holistically and consider the nature, form, and characteristics of both the current property pool and the various contributions.
This was a relationship of less than 12 years duration. I find that the applicant made an almost total financial contribution or injection into the financial position of these parties. Her direct financial contributions during the course of the relationship were similarly overwhelming and again arguably almost total. The respondent's contributions were almost entirely of a non-financial type. They must be seen in in context. He lived in a property purchased by the applicant and from her finances/income. He contributed to the improvement and maintenance of that property but so did the applicant. It was the applicant who paid for the improvements to the property. The respondent gave support both actually and emotionally to the applicant during her family law case with her former husband and during a period of incapacity. He contributed by his efforts at share trading but I am satisfied that the applicant also played a role in these speculative exercises which, of course, were not in the end financially productive. The respondent contributed by participating in the income distribution.
Counsel for the applicant in the matter now before me referred me to a decision of His Honour Justice Benjamin at first instance in Aaron & Jenkins[11]. Although, of course, his Honour's decision is not binding as authority on my consideration, it is of assistance to note that his Honour’s determination in respect of contributions in that matter was not disturbed by a subsequent Full Court. His Honour considered a factual platform of a relationship of some 12 years duration where the direct financial contributions of one of the parties were 'overwhelming' and where there was a consideration of the various non- financial and financial contributions of the parties during the relationship. His Honour altered the assets of the parties as to 95% to one party and 5% to the other on the basis of contributions. In the matter now before me, it is relatively easy and obvious to give weight to the contributions by the applicant. They are overwhelming in their financial injections into the relationship and should be acknowledged within the context of the length of the relationship and the other contributions by both parties during the relationship. The applicant, of course, also contributed in other non- financial ways. The consideration, however, in respect of Mr Grigsby's non-financial contributions must also be given weight. This was a relationship that endured more than 11 years. His contributions varied and included significant matters such as some income distribution and ‘management' of a share portfolio for the superannuation fund. All of this must be seen in the context of the current value of the property pool. As such, and taking all of those matters into account, I am of the view that to the property should be divided as to 90% to the applicant and 10% to the respondent on the basis of the s.90SM(4) contributions.
[11] [2016] FamCA 414
‘Kennon’ claim
The applicant also claims a further contribution adjustment for her on the basis of what is colloquially called a 'Kennon’ claim. She asserts that that she was the victim of family violence at the hands of the respondent on various occasions during the relationship and that this had a significant and adverse impact on her contributions to the relationship. She says that her contributions were made more arduous by reason of the family violence.
The applicant claims physical, emotional and coercive violence at the hands of the respondent. She particularises various instances of alleged violence from 2006. She says that the respondent was aggressive, overbearing and demeaning towards her thereby causing her anxiety and loss of self-confidence. The applicant deals with these matters at length and with a high degree of particularisation in her affidavit from [100] – [147]. The tenor of the applicant's evidence is that she had been a high achiever in a managerial position earning a high income but due to family violence she was, overborne, became anxious and depressed and unable to continue her high level functioning and that the respondent's behaviour impacted on her socially and in respect of her self-esteem and self-confidence.
I, of course, had the opportunity to see and hear the parties give their evidence. The applicant presented as emotional and anxious and somewhat at odds with what might be expected of a person in her previous employment roles. To the contrary, the respondent presented as assertive, self-confident to a high level, and at times dismissive, if not demeaning, of the applicant generally.
The respondent was challenged in cross-examination as to his alleged behaviour, both physically and emotionally, to the applicant during the course of their relationship. He gave his responses in a confident and assertive manner. He generally denied the assertions of violence in all its forms or that any admitted behaviour by him was violent in its intent. He gave plausible explanations to the particulars of many of the applicant’s allegations set out in her affidavit. The respondent's evidence in cross-examination was impressive in that he frequently admitted the particulars of some of the applicant's claims of physical violence but gave alternative explanations more consistent with accident or of incidents without force or intent and suggestive of a misinterpretation or misunderstanding by Ms Raynes.
There is little or no corroborative evidence to support to Ms Raynes allegations. She did not apparently make contemporaneous complaint to the police. She did not obtain contemporaneous family violence orders. She did not adduce evidence from her own medical practitioner or any other persons of contemporaneous complaint. Further, and although consulting Dr E in respect of her anxieties, she did not confide in the doctor as to Mr Grigsby's alleged assaults. Dr E says that Ms Raynes did not report any physical abuse by Mr Grigsby to her until February 2018 being well after separation. To the contrary, Dr E in her evidence concedes that Ms Raynes herself suggested her stresses/depression/anxieties were connected to workplace personality issues at the time. Ms Raynes concedes that she did endure such personality conflicts and issues at her workplace at that time.
In Kennon & Kennon[12] the relevance of family violence was explained by Fogarty and Lindenmayer JJ at 84,294 as follows:
Put shortly, our view is that there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties respective contributions within s.79 … It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions).
[12] (1997) FLC 92-757
Considerations of the relevant nexus in both Kennon (supra) and S & S[13] seem to emphasise a 'quantification' or a clear evidentiary nexus between the conduct and the impact on the parties’ contributions. However, a more recent decision of the Full Court in Keating & Keating[14] gives a more lenient interpretation of both nexus and onus. At [39] their Honours state:
This uncomfortable analogy does not illuminate what 'quantification' of the effect of violence on contributions might look like. It suggests something more than the evidence by the victim's spouse. We struggle to understand what that 'quantification’ in evidence might be beyond that given by the victim's spouse as to the incidence and effect of the violence as identified in S & S in the first two dot points at [47. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in S & S said governed the situation. Perhaps the use of the word 'quantification' is infelicitous and has unintentionally added a gloss to the ratio in Kennon when common in truth, the Court in S & S was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity ( and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the on the victims’ spouses contributions, how difficult it might be for the Court to draw inferences which will establish the evidentiary nexus…
[13] [2003] FamCA 905
[14] [2019] FamCAFC 46
At [42] the Court further noted:
It is well settled that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted. A decade ago the Full Court in Amador & Amador[15] (2009) 43 Fam LR 268 @ [79]:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children stop. We cannot accept that a Court could ever make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
[15] (2009) 43 Fam LR 268 @ [79]
Consequently, and whilst the applicant here produces no probative corroboration of her complaints and no evidence of contemporaneous complaint, in reality this might not be seen as unusual within the circumstances of family violence which in the large part takes place ‘behind closed doors'.
Nevertheless, it remains the case that a party making an assertion of fact carries an onus to prove that fact on the balance of probabilities. Certainly, it is never the case that a respondent must ‘prove innocence’. In this sense, and whilst noting the common circumstances of family violence, the applicant here does not produce any corroborative evidence. She does not adduce evidence of contemporaneous complaint. It is of some significance, that the applicant consulted her doctor as to her anxieties and stresses but gave an alternative explanation to her long-term and presumably trusted general practitioner being of a nexus to her problematic workplace situation and where the applicant herself gives evidence that these workplace issues were real, were serious, and did cause her stresses and anxiety. Further, the respondent here was relatively impressive in his evidence in respect of these allegations. He was able to make admissions as to some of the particulars alleged by the applicant but gave plausible alternative explanations for the behaviour.
Being mindful that there may be any number of causes of stresses and anxiety and whilst I am satisfied generally that the applicant suffered anxieties and stresses and that she moved from a high level of employment to activating her professional income insurance policy, I cannot be satisfied on the balance of probabilities that it was violence by the respondent perpetrated on the applicant that was the cause or a contributing cause of this situation. Consequently, there will be no adjustment to the applicant by reason of her Kennon claim.
S.90SF(3) factors
The applicant is 65 years of age. She remains in self-employment but clearly not to the extent of her previous achievements. Her current income pursuant to a contract may be as high as $195,000 per annum. However, the applicant's evidence was that this contract runs only until … 2020 and at a reduced income for its final year. By that stage she will be approaching her 67th birthday. The indication from her doctor who was unchallenged in that evidence is at [6) of her report:
I think it highly unlikely Ms Raynes will return to working in her full pre-morbid capacity. Her mental state has been seriously undermined by: her relationship with Mr Grigsby; work incidents, her physical symptoms. I have encouraged, and will continue to encourage, Ms Raynes to continue to work in some capacity. However, her previous work was at an extremely high level with high levels of stress which Ms Raynes previously managed well. I don't believe she is capable of that level of work now or that she will be in the future.
The respondent says that he has not worked significantly and productively for some 30 years. He has no current income outside of Centrelink benefits. He is 67 years of age.
The orders that I make for distribution of the assets of the parties pursuant to these orders will leave the applicant in a far superior financial position relative to the respondent but perhaps not to the extent of her ambitions prior to her relationship with the respondent. The property pool is of only limited quantum in respect of both superannuation and tangible assets. As such, any adjustment on account of s.90SF(3) factors should be considered in a 'reality' sense rather than simply on a percentage basis[16]. The applicant concedes that there should be some adjustment to the respondent and suggests 5% - 8%. The respondent himself seeks an adjustment of 10% on account of s.90SF(3) factors. On consideration, and given the limited quantum of the pool, I propose to make an adjustment in favour of the respondent of 7.5% of the property pool.
[16] Clauson & Clauson (1995) FLC 92-595
Conclusion
Consequently, after consideration of the contribution and s.90SF factors there will be an adjustment of the tangible property pool as to 82.5% to the applicant and 17.5% to the respondent. I calculate that 17.5% of a net asset pool of $320,053 is $56,009.27. The respondent has retained assets to a value of $24,820 and a visa card debt of $22,000 giving him net assets of $2,820 and the applicant must therefore settle a cash payment on him of $53,189.27.
Superannuation
It is open for the Court to consider the parties property inclusive of superannuation on a 'one pool' basis or, as is more usual, in the sense of the 'two separate pools', one being tangible assets and the other being superannuation. In this matter, however, the contributions of the parties in respect of superannuation and tangible assets are virtually the same. That is, the respondent brought in or rolled over superannuation of only approximately $3,500 whereas the applicant contributed an initial $227,983 with further injections during the course of the relationship far exceeding any superannuation contributed by the respondent. It is unlikely that either party will be further contributing to superannuation to any real extent given their ages and circumstances. Consequently, taking into account the contribution factors together with the s.90SF(3) factors, I am of the view that the self-managed superannuation fund with a balance of $229,400 should also be divided as to 82.5% to the applicant and 17.5% to the respondent. Notably, the current member balances show the applicant at $109,283 with the respondent in a slightly greater quantum of $120,117. Those member balances do not mirror the contributions by the parties and there will need to be a splitting order accordingly from the respondent's balance in favour of the applicant. I calculate that 82.5% would entitle the applicant to $189,255. She would therefore receive a split from the respondent’s balance of $79,972. Whilst this might leave the respondent with a relatively minimal superannuation balance, this must be seen in the sense of the parties ages which entitle them to crystalize their entitlements and where for all intents and purposes this superannuation fund is therefore an asset subject to all of the contributions and s.90SF(3) considerations set out above.
The applicant has contributed to an industry fund since separation in a quantum of approximately $39,500. I am not of the view that the respondent has made any contribution to this relatively small superannuation entitlement and that will remain solely the property of the applicant.
In the circumstances of the nature of this relationship, its duration, the current situations of the parties, and the contributions of them, I am satisfied that orders distributing the property to the applicant as to 82.5% and the respondent as to 17.5% are just and equitable.
I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 3 July 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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Fiduciary Duty
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Constructive Trust
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