S & S
[2005] FamCA 1304
•15 NOVEMBER 2005
[2005] FamCA 1304
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT BRISBANE Appeal No. NA67 of 2004
File No. BRM5558 of 2001
IN THE MATTER OF: S
Appellant Husband
AND: S
Respondent Wife
CORAM: FINN, COLEMAN, WARNICK JJ
DATE OF HEARING: 24 MAY 2005
Further submissions filed 12 July 2005
DATE OF JUDGMENT: 15 NOVEMBER 2005
JUDGMENT OF THE FULL COURT
Appearances: Mr Murphy of Senior Counsel with Mr Bourke of Counsel, instructed by Rosen Lawyers appeared on behalf of the appellant husband
Mr Waterman of Counsel, instructed by Neumann & Turnour, appeared on behalf of the respondent wife
| Name of Appeal | S AND S |
| Appeal Number | NA67 OF 2005 |
| Date of Appeal Hearing | 24 MAY 2005 |
| Date of Judgment | 15 NOVEMBER 2005 |
| Coram | FINN, COLEMAN, WARNICK, JJ |
Catchwords: APPEALS – FROM DECISION OF FEDERAL MAGISTRATES COURT – PROPERTY SETTLEMENT – SUPERANNUATION – VALUATION – CHANGE OF LAW – The parties were married for 16 years – Orders for property settlement were made by the Federal Magistrates Court – Contribution finding of 55/45 in favour of the husband – Federal Magistrate valued the husband’s superannuation at $354,769 at trial – Judgment was reserved for 13 months – The law relating to the superannuation scheme of which the husband was a member changed between trial and judgment – the husband argued that the Federal Magistrate failed to consider the effect of the changes on a splitting order as ultimately made – No attempt was made by the husband to re-open the hearing of the matter before the trial Magistrate to bring any further evidence – The mere fact of change was not shown to have any practical consequence on the anticipated financial position of the parties from which it appeared to be at trial – In the circumstances of the matter it was not shown that the Federal Magistrate fell into appellable error.
OPERATIVE DATE – While, where the question of operative date is open, there are sound reasons for matching an operative date to the date of valuation of a superannuation interest, in the circumstances of this case, in which both parties sought a particular operative date, the Federal Magistrate was not in error in prescribing the operative date to be four days after the date of the orders determining the property settlement application.
CONTRIBUTIONS – DOMESTIC VIOLENCE – The Federal Magistrate made adjustment contributions of 5% in the wife’s favour because of domestic violence – The husband argued that the Federal Magistrate could not have made such a finding on the evidence – The term ‘course of conduct’ is a broad one – Conduct does not necessarily have to be frequent to constitute a course of conduct, though a degree of repetition is obviously required – The wife’s evidence established periodic behaviour and its consequences throughout the period of cohabitation.
C and B and DFRDBA (20005) 33 FamLR 494
C and C (2005) FLC 93-220
Gronow and Gronow (1979) 144 CLR 513
Hickey and Hickey and Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House and The King (1936) 55 CLR 499
I and I (2005) FLC 93-221
Kennon and Kennon (1997) FLC 92-757
W and W (2005) FLC 93-222
Appeal allowed in part. Parties at liberty to make submissions as to costs within 42 days.
Between 29 August 2003, when Federal Magistrate Rimmer heard an application for property settlement between the parties, and 30 September 2004 when her Honour delivered judgment and made orders, a change to the “law” occurred. The change specifically related to the superannuation scheme of which the husband was a member.
In this appeal by the husband against the orders made by the learned Magistrate, the husband substantially relies upon the fact of that change and an asserted failure by the Federal Magistrate to have regard to it and its effect on the result of a superannuation splitting order made by her Honour.
Apart from an additional challenge to the form of some of the orders (which is conceded), the only other point of appeal is directed to the trial Magistrate’s treatment, as a factor relevant to assessment of contributions, of allegations of violence perpetrated by the husband on the wife.
The appeal was argued on 24 May 2005. We were conscious that the Full Court was then near to delivering judgment in four cases dealing with arguments about various aspects of the operation of Part VIIIB of the Family Law Act. Accordingly, we made directions that each party have liberty to make further submissions in respect of the appeal following delivery of the anticipated decisions. Further submissions were received from the appellant husband. The respondent wife indicated she did not wish to make further submissions.
After recording alterations to the grounds of appeal and a short background taken from the judgment of the trial Magistrate, we will go directly to the appeal grounds and in discussion of those grounds include relevant parts of the judgment of the learned Magistrate. We will then address the further submissions on behalf of the husband, before dealing with the form of the orders.
Alterations to the grounds of appeal
The amended Notice of Appeal of 11 March 2005 contained grounds 1-4 under the heading “Superannuation”; grounds 5-8 under the heading “Husband’s Interest in Post-separation Property”; grounds 9 and 10 under the heading “Kennon Adjustment” and ground 11 under the heading “Costs Order”.
(a)Superannuation
Ground 4 is the ground that relates to the form of some of the orders relating to superannuation and which was conceded.
During the hearing, leave was given to the appellant to add two further grounds challenging the trial Magistrate’s treatment of superannuation, so that ultimately five grounds (the further grounds and grounds 1-3) going to that issue were argued.
(b)Husband’s interest in post-separation property
All the grounds relating to this issue were abandoned.
(c)Kennon Adjustment
The two grounds contained in the amended Notice of Appeal were argued.
(d)A prospective ground abandoned
The Outline of Submissions on behalf of the appellant indicated that leave would be sought to amend ground 11 to attack the trial Magistrate’s assessment of section 75(2) factors. Senior counsel for the appellant advised that that intended application would not in fact be made.
(e)Appeal against costs order
Ground 11 constituted an appeal against a costs order made on 17 February 2005, in respect of the costs of the property settlement proceedings. We did not take submissions relating to the appeal against the costs order, but will make directions enabling submissions to be made in writing.
Short background
The parties commenced cohabitation in January 1983 and married in June of that year. They separated in June of 1999.
There were two children born during the marriage, in 1989 and 1992 respectively.
Neither party had any significant assets at commencement of cohabitation. At that time, the wife was employed as a legal secretary, the husband as an air traffic controller.
The wife engaged in full-time work prior to the birth of the first child and part-time work after the birth of the second child. She was the primary child-carer/homemaker. The husband remained in full-time employment and there were a number of transfers associated with that employment.
During the course of the cohabitation the husband received an inheritance of approximately $13,000.00 from his grandmother’s estate.
The learned Magistrate found the assets, liabilities and financial resources of the parties at the time of hearing to be:
Assets Former matrimonial home (value agreed) $210,000.00 Furniture and chattels in the wife’s possession 8,802.00 Furniture and chattels in the husband’s possession 3,037.00 Mitsubishi Verada in the husband’s possession 11,500.00 Mitsubishi Lancer in the wife’s possession 5,000.00 Telstra shares of the wife 2,814.00 Av Super entitlement of the husband 47,556.00 Com Super entitlement of the husband 354,769.00 Husband’s equitable interest in [Eastern Brisbane] property 44,600.00 Total value of Assets $688,078.00 Liabilities Mortgage on the matrimonial home 87,000.00 Lease on Verada 3,167.00 Total net Assets $597,911.00 Financial Resources Husband’s Long Service Leave $39,799.00
The interest of the husband in the “[Eastern Brisbane] property” referred to in the above list is a reference to an interest acquired post-separation in a property in the name of the husband’s new partner.
In paragraph 71 of her reasons for judgment, the learned Magistrate said:
“71. I find that the contributions of the parties to this marriage are equal, other than for the $13,000.00 inheritance received by the husband in 1997, the post separation contributions of the husband to the [Eastern Brisbane] property. I find that the husband has made greater contributions than the wife as a result of these two matters. If it were not for the issues raised as to the wife’s contributions as a result of domestic violence, I would assess the husband’s greater financial contributions overall at 55% and the wife’s at 45%.”
The learned Magistrate then considered the allegations of domestic violence and concluded:
“80. I am satisfied that this calls for an assessment that overall the wife made contributions equal to the husband, despite the fact that if it had not been for this element, his contributions would have been greater than the wife’s contributions by 10%. This is an adjustment back in the wife’s favour as it is submitted by her counsel is appropriate in this matter of 5%.
81. Overall therefore I find that the parties contributions are equal.”
The children have resided with the wife since the separation, the husband having some weekend contact, but less than fortnightly, some limited holiday contact and taking the children out for a meal each week.
After separation, the wife resumed work part-time as a legal secretary, earning approximately $20,000.00 per annum. The husband gave evidence that as of October 2003 he would be promoted and would then earn an income of $120,000.00 per annum. The wife was aged 40 at trial, the husband 42 years.
The learned Magistrate made an adjustment in the wife’s favour for section 75(2) factors, of 17.5%.
Finally, her Honour considered whether the proposed orders were just and equitable. She addressed the property which each party would receive as a result of intended orders, including a splitting of the husband’s ComSuper entitlement and she concluded that the orders provided a just and equitable division of the net assets of the parties.
In summary, the orders made by the Federal Magistrate provided:
(i)that the husband transfer to the wife his interest in the former matrimonial home;
(ii)that the wife refinance the mortgage debt over the home and indemnify the husband in the meantime;
(iii)that the husband discharge a “Portfolio Loan” secured over the home;
(iv)a “splitting” order in the wife’s favour on a base amount of $263,973 in respect of the husband’s ComSuper interest of an expressed value of $354,769, the operative time being 5 working days after service of the orders upon the trustee;
(v)each party otherwise retaining property and resources he/she already owned.
Grounds relating to the superannuation interests of the husband
Grounds in the amended Notice of Appeal:
“The Federal Magistrate:-
Superannuation
1. Failed to determine the 2nd of April 2003 as the correct date of valuation being the date upon which the information was provided by the Trustee (Clause 5(a) of the Order).
2. Failed to set the proper operative time at the 2nd of April 2003, effectively freezing the value of the Superannuation for eighteen (18) months (Clause 8 of the Order).
3. Failed to consider the effect of the Order in so far as it reduces the husband’s interest in the Commonwealth Superannuation Scheme as a result of Part IXB of the Superannuation Act 1976.”
Grounds added by leave at hearing
“The Federal Magistrate erred in law in failing to apply Part IXB of the Superannuation Act 1976 (as amended) in arriving at Orders for settlement of property.
Further and consequently, the Federal Magistrate erred in law in failing to consider the nature and effect of the interests created for each of the parties (including, in particular, the reduction in the husband’s interest) by reason of the said legislation.”
Grounds 1 and 2 essentially address the question of the operative date of the order effecting a split of superannuation payments and the balance of the grounds address the asserted failure to have regard to Part IXB of the Superannuation Act 1976 (as amended). We deal firstly with the latter question.
An appropriate starting point is to address the position presented to the learned Magistrate, both in terms of the orders that were sought by each of the parties relating to the husband’s superannuation interests and of the evidence before the learned Magistrate about those interests.
Among the orders sought by the husband in his Outline of Case for the purposes of the trial, dated 26 August 2003, was a splitting order in respect of each of his superannuation interests. With regard to the ComSuper scheme, he sought that the wife be allocated a base amount of $232,170.00.
In her reasons for judgment, the learned Magistrate recorded that, in the wife’s amended response, she sought a splitting order in respect of the husband’s ComSuper interest, and the allocation of a base amount in that respect of $307,000.00. She sought no order in respect of the husband’s Av superannuation interest.
As to the evidence about the husband’s ComSuper interest, as earlier seen, the trial Magistrate included it in the asset pool at $354,769.00. It was common ground before us that that figure was the valuation given by the expert witness and that that was the only evidence of value before the Federal Magistrate.
In contrast to the position with regard to most superannuation funds, the Commonwealth Superannuation Scheme is established by legislation rather than an instrument such as a trust deed. The stated purpose of the Superannuation Act 1976 is:
“An Act to make provision for and in relation to an occupational superannuation scheme for persons employed by the Commonwealth, and for certain other persons, and for other purposes.”
The Superannuation Act 1976 is one of a number of pieces of legislation that provided for superannuation and like benefits that were amended by the Superannuation Legislation Amendment (Family Law and other matters) Act 2004 (Act No. 58, 2004). The provisions of that legislation that affected the Superannuation Act 1976, by the insertion of Part IXB, commenced on 18 May 2004; that is, some nine months after the trial in this matter and some four months prior to delivery of judgment.
However, the prospect of change to the ComSuper scheme was referred to in evidence before the learned Magistrate. When the expert witness was giving evidence on 29 August 2003, counsel for the wife asked him:
“[Witness], the wife seeks that a base amount be allocated to her from the husband’s interest in the Commonwealth Superannuation Scheme. She seeks to be allocated an amount of some $307,000 in the minute of orders sought by her. How would ComSuper deal with that?---My most recent inquiries at ComSuper on Wednesday indicate that at the moment there – the legislation that governs the whole ComSuper scheme is in the process of being re-written to allow splitting. AT the moment, it’s only a – as I understand, a treasurer’s press release, in effect, that he’s going to attend to this. And ComSuper, at this stage, have been in a – sort of a holding system, if you like, whereby they will create a notional split attached to the husband’s interest, which will have the effect of a flag on that for the base amount. It will have the effect of a flag on the fund, and upon that, CSS legislation being amended, they will then deal with that notional split, in accordance with the detail of the legislation. They don’t have any detail of the legislation, as yet, to know exactly how to attain the mechanics of the split.
And are you able to say anything in relation to as to whether the ultimate payment will be by way of lump sum or pension and/or pension?---Yes, the – it was advised to me the intention is that the parties will be able to have a clean split and so that would entail, I would imagine the non-member spouse being entitled to, effectively, be paid a lump sum, which will presumably have to remain within a superannuation fund of some description. But it would be an – in an account of her name and would not be tied to the husband’s account.”
The expert witness was then cross-examined by counsel for the husband, but no questions were asked relating to any anticipated consequences of proposed amendments.
Part IXB is headed “Family Law Superannuation Splitting”. The part contains four divisions which together contain sections 146MA to 146MH. Division 4 relates to miscellaneous matters, essentially the power of the Minister to make orders as prescribed and is of no importance for present purposes. Division 1 contains only section 146MA, which provides definitions. Division 2 relates to “Benefits for Non-member Spouse” and provides for conditions under which, if a splitting order is made in respect of a member’s interest, the non-member spouse is entitled to “associate deferred benefits”, effectively the establishment of a separate superannuation interest for the non-member spouse. Division 3 provides for the “Reduction of benefits for member spouse” where a splitting order has been made. It is Division 3 which is of particular interest to the husband in this appeal. Section 146ME in Division 3 provides formulae for, among other calculations, the reduction of accumulated contributions and the reduction of later salary-based pension. Within the latter formula is the term “reduction factor”. We set out, for the purposes of demonstration of a point to be made later, the definition of that term.
“reduction factor means the number worked out as follows:
(a) calculate a number (the service factor), by reference to the member spouse’s period of contributory service before the operative time, by adding:
(i)for service that occurred within the first 20 years;
(A)0.02 for each full year; and
(B)0.02/365 for each left-over day; and
(ii)for service that occurred within the next 10 years:
(A)0.01 for each full year; and
(B)0.01/365 for each left-over day and;
(iii)for service that occurred within the next 10 years:
(A)0.0025 for each full year; and
(B)0.0025/365 for each left-over day;
(b) if the original pension is age retirement pension or early retirement pension, multiply the service factor by the age factor (based on the member spouse’s age in full years at the time when the original pension became payable);
(c) multiply the number worked out under paragraphs (a) and (b) by the transfer factor.”
Senior counsel for the husband conceded that, without more, a reader of Part IXB, in particular the learned Federal Magistrate in this case, would not find it apparent that an effect of the introduction of Part IXB was that the husband would be worse off after any splitting order was made in respect of his interest in the scheme after the commencement of the Part, than he would have been if the same splitting order was made before the commencement of that Part. We will mention this factor, as one of a number of factors, later.
In support of these grounds, it was argued that a reason why it ought be concluded that the learned Magistrate failed to apply the “correct law” is that there is no mention in her reasons of the amending legislation. This is so. However, the mere fact of change was not shown to us to have any practical consequence on the anticipated financial position of the parties from that which it appeared to be at trial. We note in this regard that, when the new legislation come into force, no attempt was apparently made by the husband to re-open the hearing before her Honour to bring to her attention any such practical consequence. In these circumstances, there seems no reason for the mere fact of change to have been discussed by the trial Magistrate. It also follows that the mere fact that the learned Magistrate does not mention the change to the scheme does not necessarily mean she was unaware of it or overlooked it.
In the following circumstances, namely:
(i) There was no dispute about the valuation of the husband’s interest in the ComSuper scheme, included by the learned Magistrate in the list of assets.
(ii) There was oral evidence before the learned Magistrate foreshadowing a change to the ComSuper scheme, but that oral evidence in no way indicated that the husband would be disadvantaged by those changes, if a splitting order was made as sought by either of the parties.
(iii) There was a change to the superannuation scheme effected by legislation, but, as opposed to a legislative change to a law of general application, it was a narrow change related to a particular superannuation scheme, having some similarity to a change in the terms of a trust deed or other instrument containing the terms of a superannuation scheme.
(iv) Of itself, the legislative change did not indicate that the husband would be worse off after any splitting order subsequently made than he would have been if the same splitting order had been made before the change.
(v) Accordingly, it was the sort of change about which one would expect evidence of any impact on the other evidence already before the trial Magistrate.
(vi) No application was made to the learned Magistrate to re-open, subsequent to the change.
(vii) Even in this appeal, there is no material before us to indicate that the change has meant that the splitting order made is more detrimental to the husband than if such an order had been made prior to the legislative change.
we are not satisfied that the husband has shown that the learned Federal Magistrate fell into appellable error.
To allow the appeal on the bases under discussion would be to react to the possibility of injustice, of unknown proportions to the husband, for nothing greater than possibility has been demonstrated.
As to the question of operative date, section 4(1) of the Superannuation Legislation Amendment (Family Law and Other Matters) Act 2004 provided:
4. Application of family law interest‑splitting amendments
(1)The family law interest‑splitting amendments apply to:
(a)any splitting agreement, or splitting order, that has an operative time after the commencement of Schedule 1; and
(b)a splitting agreement, or splitting order, with an earlier operative time, if no benefits had become payable before the commencement of Schedule 1 in respect of the superannuation interest to which the agreement or order relates.
(2)In this section:
family law interest‑splitting amendments means the amendments made by Schedule 1, other than items 24 and 34.”
The submission made on the husband’s behalf in this regard was that the learned Federal Magistrate should have, in view of Part IXB, at least made the operative date the date of valuation, because the calculation of the reduction factor, and in particular, the service factor component of the reduction factor, as seen above, is premised on the period of contributory service before the operative time. Thus, it was argued, the husband was disadvantaged if the operative time was the date of order rather than an earlier date and in particular the date of valuation. As it was put in the written submissions on behalf of the husband:
“This approach automatically picks up and applies the additional service contributed solely by the Husband for the purposes of calculating pension entitlement…”
It is pertinent in considering this argument to note that in his Outline of Case for the trial earlier referred to, the husband sought that the operative time for an order splitting payments under the ComSuper scheme be “…the beginning of the fourth business day after the day on which a sealed copy of these orders is served on the Trustee.”
As recorded in the learned Federal Magistrate’s reasons, in her response the wife sought:
“g) that orders (e) and (f) of these orders shall take effect from the operative date:
h) that the operative time for these orders is five (5) working days after service of the orders on the Trustee.”
There was no alteration to the position of either party between trial and judgment.
While in Wilkinson and Wilkinson, this Court has suggested that, where the question is open, there are sound reasons for matching an operative date to the date of valuation of a superannuation interest, in the circumstances of this case, in which both parties sought a particular operative date, we are not satisfied that the learned Magistrate was in error in prescribing the operative date to be four days after the date of the orders determining the property settlement application.
Ground 2 (earlier quoted) directly referred to the failure to set the operative time at 2 April 2003. Though ground 1 (directed to order 5(a)) asserted a failure to determine 2 April 2003 as the correct date of valuation, both grounds really deal with the same point.
Order 5(a) of the orders made by the learned Magistrate provides:
“a) The value of the husband’s interest in the Superannuation Fund at the date of these orders is $354,769.00.”
In so far as ground 1 refers to order 5(a) and asserts that there was a failure to determine 2 April 2003 as the correct date of valuation, in circumstances where each party sought an operative date approximate to the date of order, we see no error in the intent (as opposed to the form) of order 5(a).
A miscellaneous point in relation to the “superannuation” grounds, is that in the written submissions on behalf of the husband, it was submitted that “step one” of the preferred “four step” approach to property settlement applications (as outlined in Hickey and Hickey and Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143) had been altered in three ways by the insertion of Part VIIIB into the Family Law Act. The third suggested alteration was that the valuation according to the prescribed method was a gross valuation and the liability for tax is not considered as part of step one in the same way as other liabilities may be considered, but at step three. This submission was not referred to in oral argument and was not part of the case before the Federal Magistrate. In these circumstances, we do not intend to deal with that submission.
The treatment of the allegations of domestic violence – the “Kennon adjustment”
Relevant grounds of appeal:
“9. Erred in finding that the level of Domestic Violence enlivened the principles in Kennan (1997) FLC 92-757.
10. Erred in calculating that the adjustment for Kennan be 5% of the nett assets.”
Senior counsel for the husband submitted that the decision of the Full Court in Kennon and Kennon (1997) FLC 92-757 nominated two circumstances, both of which must be established before a trial Judge, assessing parties’ respective contributions within s 79, was entitled to take into account violent conduct by one party towards the other. These two matters, paraphrased, but using some of the terms used by the Court in Kennon, are:
“(1) A course of violent conduct.
(2) 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.” (emphasis added)
Senior counsel submitted that neither of these circumstances was established in this case. He took us to the wife’s written evidence, the cross-examination of the husband and to the wife’s evidence in chief.
He conceded that in relation to the evidence about violent conduct it was open to the learned Magistrate to do as she did, namely, accept the evidence of the wife and reject that of the husband.
In her affidavit of evidence in chief used at the trial, the wife deposed, with respect to a period in the months following the birth of the first child of the parties:
“14. …By this stage our relationship was very strained. It was characterised by domestic violence which he perpetrated upon me from time to time. This involved him assaulting me by putting me in a headlock, pushing me towards the piano, and other forms of assault. He made it difficult for me caring for [the eldest child].”
In paragraph 23 the wife deposed to an assault that occurred in 1991 and in paragraph 31 she deposed to an assault that occurred at the end of 1994. In paragraph 40 the wife deposed that by 1999 the marriage had deteriorated substantially and in paragraph 42 she deposed:
“The situation at home became unbearable for me. I began to fear for my safety. I thought he would assault me and cause me serious injury.…”
In cross-examination, the incidents referred to in the wife’s affidavit of evidence in chief were put to the husband. It was also put to the husband “…See, you were often verbally abusive towards [the wife] weren’t you during the course of your relationship?”, to which the husband answered, “Yes and it was mutual”.
The wife’s oral evidence included this exchange (AB199) “How often did arguments or incidents occur between you and your husband at that time?”. To this there was not an immediate specific response, but the question appears to have been answered later in this manner:
“Well, I mean the incidences were of different variation so a lot of things I’ve just forgotten, but there’s things that I recall. You know, maybe once every six months.”
We accept as senior counsel for the husband submitted, that this evidence may have done no more than establish that “arguments or incidents” occurred about once every six months. However, the wife was also asked to what she was referring in her affidavit as “other forms of assault”, and she answered “Throwing plates and object.” Then, later asked was she able to say how often during the course of her relationship were there physical assaults against her, either by the husband assaulting her directly or by him throwing objects at her, she said she guessed once every six months.
In evidence in chief, the wife said that the relationship between her and the husband was strained after the eldest child was born in 1989. This she explained to mean:
“…there were incidences of abuse towards me, just minor things, there were no injuries, but it did affect the way I felt about myself and it also made it very difficult with a new baby trying to adjust to all that.”
Asked “How did it affect your care of [the eldest child] or…?” the wife answered “Well, at stages I was very upset and I think he felt that as well.”
Under the heading “Findings as to the Impact on the Wife’s Contribution Given Allegations of Domestic Violence” her Honour referred to the very passage of Kennon upon which senior counsel for the husband has relied. Moreover, in paragraph 75 she said:
“75. Later in that decision, the Full Court made certain comments in relation to what had been described as the "floodgates" argument — in other words, that the principle enunciated by the Full Court should only apply in exceptional circumstances, lest it become what they described as common coinage in property cases.”
Her Honour then discussed the credibility of the evidence of each party about violent conduct and said:
“77. …I accept that during the marriage she was subjected to violence at the hands of the husband on a reasonably regular basis. I have absolutely no doubt that the husband’s behaviour in this regard caused significant grief within his family, and I have no doubt that as the wife says it did that it made the wife's contributions significantly more arduous than they ought to have been.
78. This impacted — in an adverse manner — upon the contributions that the wife was obliged to make in her role of homemaker and parent. The wife suffered low self esteem and greater difficulties in managing day to day life as she describes. I have accepted her evidence that she was subjected to violent episodes about twice a year and she was subjected to derogatory comments on a regular basis. This occurred as she says in the context whereby she was caring for the children and the family. The types of behaviour envisaged by the Full Court in the Kennon decision are I have accepted are the sort to which the wife was subjected to in this matter.”
The term “course of conduct” is a broad one. We do not think that conduct must necessarily be frequent to constitute a course of conduct though a degree of repetition is obviously required. The wife’s evidence does establish periodic behaviour and its consequences throughout the period of cohabitation.
We are not satisfied that the findings of the learned Magistrate were not open to her.
Whether or not, on those findings, a 5% adjustment in the wife’s favour, resulting in a 10% differential between the parties, in turn counterbalancing the adjustment that her Honour notionally made to the husband on account of the inheritance, was an error, raises the width of discretion which has been frequently discussed in cases such as House v The King (1936) 55 CLR 499 at 504‑505 and Gronow v Gronow (1979) 144 CLR 513 at 519‑520. The brief submission under the relevant ground (ground 10), said no more than a 5% allowance was not warranted. Having regard to what was said in the cases cited, we are not satisfied that the learned Magistrate’s discretion miscarried.
Further submissions
The anticipated judgments, in C & C [2005] FamCA 429; (2005) FLC 93-220; (2005) Fam LR 414; W & W [2005] FamCA 430; (2005) FLC 93-222; (2005) 33 FamLR 373; I & I [2005] FamCA 432; (2005) FLC 93-221; (2005) 33 Fam LR 393 and C &B & DFRDBA [2005] FamCA 431; (2005) 33 FamLR 494 were delivered on 2 June 2005. The further submissions of the husband were dated 30 June 2005.
The leave given for further submissions was not to add further grounds of appeal following delivery of the relevant judgments, but simply in case anything arose out of those judgments to which counsel wished to refer in support of the appeal as otherwise heard.
In effect, the further submissions sought to:
· challenge the methodology employed by the learned Magistrate in formulating asset “pools” and consequently, the assessment of contributions. In this, reliance was placed on C & C and W & W.
· challenge the learned Magistrate’s dealing with section 75(2) factors, in particular in allegedly failing to properly address the consequences of the proposed splitting orders. In this reliance was placed on W & W.
· challenge the Federal Magistrate’s consideration of the justice and equity of the proposed orders, relying particularly on I & I.
These are all arguments outside the grounds of appeal and we do not entertain them.
Form of the orders
It was submitted and acknowledged that there were three technical defects which needed correction. Firstly, there was a failure to identify the “type” of order made pursuant to s 90MT of the Family Law Act 1975 (as amended), by reference to the paragraph of s 90MT(1) under which the order was made. However, it was conceded that the form of order implied that it was an order made pursuant to s 90MT(1)(a).
Secondly, the order provided that the interest of the husband in the ComSuper scheme “shall be split” whereas the power to make orders is confined to splitting payments.
In respect of the third matter, it was submitted in the written outline:
“Failure to indicate what the trustee is bound to do (Clause 9 of the Order): S.90MZD of the Family Law Act 1975 provides that an order may be expressed to bind the trustee provided the trustee has been accorded procedural fairness. The order made by the Federal Magistrate is expressed to bind the trustee. However, there are a number of clauses which are of no concern to the trustee and these would appear to be picked up by the clause binding the trustee. The trustee should only be bound by the clauses that relate to the trustee’s obligations.”
Conclusion
It follows from our discussion of the grounds relating to superannuation and the issue of violent conduct, that those grounds fail. Accordingly, though the appeal will succeed, it will do so only in relation to the form of orders as discussed.
Terms of the orders
Apart from correcting matters of form, we will make directions for submissions in respect of the costs appeal, in respect of the costs of this appeal and of the costs appeal.
ORDERS
That the appeal be allowed.
That orders 5 and 6 of the orders made 30 September 2004 by Federal Magistrate Rimmer be set aside and that there be substituted in lieu the following:
“5.That a base amount of $263,973.92 be allocated, as required by s 90MT(4) of the Family Law Act 1975, to the wife out of the husband’s interest in the Commonwealth Superannuation Scheme.
6.That in accordance with paragraph 90MT(1)(a) of the Family Law Act 1975:
(a)the wife is entitled, using the base amount allocated in clause 5 of this order, to the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b)the husband’s entitlement (and the entitlement of any other person to payments out of the husband’s interest) in the Commonwealth Superannuation Scheme, is correspondingly reduced.
6A.That the Commonwealth Superannuation Scheme Board of Trustees shall do all such acts and things and have signed all such documents as may be necessary to:
(a) calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife in clause 6 of this order; and
(b) pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Commonwealth Superannuation Scheme.”
That order 7 of the orders made 30 September 2004 be amended to read, in lieu of “order 5 and 6”, “orders 5, 6 and 6A”.
That order 9 of the orders made 30 September 2004 be amended to delete the words “These orders” and to substitute “Orders 5 to 8 and this order”.
That the appellant have 21 days to make written submissions in respect of the appeal against the costs order made 17 February 2005 and the costs of that appeal by filing such submissions at the Brisbane Registry of the Family Court and serving a copy on the respondent.
That the respondent have a further 21 days to make written submissions in response by filing such submissions at the Brisbane Registry of the Family Court and serving a copy on the appellant.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to this appeal by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party within 21 days of the date hereof.
That the other party have a further 21 days in which to make written submissions in answer thereto by filing such submissions at the Brisbane Registry of the Family Court and serving them on the other party.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.
I certify that the 76 preceding
Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: ………………
Associate
4
6
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