Rivera & Rivera (No 3)
[2022] FedCFamC1F 604
Federal Circuit and Family Court of Australia
(DIVISION 1)
Rivera & Rivera (No 3) [2022] FedCFamC1F 604
File number(s): SYC 868 of 2021 Judgment of: SCHONELL J Date of judgment: 19 August 2022 Catchwords: FAMILY LAW – PROPERTY – Where the parties’ sought financial adjustment following a 23 year relationship – Where both parties were at odds in relation to the contributions and adjustments that should be made – Where the wife also sought an adjustment for family violence perpetrated by the husband – Where the wife’s contributions were found to have been made significantly more arduous because of the family violence – Where a just and equitable outcome was found to be 60 per cent to the wife and 40 per cent to the husband.
FAMILY LAW – INJUNCTIONS – Where the wife sought an injunction against the husband for her personal protection under s 114(1)(a) of the Family Law Act 1975 (Cth) – Where a prima facie claim was established – Where there are Local Court orders currently in place – Where there was difficulty in assessing the prejudice occasioned and whether the injunction is necessary – Where the wife did not discharge the onus of establishing that the order for an injunction is proper – No order for an injunction made.
Legislation: Family Law Act 1975 (Cth) ss 75, 79, 114
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.01, 7.04
Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon & Kennon (1997) FLC 92-757; [1997] FamCA 27
1 Sieling & Sieling (1979) FLC 90-627; [1979] FamCA 23
Singerson & Joans [2014] FamCAFC 238
Spagnardi & Spagnardi [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Williams & Williams [2007] FamCA 313
Division: Division 1 First Instance Number of paragraphs: 134 Date of hearing: 8 – 9 August 2022 Place: Sydney Solicitor for the Applicant: Finn Roache Lawyers Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: KF Lawyers ORDERS
SYC 868 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RIVERA
Applicant
AND: MS RIVERA
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
19 august 2022
THE COURT ORDERS THAT:
1.All existing orders with the exception of parenting orders made 22 February 2022 and Orders 9, 10 and 12 made 12 May 2021
2022be discharged.2.The parties are to do all acts and things and sign all documents necessary to instruct the appointed solicitor or conveyancer acting on behalf of the parties to apply the proceeds of sale of the property at N Street, Suburb C, New South Wales, in the following manner and priority:
(a)in payment of all costs of sale;
(b)in payment of real estate agent's commission and expenses;
(c)in payment of any adjustments necessary on settlement;
(d)in discharge of:
(i)Westpac mortgage No…07
(ii)Westpac mortgage No...46; and
(iii)Westpac mortgage No...38
Being mortgages secured over the Suburb D, Suburb B and Suburb C properties;
(e)the balance of the proceeds of sale be paid as to 60 per cent to the wife and 40 per cent to the husband;
(f)from the wife’s share there be paid to the husband the sum of $40,884.40.
3.The parties do all acts and things and sign all documents necessary to transfer to the wife Westpac bank account numbers ending in the last 2 digits …76, …03 and …30 together with the O Bank account ending in …25.
4.The parties do all acts and things and sign all documents necessary to transfer to the wife or her nominee the Motor Vehicle 1 with the registration number … together with all keys, registration and insurance papers.
5.The parties are to forthwith do all acts and things and sign all documents necessary to immediately list for sale the properties at Q Street, Suburb B (“the Suburb B property”) and R Street, Suburb D (“the Suburb D property”) for sale by public auction and for that purpose the following shall apply:
(a)both properties shall be listed with such real estate agents as is agreed between the husband and wife and failing agreement as nominated by the President of the Real Estate Institute of New South Wales;
(b)the husband and wife will co-operate in every way with the real estate agent in relation to the marketing of the Suburb D property and the Suburb B property including making the key available, allowing inspection of the properties at all times requested by the agent and ensuring that the properties are clean, neat and tidy and in good order;
(c)the parties will do all acts and things and sign all documents necessary to instruct a solicitor or conveyancer as agreed upon between them to act on the sale of the properties and failing agreement as nominated by the President of the Law Society of New South Wales;
(d)the husband and wife will do all acts and things and sign all documents necessary to agree upon the reserve price of the properties and failing agreement the reserve price shall be as nominated by Mr K, valuer, with the parties to meet equally the costs of Mr K in determining the reserve price of the auction.
(e)In the event that the properties or one of them do not meet the reserve price at the auction the parties are to negotiate with the highest bidders or any other interested person and effect a sale of the properties at a price which is not more than 5 per cent below the reserve price.
(f)If the properties or one of them remains unsold at the auction then in the absence of agreement they shall be put to successive auctions not more than 8 weeks apart until sold with the reserve price at each successive auction to be 5 % less than the reserve price at the prior auction.
6.Upon sale of the properties, the proceeds of sale shall be applied in the following manner and priority:
(a)pay any agent's commission, advertising and marketing costs referable to the sale;
(b)discharge any outstanding mortgage (if any);
(c)in payment in adjustment of any adjustments on settlement;
(d)to pay to the trust account of Finn Roache solicitors the sum of $200,000 to pay the capital gains tax payable by the parties on the proceeds of sale of the Suburb C and Suburb B properties; and
(e)the balance as to 60 per cent to the wife and 40 per cent to the husband.
7.The parties do all acts and things and sign all documents necessary to direct Finn Roache solicitors to apply the funds held in their trust account pursuant to Order 6(d) to the payment of the capital gains tax of the husband and wife referable to the proceeds of sale of the Suburb C and Suburb B properties upon receipt of notices of assessment confirming such payment and apply any surplus after payment of the capital gains tax be paid as to 60 per cent to the wife and 40 per cent to the husband .
8.That all extant applications be dismissed.
the Court Notes that:
A.These orders have been amended pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rivera & Rivera has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings for financial adjustment following a 23 year relationship. Unfortunately, the relationship was marred, according to the respondent wife (“the wife”), by significant family violence that has led to the applicant husband (“the husband”) being ostracised from the children. The issue of family violence was one that consumed a significant part of the wife’s affidavit material but its materiality in financial terms is reflected in the wife’s submissions that there should be an adjustment of two per cent in her favour, arising in accordance with the principles said to emanate from the Full Court’s decision in Kennon & Kennon (1997) FLC 92-757 (“Kennon”).
The husband submitted that the party’s contributions were in the proportions as to 51 per cent to the wife and 49 per cent to the husband. The differential was said to reflect the wife’s initial contribution of a property at Suburb B (“the Suburb B property”). His solicitor suggested that an adjustment of between 1–2 per cent for matters under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) because of the age differential of the parties was appropriate, such that overall the parties’ property should be divided as to 52–53 per cent in favour of the wife.
The wife for her part contends that the overall entitlements should be divided as to 70 per cent to the wife and 30 per cent to the husband. In that respect, her counsel submitted that contributions should be found to be 60 per cent in the wife’s favour with a 10 per cent adjustment under s 75(2), which included a two per cent adjustment that was in the following terms:
… the Wife submits that there should be a further 02% adjustment to her as a result of satisfying the Kennon threshold, resulting in orders that give the Wife 70% and the Husband 30% of the net assets.
(Wife’s Case Outline filed 3 August 2022, p.21)
The wife sought the transfer of the home at Suburb D (“the Suburb D property”) to her, which she said would achieve a 70 per cent split. Her counsel submitted that if the outcome was not 70 per cent, then that property and the Suburb B property should be sold. The husband was agreeable to a sale of both properties.
The parties agreed to a transfer of the Motor Vehicle 1 to the wife or her nominee.
The property at Suburb C (“the Suburb C property”) has been sold and the parties agree that orders should be made that from the proceeds of sale, all outstanding mortgages secured over all of the properties should be discharged.
The parties agree that an amount equal to the estimated capital gains tax for the Suburb B and Suburb C properties should be held in the husband’s solicitors trust account, and that the balance should be divided in accordance with the percentage findings.
In my view, neither percentage position represents a just and equitable outcome. I am of the view that the parties’ property should be divided as to 60 per cent to the wife and 40 per cent to the husband. I set out my reasons below.
The husband relied upon the following documents:
(1)Further Amended Initiating Application filed 2 June 2022;
(2)Affidavit of husband filed 22 July 2022;
(3)Affidavit of husband filed 28 July 2022;
(4)Financial Statement of husband filed 21 July 2022;
(5)Affidavit of Ms S filed 28 July 2022; and
(6)Case Outline document.
The wife relied upon the following documents:
(1)Amended Response filed 14 June 2022;
(2)Affidavit of wife filed 26 July 2022;
(3)Financial Statement of wife filed 26 July 2022;
(4)Affidavit of Ms T filed 28 June 2022;
(5)Affidavit of Ms L filed 27 July 2022;
(6)Affidavit of X filed 27 July 2022;
(7)Affidavit of Mr U filed 27 July 2022;
(8)Affidavit of Ms V filed 27 July 2022;
(9)Affidavit of Ms W filed 27 July 2022;
(10)Affidavit of single expert Mr K filed 31 January 2022; and
(11)Case Outline document.
The husband sought to rely upon an affidavit of Dr AA filed 5 August 2022. It was said that the medical report attached to the affidavit had been served on the wife on 3 August 2022.
After hearing submissions from each party, I did not permit the husband to rely upon the affidavit and indicated that I would provide reasons for doing so in my judgment.
On 6 May 2022, the matter was set down for hearing for three days commencing 8 August 2022. The Court made directions that each party was to file the evidence on which they intended to rely upon by 17 June 2022. The matter was listed for further mention on 25 July 2022, where the time for filing of the wife’s evidence was extended.
The affidavit of Dr AA was filed well outside the time provided for the filing of evidence. No proper explanation was provided as to why it was that the husband chose not to comply with orders that were made on two occasions. Nor was a proper explanation provided as to why the husband did not file an application seeking leave to adduce evidence from another expert pursuant to r 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). It is not appropriate for parties to just elect to not comply with orders for the filing of affidavits and to then approach the Court on the assumption that the Court should, in the face of such conduct, permit a party to ignore entirely the Rules of Court. Practitioners and parties are bound by the Rules and the Court expects the parties to comply with them.
The wife opposed the husband’s reliance upon the report of Dr AA.
The husband initially submitted that the report of Dr AA was not expert evidence but rather evidence of a treating practitioner. With the greatest of respect, that is not correct. If it is evidence of the husband’s treating medical practitioner, then it remains expert evidence. The question is whether it is evidence that would be permitted as an exception to the single expert rules pursuant to r 7.01.
Rule 7.01 is in the following terms:
7.01 Application of Part 7.1
(1) This Part (other than rule 7.14) does not apply to any of the following:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;
(b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence:
(i) about that expert’s involvement with a party, child or subject matter of a proceeding; and
(ii) describing the reasons for the expert’s involvement and the results of that involvement;
(c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a proceeding for a purpose other than the giving of advice or evidence, or the preparation of a report for a proceeding or anticipated proceeding, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;
(d) evidence from a family consultant employed by the Federal Circuit and Family Court or the Family Court of a State.
Example: An example of evidence excluded from the requirements of this Part (other than rule 7.14) is evidence from a treating doctor or a teacher in relation to the doctor’s or teacher’s involvement with a party or child.
(2) Nothing in this Part prevents an independent children’s lawyer communicating with a single expert witness.
Dr AA gives evidence of the husband’s working capacity and the number of hours per week that he can work. It is not immediately apparent what the doctor’s expertise is that would permit him to express such an opinion. It is clear that Dr AA’s report extends well beyond what would be permissible by the terms of r 7.01(1)(a). It is clear that Dr AA has been retained for the purposes of providing expert evidence on behalf of the husband within the terms of r 7.04. There is no explanation as to why the solicitors for the husband have chosen not to adopt the procedure under the Rules for the appointment of a single expert. The husband has been on notice since 6 May 2022 of the hearing dates. The husband has chosen to ignore directions of the Court. It is for those reasons that I declined to permit the husband to rely upon the report of Dr AA.
Background Facts
The husband was born in 1970 in Country E and is presently 52 years of age. The wife was born in 1963 in Country E and is currently 59 years of age. The wife gives evidence that she arrived in Australia in or about 1984. The parties met in Country F in or about early 1998 and were married in 1998 in Country F.
On 4 April 1999, the husband migrated to Australia, according to the wife, under a temporary marriage visa. The parties commenced cohabitation as at that date.
There are four children of the parties’ marriage: Ms L born in 2001, X born in 2003, Y born in 2005, and Z born in 2006.
There are two children of the marriage who are currently under the age of 18. Y is in Year 12 at school and will turn 18 next year, whilst Z is in Year 10 and aged 15. All four children currently live with the wife.
The parties separated on 9 January 2021 and final parenting orders have been made. Those orders provide that the children live with the wife, that she have sole parental responsibility, and that the children spend time with the husband in accordance with their wishes.
At the commencement of cohabitation, the wife contends that the husband had no assets and could not speak English.
The husband contends that at the commencement of cohabitation, he had cash savings, of US$15,000. The husband contends that upon arrival in Australia he gave this money to the wife. The husband also says that he gave the wife some gold jewellery. This is denied by the wife.
The husband also says that he owed US$7,000 to his brother.
The husband was cross-examined by the wife’s counsel about what was said to be an inconsistency in the husband’s evidence about borrowing money from his brother in circumstances where he had money available to him. It was suggested to him that his evidence that he provided the wife with money was false, and that it was illogical to suggest that one would borrow money if one had money available. The husband’s response was, in essence, that there was a difference between borrowing money from his brother as opposed to having money that he could give to the wife for his start in Australia.
I accept the husband’s evidence that he provided to the wife US$15,000 at the commencement of cohabitation. I note, however, that he also owed his brother US$7,000, which was then repaid subsequent to cohabitation. On balance, therefore, the husband’s initial contribution was something in the order of US$8,000.
The husband also gave evidence that in or about December 2004, he received from his brother, Mr BB, net proceeds of sale of a property owned by his family in Country E. He says that he received $17,305 and that he gave the money to the wife. The husband was not challenged on this proposition in cross-examination.
For the wife’s part, at the commencement of cohabitation, she owned the Suburb B property. She says that in mid-1995, she purchased the property for $124,420. She contends that approximately six months after the husband’s arrival in Australia the mortgage balance was $34,684. She was not cross-examined about this evidence. In addition, the wife says she had a car valued at $5,000, superannuation of approximately $65,000, bank savings of $20,000, and furniture and household effects of approximately $10,000.
The wife’s assets were greater than the husband’s at the commencement of cohabitation. The wife’s initial contribution of the Suburb B property was a significant contribution to the parties’ finances over the course of the relationship. That property was, it would appear, tenanted throughout the course of the parties’ relationship.
In late 1999, the parties purchased a property at Suburb DD (“the Suburb DD property”). The wife contends, and I accept this, that the property was purchased by the parties as joint tenants, that the mortgage secured over the Suburb B property was varied, and that the wife drew on the equity to enable the purchase of the Suburb DD property. The wife referenced a letter of loan variation from Westpac Bank dated 20 September 1999 in relation to the re-finance of the Suburb DD property.
The wife gives evidence, and I accept, that on 28 March 2002, she paid “$30,000 from my non-compulsory superannuation to the Westpac Account ending […41] secured over the [Suburb DD] property” (wife’s affidavit, paragraph 239). The wife says the following:
241. Once all my leave entitlements and non-compulsory superannuation were paid towards the mortgage secured over the [Suburb DD property], I resigned from my job to look after our first child [Ms L].
The parties agree that the wife thereafter did not work in employment until approximately 2015. It appears undisputed in the proceedings that the wife remained at home working on a non-remunerated basis in the husband’s business as well as looking after the children.
I am satisfied that the wife was the primary homemaker and parent. The husband conceded as much during the course of his cross-examination when he was asked to agree that the wife did the majority of work in caring for the children. He conceded in cross-examination that it was “around 60 per cent”.
I also accept that the wife’s role in that respect was significant in circumstances where X was diagnosed with autism spectrum disorder and global developmental delay at the age of three. Likewise, Ms L was diagnosed with anxiety and attention deficit hyperactivity disorder, and I accept the evidence of the wife that these medical conditions imposed an additional burden on her caregiving role in relation to all four children.
I accept as well that the husband made a contribution when he was not working, both as a homemaker but also as a parent. I find, however, that it was the wife’s contribution as a homemaker and parent that was more substantial than that of the husband’s.
Renovations were undertaken to the Suburb B and Suburb C properties by each of the parties during the course of the relationship. I accept that the husband was the one who undertook the major contribution in that respect.
During the course of the relationship, the husband was in full-time employment and his evidence was not challenged about his contributions of his income to the parties’ living expenses. In circumstances where the wife was not otherwise in employment, then it was clearly the husband’s income that provided the necessary finances to meet the living expenses of the parties and the children.
The wife says that in mid-2001, the Suburb B property was used again as security for the purchase of the Suburb C property. The wife gives evidence that it was she who managed the Suburb B property from the time of its purchase, and that the rental income was applied towards the mortgage as well as the various expenses over the home. The wife gives evidence that the Suburb C property was also leased to tenants during the course of the parties’ relationship. I accept the wife’s evidence.
In early 2005, the parties purchased the Suburb D property, which became the former matrimonial home. The Suburb DD property was sold and the net proceeds were applied towards the purchase of the Suburb D property. The wife gives evidence that again the Suburb B property was used as security for the purchase of the Suburb D property. I accept the wife’s evidence.
In 2008, the parties demolished the then existing home on the Suburb D property and built a new home. It is clear that the parties did not hire a builder. The wife contends that it was she who was registered as the owner-builder. The husband does not dispute this. The parties were at issue about the respective contributions of each of the parties towards the building. The husband concedes that the wife attended the property most days. The wife did not cross-examine the husband on the work that the husband did on the property but rather sought in the course of his cross-examination to reinforce the work that she did.
I accept that both parties contributed to the building of the new home but that it was the husband who made the more substantial contribution to the construction of the Suburb D property.
The husband says that from about 2003 he started working as a sole trader until April 2004 when the company G Pty Ltd was incorporated. The husband was the sole director and shareholder of this company. The wife was appointed as the secretary. This company was then used for the purposes of the husband’s employment over the course of the parties’ relationship and subsequent separation. The husband gives evidence that he undertook contract work for EE Company for approximately eight years and otherwise took on private jobs and subcontracted for various companies. The husband gave detailed evidence of his role in relation to the company as well as the role of the wife. The husband was not challenged in relation to his evidence about the respective roles of each of the parties in the company. I accept the husband’s evidence.
The parties separated on or about 9 January 2021, when the wife and the children left the former matrimonial home.
In early 2021, the husband gives evidence that he learnt that the wife had withdrawn the sum of $158,460 from the parties’ joint accounts by drawing in part on the equity over the various loans. It was a highly inflammatory act and no doubt contributed significantly to the huge level of distrust in the proceedings. This amount has been added back.
The wife says that she and the children left the home in fear, and subsequently proceedings were brought in the Local Court by the police on behalf of the wife seeking orders. The husband was charged with stalk and intimidate with intent to cause physical harm to the wife. The husband indicated that he has pleaded not guilty to those charges. Those proceedings remain pending in the Local Court and will not be determined on a final basis until early 2023.
An exclusive occupation order was made on 12 May 2021 in favour of the wife, whereupon the wife and children returned to the former matrimonial home. The wife, children and witnesses called in the wife’s case give evidence of what could only be described as an appalling state of the home upon their return. I accept their evidence. There is no proper explanation provided by the husband as to why the home was left in such poor condition.
Thereafter, the wife and the children have remained in occupation of the former matrimonial home. The husband’s evidence is that in the period post-separation the parties agreed to a drawdown of $100,000 over the Suburb D property loan. Of that amount, the wife received $30,000 and the husband received $70,000. This amount has been added back.
The parties were at issue in relation to Motor Vehicle 2 that was re-possessed by CC Pty Ltd. The state of the evidence and the limited cross-examination upon it is insufficient to draw the conclusion that the wife invites, namely, that the husband, in breach of an order, in some way or other encouraged CC Pty Ltd to re-possess the vehicle. The wife contended that there were conversations between the husband and CC Pty Ltd that would lead to that conclusion. The wife has chosen not to issue a subpoena to CC Pty Ltd to substantiate her assertions in any way. I am simply unable to conclude that the wife has made a case that the husband breached an order in relation to the Motor Vehicle 2. It is not in dispute that the husband received the proceeds of sale of $52,000, which has been added back.
An order was made that the husband not dispose of a Motor Vehicle 1. In breach of that order the husband disposed of the vehicle and received the proceeds of sale of $15,000. This has been added back.
Post May 2021, the wife has remained in occupation of the Suburb D property. The husband has paid half the mortgage instalments on that home.
In relation to the Suburb B property, the wife has since separation been in receipt of the rental income from that property and met the expenses in relation to it. For a period of time, the husband also made the mortgage instalments on this property.
In relation to the Suburb C property, the outgoings for the property are paid directly from the rent, and the balance after the rent is divided equally between the parties. The husband says that he is meeting the loan repayments on the property. This property has been sold and awaits settlement.
The husband says that in mid-2021, he made an application to the Child Support Agency to pay child support for Z and Y. The husband gives the following evidence:
396.On about 23 December 2021 the CSA wrote to me advising that they accepted my application. On the same date, 23 December 2021, the CSA wrote to me advising me that my application for child support had ended because [Ms Rivera] had successfully applied to end my assessment. Copies of the letters are at pages 374 to 375.
397.I have discovered from [Ms Rivera’s] affidavits filed in these proceedings that she applied for the exemption to be able to receive Family Tax Benefit A. A copy of a letter from Services Australia to [Ms Rivera] regarding this provided by way of disclosure is at page 376.
398.[Ms Rivera] subsequently made an application to the Court for lump sum child maintenance in the sum of $50,000.00. [In mid-2022], [Ms Rivera] abandoned her application for lump sum child support during the course of the hearing of the application.
399.Despite not having paid child support, I have made payments towards each of the properties as set out in paragraphs 339, 345 and 360 above.
The circumstances in which the wife withdrew her application for child support are unclear to me as is why she did not reapply. The fact remains, however, that the wife has been the one who has been supporting the children in the period post-separation.
Family Violence
The wife contended that she and the children had, in the course of the parties’ relationship, been subjected to family violence. In her affidavit, she particularised the family violence with the following introductory words:
97. Over several years, [Mr Rivera] subjected myself and my daughters to family violence and abuse in many ways. The following is a list of non-exhaustive examples of [Mr Rivera 's] family violence:
…
The wife then set out in 31 sub-paragraphs a series of allegations of family violence taking the form of threats and intimidation, including an attempt to throw a glass bottle at her, threats to hit her and cause her harm saying words to the effect “I want to hit you and I will”, “I will break your teeth” and “[y]ou don't deserve respect” (wife’s affidavit, paragraph 97(e)). She says that the husband threatened to kill her if she stepped a foot outside of the house. She says, “I was very frightened for my life and mostly for the lives and safety of my daughters” (wife’s affidavit, paragraph 97(f)).
The wife contends that the husband was financially controlling and that she had to maintain receipts for everything that she spent. She says that if she did not provide receipts the husband would yell at her. She says that the husband would erupt into fits of rage if something did not go his way, which involved excessive yelling. She says that the husband would do this in front of her daughters at least three times per week to cause them to be upset, which in turn hurt her. She says the father would describe how he would kill himself if she did not comply with his demands. She says that he would threaten to kill himself, blame it on her, and make the children hate her for it. She says that the husband regularly caused her public embarrassment and insulted her saying that she was a lesbian and that she was terrible. She says that the husband prevented her from having friends or going to see her family. She says that if she wanted to go out with a friend, the husband would say to her “[o]h, so you’re a lesbian now” (wife’s affidavit, paragraph 97(t)). She says he then became aggressive at the thought of her going out so that she stayed at home fearing that his aggression would get worse. She says that the husband regularly intimidated her and threatened to harm her if she did not do what he said. She says that the husband’s insulting comments caused her humiliation and embarrassment.
The wife’s allegations are in their entirety denied by the husband. The wife’s counsel cross-examined the husband about the allegations and, consistent with his case, he denied any conduct of the type described by the wife. Curiously, notwithstanding the joinder of the issue by the denial, there was no testing by the husband’s solicitor of the wife’s allegations.
The wife’s allegations are said by her counsel to be relevant to that part of the adjustment under s 75(2) of the Act that attracts the obiter comments of the Full Court in Kennon. The adjustment arising as a consequence of allegations of family violence was addressed by their Honours in Kennon at 84-294 to the following effect:
Put shortly, our view is that where 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. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
Further, at 84-294–84-295, their Honours said:
It is essential to bear in mind that 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 (as in Ferguson) conduct relating to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). …
In the course of submissions, the husband’s solicitor contended firstly that the Court would reject the wife’s evidence of violence, and secondly that there was no evidence that the wife's contributions were made more arduous or onerous by the allegations of violence.
The husband’s solicitor sought to address the circumstances of the party’s separation to suggest that the wife and children did not ‘flee’ the home. Much of the cross-examination of the wife was directed to the circumstances of separation. A video was played to suggest that the wife and children did not ‘flee’ the home in fear. The difficulty with the video is that there is no sound and much of the time one or other of the parties is off camera. I am not convinced that the video and the cross-examination established that the wife and children were not fearful of the husband or that the incident with a beer bottle did not occur. While I accept that the wife was planning to leave the husband, that does not mean that her allegations of family violence are to be rejected.
I do not accept the submissions as advanced by the husband’s solicitor.
I found neither party to be impressive witnesses. They were both tangential and did not answer simple questions being directed to them. Whilst the husband was combative and argumentative, the wife used much of her cross-examination to inform the Court in as many ways as possible the distain for which she held her former husband.
Whilst I found the wife to be an unimpressive witness in the manner in which she gave her evidence, that does not mean that I reject her evidence of what she says happened during the course of the relationship. Despite answering questions in a florid way, it does not detract from the evidence that the wife gave of, over a period of time, being subjected to quite appalling conduct by the husband. I am comforted in coming to the conclusion that I accept her evidence of family violence as against the husband’s denials by having regard to the evidence of their daughter, X, who was required for the purposes of cross-examination on her affidavit.
In her affidavit, X said the following:
8.I have not spoken to [Mr Rivera] since around 9 January 2021, when he attempted to throw a glass bottle to the back of [Ms Rivera’s] head when she was walking away from him.
9.After this incident, my sisters, mother [Ms Rivera] and I quickly packed a few items and left our home in [Suburb D] for our safety.
10.I will never forget the haunting words [Mr Rivera] said on this date, and on many other earlier occasions before the incident. [Mr Rivera] often said words to the effect of “I will get revenge and I will hunt you down and not leave you alone. I will make you kiss my feet and beg me for mercy”.
11.[Mr Rivera] began saying words like this more often from around early 2020.
12.For several years while [Mr Rivera] resided with us, I recall [Mr Rivera] was regularly yelling at mum and threatening to harm her when he got angry. I recall [Mr Rivera] would say words to the effect of “I want to hit you. I can and I will”, and “I will break your teeth”. When I heard these words, I did not know what to do to protect mum. I was frightened of making the situation worse
13.When [Mr Rivera] would get into this angry state, [Ms Rivera] would encourage me and my sisters to leave the house and allow everyone to calm down. When she directed us to leave the house, [Mr Rivera] threatened to kill us all. He would say words to the effect of “If any of you step one foot outside this house, I will kill you. I will end you right here, and right now”. I was frightened, scared and frozen when [Mr Rivera] behaved this way. I felt trapped in a prison.
14.While [Mr Rivera] was living with us, I also recall him yelling and screaming at mum if she did not provide a receipt for money she spent on groceries or other items for the house. Mum maintained a strict budget for our household so that we lived within our means. I am aware of this because mum told my sisters and I how to manage money so that my sisters and I make the right choices when we live on our own.
15.[Ms Rivera] would routinely withdraw cash from the ATM and purchase groceries or pay for bills with that cash when at the shops. When she returned home, I recall mum would have to justify what she spent with [Mr Rivera] by showing him receipts, items purchased and the amount of cash left over. This often resulted in a lot of yelling from [Mr Rivera] at mum. I felt helpless in the situation.
16.Despite the trauma counselling I have completed, I still have nightmares about [Mr Rivera's] abuse, harassment, threats, humiliation, stalking and intimidation towards me, my sisters, and mum.
…
20.While [Mr Rivera] was residing with [Ms Rivera], my sisters and I, [Mr Rivera] would regularly make fun of me and put me down because of my Autism Spectrum Disorder. For example, [Mr Rivera] would tell me that I am “too retarded” to be able to drive. I felt that [Mr Rivera] got frustrated and angry at me very easily, and that I was treading on eggshells. If he was not yelling at, insulting or threatening me, I recall that [Mr Rivera] spoke to me in very condescending ways. He made me feel like I was worthless, a disappointment and that I was incapable of achieving anything.
(As per the original)
None of these paragraphs were the subject of any cross-examination by the husband’s solicitor. I accept the evidence of X, notwithstanding cross-examination by the husband’s solicitor that she and her father exchanged “friendly” text messages. Her evidence corroborates the assertions of the wife of quite appalling conduct by the husband directed to the wife.
In Keating & Keating (2019) FLC 93-894, their Honours in the Full Court observed in regard to both the Full Court decision in Kennon as well as the Full Court decision in Spagnardi & Spagnardi [2003] FamCA 905 as follows:
39.… the Court in Spagnardi 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 victim spouse's contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). …
40.In any event, the primary judge gave no consideration to the inferences that might properly be drawn from the wife’s albeit limited evidence as to the effect on her of the husband's violence taken in conjunction with her evidence of the severity of the violence...
The Full Court directs that the necessary nexus between the alleged conduct and the contributions being made significantly more arduous can be established either by direct evidence or by inference. As their Honours in the Full Court in Britt & Britt (2017) FLC 93-764 observed:
74.The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
In Benson & Drury (2020) FLC 93-998 (“Benson & Drury”), the Full Court observed as follows:
50.… An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278 per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–307 per [Country F] CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
In relation to the evidentiary nexus, the wife gives the following evidence:
97. …
f. During an occasion in around 2020 when [Mr Rivera] tried to hurt me, and then threatened to harm my daughters, I told my daughters to leave the house for their protection and to allow everyone to calm down. When I did this, [Mr Rivera] threatened to kill us all if we stepped a foot outside of the house. I was very frightened for my life and mostly for the lives and safety of my daughters.
…
k. [Mr Rivera] would unexpectedly erupt into fits of rage if something did not go his way. His rage would be taken out on me with excessive yelling. [Mr Rivera] would do this in front of my daughters at least three times per week to cause them to be upset and, in turn, hurt me. [Mr Rivera] would say words to the effect of “I do this to burn your heart”. [Mr Rivera] also hit himself several times in front of my daughters and myself when we did not comply or give in to his demands.
…
u. [Mr Rivera] regularly intimidated myself and my daughters by threatening to harm us, or take away our personal possessions if we did not do what we were told.
…
aa. [Mr Rivera] insulted the appearance of myself and my daughters on regular occasions. For example, he called my daughters “the daughters of poo” (referring to me). He also frequently told my daughters that I am an “evil bitch” and many other denigrating names. [Mr Rivera’s] insulting comments of me and my daughters also occurred in public settings causing humiliation and embarrassment.
98.… Each day living with [Mr Rivera] in the same home made me feel like I was walking on eggshells.
99.… I have been suffering for a long time and I am now so frightened of him that my body shakes when I talk about him. I have been getting professional help to manage my trauma. The only thing that keeps me strong right now is looking after my daughters and trying to protect them from this situation.
100. In around [mid-2020], [Dr FF] referred me to [P Psychologists]. I commenced seeing registered psychologist [Ms GG] since around this time due to my depression and anxiety symptoms as a result of relationship difficulties with [Mr Rivera]. During my sessions with [Ms GG], I explained the abuse that myself and our daughters have been exposed to at the hand of [Mr Rivera].
It must firstly be observed that this evidence was not the subject of any challenge. The issue is whether this evidence is a sufficient nexus to the wife’s contributions being made significantly more arduous. In Benson & Drury, the Full Court observed:
18.We pause to note that although sometimes, in the context of the Kennon argument, words such as “adverse impact”; “more arduous” or “more onerous” are used, the guideline requires the conduct of one party to have had a significant adverse effect on the contributions of the other or to have had made that party’s contributions significantly more arduous than they ought have been. The conduct has to have had a discernible impact upon the contributions of the other party (Kennon at 906).
(Emphasis in original)
I am satisfied that I am able to infer from the evidence the necessary nexus. It is reasonable to infer that a party who lives in a situation where they feel that they are walking on eggshells, are intimidated, fearful, embarrassed and humiliated is sufficient to create a situation where that party’s contributions are made significantly more arduous than they would otherwise be, absent such conduct.
I accept the wife’s evidence that she was the subject of family violence as particularised by her in her affidavit. I accept that her contributions in the period identified were made ‘significantly more arduous’ by being intimidated, humiliated and fearful of the husband.
Approach to Property Proceedings
The approach to be adopted in a financial adjustment case under s 79 of the Act is to follow the well-recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143). Following such an approach, the Court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the Court assesses the contributions of the parties within the meaning of s 79(4) of the Act and determines a contribution based entitlement. Thirdly, the Court identifies the relevant matters under s 75(2) and determines such adjustment as is necessary to the contribution based entitlement. Finally, the Court considers the effect of the findings and must then determine whether the order as proposed is in all the circumstances just and equitable.
Whilst no submission was made consistent with the ratio arising out of the High Court’s determination in Stanford v Stanford (2012) 247 CLR 108, I am of the view that it is just and equitable that an order be made adjusting the property interests of the parties. The parties are no longer living together and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation and both parties sought that there be an adjustive order.
Balance Sheet
The parties’ assets and liabilities were captured in a document, which became Exhibit 2 in the proceedings. By the time of submissions, it revealed the following:
Ownership Description Applicants value Respondents value ASSETS 1 J R Street, Suburb D NSW $1,685,000 $1,685,000 2 J N Street, Suburb C NSW $740,000 $740,000 3 W Q Street, Suburb B NSW $700,000 $700,000 4 J Westpac Bank Savings account ending …76 $3,653 E$3,653 5 J Westpac Bank Savings account ending in …03 $149 $149
6 J Westpac Bank Savings account ending …30 $0 $0 7 W ANZ Bank Savings account ending in …05 $0 $0 8 W NAB Bank Savings account ending in …67 $0 $0 9 W NAB Bank Savings account ending in …89 $0 $0 10 W CBA account ending in …05 $0 $0 11 J O Bank account ending in …25 – $1.00 $1.00 12 W Insurance payout from finance regarding motor vehicle – incident 30 May 2022 $12,051 $0
13 W Household contents, furniture and appliances $6,600 $6,600 14 H G Pty Ltd (inclusive of Motor Vehicle 3, stock, materials, equipment, tools). $0 $0 15 H CBA Business Transaction Account ending …39 $0 $0 16 H Westpac Bank Savings account ending in …65 $0 $0 17 H Westpac Bank Savings account ending in …11 $0 $0 18 H Motor Vehicle 1 (Ms L's Car) $21,150.00 E$18,000 Total $3,168,604 E$ 3,153,403 ADDBACKS 19 H Household furniture, appliances and contents taken by Husband from Suburb D Property mid-2021 $0 $0 20 H Sale proceeds from Motor Vehicle 2 mid-2021 $52,000 $52,000 21 H Withdrawal from account ending …65 on 26 August 2021 $0 $0 22 H Withdrawal from account ending in …11 26 August 2021 $0 $0 23 H Withdrawals from CBA business account ending in …88 on 15/11/2021, 13/11/2021, 11/12/2021 and 30/12/2021 $0 $0 24 H Withdrawals from CBA business account ending in …89 on 09/06/2021, 20/07/2021 and 21/07/2021 $0 $0 25 H Motor Vehicle 4 (X’s car) … $15,000.00 $18,000 26 H Add back $70,000 as per orders of 12 May 21 $70,000.00 $70,000 27 W Add back $188,000 ($158,000 withdrawn) and $30,000 as per orders 12 May 21 $188,000.00 $188,000
28 W Funds withdrawn by Wife and retained by her in Cash. $520,418.00 NIL
Total $845,418 E$328,000 LIABILITIES 29 J Westpac mortgage secured over Suburb D Property (account ending …07) $245,412 $245,412 30 J Westpac mortgage secured over Suburb B Property …#46 $187,273 $187,273 31 J Westpac mortgage secured over Suburb C Property …#38 $172,945 $172,945 32 J Estimated Capital Gains Tax for sale of Suburb C Property for Applicant and Respondent each estimated Gain $48,947 E$97,894 E$97,894 33 J Estimated Capital Gains Tax for sale of Suburb B Property E$99,288 E$99,288 34 H Centrelink debt for family payments during relationship NIL
NIL 35 W Personal Loans from Mr U 0 0 36 W Personal Loan from Ms T 0 $12,295 37 W KK School Outstanding Statement of Account $0 $0 Total $802,812 E$815,107 SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 38 W Superannuation Fund 1 Accumulation $169,464 $169,464 39 H Superannuation Fund 2 Accumulation $54,203.88 $54,204
(See Notes)Total $223,667.88 $223,668
The only matter in dispute as between the parties in relation to construction of the balance sheet were Items 12, 18, 25, 28 and 36.
The motor vehicle payout the subject of the amount in Item 12 arises from the purchase by the wife post-separation of a car from the funds in Item 27. To include it at Item 12 would be to count it twice. I will not include that amount.
There is no evidence to support the contentions advanced by the wife in Items 18 and 25. I accept the value for Item 18 as an admission against interest and for Item 25 as the unchallenged evidence of what the husband received.
Item 36 is a post-separation liability of the wife. No submission was made as to why it should be included in the property division of the parties. I will, however, have regard to it under s 75(2).
Item 28 is said to be funds that the wife has retained post-separation. As best I can follow the submission, it comprises money that the husband says was in a safe which he approximates was $500,000 (but provides no basis for the calculation), moneys that the wife withdrew over a five-year period from a O Bank account as well as funds drawn out of the husband’s account less the $158,000 the wife withdrew at separation. In fairness to the husband’s solicitor, he agreed that he could not reconcile the various numbers.
I do not accept the husband’s evidence that there was $500,000 in a safe. The husband refers to a conversation in his affidavit that occurred in front of a priest. He gives detailed evidence of moneys in a safe but no assertion is made that it was $500,000. The police were called whilst the parties were present with the priest. The COPS Document (Exhibit 9) records as follows:
About 2on on […], police attended the […] church on [HH Street, Suburb JJ] after the VIC contacted police regarding issues with his wife, the POI. The VIC explained he was at the LOC and speaking to the cleric about the marriage issues.
… The VIC stated that the next day the POI and the children left the home to stay with the POI’s sister. The VIC stated that the POI took cash that he had in the house, an unknown amount. Police further spoke to the VIC and nil assault, damage to property or threats were made. There is no AVO in place and they have never spoken to Police before. Police advised the VIC that the money issue is not something that police deal with considering they are married and joint property and advised him to speak to a solicitor in regards to the impending divorce and all issues relating to that and property.
The POI was spoken to and stated she did not take any money but agreed the marriage is over and that was what they argued about.
(As per the original)
I prefer the contemporaneous assertion by the husband to the police in preference to what he now says. Otherwise, the wife says that she withdrew approximately $1,000 to $2,000 per week to meet the living expenses of the parties. She was not cross-examined on this issue. I accept her evidence. It provides a plausible explanation for the withdrawal of various funds from the parties’ bank accounts. I do not propose to include the amount at Item 28.
I find the pool of assets for division between the parties to be as follows:
Ownership Description Value ASSETS 1 J R Street, Suburb D NSW $1,685,000 2 J N Street, Suburb C NSW $740,000 3 W Q Street, Suburb B NSW $700,000 4 J Westpac Bank Savings account ending …76 $3,653 5 J Westpac Bank Savings account ending in …03 $149 6 J Westpac Bank Savings account ending …30 $0 7 W ANZ Bank Savings account ending in …05 $0 8 W NAB Bank Savings account ending in …67 $0 9 W NAB Bank Savings account ending in …89 $0 10 W CBA account ending in …05 $0 11 J O Bank account ending in …25 – $1.00 13 W Household contents, furniture and appliances $6,600 14 H G Pty Ltd (inclusive of Motor Vehicle 3, stock, materials, equipment, tools). $0 15 H CBA Business Transaction Account ending …39 $0 16 H Westpac Bank Savings account ending in …65 $0 17 H Westpac Bank Savings account ending in …11 $0 18 H Motor Vehicle 1 (Ms L's Car) $21,150.00 Total $3,156,553 ADDBACKS 19 H Household furniture, appliances and contents taken by Husband from Suburb D Property 23 June 2021 $0 20 H Sale proceeds from Motor Vehicle 2 02/06/2021 $52,000 21 H Withdrawal from account ending …65 on 26 August 2021 $0 22 H Withdrawal from account ending in …11 on 26 August 2021 $0 23 H Withdrawals from CBA business account ending in …88 on 15/11/2021, 13/11/2021, 11/12/2021 and 30/12/2021 $0 24 H Withdrawals from CBA business account ending in …89 on 09/06/2021, 20/07/2021 and 21/07/2021 $0 25 H Motor Vehicle 4 (X’s car) $15,000.00 26 H Add back $70,000 as per orders of 12 May 21 $70,000.00 27 W Add back $188,000 ($158,000 withdrawn) and $30,000 as per orders 12 May 21 $188,000.00 Total $325,000 LIABILITIES 29 J Westpac mortgage secured over Suburb D Property (account ending …07) $245,412 30 J Westpac mortgage secured over Suburb B Property ...#46 $187,273 31 J Westpac mortgage secured over Suburb C Property…#38 $172,945 32 J Estimated Capital Gains Tax for sale of Suburb C Property for Applicant and Respondent each estimated Gain $48,947 E$97,894 33 J Estimated Capital Gains Tax for sale of Suburb B Property E$99,288 34 H Centrelink debt for family payments during relationship NIL 35 W Personal Loans from Mr U 0 37 W KK School Outstanding Statement of Account $0 Total $802,812 SUPERANNUATION Member Name of Fund Type of Interest Value 38 W Superannuation Fund 1 Accumulation $169,464 39 H Superannuation Fund 2 Accumulation $54,204 Total $223,668 TOTAL NET ASSET POOL $2,902,409 Assessment of Contribution
Much of the evidence in the affidavits was of limited assistance and much of it amounted to broad ranging submissions and criticisms of the other party’s behaviour or conduct.
Mercifully, much of this irrelevant material was not the subject of cross-examination or submission reinforcing the conclusion of irrelevancy.
It is little wonder that the parties have spent so much money on legal fees (in the case of the husband $465,156 and in the case of the wife $315,773). The incurring of such funds in the context of the very modest pool of assets that these parties have demonstrates the complete lack of focus and proportionality brought by the parties to the proceedings. It is little wonder that they have spent so much money given the state of the evidence.
I have, however, read all of the evidence relied upon in the proceedings including the Exhibits but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all of the contributions of the parties as the Full Court in Dickons v Dickons (2012) 50 FamLR 244 makes plain:
24.… the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The Full Court as recently in Horrigan & Horrigan [2020] FamCAFC 25 emphasised and reinforced that the proper approach to the assessment of contributions is:
35.… well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. …
I am also mindful of what the Full Court said in Singerson & Joans [2014] FamCAFC 238 at [66] that for the purposes of s 79 of the Act, there is nothing to suggest that any category of contribution needs to be quarantined and applied solely to particular assets. In my view, the authorities require evaluation of all contributions to the property of the parties, notwithstanding that the categories of property may be different. This view has been confirmed by subsequent Full Courts such as in Jabour & Jabour (2019) FLC 93-898, where their Honours observed that a primary judge should be cautious in emphasising the importance of an increase in value of a particular item of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (at [35]).
The consistent theme from the authorities is that the multifarious contributions over the relationship and subsequently of all types including contributions that are said to be made more onerous by a party’s conduct are to be assessed in a holistic way.
Guided by such Full Court determination, I propose to assess the parties’ contributions.
As I stated earlier in these reasons, each of the parties contended for a different outcome in relation to the assessment of contribution.
I refer to the findings I have made above in respect of the contributions of the parties.
I am satisfied that each of the parties made substantial contributions over the course of the relationship. I take account of the husband’s initial contribution, the funds from the property in Country E and his contribution as the primary income earner. I also acknowledge his significant contributions to the building of Suburb D and refurbishments and renovations to the Suburb C and Suburb B properties. I also recognise his contributions as a homemaker and parent, together with his post-separation payments of the mortgages. I note that since May 2021, the husband has been living in rented accommodation whilst the wife has had the benefit of occupation of the former matrimonial home.
I also take account of the wife’s contributions including the Suburb B property, her superannuation payment to the mortgage and her contributions from income. The contribution of the Suburb B property enabled the parties to use its equity to assist in the purchase of all subsequent pieces of real estate.
This was a significant contribution represented in part by its current value of approximately $700,000, subject to capital gains tax measured against the parties’ total net assets. It would be an error to equate the current value in a proportional sense as that would be contrary to the mantra of the cases that I am required to assess the parties’ contributions in a holistic sense, having regard to all of the contributions of both parties over this lengthy marriage. However, that does not mean that I should ignore the benefit that the ownership of this property brought to these parties by enabling them to use the equity in that property to re-finance or to assist in securing the purchase of other properties during the course of the parties’ relationship.
In that respect as the Full Court observed in Williams & Williams [2007] FamCA 313:
26.We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
Likewise, Brereton J in Kardos v Sarbutt (2006) 34 Fam LR 550 observed:
61.… If one party has a house worth $250,000 at the outset, and it appreciates during the relationship to be worth $750,000, the contribution is of a house which at separation is worth $750,000 — not of money worth $250,000.
It was a significant contribution.
I also acknowledge her contributions to the building of the Suburb D property, and refurbishments and renovations to the Suburb C and Suburb B properties. I also recognise her contributions to the husband’s company. I also take account of her substantial contributions as the primary parent, particularly in relation to X and Ms L given their disabilities. I also have regard to her contributions post-separation, including as the sole financial contributor to the children’s expenses. I also accept the discernible impact the family violence had in making her contributions more onerous.
It was agreed that the wife’s contributions were greater than the husband.
A contribution assessment as to 51% does not pay significant regard to the wife’s contributions of the Suburb B property, her parenting contributions and the impact of family violence on her contributions. Likewise, an assessment at 60% is outside the reasonable ambit of discretion. Doing the best I can and assessing each party’s contributions in a holistic way over this long relationship, I assess the wife’s contributions at 55 per cent.
Adjustment under Section 75(2) of the Act
The parties each sought an adjustment in relation to matters under s 75(2). On the part of the husband, the adjustment was said to be something in the order of 1– 2 per cent to the wife, and rested entirely upon the age differential between the parties. In the case of the wife, her adjustment under s 75(2) was 10 per cent, comprising 8 per cent for the matters under s 75(2) and a two per cent adjustment in relation to the matters said to be relevant in relation to Kennon. As is clear, I have dealt with the impact of the family violence perpetrated by the husband at the contribution assessment stage.
I agree with the propositions advanced by each party that there should be an adjustment in favour of the wife. I do not accept that the adjustment proposed by either party could be regarded as just and equitable.
The wife will continue to have two children in her care under the age of 18 years. In the case of Y, she is aged 17 albeit that she is in Year 12 at school and will finish at the end of this year. X is in Year 10 at school and, therefore, the wife will continue to be responsible for her care for a couple more years.
Pursuant to the final parenting orders made, the children do not spend any time with their father other than in accordance with their wishes. As best one can, given the current state of affairs, it is unlikely that the children will, in the foreseeable future, spend any time with their father. They have not done so since separation in 2021, a period of now in excess of 17 months. That is a factor that favours an adjustment in favour of the wife.
The children attend a school that requires the payment of fees. The husband has not contributed to the children’s direct financial support either by way of payment of child support or by way of the payment of school fees. It would appear that the wife applied for child support but then withdrew it. Nevertheless, the fact remains that the children have been entirely financially dependent upon their mother for their day-to-day needs. It is unlikely, on the basis of the track record to date, that this situation will change.
I note also that the wife submits that the Court should have regard to the fact that she has the two elder children in her care, albeit that those children are older than 18 years of age. This is a matter that I can take into account under s 75(2)(o) and I recognise that X has an autism disorder. I recognise, however, that she appears to be undertaking some form of employment and is at university.
I note that the wife has incurred some debt to her brother to meet her living expenses.
Both parties assert they have some health difficulties.
I also note the age differential between the husband and wife. The wife is currently aged 59 years while the husband is aged 52 years. She gives some evidence of her earning capacity and work, and I note that her Financial Statement identifies that her weekly income is some $710 per week from her employment, which is subject obviously to the payment of some income tax. The husband’s income is said to be $423 per week.
I am of the view, taking into account the above matters but in particular, the age differential of the parties and the responsibilities the wife will have for the children, that an appropriate adjustment in the wife’s favour is five per cent for the matters under s 75(2).
The consequence of my findings is that the property of the parties should be divided as to 60 per cent to the wife and 40 per cent to the husband. I am of the view that this is a just and equitable outcome.
The parties propose that the real property of the parties should be sold and divided in accordance with my percentage findings. I will make orders to give effect to this.
All of the other property of the parties excluding the real estate totals $580,221. I propose to transfer the joint accounts to the wife. A 60/40 split of $580,221 to the wife is $348,132.60.
If the wife retains Items 4, 5, 11, 13, 18, 27 and 38, she has property of $389,017. Accordingly, the wife will be ordered to pay the husband $40,884.40.
Having regard to the dollar effect of the orders, I am satisfied that it is a just and equitable result.
Injunctions Sought by the Wife
The wife sought the following injunctions in her Minute of Orders (Exhibit 19):
2.That pursuant to section 114(1)(a) of the Family Law Act 1975, the Court makes an injunction against the Applicant Husband for the personal protection of the Respondent Wife.
3.That pursuant to section 114(1)(b) of the Family Law Act 1975, the Court makes an injunction against the Applicant Husband restraining him (and his agents) from entering, remaining in or coming within 500 metres of the Respondent Wife’s current home at [R Street], [Suburb D] (“the [Suburb D] Property”) or any other residence of the Applicant Wife.
4.That pursuant to section 114(1)(c) of the Family Law Act 1975, the Court makes an injunction against the Applicant Husband (and his agents) restraining him from entering or coming within 500 metres of the Respondent Wife’s place of work.
5.That the Respondent and the children of the relationship have exclusive occupation of the [Suburb D] Property.
6. It is noted that the children of the relationship are:
(a) [Z], born in 2006.
(b) [Y], born in 2005.
(c) [X], born in 2003.
(d) [Ms L], born in 2001.
7.The Applicant shall be restrained, by way of injunction, from keeping copies of keys, remotes, security codes, and alarm passwords in relation to the [Suburb D] Property.
It is clear that there is a degree of repetition across the orders and that it is proposed that they bind other parties. The injunction sought is a continuing one with no end date.
I also note that there are existing Local Court orders that largely mirror the orders the wife seeks. The logic of having two courts making the same or similar orders clearly did not occur to the parties. No submission was put by either party as to how to avoid any inconsistency between orders made by this Court and those made by the Local Court may be resolved.
Section 114 of the Act provides that the Court may make such order or grant such injunction as it considers proper, including an injunction for personal protection.
To ground the wife’s relief, she needs to establish that there is a serious issue to be tried alternatively expressed as a prima facie case for relief. She must also establish that her claim for relief may be imperilled if the injunction is not granted. To that extent, the Court might be satisfied about the risk based on an assessment of future possibilities of an event occurring, which may be established by the drawing of inferences from the wife’s evidence.
The question of prejudice to the respondent needs to be considered and the order made should be no more than is necessary. It is the applicant for the injunction who bears the onus of satisfying the Court that the circumstances justify the making of the order: Sieling & Sieling (1979) FLC 90-627 at 78,262.
Injunctive orders were made by consent on 12 May 2021, granting the wife exclusive occupation of the home, including orders in the terms of proposed Order 7. It was not suggested those orders should be discharged. In those circumstances, proposed Orders 5, 6 and 7 are unnecessary.
Thus, what remains for determination is proposed Orders 2, 3 and 4.
The wife says the basis of the injunction arises out of the family violence perpetrated by the husband upon her. I note my earlier findings. Specifically, she gives the following evidence:
133. On Thursday 8 July 2021, at around 5:50pm, [Mr Rivera] stalked and intimidated [Y] and I at [Suburb D] Shopping Centre. I recall I went to [Suburb D] Shopping Centre with [Y] that late afternoon to purchase groceries. As [Y] and I began to walk towards my car which was parked near the Dominos Pizza restaurant, I noticed [Mr Rivera] walking towards me from my right. I tried to pretend that I did not see [Mr Rivera], but my heart began to race and I felt an anxiety attack coming on. [Y] was also showing that she was fearful by walking closer to me and behind me. I continued to walk in front of [Y] as I went to my car. I saw that [Mr Rivera] made eye contact with me and began to follow me for about 30 metres. He was quite close to [Y] and I. I would say he was about 1.5 metres to 2 metres away from us. [Mr Rivera] did not say anything while following me.
…
135. While I was loading the car with bags from shopping, I saw [Mr Rivera] just stand at the front of the store, which was only a few metres away from where I parked, and he stared at me. [Y] helped me finish load the car. I felt as though I was about to burst into tears and have my chest collapse in on itself. I was frightened and thought [Mr Rivera] or someone he knows will harm me, abduct me, or threaten me.
136. Not long after [Y] and I finished packing my car with the bags, I saw [Mr Rivera] walking with his sister and her husband about five metres away. They were walking along the footpath of [LL Street]. They continued walking in my direction. As [Mr Rivera], his sister and her husband walked past my car, I saw [Mr Rivera] look towards [Y] and I and say very loudly insulting words in [another language] which means “sluts” or “bitches”. I did not say anything in response.
…
143. On Tuesday 31 August 2021, at about 4:10pm, I was on the road with [Y] teaching her to drive for her Learners Drivers Licence. I was sitting in the passenger seat and [Y] was in the drivers seat. When [Y] and I were stationary in the car at the intersection/roundabout of [MM Street] and [R Street] in [Suburb D], I noticed [Mr Rivera]'s [Motor Vehicle 3] approach the same intersection. I saw [Mr Rivera] in the driver seat. I instantly felt overwhelmed with panic, fear, and shock. [Y] also started to get upset and worried, which I observed in her face and by her slouching back in her seat.
144. [Mr Rivera] drove his [motor vehicle] around the roundabout while starting at [Y] and I. I could tell that he was staring intently at us because has his [motor vehicle] was moving past us, his face and eyes were directed at us and maintained that position as he was in motion in the [motor vehicle]. I felt sick in the stomach and scared that [Mr Rivera] was going to follow us or be waiting near our home.
…
342. I continue to remain frightened and fearful of [Mr Rivera] to the extent that I experience panic attacks and anxiety when I am out in public or at work. I fear that [Mr Rivera] or one of his agents are following me.
I accept the wife’s evidence. None of this was the subject of challenge beyond the husband’s broad denial. I also note that the husband has entered a plea of guilty in relation to a breach of the apprehended violence order arising out of the events in mid-2021.
I accept that she has established a prima facie claim for the relief she seeks.
I, however, also need to consider the prejudice occasioned to the husband and the making of an order that goes no further than is necessary. The difficulty with assessing the degree of prejudice and ensuring that an order of this Court goes no further than is necessary is the existence of the Local Court orders. Those orders are interim and there is a final hearing in the first half of next year. I do not know what orders will be made at that hearing.
The wife has not adequately explained why it is necessary that she have orders made by two different courts that in some respects seek the same restraints. If orders are made by this Court, it has the potential to create an inconsistency.
In circumstances where the wife carries the onus of satisfying the Court that the order is proper, I am not satisfied that she has discharged that onus for the reasons given.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 19 August 2022
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