Rockman & Rockman

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROCKMAN & ROCKMAN

[2014] FCCA 1966

Catchwords:
FAMILY LAW – Property – parties separated in 2002 after 30 year marriage – post separation husband unilaterally disposed all his pre-superannuation entitlements – wife alleges husband physically and emotionally violent to her and the parties’ three children throughout the entirety of the marriage – wife seeks adjustment in her favour because of husband’s premature distribution of superannuation and her contributions being more arduous because of the husband’s violence – husband alleges part of his superannuation used for living expenses and denies allegations of violence – Held: there be an 8% adjustment in the wife’s favour as husband had made premature distribution and those funds not used for reasonable living expenses – husband was violent to wife and children throughout marriage such that the wife’s contributions were made more arduous and there be a 7% adjustment in wife’s favour – Order made for sale of family home and for net proceeds of sale to be divided so that wife receive 65% of same and husband receive 35% of same.

Legislation:

Family Law Act 1975, ss.75(2) & 79

Kennon v Kennon (1997) FLC 92-757
Hickey v Hickey (2003) 30 Fam LR 355
C & C [1998] FamCA 143
M & M [1998] FamCA 42
NHC & RCH [2004] FLC 93-204
AJO & GRO [2005] FamCA 195
Stanford v Stanford [2012] HCA 52
Bevan & Bevan(No.1) (2013) FLC 93-545
Bevan & Bevan (No.2) (2014) FLC 93-572

Applicant:

MR ROCKMAN

Respondent:

MS ROCKMAN

File Number:

MLC 9738 of 2013

Judgment of:

Judge Bender

Hearing dates:

18, 19 and 20 June 2014

Date of Last Submission:

20 June 2014

Delivered at:

Melbourne

Delivered on:

29 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Moisidis

Solicitors for the Applicant:

Bevan-Rhys James

Counsel for the Respondent:

Mr Scriva

Solicitors for the Respondent:

Phillips & Wilkins

THE COURT ORDERS THAT

The husband and wife sign all documents and do all things necessary to forthwith place the property situate at and known as Property M (“the real property”) on the market for sale and upon completion of the sale, the proceeds of the sale be applied:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly the balance then remaining be divided in the proportion of
(i)35% thereof to the husband; and
(ii)65% thereof to the wife.
Pending the completion of the sale:
(a)The wife have the sole right to occupy the real property and during such right of occupation the wife pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)Neither party encumber the real property without the consent in writing of the other party.
In relation to the sale of the real property:
(a)The parties shall place the property on the market with an agreed real estate agent and failing agreement, such agent as nominated by the President of the Real Estate Institute of Victoria;
(b)The parties shall nominate a solicitor to have the carriage of the sale of the property by agreement and failing agreement, as nominated by the wife;
(c)The terms and conditions of the sale including but not limited to the reserve price, whether the property be offered for sale by private treaty or auction and the settlement period shall be as agreed between the parties and failing agreement as nominated by the selling agent.
The husband shall forthwith do all things necessary to transfer to the wife at the expense of the wife 300 (omitted) shares currently held by the husband.
The husband shall forthwith do all things necessary to transfer to the parties’ daughter X born (omitted) 1980 (“X”) at his expense 600 (omitted) shares currently held by the husband in trust for X.
The wife shall forthwith do all things necessary to transfer 600 (omitted) shares to each of the parties’ children Y born (omitted) 1985 (“Y”) and Z born (omitted) 1982 (“Z”) at her expense being the shares currently held by the wife in trust for Y and Z.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the wife).
(b)Insurance policies remain the sole property of the owner named therein.
(c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(d)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

IT IS NOTED that publication of this judgment under the pseudonym Rockman & Rockman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9738 of 2013

MR ROCKMAN

Applicant

And

MS ROCKMAN

Respondent

REASONS FOR JUDGMENT

Introduction

This is the husband’s application seeking property orders some 12 years after the breakdown of the parties’ 30 year marriage in

September 2002.
The husband is seeking orders that the former matrimonial home at Property M (“Property M”) be sold and the proceeds of sale after payment of selling costs be divided equally between the parties.
From the wife’s share of the proceeds of the sale the husband is seeking orders that the wife pay him $6,000 representing 50% of the value of wife’s Toyota (omitted) motor vehicle which has an agreed value of $12,000 and the sum of $5,000 being a share of the inheritance the wife received in 2004 from her late father’s estate.
The husband also seeks that the (omitted) shares held on trust by the parties for the parties’ three adult children be transferred to the children and that otherwise the (omitted) shares purchased by the parties prior to separation be divided equally between them.
The wife is seeking orders that Property M be sold and the proceeds of sale be divided between the parties such that the division reflects an adjustment in her favour arising from the husband having expended the totality of his pre-separation superannuation of $122,555.34 in the period between 2008 and 2011 without explanation as to its use and the husband’s violent conduct towards herself and the parties’ three children for the entirety of the marriage as that conduct made her contributions significantly more arduous.
The wife is in agreement with the husband’s proposals in relation to the parties’ (omitted) shares.
The wife proposes the parties otherwise retain all assets in their possession or control and rejects the husband’s proposal there be an adjustment in his favour for her motor vehicle and inheritance.

Background

The husband was born on (omitted) 1946 in (country omitted) and is aged 67 years. The husband came to Australia in 1969 and is an Australian citizen. He receives an aged pension. He has not repartnered.
The wife was born on (omitted) 1954 in (country omitted) and is aged 60 years. The wife came to Australia in 1969 and is an Australian citizen. She is in receipt of a disability pension and is also in receipt of a carer’s pension arising from her care of the parties’ eldest daughter X born (omitted) 1980 (“X”). The wife has not repartnered.
The parties married on (omitted) 1973. They did not cohabit prior to their marriage.
The parties have three adult children; X, Z born (omitted) 1982 (“Z”) and Y born (omitted) 1985 (“Y”).
When the parties married they were both in paid employment, the husband as an (occupation omitted) and the wife with the (employer omitted).
In (omitted) 1974 both parties commenced employment in the (employer omitted).
In 1975 the parties purchased a block of land in (omitted) and built their first home using savings, compensation the husband received from a car accident and a bank loan.
In 1976 the wife suffered a fall down some stairs at work. The wife received a compensation payment of $25,000.00 in 1980. She also received weekly Work Cover payments from the date of the fall until 1993 when she received a severance payment of $28,000.00. The wife has not been in paid employment since her fall.
In 1987 the parties purchased a block of land at Property M (“Property M”). On this land they built the former matrimonial home for approximately $250,000.00 using the proceeds of sale of (omitted) and a bank loan.
In 1994 the husband accepted a redundancy package from his employer, (employer omitted) of $110,000.00. These funds were used to discharge the mortgage on Property M, to buy a car, undertake some works on the home and on living expenses.
In 1997 the parties purchased 3300 (omitted) shares. 1500 of these shares are held in the husband’s name and 1800 of these shares are held in the wife’s name. Of the 1500 shares held by the husband the parties agree he holds 600 of those shares in trust for X. Of the 1800 shares held by the wife, it is agreed she holds 600 shares in trust for Y and 600 shares in trust for Z.
In 2000 the husband commenced his own (omitted) business called (omitted).
In September 2002 the parties separated. The husband travelled on his own to (country omitted) for three months and upon his return the parties remained separated under the one roof until the husband left the former matrimonial home in February 2004.
Upon separation in September 2002, the wife obtained a disability pension and the husband continued to be self-employed as a (occupation omitted).
In 2004 the wife’s father died and the wife inherited $21,000.00. She utilised these monies to purchase air conditioning for Property M, to purchase a motor vehicle and on general living expenses.
In February 2009 the husband resumed living in the former matrimonial home. The husband vacated the former matrimonial home in October 2011 when the wife obtained an interim intervention order against the husband.
When the parties’ youngest child turned 18 in 2003, the husband’s superannuation entitlement was $122,555.34. The husband continued to make contributions to his superannuation after separation until 2007.
The husband’s superannuation entitlements from 2007 are as follows:
30 June 2007  $139,386.45
30 June 2008  $138,034.39
30 June 2009   $98,219.66
30 June 2010   $31,010.80
30 June 2011   $4,360.81
It is the wife’s evidence that the husband was a heavy gambler. In the period between 1 July 2007 and 23 June 2008 the husband’s Crown Club Player Activity statement shows the husband lost a net amount of $86,813.73.
It is the wife’s further evidence that the husband’s bank statements show that between April and October 2009 the husband withdrew in excess of $12,000.00 from the ATM machine at Crown Casino.
It is the wife’s submission that the depletion of the husband’s superannuation between 2008 and 2011 is as a result of his gambling and that accordingly the expenditure by the husband of what was a joint asset of the parties should be a factor taken into account when determining the division of the parties’ assets.
It is the husband’s evidence that his Crown Member’s Card was used by other gamblers at his request to enable him to accumulate points to obtain more privileges with Crown Casino so that the loss shown for the period 07/08 is not his alone.
It is the husband’s further evidence that as he lived opposite the Crown Casino, he used the ATM machine at the Casino to withdraw money for his everyday living expenses, not for gambling and that the monies withdrawn from Crown Casino as shown in his banks statements were used by him for living expenses.
It is the husband’s evidence that all monies spent by him from his superannuation entitlement were used for his day to day living expenses and were not used to gamble.
There are real difficulties with the husband’s evidence in relation to his use of his superannuation between 2008 and 2011.
Between February 2009 and November 2011 the husband was living in the former matrimonial home. By agreement he paid $650.00 per month as his contribution to his living expenses and otherwise the husband’s personal living expenses were minimal.
The period during which the husband withdrew $12,000.00 from the Crown Casino ATM was when he was living in the former matrimonial home, not opposite the casino.
At paragraph 40 of his affidavit sworn 25 April 2014, the husband responds to the wife’s allegation that he gambled to excess. The husband annexes his Member’s Activity Statement from Crown Casino for the six month period 5 October 2013 to 14 March 2014 which shows he attended the casino once and only lost $135.80 as being evidence that he is not a big gambler. However, the husband did not place before the Court his Crown Casino Activity Statements for the period between 30 June 2008 and 30 June 2011 during which time his superannuation was reduced by $135,000.00.
It is the evidence of the wife and of the parties’ three adult children that they were all subjected to continuous verbal, emotional, financial and physical abuse at the hands of the husband for the entirety of the marriage.
The wife, X, Z and Y filed affidavit material in these proceedings in which they set out the husband’s alleged violence in considerable detail. The wife, Z and Y also gave viva voce evidence at the final hearing as to the extent of the violence they suffered at the hands of the husband.
In the wife’s affidavits and viva voce evidence she details the abuse she suffered at the hands of the husband in considerable detail. In paragraphs 32 to 127 of the wife’s affidavit sworn 4 April 2014 she deposes to the husband’s violence as follows:
a)The abuse started within four weeks of the marriage, when, after an argument, the husband slammed the wife against the wall.
b)The husband forbade the wife from going to her parents’ house.
c)The wife was only allowed to visit her mother once in hospital when her mother was dying from cancer.
d)The husband kept the televisions locked in his bedroom.
e)In 1978 the husband shoved the wife onto the bed while pregnant. She subsequently miscarried. Two months after the miscarriage of the child, the husband was enraged that she had invited a prayer group to the home without asking his permission first. The husband punched the wife so hard that she fell to the ground where he kicked her in the stomach.
f)Daily arguments were always inevitably followed by the husband hitting, punching, kicking and even spitting on the wife.
g)In 1988 the wife took X’s runners to show the applicant husband they needed to be replaced. The husband became so enraged that he hit the wife in the face several times such that her whole face was bruised and swollen.
h)Again in 1988 the parties were arguing in the kitchen and the husband grabbed plates from the dish rack and starting smashing them on the edge of the kitchen bench, causing the wife to crouch on the floor in fright and hiding her face from the small broken shards that were flying off the broken plates.
i)In 1989, the husband punched the wife in the face causing a nosebleed.
j)In March 1990 at X’s 10^th birthday party, the husband became enraged when he thought that he had not been sufficiently included in a videotape of the celebrations such that when the extended family left the party he kicked and punched the wife, causing her to fall on the ground while he kept kicking her.
k)In 1992 the husband picked up his shoe and threw it at the wife. It hit her in the middle of the forehead, causing her forehead to swell up.
l)The husband forced the wife from their bedroom and made her sleep on a camp bed in the family room for many years. The wife only obtained a proper mattress to sleep on when she was able to ask the husband to buy one in the presence of his family.
m)The husband had complete control of all the family finances, including all Centrelink and child endowment payments. The wife had no access to the parties’ bank accounts and the only money she had was that given to her by the husband.
n)When X was approximately 15 years of age she began to suffer from serious depression and would not go to school or leave her room. Because of this, the husband removed X’s bedroom door.
o)The husband removed the door handles from the children’s bedrooms preventing any privacy.
p)In 1998 the husband shoved Z in the back, causing her to fall on an oil heater and hurt herself. When the wife confronted the husband in relation to this behaviour he grabbed a music recorder that belonged to Y and smashed the recorder into the wife’s fingers and broke the little finger on her left hand.
q)In 2000, the wife had a car accident. Under the terms of the car insurance, the husband had to pay $400 in excess. As a result of having to pay the excess, the husband refused to buy food for the wife and the children for a month on the basis that he had to save for the excess and had no money to pay for food. The wife had to go to the local church and ask for handouts, including food vouchers, during this period.
r)The husband put a steering lock on the family motor vehicle to prevent the wife from driving the car.
s)In 2002 whilst the wife’s father was gravely ill, the applicant husband cut services to the house telephone such that calls could only be received and not made from the telephone. In order to make outgoing calls, a code had to be entered on the phone. Only the husband knew the code and he refused to provide the code to the wife which prevented her from being able to telephone her father (or anyone else).
t)In early 2002 when the wife asked the husband not to leave his dirty ashtrays in the kitchen, he became abusive and shoved the wife to the ground, at which time the wife finally gathered the courage to call the police. It is the wife’s evidence that whilst the police suggested she obtain an intervention order, the husband’s sister persuaded her not to follow this course of action.
u)When the husband went to (country omitted) in September 2002, he only left the wife $1000 to pay all food, bills and expenses for the household. She had to borrow money from the husband’s nephew to feed the family.
When challenged by the husband’s Counsel as to why she did not leave the husband and take the children with her given her allegations of the extensive abuse to which she alleges she and the children were exposed at the hands of the husband, it is the wife’s evidence that she felt completely disempowered by the level of violence to which she was subjected by the husband. She described herself as feeling worthless, having no self-esteem and having no support because the husband would not allow her to spend any time with her family.
It is the wife’s evidence that she did not seek any medical attention when hurt by the husband as she was afraid to. It is the wife’s evidence that she did finally speak to a social worker at Centrelink who assisted her in 2002 to make an application which enabled her to obtain a disability pension.
It is the wife’s evidence that she obtained the disability pension at the time the parties separated under the one roof and that this was the first time she had any financial independence since her marriage to the husband.
It is the wife’s evidence that the husband was also physically, emotionally and financially abusive to the parties’ three children.
The parties’ eldest daughter X has suffered from severe depression since her teenage years. In her mid-teens, when X’s depression became so debilitating she had difficulty getting out of bed and was unable to attend school. It is the wife’s evidence that because X was not attending school, the husband would lock X in the backyard for the entire duration of the school day and would not allow her back into the house, even for a drink of water or to use the toilet.

It is the mother’s evidence that at this time the husband also removed the door from X’s bedroom on the basis that he was not prepared to allow her to remain in her room watching television or keeping to herself if she was not prepared to attend school.
It is the mother’s evidence that he was similarly abusive towards Z and describes an incident when Z came home from a birthday party and the husband locked her out of the house all night. He forbade the wife from giving Z a blanket or from allowing Z to come into the house. It is the wife’s evidence that this occurred on more than one occasion and that Z would have to stay outside until the husband went to sleep in the early hours of the morning so she could go downstairs and sneak Z back inside the house.
It is the mother’s evidence that the husband refused to pay any school fees in relation to the children and would not allow any of them to go on the year 9 camp to (omitted), claiming he did not have the money for them to go on that excursion.
The wife describes an incident where the husband burst into Z’s room whilst Z was changing her menstrual pad. The husband dragged Z half-dressed out of her room and punched her.
It is the wife’s evidence that the husband would not allow she or the children to buy their own clothing, but would rather choose and buy their clothing.
In the affidavit sworn by Z on 21 February 2014 and in her viva voce evidence, Z described in considerable detail the abuse to which she and her mother were subjected by the husband during the course of the marriage.
In paragraphs 50 to 72 of the affidavit sworn by Z on 21 February 2014, she sets out details of that abuse and violence as follows:
a)When Z was four and X six, they and their cousins walked around the block without telling their parents. Upon returning home the husband hit them with a belt and the sole of his shoe.
b)If Z or her siblings were deemed by the husband to have done something wrong when visiting the extended paternal family, the husband would beat them with his fists when they returned home.
c)When travelling in the car, if Z or her siblings spoke or did something wrong the husband would pinch, slap or punch them in the back of the head.
d)When Z was aged 12, the husband punched her in the mouth shortly prior to attending a family function.
e)When Z was at high school and the husband misplaced his packet of cigarettes, he trashed all the children’s bedrooms looking for cigarettes.
f)When aged 14 the husband dragged Z out of her room by her hair and beat her whilst she was changing her menstrual pad and wearing only underwear.
g)When aged 16 whilst borrowing clothes from her sister’s bedroom, the husband threw Z against the oil heater and punched and kicked her on the ground. When the wife attempted to intervene, the husband fractured the wife’s finger with a recorder.
h)Throughout high school the husband frequently locked Z out of the house such that she would spend hours lying or sitting on the cold concrete veranda. Z would be without food and water and would have to urinate and defecate in the garden. Z became particularly distressed when cross examined about these incidents.
i)The husband never referred to Z by her name, but rather called her “selfish”, “stupid”, and told her she would never be as clever and important as him.
j)The husband was frequently violent towards all members of the family, and when violent he would punch, slap, spit, kick and drag them by the hair and use implements such as the hard soles of his shoes, his belt or anything else that was handy at the time to hit them. Z describes the acts of aggression as “frequent, frenzied, and entirely unpredictable and terrifying”.
k)When the wife attempted to intervene to protect the children, the husband would turn on the wife, beating her till she was crumpled in a foetal position on the ground.
In the affidavit sworn by the parties’ son Y on 21 February 2014 and in his viva voce evidence, he provided great detail in relation to the abuse and violence meted out by the husband during the course of the relationship.
It is Y’s evidence that he was not subject to the same level of physical abuse at the hands of his father as was his mother and sisters. It is his evidence, however, that he was the subject of the same level of verbal abuse and denigration as were his mother and sisters.
It is Y’s evidence that the wife was not allowed to sleep in the same bedroom as the husband, either in their (omitted) or Property M properties.
Y describes in detail a particular instance where the husband was screaming at the wife, dragged her into his study, lined her up against the wall, walked to the opposite side of the room and threw Y’s formal shoes directly at her face one at a time, hitting the wife in the head.
It is Y’s evidence that the wife and his sisters bore the brunt of the husband’s uncontrollable anger, and recalls one night when the husband grabbed Y’s recorder and broke the wife’s finger with it.
It is Y’s evidence that the husband cut off the telephone for the home for several months. The husband also removed all televisions from around the home and locked them in his bedroom so that he was the only one able to watch television unless he permitted Y or his siblings to come into his bedroom to watch TV.
The party’s daughter X swore an affidavit in these proceedings on 6 May 2014 in support of the wife. Given X’s mental health issues, the husband through his Counsel chose not to cross-examine X but on the basis that it was clearly understood that in so doing he was not conceding the contents of her affidavit.
In X’s affidavit she deposes that the husband’s violence in the household occurred on a daily basis.
X deposes that the husband would order her to stay outside in the freezing weather and would not allow her to go inside for food or water or to use the bathroom for the entire duration of school hours.
It is X’s evidence that the husband would allow her no privacy, and would look through her drawers and her school bag.
It is X’s evidence that if she came to her mother or her sister’s aid when they were being abused or assaulted by the husband, the husband would hit her.
It is X’s evidence that on one occasion the husband dragged her along the carpet until she got severe carpet burn and passed out.
X describes in detail many instances of abuse at the hands of the husband which include him throwing her down the concrete staircase, bashing her, throwing her against a marble coffee table, attacking her with a screwdriver and leaving her lying bleeding on the bathroom floor.
The husband categorically denies the allegations of violence made against him by the wife, Z, Y, and X.
Whilst the husband concedes that he removed X’s bedroom door, it is his evidence that he did so because she was refusing to go to school or even leave her bedroom and he was hoping this would force her to leave her room.
The husband agreed that there was a period of time when he put in place arrangements whereby telephone calls could only be received into the home and that calls out from the home could only be made by the use of a code. It is the husband’s evidence he did so because at that time the party’s financial circumstances were somewhat strained and the children were making unnecessary phone calls and running up the phone bill. The husband conceded that the wife was not making unnecessary phone calls and he could offer no explanation as to why he did not make the code available for her so that she was able to make telephone calls.
The husband agreed he placed a steering lock on the family motor vehicle. It is his evidence it was broken and the wife was able to remove it.
The husband denies that he was financially controlling of the wife and the children. It is his evidence that the family were always well-fed and provided with suitable clothing. It is the husband’s evidence that it was he who had the control of the Myer card and only he purchased clothing for the wife and the children.
It is the husband’s evidence that when he vacated the former matrimonial home between 2004 and 2009 he continued to have contact with the children and the wife and that they joined him on occasion for dinner at Crown Casino.
It is the evidence of the wife and the children that between 2004 and 2009 they had very limited contact with the husband although there was a handful of occasions when they had dinner with him at the casino. It is their evidence that this usually occurred when he had been able to obtain rewards from the casino that allowed a free meal as a result of his gambling activities with the casino.

The Issues

The issues in this matter are well defined and are as follows:
a)should there be an adjustment of the parties’ existing property in the wife’s favour to reflect the unilateral disposal by the husband of his superannuation entitlements and if so, is this offset by the wife having the benefit of living in the unencumbered matrimonial home and having X and Y living with her which provides the wife with financial resources unavailable to the husband?
b)should there be an adjustment in the wife’s favour on the basis the wife’s non-financial contributions were made more arduous as a result of the impact of the husband’s physical, emotional and financial violence towards her and the children for the entirety of the marriage?
c)should there be an adjustment in the husband’s favour in relation to the wife having the full benefit of her Toyota motor vehicle and her father’s inheritance?

The Law

Section 79 of the Family Law Act 1975 (“the Act”) defines the manner in which Court is to determine an application for property settlement.
Section 79(1) states that the Court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If satisfied that it is just and equitable to make an order altering the interests of the parties in the property, section 79(4) of the Act sets out those matters which the Court must take into account when considering what orders should be made. Section 79(4) provides:
79(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4)(e) requires the Court to have regard to the matters set out in s.75(2), the provisions of which are:
75(2) The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The High Court in the matter of Stanford v Stanford [2012] HCA 52 held that before making any orders adjusting the parties’ interests in the property pursuant to s.79 of the Act, the Court must, as required by s.79(2) of the Act, determine that is just and equitable for the Court to do so.
The High Court in paragraph 42 of Stanford (supra) held that in most cases
“… the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship…”. the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s79(4)…”
Prior to the decision in Stanford the preferred approach in determining property matters was that set out by the Full Court in the matter of Hickey v Hickey (2003) 30 Fam LR 355. At paragraph 39 the Full Court stated:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, the court should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, the court should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…
The Full Court in the matter of Bevan v Bevan(No.1) (2013) FLC 93-545 considered and discussed the correct application of Stanford when dealing with property matters. The Full Court in paragraph 71 of Bevan (No.1) states the following:
71.Stanford will also serve as a reminder that the four step process “merely illuminates the path to the ultimate result”. Any future restatement of that process should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order.
In Bevan & Bevan (No.2) (2014) FLC 93-572 the Full Court, having upheld the appeal against the decision at first instance proceeded to re-determine the property application before the Court. At paragraphs 18 and 19 of Bevan (No.2) Bryant CJ and Thackray J state the following:
18.Senior counsel for the husband structured his submissions by reference to the “four-step” approach to property settlement applications discussed in our earlier reasons. By way of explanation for doing so, senior counsel said:
16.The adoption of the above [four-step] approach is not intended to presuppose a positive answer to the question posed [by] section 79(2), nor to suggest that it is an approach appropriate in all proceedings. Rather, and provided that the fundamental propositions outlined by the High Court in Stanford (2012) 293 ALR 70 … are not obscured, such approach is intended to and does no more than provide a principled, disciplined and structured means by which all of the matters arising for consideration pursuant to section 79 can be conveniently and properly identified and assessed.
17.Further, and whilst not said critically nor in a matter which seeks to cavil with the decision in this appeal, no other approach to the determination emerges readily from either Stanford nor the decision in this appeal. It is respectfully submitted that provided that the ‘fundamental propositions’ articulated in Stanford are not obscured, and whilst not universally so as has always been recognised, the approach set out above continues to provide a proper, transparent, certain and structured approach to the presentation and determination of applications pursuant to section 79.
19. We have no issue with what senior counsel has said about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments, provided the caveat mentioned is not overlooked.

The caveat referred to by their Honours in paragraph 19 of their judgment is the requirement that the Court must first be satisfied that it is just and equitable to make an order adjusting property between the parties.
The High Court in Stanford neither disapproved or approved the four steps process. The High Court did however enunciate what they termed three “fundamental propositions” which would provide useful guidance to trial judges when undertaking the task under s.79. In paragraph 73 of Bevan (No 1) Bryant CJ and Thackray J summarised those fundamental principles as follows:
1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3. A determination that a party has a right to a division of property fixed by reference only to the matters of s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
A careful consideration of Stanford and the subsequent Full Court considerations of that judgment suggests that the path that may best, to use the words of the Full Court in Bevan (No 1), “illuminate the path to the ultimate result” could perhaps now be described as a “five step process”. This process is:
a)firstly, what is the parties’ legal and equitable interests in property;
b)secondly, is it just and equitable to make an order adjusting the parties legal and equitable interests in that property;
If the answer to (b) is in the affirmative:
c)thirdly, identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) of the Act and determine the contribution-based entitlements of each party as a percentage of the net value of the property of the parties;
d)fourthly, identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g) and s.75(2) of the Act and determine the adjustment, if any, that should be made to the contribution-based entitlements of each party as a percentage of the property of the parties; and
e)fifthly, given s.79(1) empowers the court to make such orders affecting the parties’ interest in the property as are appropriate, determine what order, if any, altering the parties’ interests are “appropriate” to enable the parties’ entitlements as determined pursuant to steps (c) and (d) to be achieved.

What is the parties’ property?

The parties or one of them have an interest in the following agreed assets:
Property M(joint)   $757,000
Toyota (omitted)  (wife)   $12,000
3084 (omitted) shares                   (husband)   $16,067.64
1800 (omitted) shares                   (wife)   $9,378.00
Of the (omitted) shares in the husband’s name it is agreed he holds 600 shares in trust for X and that he acquired 1584 shares after the parties separated from his post separation income.
Of the (omitted) shares in the wife’s name it is agreed she holds 600 shares in trust for Y and 600 shares in trust for Z.
Both parties agree they will transfer the (omitted) shares held by them in trust to each of the children to the child for whom those shares are held, that the husband shall retain the shares purchased by him post separation and that the remainder of the shares be divided equally between them. This would require the husband to transfer 300 (omitted) shares to the wife.
It is common ground that the wife’s Toyota (omitted) was purchased after the parties separated from funds acquired by her post separation.
The husband’s superannuation entitlement at separation was $122,555.34. Between separation and 2007 the husband continued to contribute to his superannuation. In the period between 200 and 2011 the husband utilised for his sole benefit all but $1,000.00 of his superannuation.
Given that the husband’s superannuation has been expended, neither party now has a legal or equitable interest in that superannuation.
In circumstances such as these, it has been the long standing practice in property applications under the Family Law Act 1975 for the parties to argue the expended funds be notionally “added back” to the pool of matrimonial assets for the purposes of determining the division of property between the parties.
Whilst the Full Court in Bevan (No.1) was not called upon to deal with any “add backs”, the following observation was made by Bryant C J and Thackray J at paragraph 79:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that
s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
A similar observation was made by Finn J in Bevan (No.1) at paragraph 160 as follows:
These reminders that the jurisdiction under s 79 is a jurisdiction to alter individual interests in title to property and that there is no community of property in this country, might also call into some question the current practices in relation to the treatment of property which is no longer in existence but which one party has had the use of (the so called “addbacks”), and perhaps also of the unsecured liabilities of one or both parties. It may well be that these matters should more strictly be considered in making findings under s 79(4)(e) (ie s 75(2)), or in an extreme case, when considering the question under s 79(2) as to whether it is just and equitable to make any order under s 79. But these questions do not arise in the present case, and are thus for another day.
Whilst the comments of the Full Court in Bevan (No.1) are made obiter dictum, they do, I believe properly represent the law.
Accordingly when determining what is the parties’ property in this matter, the husband’s expended superannuation cannot be included. This, however, does not prevent the Court from making an adjustment in the wife’s favour pursuant to s.75(2)(o) of the Act in relation to the disposal of the husband of his superannuation post separation, if it deems such adjustment appropriate.

Is it just and equitable to make any order?

The parties in this matter have been separated for 12 years. They both now come before the Court seeking orders altering their property interests. As such it is very apparent that this is a matter where it is just and equitable that orders be made adjusting property between the parties.

Contributions

It is submitted on behalf of the husband that the parties’ contributions during the nearly 30 years of their marriage should be considered equal in that he was the primary income earner and the wife was the primary homemaker and carer for their three children.
It is further submitted on behalf of the husband that post separation, the wife has had the benefit of residing in the parties’ unencumbered matrimonial home for in excess of eight years and that during this time he has been required to live in rental accommodation and has paid in excess of $90,000 in rental to date.
It is therefore submitted on behalf of the husband that post separation he has made a non-financial contribution for the benefit of the wife, such that there should be an adjustment in his favour of 5%.
It is submitted on behalf of the wife that since the husband vacated Property M, she has borne the responsibility for the payment of all rates and insurances and for the maintenance and upkeep of Property M and as such there should be no adjustment in the husband’s favour for his contributions post separation.
As the wife had the responsibility of maintaining the former matrimonial home after the parties separated, I am satisfied no adjustments should be made in the husband’s favour because the wife remained living in the former matrimonial home.
It is submitted on behalf of the wife that her non-financial contributions were made more arduous as a result of the effect on her of the husband’s persistent physical, emotional, and verbal abuse of herself and the children during the entirety of the relationship, relying on Kennon v Kennon (1997) FLC 92-757. It is submitted on her behalf that given the severity of the abuse to which she and the children were subjected by the husband, the adjustment for her non-financial contribution is in the range of 10% to 15%.
The majority of the Full Court of the Family Court (Fogerty and Lindemeyer JJ) in Kennon v Kennon supra at 84, 924 to 84 925 held:
… 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.
…
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 (as in Ferguson) conduct related to the breakdown of the marriage, (basically because it would not have had a sufficient duration for this to be relevant to contributions).
The allegations made by the wife of the continued and unrelenting physical, emotional and financial violence to which she and the children were subjected during the course of the marriage has been set out in detail previously in this judgment.
The husband adamantly denies these allegations of violence, albeit he concedes he did take X’s bedroom door off, limited access to the telephone in the home for a period of time because of financial difficulties, restricted television access to the family and that there were some “regrettable incidents”.
It was submitted on behalf of the husband that there is a major flaw in the wife’s evidence supporting her claims that she and the children had been subjected to violence as she provided no independent medical or police evidence in support of that claim. It is therefore argued on behalf of the husband that the wife had failed to show a causal link between the alleged violence and her claim that the violence had made her indirect contributions more arduous as a result of that violence.
It was also submitted on behalf of the husband that the evidence of X, Y and Z that they too had been subjected to continuous physical, verbal, emotional and financial violence at the hands of the husband during the course of the marriage, which the husband strenuously denies, is not relevant to an argument by the wife that her non-financial contributions to the marriage were made more arduous as a result of that behaviour.
It is the wife’s evidence that because of her fear of the husband and her shame at being the victim of the husband’s violence, she did not disclose the violence to her family, to her treating doctors or make any report to the police.
It’s the wife’s evidence that she did discuss the husband’s violent behaviour with his family and that they did not provide any support to her or the children.
It is the wife’s evidence that she spoke to social workers at Centrelink who referred her to domestic violence support groups and assisted her in 2002 to obtain a Disability Pension.
The evidence of the wife and of X, Y and Z in relation to the violence suffered by them at the hands of the husband during the entirety of the marriage was compelling. The picture painted by all four members of the family was of them living in a household where they were constantly on edge and in fear of the physical or emotional violence that the husband would enact upon them without notice and with a level of frequency that must have been horrific.
The husband’s argument that the wife’s failure to provide independent medical evidence that recorded the impact upon her of that violence prevents her from satisfying the Court that her non-financial contributions were more arduous as a result of that violence is rejected. I accept the wife’s evidence that she was so disempowered and shamed by the violence that she felt unable to seek assistance until after separation.
Similarly, the husband’s argument that the violence perpetuated against the children is not relevant to the argument by the wife that her non-financial contributions were made more arduous by the husband’s violence is also rejected. The wife’s role as the primary homemaker and carer of the parties’ three children was made considerably more arduous than it otherwise would have been but for the husband’s violence against the children.
In those circumstances I am satisfied that there should be an adjustment in the wife’s favour for her non-financial contributions as they were made more arduous as a result of the effect on her of the husband’s persistent family violence.
It was submitted on behalf of the wife that the Court should consider the husband’s behaviour in this regard to be at the more extreme end of such behaviour and that the adjustment in the wife’s favour should be in the range of 10% to 15%.
It was submitted on behalf of the husband that if the Court was satisfied that this was a matter in which there should be an adjustment on the basis of the principle enunciated in the matter of Kennon then it is not one at the less serious end of the scale given the absence of any medical evidence from the wife as to the long term impact on her as a result of the husband’s behaviours. It is therefore submitted on behalf of the husband that any adjustment should be no more than 5%.
Any violence perpetrated by one party against another is a very serious matter, particularly when that violence takes place over a period of almost thirty years. In the circumstances of this case I am satisfied that there should be an adjustment in the wife’s favour as a result of her greater non-financial contributions arising from the continuous violence to which she and the children were subjected by the husband during the course of the marriage. That adjustment in my view should be 7%.

Non-contribution considerations

Both parties are reliant upon government pensions as their sole source of income. Given their respective ages and state of health, the parties will remain dependent on government assistance for the rest of their lives.
It is submitted on behalf of the husband that the wife has the benefit of the support of the parties’ daughter, X, as she lives with the wife and will do so into the future.
It is also submitted on behalf of the husband that the wife has the benefit of the support of the parties’ son Y, and that he together with X provide a financial resource to the wife that is not available to him and that there should therefore be an adjustment in his favour of 5%.
X suffers from severe mental illness and is in receipt of a disability pension. The mother is X’s carer and will continue to be so into the future. Rather than X being a resource for the wife, the wife has the responsibility to care for X and, if anything, it is she who, with that responsibility, has a greater burden than that of the husband.
It is the evidence of the parties’ son, Y, that he is in full-time employment and is currently living with his mother. The wife does not require Y to pay board in order to enable him to save as it is his aim to acquire his own accommodation when the former matrimonial home is sold. The Court accepts Y’s evidence that he intends to live independently from the wife upon the sale of the former matrimonial home.
The court therefore rejects the husband’s argument that X and Y are a financial resource of the wife and finds there should be no adjustment in the husband’s favour because X and Y currently reside with the wife.
As previously set out in this judgment, between 2008 and 2011 the husband dissipated the entirety of his pre-separation superannuation entitlements of $122,555.34.
Given these funds no longer exist, they cannot be treated as property in which the parties have a legal or equitable interest. However, pursuant to section 75(2)(o) the Court can take into account the dissipation of those funds by the husband.
When determining how to approach the question of how to deal with the problem posed by what was once termed “add backs”, I am of the view that the correct approach is to apply the law as it stood before Stanford and Bevan.
The Full Court in the matter of AJO & GRO [2005] FamCA 195 summarised that law in relation to “add backs” in paragraph 30 of their judgment as follows:
To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)Where the parties have expended money on legal fees...
(b)Where there has been a premature distribution of matrimonial assets.
(c)In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644… (being those circumstances in which the Court will take into account financial losses incurred by the parties or one of them in the course of the marriage).
In this matter it is quite apparent that the husband utilised for his own benefit his superannuation entitlements accumulated during the course of the marriage. He has therefore made a premature distribution of what would otherwise have been matrimonial property.
It is submitted on behalf of the wife that given the husband’s inability to adequately explain how these funds were used by him, the evidence as to the extent of the husband’s gambling and that the vast majority of the funds were expended in a period where he was living in the former matrimonial home and was not required to pay rent or any other living expenses over and above the agreed $650.00 a month, the totality of the husband’s superannuation entitlement accumulated during the course of the marriage should be considered when the court is determining the division of the parties’ existing property interests.
It is submitted on behalf of the husband that whilst the husband was unable to explain his use of the entirety of his superannuation for the period during which he returned to live in the former matrimonial home, leading up to that time when the husband moved back to the former matrimonial home, the husband was supporting himself. It was argued that in these circumstances, it is open to the Court to make a finding that during the period the husband was living independently, he was required to have access to his superannuation in order to meet his reasonable living expenses.
It has been a longstanding principle that parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives and that there is no appropriate basis for notionally adding back monies that existed at separation which have subsequently been spent on meeting reasonably incurred necessary living expenses (see C & C [1998] FamCA 143; M & M [1998] FamCA 42; NHC & RCH [2004] FLC 93-204).

It is therefore submitted on behalf of the husband that when contemplating the manner in which the Court should adjust matters in the wife’s favour as a result of the husband’s premature disposal of his superannuation, an amount of $100,000 would be an appropriate figure to attribute to the premature distribution by the husband of his pre-separation superannuation entitlements.
It is therefore argued on behalf of the husband that when a calculation is undertaken of the wife’s entitlement to the superannuation as a percentage of the value of the former matrimonial home, the adjustment in her favour is 5%.
The difficulty with the husband’s argument in this regard is that for all but eight months of the period in which the husband dissipated his superannuation entitlements, he was living in the former matrimonial home. It is also evident from the husband’s own evidence that he did not have any need to have recourse for his superannuation in the period from when he left the matrimonial home in 2004 until he returned to the matrimonial home. The husband was able to live independently of the wife, gamble regularly at the casino and make contributions to his superannuation such that it increased over this period.
In those circumstances the court cannot be satisfied that the husband’s expenditure of his superannuation between 2008 and 2011 was used to meet his reasonable living expenses.
Accordingly, when determining the relevant figure to be taken into account in adjusting matters in the wife’s favour pursuant to section 75(2)(o) of the Act as a result of the husband’s premature distribution of his pre-separation superannuation entitlements, I am satisfied that the full amount of those entitlements being $122,555.34 should be taken into consideration.
A calculation of what would have been the wife’s entitlement to the pre-separation superannuation prematurely distributed by the husband as a percentage of the agreed value of the family home is 8%.
Accordingly there will be an adjustment in the wife’s favour of

8% pursuant to section 75(2)(o) of the Act arising from the husband’s premature distribution of matrimonial assets.

The wife’s motor vehicle and inheritance

I note that the husband is also seeking an adjustment in his favour in relation to him being credited 50% of the agreed value of the wife’s motor vehicle, as well as an adjustment of $5,000.00 on the basis of the inheritance the wife received from her father after separation.
Given that it is common ground that the wife’s vehicle was acquired by her after separation and from her own monies, it is difficult to fathom on what basis the husband argues that he has any entitlement in relation to this vehicle or that there should be any adjustment in his favour because of the existence of this car.
In relation to the wife’s inheritance from her late father’s estate received post-separation, again it is very difficult to fathom on what basis the husband argues any adjustment should be made in his favour as the result of the monies that were received by the wife from her late father’s estate.
Accordingly, inasmuch as the husband seeks these adjustments the Court is not persuaded that there is any basis upon which they should, or could, be made.

Conclusion

It can therefore be seen that the finding of this Court is that the only assets available for distribution between the parties is the former matrimonial home and the (omitted) shares.
The parties have agreed that the (omitted) shares held by them in trust for the children will be transferred to the children, that the husband is entitled to retain any (omitted) shares purchased by him post-separation and that the remaining shares are to be divided equally between them.
Accordingly, orders will be made requiring the parties to transfer to each of the children the shares they hold in trust for them and for the husband to transfer 300 (omitted) shares to the wife.
In relation to the former matrimonial home, neither party is in a position to purchase the other’s interest in that property. Accordingly, it will have to be sold in order to achieve a distribution of the matrimonial assets between the parties.
The husband seeks orders that the net proceeds of sale of the former matrimonial home be divided equally between the parties.
It is the husband’s argument that if the court makes a finding there be an adjustment in the wife’s favour as a result of her contributions being made more arduous as a result of the violence perpetrated by him during the marriage, such adjustment should be no more than 5% and that this is offset by his indirect contributions of the wife having the benefit of being in the unencumbered former matrimonial home since separation whilst he has been required to rent.
I have found that there should be a 7% adjustment in the wife’s favour in relation to her non-financial contributions on the basis that those contributions were made more arduous as a result of the effect of the husband’s persistent violence during the course of the relationship.
The husband’s argument that this adjustment is offset by the wife having the benefit of being in the unencumbered former matrimonial home is rejected.
I have also found that there should be an adjustment in the wife’s favour of 8% pursuant to section 75(2)(o) of the Act arising from the husband’s premature distribution of his pre-separation superannuation entitlements.
The husband’s argument that this adjustment is offset by the financial resource the wife has because the parties’ children X and Y live with her, is also rejected.
Accordingly, an order will be made that the former matrimonial home be placed on the market for sale and that after the payment of all sale costs, the proceeds of sale be divided such that the wife receive

65% and the husband receive 35%.
Otherwise, orders will be made for the parties to retain those assets that are currently in their possession.
I am satisfied that such orders adjusting the parties’ interest in their property appropriate in all the circumstances of this case.

I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate:

Date: 29 August 2014

[2014] FCCA 1966

29 August 2014

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