Saltwick and Saltwick
[2010] FMCAfam 1176
•29 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALTWICK & SALTWICK | [2010] FMCAfam 1176 |
| FAMILY LAW – Property – husband accused of arson – determination on balance of probability – waste or negative contribution. |
| Family Law Act 1975, ss.75, 78, 79, 106A, 114, 121 Evidence Act 1995, s.91 |
| Hickey & Hickey [2003] FamCA 395 Biltoft and Biltoft (1995) FLC 92-614 Mallett v Mallett (1984) FLC 91-507 In the Marriage of Pierce (1998) FLC 92-844 Briginshaw and Briginshaw (1938) 60 CLR 336 Kowaliw & Kowaliw (1981) FLC 91-092 Russell v Russell (1999) FamCA 1875 |
| Applicant: | MS SALTWICK |
| Respondent: | MR SALTWICK |
| File Number: | BRC 7513 of 2008 |
| Judgment of: | Coates FM |
| Hearing date: | 12 May 2010 |
| Date of Last Submission: | 12 May 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 29 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Galloway |
| Solicitors for the Applicant: | Butler McDermott Lawyers |
| Solicitors for the Respondent: | Self represented |
ORDERS
That pursuant to s.78 of the Family Law Act 1975 (as amended) the wife be declared to be the sole owner of the property situated at Property P, being the land in Lot [omitted], County of [omitted] (“the P property”) with effect as and from 28 August 2001.
That in order to give effect to the said declaration the husband forthwith transfer to the wife all his right title and interest in the
P property.
That pursuant to s.79 save as is otherwise provided herein the husband retain to the exclusion of the wife all property and financial resources currently in his name, possession or control including:-
(a)His 1982 Range Rover or the sale proceeds thereof;
(b)His caravan; and
(c)Items of personal contents and furniture.
That save as is otherwise provided herein the wife retain to the exclusion of the husband all property and financial resources currently in her name, possession or control including:-
(a)The sale proceeds of motor sailor “O”;
(b)The ride-on mower;
(c)The 1979 Toyota utility;
(d)The 2004 Holden Astra convertible;
(e)All investments held by the wife; and
(f)Personal property.
By consent, the wife will return to the husband an anchor, chain and bollard if found in the rubble of the burnt out marital property, personal effects including clothing and walking sticks and other personal items.
Pursuant to s.114(1)(a), by injunction, the husband is restrained from contacting or approaching the wife in any manner whatsoever, other than through a lawyer, and is restrained from harming her or attempting to harm her in any way by acts or omissions which would otherwise be offences under the Criminal Code of Queensland.
Pursuant to s.121 of the Family Law Act 1975, the wife may publish these reasons to the Queensland Police Service and Queensland Corrective Services when taking steps to protect herself before or upon the husband’s release from prison.
That each of the parties shall do all acts and sign all necessary documentation to give effect to the terms of this order and in the event that either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.
IT IS NOTED that publication of this judgment under the pseudonym Saltwick & Saltwick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7513 of 2008
| MS SALTWICK |
Applicant
And
| MR SALTWICK |
Respondent
REASONS FOR JUDGMENT
The wife brings an application for property settlement in unusual circumstances - the marital home was destroyed in an arson attack for which the husband was convicted after trial and sentenced to five years imprisonment.
The effect of the orders sought by the wife, as stated in her amended initiating application filed 1 February 2010, would allow her to take what is left of the marital property, except for some personal items which she would return to the husband.
The husband appeared by video link from [omitted] maximum security prison, north of Brisbane.
He sought an adjournment on the grounds that he is terminally ill, suffering from illnesses including emphysema, that he needed to seek further legal advice and that he was appealing his conviction and sentence.
I ascertained that the Queensland Court of Appeal had dismissed an appeal, but that he wished to take the matter to the High Court. No application for special leave had been filed in the High Court’s registry.
He has complained to various authorities including the Queensland Crime and Misconduct Commission and its Parliamentary oversight committee about circumstances leading to him being charged and convicted, but there was no clear evidence that any of these actions would or could result in his release from prison pending a new trial or because of a possible perversion of the course of justice or innocence.
I also determined that he has had the ability to receive advice through the Prisoners Legal Service about this matter and in his circumstances he would not improve his case and that the wife, in needy circumstances because of her health, should not be delayed further in having this matter heard.
The husband also sought to procure evidence regarding his medical conditions and from an electrician. While it may be argued that the medical evidence may be of assistance to his future needs, there was agreement that I rely on the sentencing remarks of Robertson DCJ in the District Court after trial, which outlines his medical issues. It was clear that the wife’s case was that I was being asked to make a finding that the husband lit the fire which destroyed the home, but his need to call an electrician regarding the fire seemed to be irrelevant, because he stated he was not calling the electrician to allege the fire was caused by an electrical fault.
During the trial I attempted to assist the husband to understand and put his case.
The husband, self represented, filed a response which did not indicate what he really sought.
Initially he stated he wanted a reliable vehicle, an electric wheelchair, money to furnish a flat, money to replace clothes destroyed in the fire (and he blamed the wife for the fire), money to pay for a grave and the anchor, chain and bollard from a jointly owned boat. He referred to a figure of about $20,000.00, but I was not sure whether that was on top of the list of things he wanted.
During questioning of the wife he stated he wanted his financial contributions returned. His evidence was muddled but he said: “My contributions right the way throughout the marriage were well over ($) 650,000 I would think, because I put ($) 360,000 on the property out…I brought ($)415,000 into the marriage and I figure I’m…All right? I think I should get a lot of it back. Money so that I can live some quality of life in the condition that I’m in. Yes? Plus a bottle of scotch”.
The recording was not always clear and the dots represent gaps in the transcript, not my editing of comments. Having said that, I understood the husband’s case and after the prison microphone was moved I heard his major submissions and statements.
The wife agreed he could have the anchor, chain and bollard if it could be found in the rubble of the burnt out house. She also said he could have personal property including walking sticks, a Mack truck bulldog emblem and some clothes which she recovered, washed, ironed and packed in a bag.
By way of history, the parties met in the early 1990s when the husband became a paying border at the wife’s residence, then in New South Wales.
The relationship grew and from the evidence appeared to have been one both parties enjoyed initially.
They married in 1992.
They separated in early March 2007 as the relationship broke down, with the wife alleging the husband was drinking excessively and becoming angry, which he denied.
The fire occurred on the night of 28 September 2007.
THE LAW
The usual method of determining a property division under s.79 of the Family Law Act 1975 was stated Hickey & Hickey [2003] FamCA 395 at 39:
“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. Firstly, 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. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.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. Thirdly, the Court should identify and assess the relevant matters referred to in ss.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. Fourthly, 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: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.”
THE POOL – STEP ONE
The contents of the pool was taken from the wife’s evidence and not effectively disputed. Two experts gave unchallenged evidence of relevant valuations, although the husband said their valuations were a little low as he “always goes by what local real estate…the area is like, you know”. The husband’s opinion of values is not evidence and so I accept the valuations by the experts. The pool and values then are:
ASSETS
1
Land on which the former matrimonial stood
E$340,000
2
Motor sailer “O”
E$10,000
3
Ride-on mower
E$10,000
4
1982 Range Rover
$3000
5
1979 Toyota utility
$500
6
2004 Holden Astra convertible
$$21,000
7
Balance insurance funds
$205,831
8
National Guaranteed Income Plan – wife
$28,000
9
[omitted] Allocated Pension Income Plan – wife
$72,990
10
Household contents and garden furniture
E$2500
11
Husband’s caravan
E$1800
12
Contents husband’s possession
$1000
8
Addback respondents share building insurance
$147,855
LIABILITIES
1
Esanda
$20,000
CONTRIBUTIONS –STEP TWO
Because of the manner in which the husband ran his case, the determination of contributions takes into account the husband’s possible inability to address all the issues.
The wife’s initial contributions were not effectively disputed, being:
a) [Business omitted] in New South Wales and an [omitted] business with income, which when sold, left about $55,000;
b) Property F, NSW, property sold in September 1999 for $550,000;
c) Furniture, heirlooms, paintings, artefacts and contents with replacement value of $150,000 and market value of about $75,000;
d) 1979 Hilux utility valued at about $3,000;
e) 1966 MGB valued at about $6,000;
f) 1922 Talbot valued at about $10,000;
All totalling about $699,000.
The husband contributed:
a) A Holden van valued at about $3,000;
b) Trailer valued at about $1,000;
c) Painters’ scaffolding valued at about $1,800, totalling about $5,800.
d) He also said he later purchased a television and stereo for about $2,600.
Having said that, the husband stated during cross-examination that he also contributed cash.
His evidence was difficult to follow, but it appeared to be about $15,000, although I was not sure that the sum was not part of $35,000, which he said he put in a cavity in the wall of the marital home. I was not sure which house he was referring to, an earlier residence or the one destroyed by the fire. In any case, it was ambush evidence, as it was not disclosed and the wife did not have opportunity to comment. A further complicating factor was that the wife agreed that he contributed $6000 to the repair of the Range Rover vehicle later, but denied he made the $35,000 cash contribution. As has been stated by the authorities, this is not a mathematical exercise and sometimes the evidence is so vague that it should be discounted (see Biltoft and Biltoft (1995) FLC 92-614). The $6,000 acknowledged to be contributed possibly came from saving his disability pension and English pension, as on the evidence the wife provided the majority of the major financial contributions. Without further evidence identifying the alleged large cash contribution, I hold that he did not make that contribution.
There were some other minor disputes about early contributions, but there is no doubt that the husband’s financial contribution was insignificant.
However, despite his conviction for arson and other offenses against the wife, she did not downplay the husband’s later financial contributions, including the $6,000 towards the Range Rover repairs.
She in fact said he contributed very generously from his pension, which he went on in 1999, although she did not accept that he contributed the $415,000 he claimed during his questioning of her. I accept that he did not produce evidence even suggesting he had that type of money to contribute.
On selling up in NSW the wife had money to pay for a house at P in the Sunshine Coast hinterland, an early 1900s Queenslander known as Property P.
She paid $240,000.
I accept that the respondent did not contribute to the purchase price and did not have the funds to do so.
The wife conceded in her evidence-in-chief that the husband contributed to moving and that he did work on the marital properties.
The wife also had money left over to place $110,000 in managed funds with the NAB and purchase a $60,000 annuity from MLC. Her investments provided an income of $1000 a month, which was used to pay for the overheads of the property and to live on.
She also had money to renovate the property, purchase a wooden boat called [M] for $8,000, purchase and restore a 32 foot boat called [omitted] as swimming pool ornamentation for $10,000, although the husband said $8,000, and give some money to her three children. The husband said [M] was purchased for $4,000. Given the manner he conducted the trial and other observations I will refer to in the course of these reasons, I accept the wife’s valuation.
She also had money to purchase a Range Rover vehicle for $12,000, spending another $11,000 on the motor and mechanics and a motor sailor called O for $9,000.
The husband stated he purchased house guttering for $2,200, which was not challenged, but he said he did about $70,000 work on the house, which I do not accept.
He purchased ceiling fans for $2,000.
He confirmed putting a deposit of $12,000 for a Holden Astra on his credit card and the wife had to organise another $27,000 by way of loan for the vehicle with Esanda. I gathered she was not happy about the situation.
I also need to mention that the husband claimed, again unfairly when questioning the wife, that his work increased the value of the house by $200,000. The wife stated he did contribute non-financially to decorations, but she did not put “such a great sum” on it as $200,000. I do not then accept there is evidence to make a finding in the husband’s favour on that issue.
In about mid-2000 the wife went onto the age pension and the husband had begun receiving a disability pension.
The legislation at s.79(4) directs the Court to consider financial and non-financial contributions to the pool, contributions to the welfare of the family, the future and other considerations if relevant and the result or effect of proposed orders, resulting in the four step process outlined in Hickey.
And while some authorities have referred to a range in relation to the division of property interests, I am not sure the legislation anticipates a range. However, what could be classified as an indicator of a range was addressed in Mallett v Mallett (1984) FLC 91-507, where Wilson J at 7,126 stated: “However, equality will be the measure, other than it being equal, only if equality of the respective contributions of the husband and wife, each adjusted by reference to their sphere, are equal. The quality of the contribution made by a wife as a homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in everyway or may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and disserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree…”
This is a case where larger financial contributions by the wife, both initially and during the relationship, have to be considered with the non-financial contributions.
The Court must determine how to treat these contributions as set out in cases such as In the Marriage of Pierce (1998) FLC 92-844, where it was stated: “…it is not so much a matter of erosion of contributions but a question of what weight is to be attached, in all of the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both…”. Later cases have put aside the emphasis on initial contributions aside to consider the circumstances all contributions.
Although the husband made “generous” contributions as the wife put it, in context, his financial contributions were tied to his income from a pension for much of the relationship.
Even if it was the case that he initially contributed the $35,000 I referred to earlier, the evidence of the initial very large financial contributions of the wife and her use of her money for the benefit of both parties could not be severely discounted or the husband’s contributions severely inflated.
Because of the wife’s financial contributions, both parties enjoyed a very comfortable lifestyle. If he did not meet her, he would have contributed all of his earnings, and he did not have much property to start with, paying for meagre rented accommodation and sustenance.
There was evidence which I accept that during the relationship the husband ran up debt on the couple’s Veridian line of credit, which the wife paid for and that her insistence that he did not run up his credit card debt was ignored. She paid off his credit card debts. As well, he purchased a car for her, leaving her to pay for the vehicle.
On the evidence provided, and without giving mere token weight to the husband’s non-financial contributions, I could not find that the husband should get 50 percent of the pool. He just did not make that sort of financial contribution and I am satisfied that the wife made non-financial contributions to equal or overshadow his non-financial contributions. A proper and generous figure on the evidence would be that the husband should receive 35 percent of the pool, knowing that no mathematical formula can be applied to these situations.
But that is 35 percent of the pool which would have existed but for the fire.
The wife’s case is that I make a finding that the husband destroyed a great proportion of the joint property through his act of arson and that he should not then receive anything that is left. It would be an application of either the concepts of waste or negative contribution or dealing with the property contrary to the interests of the wife.
She alleged the husband destroyed the property when engaging in very serious family violence.
Although part of this issue is a justice and equity consideration which I need to address separately, it is also intimately related to the decision on contributions.
I need to refer to some relevant history between the parties and the wife’s possessions allegedly destroyed by the husband, before summarising her evidence regarding family violence.
Over the years, the wife had collected numerous antiques and collectable items, including:
a) [painting omitted], valued at $2000;
b) [painting omitted], valued at $7000;
c) [painting omitted], valued at $1000;
d) [painting omitted], valued at $1000.
I accept the valuations, by Mr G of [omitted] Galleries, even though the husband criticised and castigated Mr G and the valuations. The husband’s opinion of the value of the items was that they were not of such value. More importantly, the paintings were of significant personal value to the wife and the paintings of the girls resembled her daughters when they were young, the reason she purchase them.
Of the family violence, the wife alleged:
a) The relationship had been breaking down over a period of time, the wife alleging the husband was drinking to excess, up to two bottles of whisky a day.
b) On 1 March 2007, the date of separation, the husband gave the wife an ultimatum that she had better be gone from the house when he got back from the pub or she would be dead by morning. I think it fair to say the husband denies this behaviour;
c) The wife was away from the home on 3 March 2007, when the husband telephoned her at 1.20am stating he had cut the [omitted] painting in half and they could have half each, a reference that her two daughters could have each half of the painting;
d) She returned home to find many items destroyed, including the paintings which had been cut up and the model of a 17 century Dutch ship smashed;
e) On 6 March 2007 the wife obtained a domestic violence order against the husband, with an exclusion condition that he was not to go within 50 metres of where she lived;
f) The husband moved to a caravan park;
g) The wife later relaxed the exclusion condition to allow him to visit, which he did on a few occasions;
h) On 10 June 2007, she went to the caravan and they both went to lunch. They went to the house to collect some items and she said she saw a firearm behind the front passenger seat of the husband’s vehicle;
i) She said the husband claimed he was having trouble with bikies;
j) They returned to the caravan where she began measuring for curtains and for a double mattress and as she lent over measuring for a mattress, the husband wrapped a cord around her neck, pulling her hard and cutting her breath;
k) She managed to get her hands under the cord and screamed;
l) He allegedly stated: “If you scream I’ll shoot you. This is for fucking our marriage you cunt”. She feared for her life;
m) She managed to kick the husband and tried to escape but he blocked her path and was holding the firearm she had seen near the stove;
n) She saw him load a red cartridge the size of her index finger in it;
o) She managed to get out and saw three people but the husband followed her with the gun and a women called [name omitted] and the wife grabbed his arms;
p) The husband managed to retain the gun, pointed it at her stomach and she heard the trigger click. He did this again and the firearm failed to discharge;
q) She escaped and called the police and the husband was charged with breaching the domestic violence order. The wife stated police did not charge the husband with serious offences because she did not want him charged and the witnesses were unreliable (no further explanation was sort on that last statement);
r) She reinstated the terms of the domestic violence order;
s) On 28 September 2007 she left the house to post letters and buy milk and see a friend;
t) She returned home at about 7.45pm to be confronted by the husband in the home, pointing a rifle at her;
u) She noticed he has smashed a glass door panel to gain entry;
v) He said he had poured petrol around the house and showed her two tins of petrol;
w) He said he would put on a show the town would not forget and that he was going to torch the house and kill himself and decide whether he would kill her, depending on how she behaved during the night;
x) She said she could not smell any petrol and she managed to throw the tins outside at sometime during the night when the husband left the room;
y) She also obtained her mobile telephone and car keys and stuffed them down her bra;
z) When the husband went to the toilet she escaped to a nearby house, telephoned the police and looked across the valley to see her house in flames.
The husband denied all allegations to the extent that such would implicate him in the fire and threats whereby he could cause physical harm to the wife.
As to the incident in June with the cord and the firearm at the caravan park, he denied choking the wife but said she began screaming so he took her outside: “and I just got – I went and got my firearm and I yelled out to her and I said ‘If this gun was fucking real’. I was tempted to use it because you’ve fucked our marriage up and you attempt to do anything you – beyond the limit –because I was living on $5 a day because my pension had been cut in half because we had so many assets”.
He also said:
a) the gun was a replica;
b) He admitted trying to load it with a red cartridge;
c)
That bikies had visited the marital home as they were after a
Mr C, a paedophile associated with one of the wife’s daughters;
d) The bikies cut up the paintings and destroyed chattels while he got them a beer as they talked;
e) He took the blame as he did not want to get involved with bikies or upset the wife.
As to the incident on the night of 28 September 2007, in denying the wife’s version of events, he said:
a) He went to the house at night but at the wife’s invitation;
b) That he had the rifle with him;
c) It was inoperable;
d) He had taken it from the caravan and was taking it back [to the wife I assume] to be sold;
e) The wife left a back sliding door open for him but he saw someone had broken into the house because of the broken glass;
f) The wife invited him to talk about her daughters because she was worried about them and some type of social security fraud;
g) The wife spoke about torching the house because she did not want to live there and items would have to be removed and replaced with junk;
h) He saw some goods were removed as if in readiness for a fire;
i) They discussed arson and he told her not “to be so fucken silly” and “you will never get away with anything like that pet”;
j) He advised her to put up the insurance or they would be disadvantaged, as well as the children;
k) He stated he was about to have a shower, smelt smoke and saw his beautiful 18 century bed burning. He got a bucket and threw water over the bed;
l) He made his way down the hallway to the front bedroom where the wife was standing;
m) He said she was blaspheming about her daughters and he said his daughter worked for [omitted]. He said he mentioned this because the wife’s abuse included his daughter;
n) He said the wife had the petrol in the house and he thought nothing of it because they often used petrol to clean down furniture and often had it in the house;
The wife denied the husband’s allegations as they were made during his questioning of her.
In determining whether the husband lit the fire, as I was asked to do:
a) I cannot rely on the husband’s conviction by a jury of arson and related offenses because s.91 of the Evidence Act 1995 states: “EXCLSUION OF EVDIENCE OF JUDGMENTS AND CONVICTIONS. Evidence of the decision or a finding of fact in an Australian or overseas proceeding is not admissible to prove the existence of a fact”;
a) All of the evidence presented to the criminal trial was not presented in this trial; and
b) The husband is entitled to state his case
The test to be applied is whether:
a) There is sufficient evidence, direct or circumstantial with a nexus to the husband and the fire; and
b) Whether on the balance of probabilities, he lit the fire, see Briginshaw and Briginshaw (1938) 60 CLR 336, where, among other judgments, Rich J stated, at 350, in words I hold to be applicable to evidence generally: “The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of the facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. But to say this is not to lay it down as a mater of law that such complete and absolute certainty must be reached as is ordinarily described in a criminal charge as ‘satisfaction beyond reasonable doubt’”.
I will start with considering the material filed in this matter and the fact that the husband did not respond to the wife’s case with properly filed material, although I determined that he had time to do so.
a)Being unrepresented is a hindrance, but he knew he was convicted by a jury of serious offenses against the wife and her property, including the arson and he read the wife’s allegations in her evidence-in-chief in this matter;
b)He spent what must have been numerous hours lodging an appeal and complaints to various authorities about his conviction, but almost no time at all in addressing carefully the wife’s allegation that he started this fire. He knew he had to present a case, but he did not do so, thereby taking the wife by surprise with various particulars he put to her in cross-examination. While the questions are not evidence, I need to make allowance that the husband was not represented, so I accept that his questions related to the evidence he would have stated if he had filed proper material. I do so on the basis that he is not represented and otherwise would have been entitled to test his case, extending considerably more latitude then perhaps is necessary, but it was done without objection;
Then I need to consider his case, his evidence and inconsistencies in his evidence which were relevant to the fact-in-issue, which is the accusation that he lit the fire.
First, the husband did not challenge the wife’s version of events as being inconsistent with the case which the prosecution, on her complaint, put to the jury in the criminal trial.
Second, he arrived at the house at night, armed with a rifle and live rounds of ammunition and the allegation is that he threatened the wife both with the rifle pointed at her and with words that he would consider killing her and burning the house.
a)Whether the firearm was inoperable or not we will not know, but in answer to a question as to whether the wife would be in fear of him arriving with a rifle, he stated: “Yes of course. What do you want me to do with it, stick it up my arse”. However he then made an inconsistent statement that the wife was not in the house at the time he arrived.
b)His first statement about the rifle was that he brought the gun to the house to be sold. His second statement was that he wanted to show it in an antique fair. I have listened to the tape again which is unclear at this point, but I do not recall him repeating that he was going to sell the rifle. In any case, I am satisfied that there was a difference in the words he used in relation to selling the rifle and showing it in an antique fair of such a nature to find that it is an important, relevant inconsistency.
Third, his initial references to being invited into the house failed to mention two tins of petrol, his version of the events mentioning them step by step in answer to questions.
a)He denied bringing tins of petrol into the house. He then said the wife must have obtained the tins from his car where he kept them because he had a fuel leak.
b)He then said he did not see the tins in the back of the vehicle next day.
c)He then said he did not have the strength to carry two tins of petrol due to his health afflictions.
d)He then said the wife carried the tins downstairs.
e)He then said he asked the wife to carry them down stairs when he saw them next to the back door.
f)He then said he only saw the tins only when the wife returned, although I do not know whether he was referring to her return home or leaving the room to get him some food.
g)He then said the wife left at 5 o’clock and the tins could have been there when she left.
h)He then said the tins were sitting near a coffee table, partly under it, in the family room.
i)He then said how the couple used to wash down furniture with petrol before staining it.
When picked up on the inconsistency of stating that he said he saw the tins at the back door and then partly under the coffee table, the husband denied making inconsistent statements. Of that bracket of evidence, I conclude:
a)By not presenting his case the husband was leaving himself room to shape it in response to the manner in which the wife’s case was run, especially in relation to a crucial allegation, that he brought the petrol tins into the house;
b)But he slipped in this evidence, not remembering that he had changed his story, within minutes, of seeing the tins of petrol at the back door and then seeing them under a coffee table in the family room;
c)He also slipped in stating the wife left at 5 o’clock. He could not know if she was not present when he arrived.
d)While inconsistencies in evidence during a trial are not an uncommon occurrence for witnesses, such can be excused on minor issues;
e)But when there is an inconsistency in relation to the facts-in-issue, in this case the wife allegations that the husband brought the tins of petrol into the house and threatened her, it cannot be dismissed;
f)The tins of petrol are part of the wife’s direct evidence that the husband had possession of them and part of the circumstantial chain in relation to her allegations of the husband’s threats to burn down the house and then her later seeing, from across the valley, her house in flames.
Fourth, the husband said he saw the wife bending over a burning valance in the bedroom with a lighter in her hand and other parts of the house were on fire. Later, he gave inconsistent unsupported, disjointed evidence that she could not light the fire herself and that she probably had help from someone like Mr C or his mates. He never stated he saw any other person and he previously stated Mr C was an associate of the wife’s daughter, never linking him to the wife.
Fifth, he also confirmed, importantly, that apart from his allegation that the wife started the fire, these particulars relevant to his defence were not put to the wife in the criminal trial.
Sixth, while the husband claimed that the wife had attempted to remove him from the insurance policy, probably suggesting she lit the fire for gain, the wife addressed this issue. She confirmed that she did try and get him off the policy, because they had separated. She confirmed the insurance company refused to remove him but also refused to pay out his “half” of the insurance after the fire.
Seventh, and again part of the circumstantial chain of evidence, was the husband’s absolute abuse of the wife, wherein he began the trial with statements of affection, which quickly descended to vile personal abuse, including that:
a)She smelled with body odour. He repeated this on occasion and said the wife deserved the insult;
b)She had mental health problems;
c)He feared her and for his safety upon release from prison;
d)She was responsible for the death of a women in the Blue Mountains;
e)She is capable of harming him;
f)She knowingly sold stolen goods as an antique dealer;
g)He was a loving and gentle person;
h)She over-medicated him on prednisone, destroying his respiratory system and shortening his life by years;
i)She lied all of the time;
j)She perjured herself at his trial for arson and violence offenses against her;
k)She was coerced by police to lie at his trial;
l)She would do anything to see him harmed;
m)She was losing her memory;
n)She lit the fire, which killed “our little dog”;
o)She mistreated him and abused him for 18 months (before separation I assume);
p)He left it to the wife’s conscience as to what she wanted to distribute to him.
He also interspersed the abuse and vilification with statements that he cares about her, he hopes she feels better and that he forgives her.
While some of these statements appear to give the impression that the husband has mental health problems, that is not part of my reasoning which leads me to considering the cause of the fire.
Instead, the abuse supports the wife’s evidence that he was capable of doing the things she alleged. He simply could not control what appeared to be absolute hate of and for her and his perception that she is in circumstances of comfort compared with his circumstances of poverty.
I do not know whether the March 2007 allegations were led in the criminal trial and possibly they were not, however, nothing in my view prevents me from considering the nature of the wife’s allegations as a whole and the admissions of the husband as far as they went. Although separated by months, they are not incidents, even on the husband’s part admissions, which are isolated, when I have regard to s.4 of the Act which defines family violence. I keep in mind that the husband stated he did threaten the wife in March and he came carrying a rifle and live ammunition to her house in September, knowing it would scare her. Even if that was the only truth in the wife’s serious allegations, it amounts to severe family violence in my view.
But it is all of the events which together, in the face of inconsistent statements in the husband’s evidence and his abuse of the wife before me, show he not only had the opportunity to light the fire, but the motive to do so, which leads me to the conclusion that on the balance of probability, that he started the fire. To make it clear, I do not find he used petrol to light the fire, as there was no evidence of the mechanics of the fire starting although the evidence referring to petrol is relevant to the factual situation.
Had it not been for the fire, the pool would have consisted of the house valued at $625,000 and belongings valued at $210,334. The wife estimated her loss, on figures from valuations and insurance payouts, to be $352,951. She estimated the insurance addback figure for waste or negative contribution or use contrary to the wife’s interests to be $147,855.
That then leads me to a consideration of what was stated in Kowaliw & Kowaliw (1981) FLC 91-092:
“Marriage is for most couples an economic partnership. Married couples live together and work together with the ultimate object of purchasing a home, paying it off, acquiring other assets with the overall object of attaining a higher standard of living. The reported decisions in respect of applications for settlement of property under sec. 79 of the Act are unanimous that both parties should share the economic fruits of a marriage, having regard to the provisions of sec. 79(4) and sec. 75(2), although not necessarily equally.
Is not, however, the converse equally sustainable? In other words, should not financial losses incurred by parties to a marriage or either of them, whether incurred jointly or severally, be shared by them in the same manner as the financial gains?
As a statement of general principle. I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.”
The husband’s act of arson was a course of conduct which was reckless, negligent and wanton destruction of matrimonial assets.
On the evidence, he decided to destroy not only his 35 percent interest in the martial assets, but the wife’s interests as well and subject to consideration of the matters in s.75(2) of the Act, in my view, should not take his 35 percent contribution from what is left of the property.
The net property before the arson was valued at about $830,000.
Whether such is classified as waste or a negative contribution or a use contrary to the interests of the wife is not the issue. The issue is that he has devalued the joint property by his act of causing the fire and his omission of not acting to mitigate the damage once he started the fire by extinguishing it or calling the fire brigade. It can also be considered within the terms of a contribution to the welfare of the family and as such, the term negative contribution has some meaning.
SECTION 75(2) FACTORS – NEEDS – STEP THREE
While I have used a general heading called needs, s.75(2) sets out much more than the mere needs of parties.
The wife is aged 73.
The husband is aged 70.
Neither is at an age where they can work although, had the wife’s collections not been destroyed, which were much of her resources, she would have been in the position of buying and selling antiques and collectable items to earn extra money. The house was for sale at the time of the fire for $650,000. The husband was formerly in the position he would benefit from the wife’s ability to buy and sell such goods, but he destroyed much of the property and certainly the tradable goods and chattels.
The wife receives the pension and has the remainder of the property, or will have such if I make the orders I propose, subject to determining the justice and equity of the orders.
The husband said he will get a pension of $1,000 a month and a UK pension of about $270 a month, depending on the exchange rates. That equates to about $345 a week, allowing him to pay rent on a flat which I will refer to shortly, with some money left over for other expenses. Having no evidence before me, I assume he would be entitled to free health care, although I do not know the position in relation to medication he may need.
The wife states her health is reasonable, but lists arthritis in the spine, hands, arms and shoulders, which is painful and which restricts movements.
She has pain in the right arm from lifting an iron tub and a snapped tendon caused in an alleged assault by the husband. I make no finding on the assault but accept she has the injuries stated.
However, her emotional health is what I would call fragile.
Since the fire I accept her evidence that she has suffered shakiness, tremors, teariness and feelings of grief. She continually feels tired, depressed and has chest pains, dizziness, nausea, cold sweats, tension and chronic stress. She is being treated for post traumatic stress disorder. She has difficulty sleeping and feelings of emptiness and loneliness.
She fears for her life and an escalation of violence when the husband is released from prison.
She said friends appear to be afraid to keep contact with her.
She is prescribed aspirin and Atacand for blood pressure, Frisium for anxiety, Ibuprofen as an anti-inflammatory for the shoulder injury, Panadene Forte for shoulder pain, Stilnox for sleeping, Lexapro for depression, Nexium to offset the affects of Ibuprofen and Ventolin and Symbicort for asthma.
The husband suffers from numerous health problems, including emphysema, diabetes, pulmonary hypertension, acute pulmonary oedema, ischemia and peripheral vascular disease. He says he is terminally ill.
Each party now only have themselves to look after.
The wife, on what is left of her resources, particularly from the insurance payment, has taken care of joint debt. She does not have a great deal left and certainly not that amount which would see her maintain her former standard of living.
The husband has a small resource in his UK pension but otherwise will rely on his Australian disability pension.
I accept the husband will have opportunity to obtain accommodation when released from prison.
He could go into shared housing but he does not want to and a Catholic organisation has offered to assist him with accommodation at $160 per week. His initial remarks were that he wants enough to be comfortable, a reference to standard of living. Upon separation he moved to a caravan which was not particularly comfortable from the little evidence relating to it. His caravan still exists, but he did not indicate he wants to return to that. However, the wife consents to him keeping it. She also consented to him keeping the Range Rover vehicle. His circumstances were caused by his acts and as he is being offered assistance, I conclude that there is a real possibility for him to be at least housed upon release.
I do not see the other subsections of s.75(2) as being relevant or having enough relevance to alter my conclusion that no other adjustment should be made.
JUSTICE AND EQUTIY – STEP FOUR
I now must be satisfied that the orders I propose are just and equitable, and as was stated in Russell v Russell (1999) FamCA 1875: “It must be remembered that under s.79(2) of the Family Law Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets”.
Merely because I have considered an issue under one of the four steps does not preclude reconsideration of the issue from a different perspective under this last step.
I return then to the husband’s conduct of his case, where he failed to properly state his case to allow him to construct his case in response to questions from the wife’s counsel and to his abuse of the wife.
As to constructing his case on the run, this was his attempt to ambush the wife by adducing fresh evidence to which she could make no adequate reply.
While being an unfair method in conducting a trial, it is also a pointless manner in which to conduct it especially when he could not remember the lies that he told in relation to seeing the tins of petrol at the back door and then under a coffee table and when the wife left the house.
That is a reasonably common occurrence when lies are told, there must be good recollection of what lies are told previously to avoid glaring inconsistent statements on crucial issues.
The abuse of the wife during this trial cannot be excused. Apart from the abuse I have referred to, another example was the gratuitous statement that: “my old lady has been disgracing me everywhere completely and even saying things about me but it’s totally untrue. All of my life raising money for disadvantaged children so I don’t have to steal books”.
The self-serving statement about raising money for disabled children is apparent, but the rest is a continuation of family violence under the guise of giving evidence, calculated to induce fear.
It shows his character.
The wife does fear the husband and will fear him upon release.
While I determined that he lit the fire, it was also apparent on the evidence that he had held the wife against her will and threatened her. That coincides with the fact that his criminal history shows he was convicted after trial in relation to four offenses on the same night the fire occurred, all in relation to the wife, being: arson of the residence, the sentence being five years imprisonment; burglary of the residence, the sentence being 18 months imprisonment; serious assault on the wife, the sentence being nine months imprisonment and deprivation of the wife’s liberty, the sentence being 12 months imprisonment.
These sentences were to run concurrently and the husband was eligible for parole in March of this year, 2010.
He said he had not applied for parole because the wife would seek an order against him.
What he meant was that she would seek to enforce a criminal injury compensation order against him.
She was awarded $22,500 in a criminal injury compensation claim.
He has no money to pay that and any of his possessions may be used to pay that.
Apart from his abuse of her during the trial, that he would state that he did not apply for parole because of a possible criminal injury compensation order is equally deplorable.
He was not showing any sign of remorse for his crimes against her before me and in fact, he blamed his legal defence team, police and the wife for his criminal conviction and current circumstances.
It occurs to me that if he had money he would do his best to hide it from the wife in order to defeat the criminal injury order.
While I do not rely on the findings of the jury as such and the reasons given for sentencing by His Honour Robertson J of the Queensland District Court on 23 January 2009, I do agree with the remark that the husband is showing a high degree of malevolence towards the wife. I formed that view on the material I heard.
The wife should make application under the Queensland Corrective Services Act 2006 to be informed upon the husband’s release from prison so that she can take appropriate protective steps.
I have referred to the wife’s acknowledgment of the husband’s financial and non-financial contributions throughout the relationship and I have taken pains to stress such, because it shows her character.
She has suffered much family violence, being held at gunpoint and having her home and possessions and little dog burnt, yet she could give balanced evidence acknowledging the husband’s contributions, attempted to assist him after separation and even after all of that, collected the husband’s clothes, then washed, ironed and packed them.
I also take into account that the husband had been involved in previous family law property proceedings, as he said he did not have much at the time of the marriage because he lost everything in the Family Court. Again, apart from the inconsistency with his earlier statements of contributing cash, what that admission means is that he has had experience of this type of court proceeding and must have known he was to file material. Instead, he sought to seek an indefinite adjournment and then take the wife by surprise with his evidence.
It was submitted that I should examine his oral evidence, especially in relation to the night of the fire and how he had a couple of attempts at explaining what occurred, before realizing that he had to address the issue of the petrol tins. I accept that his evidence squarely placed his credit in issue and thus he lacks credit.
The husband has had since August 2008 to begin addressing this case and has refused to do so.
He said initially in his application for an adjournment that he had been too ill and that he was terminally ill, and could not address the case.
But as he admitted, he has sent voluminous materials to the Court of Appeal for his appeal, to the Crime and Misconduct Commission and the Parliamentary Crime and Misconduct Committee complaining about aspects of the case against.
I do not accept that he has been so ill as to not address this material.
It then emerged that he had prepared a response and an affidavit and a statement of financial circumstances in early 2009 which he had sent to the solicitors for the applicant but not filed. That indicates that he was turning his mind to addressing the issues.
That he did not give evidence at his criminal trial and did not file material for this matter of course allowed him, as he must have expected, to make up a story as he went along.
That way there would be no evidence of his version of the events on record which could be produced if the story changed.
I think the respondent husband is a very calculating, manipulative person.
On the evidence, there is no reasonable explanation given for burning the house. That is denied. It is inexplicable as to why such would occur when, after so many years of marriage, he would otherwise have been entitled to a substantial settlement of property.
The ending point is to recognise that the husband is not to be punished for his acts in this proceeding, as the jurisdiction is one based on contributions, with justice and equity to be applied.
I do not feel that any further adjustment in his favour would be just and equitable as he should not be seen to be profiting from his acts which destroyed his property but much of the wife’s property in an act of malice.
I am going to allow the wife to be publish these reasons to the Queensland Corrective Services department and to Queensland Police. Hearing his threats and abuse in Court must have been harrowing for the wife and, applying the words of Rich J in Briganshaw, on a common sense and worldly wisdom view, I formed the opinion that this man should be considered dangerous when released from prison and the wife needs to take steps to seek police protection.
To allow this Court to deal with any threat or act or omission by the husband against the wife, I will restrain him from approaching or contacting her, other than through a lawyer for legitimate purposes, and from committing any act which would otherwise be a criminal offence. The order I am making uses very general words and I see no reason to make an order for a distance exclusion provision, because I would not want to allow for a possible technical argument that the husband was outside a stated area but still seen by the wife. The order simply means the husband is to keep away from her. If counsel for the wife forms the view that the order should be amended, then I invite such submission.
I am also going to allow the husband 14 days in which to transfer his interests in the property to the wife but allow a registrar to do so without further application. I have doubts he will cooperate with the orders.
Finally, although asked to make a costs order in the wife’s application against the husband, if that is pursued such application can be made within the 28 day period stated in the Rules. Having said that, such an order would seem to be futile.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 29 October 2010
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