Schultheiss & Schultheiss
[2024] FedCFamC1F 759
•12 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Schultheiss & Schultheiss [2024] FedCFamC1F 759
File number: NCC 664 of 2021 Judgment of: SCHONELL J Date of judgment: 12 November 2024 Catchwords: FAMILY LAW – PROPERTY – Final orders – Where both parties seek an adjustment of property interests pursuant to s 79 – Where the husband submitted that that there was no warrant for an adjustment under s 75(2) – Where the husband contended that there should be a 53/47 percent split of the assets in his favour – Where the wife contended that there should be a 62/38 percent split of the assets in her favour – Where the husband denied all incidents of family violence- Where the husband elected to call no evidence about allegations of family violence beyond a denial – Where the husband is currently incarcerated due to convictions for sexual assault of the parties’ daughter and physical assaults of the wife and parties’ sons – Where the Court finds that the husband perpetrated family violence such that the wife’s contributions would have been made more arduous – Where the Court finds that the husband’s conduct had a financial impact on the wife – Where a just and equitable outcome was found to be a 62 percent split to the wife of the parties property. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75(2), 79
Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Blatch v Archer (1774) 1 Cowp 63; 98 E.R. 969
Boulton & Boulton [2024] FedCFamC1A 132
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Giunta & Giunta (No 3) [2021] FamCA 272
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon & Kennon (1997) FLC 92-757
Martell & Martell [2023] FedCFamC1A 71
Norris v Brooks (2022) NSWSC 804
Spagnardi & Spagnardi [2003] FamCA 905
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 102 Date of hearing: 21 October 2024 – 23 October 2024 Place: Sydney Counsel for the Applicant: Mr Cummings SC Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Mr Kearney SC with Ms Kennedy Solicitor for the Respondent: Vizzone Ruggero Twigg Lawyers ORDERS
NCC 664 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCHULTHEISS
Applicant
AND: MS SCHULTHEISS
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
12 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The husband be declared solely entitled to all legal and beneficial interest in and entitlement to the Schultheiss Superannuation Fund the parties shall each do all things and sign all documents necessary to cause the following to occur:
(a)remove the Wife as a Trustee and member of the Schultheiss Superannuation Fund, including amending the Trust Deed for the Schultheiss Superannuation Fund if necessary;
(b)close the following bank accounts in the parties' joint names with such funds to then be transferred to an account in the husband's sole name as Trustee for the Schultheiss Superannuation Fund (or such other compliant account as nominated by the Husband in writing):
(i)Westpac account ending #...96 (being account in the name of Mr Schultheiss and Ms Schultheiss as Trustee for the Schultheiss Superannuation Fund); and
(ii)Westpac account ending #...88 (being account in the name of Mr Schultheiss and Ms Schultheiss as Trustee for the Schultheiss Superannuation Fund); and
(iii)Westpac account ending #...01 (being account in the name of Mr Schultheiss and Ms Schultheiss as Trustee for the Schultheiss Superannuation Fund).
2.The husband shall indemnify and keep indemnified the wife in relation to any and all liability whenever and howsoever arising in respect of the Schultheiss Superannuation Fund and any and all role and/or interest as the wife may have had in relation to the Schultheiss Superannuation Fund.
3.That save as otherwise provided herein, each of the husband and the wife be declared to be solely entitled to the exclusion of the other to all property and financial resources in their respective name, possession and control and to which they are or may become entitled.
4.In default of either or both the husband and/or the wife doing all such things and executing all such documents as may be necessary to comply with these Orders within the time provided, a Registrar of the Sydney Registry of the Federal Circuit and Family Court of Australia (Division 1) or such other person appointed by the Court be authorised pursuant to Section 106A of the Act to all such acts and things and execute all such documents on behalf of either or both parties.
5.In the event that any party seeks an order for costs they are to submit to my Associate within 28 days a Minute of Order setting out the order sought and an Affidavit setting out the basis for such an order. That matter will thereafter be listed to hear argument as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the Schultheiss & Schultheiss has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings between the applicant husband (“the husband”) and the respondent wife (“the wife”) pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of their marriage.
Senior counsel for the husband submitted that the contribution assessment gave rise to a finding of equality and that there was no warrant for an adjustment under s 75(2). Somewhat inconsistently, he then submitted that the orders sought by the husband by way of a superannuation split gave rise to an overall division as to 53 percent in favor of the husband and that constituted a just and equitable outcome.
The wife opposed any superannuation split and sought orders that she retain the balance of the proceeds of sale of the former matrimonial home. In the event the Court acceded to the outcome sought by her, her senior counsel contended that that would represent a 62 percent division in her favor.
Senior counsel for the wife eschewed the usual approach of separately assessing contributions and the s 75(2) matters in a percentage, preferring instead an outcome based on the form of order sought. Whilst not in conformity with orthodoxy, such approach is one that can still satisfy the requirements of s 79 (see Boulton & Boulton [2024] FedCFamC1A 132).
Senior counsel for the husband agreed with the submission of senior counsel for the wife that the focus was really on the result as a just and equitable determination rather than to focus on the component parts, submitting that it is not a percentage case.
In circumstances where there was no issue that the wife should retain the proceeds of sale of the former matrimonial home, I saw no reason why the Court should not immediately give effect to that result. Whilst senior counsel for the husband did not consent to such approach, he did not oppose it. I ultimately made orders in chambers giving effect to that position. I will nevertheless, in determining the parties’ entitlements, recognise that such amount has already been paid to the wife.
DOCUMENTS RELIED UPON
The husband relied upon the following documents:
(1)Amended Initiating Application filed 7 September 2023;
(2)Affidavit of Mr Schultheiss filed 23 September 2024;
(3)Affidavit of Ms B filed 2 October 2024;
(4)Financial Statement of Mr Schultheiss filed 23 September 2024; and
(5)Case Outline.
The wife relied upon the following documents:
(1)Amended Response to Initiating Application filed 8 September 2023;
(2)Financial Statement of Ms Schultheiss filed 23 September 2024;
(3)Affidavit of Ms Schultheiss filed 23 September 2024;
(4)Affidavit of Mr C filed 30 September 2024;
(5)Affidavit of Mr D filed 30 September 2024;
(6)Affidavit of Mr E filed 30 September 2024; and
(7)Case Outline.
Each of the parties sought to tender documents which became exhibits in the proceedings.
BACKGROUND
The parties agree that they met in 1987 and married in 1989. The husband contends that the parties commenced living together in or about 1987, whereas the wife does not address this in her evidence. Nothing turns on when the parties commenced cohabitation given the length of their relationship.
There are four children of the marriage currently aged 26, 24, 22 and 20. At or about the time of separation, the eldest two children were over the age of 18 years, whereas the youngest two children were in Year 12 and Year 10 at school.
The parties separated in early 2020 upon the arrest and charging of the husband with multiple criminal offences involving sexual assaults on the parties’ daughter. The husband was remanded in custody. The husband was subsequently charged with a series of further offences in relation to the wife and the parties’ sons.
Proceedings were commenced by the husband in City F on 3 March 2021, transferred to Sydney, but thereafter went into somewhat of an abeyance.
The husband was remanded in custody until late 2020 when he was granted bail, which was revoked in mid-2023. The first criminal trial relating to offences against his daughter resulted in a hung jury. At a second trial which commenced in early 2023, a jury returned a guilty verdict, and the husband was sentenced in late 2023 to imprisonment. With time served, he states his earliest release date would in 2036.
A third trial involving assaults on the wife and the sons commenced in early 2024. In early 2024, the husband was found guilty in relation to some of the charges. The husband was sentenced to a further term of imprisonment.
The husband has lodged appeals against all verdicts. Following the conclusion of the criminal proceedings, the family law matter was allocated final hearing dates.
At the commencement of cohabitation, neither party had any assets of substance.
The parties’ affidavits dealt at some length with the respective contributions of each of the parties over the course of this very long relationship.
The wife’s Case Outline contended that her contributions exceeded the husband in “all spheres” (wife’s Case Outline filed 14 October 2024, paragraph 10). In that respect, the wife contends that her contributions exceeded the husband’s contributions by virtue of her being the predominant income earner, contributing with the husband to the purchase and development of various properties, her contributions arising because of family violence, and being responsible for the care and parenting of the children. In that last respect, the wife conceded in cross‑examination she had told the police that from 2008 the husband was the primary carer at home.
In the husband’s Case Outline, his senior counsel records the following:
27.Having regard to the wholistic nature of the contributions assessment (also see Jabour & Jabour (2019) FLC 93-898), the husband contends that without the impact of any family violence on the wife’s contributions that the respective contributions of the parties ought to be assessed as being undifferentiated.
28.The allegations of family violence in respect of which the husband has not been convicted will be the subject of findings at this trial. In respect of either category, the evidence as it stands does not establish the sufficient nexus between the conduct complained of and the capacity (or effort expended) of the wife to make the contributions in question.
29.The wife has previously asserted to this Court that her entitlement is in the range of 55% – 57% inclusive of any enhancement of her contributions-based entitlement arising from family violence perpetrated against her.22 Implicit in this position is an acceptance by the wife that absent the impact of family violence on her contributions there is approximate equality in the parties’ contributions.
Despite the wife’s contentions as referred to above, with the exception of the allegations of family violence, the cross-examination by both senior counsel (and subsequent submissions) did not seek to identify or highlight any significant factual controversy in the pre-separation contribution history of the parties or any matter that would call for a greater contribution based finding.
In those circumstances, there is no utility served in reciting ad nauseum great slabs of the parties’ pre-separation contribution contentions where it was not the subject of cross‑examination or submission. I will otherwise deal with the history of the parties’ contributions post-separation in my assessment of contribution.
The one area of pre-separation factual dispute centres on the contentions of family violence and the effect that family violence had upon the wife’s contributions. In that respect, the wife and sons gave evidence of a history of family violence. The husband met the evidence with no more than a blanket denial.
APPROACH TO PROPERTY PROCEEDINGS
The orthodox approach to be adopted in a financial adjustment case under s 79 of the Act is to follow the well-recognised four-step process (see Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143). Following such an approach, the Court identifies and values the assets and liabilities at the date of hearing for the purposes of division. Secondly, the Court assesses the contributions of the parties within the meaning of s79(4) of the Act and determines a contribution-based entitlement. Thirdly, the Court identifies the relevant matters under s75(2) and determines such adjustment as is necessary to the contribution-based entitlement. Finally, the Court considers the effect of the findings and must then determine whether the order as proposed is in all the circumstances just and equitable.
In conformity with the orders sought by each party and the ratio arising out of the High Court’s determination in Stanford v Stanford (2012) 247 CLR 108, I am of the view that it is just and equitable that an order be made adjusting the property interests of the parties. The parties are no longer living together and there is no longer the common use of their property. The assumptions and undertakings that governed the use of their property ended with separation and is recognised by both parties seeking an adjustive order.
BALANCE SHEET
The parties’ assets, addbacks and superannuation entitlements were captured in a document which became Exhibit 7. It recorded as follows:
Ownership Description Wife’s value Husband’s value ASSETS Real Property Proceeds of Sale 1 Jnt Proceeds of H Street, Suburb J held by wife’s solicitors in WBC term CMA …64 including interest as at 19.8.2024 $995,307 $995,307 Bank Accounts/Shares 2 W Westpac Acc #...54 $13,579 $13,579 3 W G Bank Acc No. #...41 $623,357 $623,357 4 W G Bank Acc No. #...19 $5,696 $5,696 5 W Funds held in trust account of VRT Lawyers $346,550 $346,550 6 W Shares $14,391 $14,391 7 H Funds held in trust account by K Lawyers Incl in items 11-15 Incl in items 11-15 8 H Funds held in trust account by Pearson Emerson Family Lawyers Incl in items 11-15 Incl in items 11-15 Other 9 Jnt Household contents, artwork, collectibles and jewellery in Wife’s possession previously at Suburb J $22,005 $22,005 10 H Contents and jewellery at Suburb L $1,400 $1,400 Total $2,022,285 $2,022,285 ADDBACKS Ownership Description Wife’s value Husband’s value 11 H Partial property settlement received on 26.5.2020 and 30.3.21; 31.3.21; 1.4.21 (Orders 19,03.21) $352,900 $352,900 12 H Partial property settlement (Orders 23.08.21 – Order 1.5.3) and withdrawn from new M Bank mortgage #...51 on 26.10.21 $309,434 $309,434 13 H Partial property settlement received 18.5.22 (Orders 02.02.22 – Order 1.14.6) $270,000 $270,000 14 H Partial property settlement from Suburb J Sale proceeds received 21.11.22 (Orders 11.11.22) paid to K Lawyers $504,500 $600,000 $600,000 15 H Partial property settlement from Suburb J sale proceeds received 28.8.23 (Orders 05.08.24) $180,000 $180,000 16 H N Pty Ltd – Balance in account at separation $12,958 $12,958 17 W Partial property settlement from Suburb J proceeds received 18.5.22 (Orders 02.02.22) – agreed at to amount of $270,000 received $0 $0 18 W Partial property settlement from Suburb J proceeds received 2.11.22 (Orders 11.11.22) – agreed at to amount of $600,000 $0 $0 19 W Partial property settlement from Suburb J proceeds received 19.8.24 (Orders 05.08.24) – agreed at to amount of $180,000 $0 $0 20 W Monies paid to Mr E, Mr C and Mr D from O Pty Ltd from separation to date NIL $508,400.06 21 W Wife’s legal fees paid from parties M Bank account – agreed as to amount of $20,000 Incl in items 5, 23 $0 Family Law Legal Costs Paid 22 H Husband’s paid legal costs – Family Law nk N/A 23 W Wife’s paid legal fees – total $334,694, amount conceded as here being that paid from receipt of partial property settlements (in addition to that paid item 5) $80,818 $80,818 Total $1,806,110 $2,366,787 SUPERANNUATION Member Name of Fund Type of interest Wife’s value Husband’s value 24 W Superannuation Fund 1 Pension Incl in item 27 25 W Superannuation Fund 1 Accumulation $831,069 $831,069 26 H Schultheiss Superannuation Fund SMSF E$101,146 $101,146 Total $932,215 $932,215 FINANCIAL RESOURCES Ownership Description Wife’s value Husband’s value 27 W Superannuation Fund 1 Pension Next periodic payment due $865,713 SUMMARY 28 Total Property $2,022,285 $2,022,285 29 Total Addbacks $1,806,110 $2,366,787 30 Net Assets (not including superannuation) $3,828,395 $4,389,072 31 Total Superannuation $932,215 $932,215 32 Total Net Assets (including superannuation) $4,760,610 $5,321,287 33 Total Net Assets excluding addbacks $2,954,500 $2,954,500
The only matter in dispute was the inclusion sought by the husband as an addback of various monies (item 20) paid to the parties’ sons from O Pty Ltd.
The sole director and shareholder of O Pty Ltd was a former partner of one of the children. Irrespective of that fact, the business conducted by the company (essentially involving organising labour for another company) was, until separation, managed by the husband for which he received a wage. It was agreed that after separation the parties’ son, Mr C, took over the management of O Pty Ltd and conducted it until it was ultimately deregistered.
The husband sought to add back the sum of $508,400.06 being what was said, pursuant to Exhibit 6, to be the total of various payments made by the company to each of the three sons. This amount differed from what each of the sons said they had received and differed from the amount the husband sought to add back at paragraph 32 of his affidavit. There was no attempt to reconcile the differences.
There appeared no issue that someone had to undertake the work that had previously been done by the husband, that it was managed by one of the sons, and that each of the three sons received monies from O Pty Ltd. The wife, in cross-examination, denied receiving any monies from O Pty Ltd. Each of the three sons denied that any of the funds were paid directly either to the wife or their sister and agreed that after separation they had paid rent to their mother and paid for some household expenses. Some of those payments were sourced from the monies they received from O Pty Ltd.
It was put to each of the sons that the amounts that they received from the company exceeded a reasonable remuneration for the work undertaken by them. Each did not accept the proposition. I am satisfied, considering the evidence given by each of the sons, that some of the monies was expended for the benefit of the family constituted by the wife and four children. I am also satisfied that other than in that respect, the wife did not receive the benefit of the funds. There was no attempt during cross-examination to quantify how much had been paid to the wife by way of rent or the meeting of various household expenses from the O Pty Ltd funds.
The circumstances in which monies will be added back are the exception rather than the rule. In Trevi & Trevi (2018) FLC 93-858, the Full Court observed:
27.The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
28.However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
29.The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
30.Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
(Footnotes omitted)
I am not satisfied that the payments made to the sons could properly be characterised as an addback. There was no evidence that the wife was involved in the disposition of the funds or the management of the company. The funds were not dealt with by the wife or received by her other than in the indirect and imprecise sense referred to above. Senior counsel for the husband candidly conceded that it would be difficult for him to contend that the monies should be an addback but otherwise contended that they should be dealt with under s 75(2). The monies will not be included as an addback, and I will consider them in my assessment of matters under s 75(2).
I find the pool of assets for division between the parties (excluding any item that has a nil or zero balance) to be as follows:
Ownership Description Value ASSETS Real Property Proceeds of Sale 1 Jnt Proceeds of H Street, Suburb J held by wife’s solicitors in WBC term CMA …64 including interest as at 19.8.2024 $995,307 Bank Accounts/Shares 2 W Westpac Acc #...54 $13,579 3 W G Bank Acc No. #...41 $623,357 4 W G Bank Acc No. #...19 $5,696 5 W Funds held in trust account of VRT Lawyers $346,550 6 W Shares $14,391 Other 9 Jnt Household contents, artwork, collectibles and jewellery in Wife’s possession previously at Suburb J $22,005 10 H Contents and jewellery at Suburb L $1,400 Total $2,022,285 ADDBACKS Ownership Description Value 11 H Partial property settlement received on 26.5.2020 and 30.3.21; 31.3.21; 1.4.21 (Orders 19,03.21) $352,900 12 H Partial property settlement (Orders 23.08.21 – Order 1.5.3) and withdrawn from new M Bank mortgage #...51 on 26.10.21 $309,434 13 H Partial property settlement received 18.5.22 (Orders 02.02.22 – Order 1.14.6) $270,000 14 H Partial property settlement from Suburb J Sale proceeds received 21.11.22 (Orders 11.11.22) paid to Streeton Lawyers $504,500 $600,000 15 H Partial property settlement from Suburb J sale proceeds received 28.8.23 (Orders 05.08.24) $180,000 16 H N Pty Ltd – Balance in account at separation $12,958 Family Law Legal Costs Paid 23 W Wife’s paid legal fees – total $334,694, amount conceded as here being that paid from receipt of partial property settlements (in addition to that paid item 5) $80,818 Total $1,806,110 SUPERANNUATION Member Name of Fund Type of interest Value 25 W Superannuation Fund 1 Accumulation $831,069 26 H Schultheiss Superannuation Fund SMSF E$101,146 Total $932,215 FINANCIAL RESOURCES Ownership Description Value 27 W Superannuation Fund 1 Pension SUMMARY 28 Total Property $2,022,285 29 Total Addbacks $1,806,110 30 Net Assets (not including superannuation) $3,828,395 31 Total Superannuation $932,215 32 Total Net Assets (including superannuation) $4,760,610 33 Total Net Assets excluding addbacks $2,954,500
I have read all of the evidence relied upon in the proceedings including the exhibits but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
The assessment in a property case calls for the exercise of a discretion and a holistic value judgment of the respective contributions of the parties. The Court is required to consider all the contributions of the parties. As the Full Court in Dickons v Dickons (2012) 50 Fam LR 244 makes plain:
24.…the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25.Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “giving overzealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524 ; 65 ALR 12 at 18 ; 10 Fam LR 819 at 825 ; [1986] HCA 17) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26.The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
As stated in Horrigan & Horrigan [2020] FamCAFC 25, it is:
35.… well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties respective contributions, in a holistic way across the course of the relationship and in the post-separation period to the point of assessment. …
The consistent theme from the authorities is that the multifarious contributions over the relationship and subsequently of all types are to be assessed in aggregate.
ASSESSMENT OF CONTRIBUTION
It is not in issue that at the commencement of cohabitation neither party had any property, liability, or superannuation of substantial value.
Until about 2008, both parties were in paid employment albeit with the wife taking periods of time off from work after the birth of each of the children. The wife was employed for almost the entirety of the relationship at a company, whilst the husband conducted his own business.
From about 2008, the husband says that he undertook a role as the primary carer of the children whilst also at the same time conducting his other businesses, including the O Pty Ltd business. He asserted that he undertook the refurbishment and renovation of various properties with the aim of building wealth.
Whilst the husband may have assumed a greater role in the care of the children by sheer fact of being more available, I am satisfied that the wife also made a significant contribution in her care-giving role, as well as her contributions as the main income earner and the substantial work involved in the refurbishment and renovation of numerous homes to build wealth.
I am satisfied that each of them in their respective spheres worked hard and made a significant contribution, not just to the welfare of the family constituted by each of them and their children, but direct and indirect financial and non-financial contributions up until the time of separation.
Following the husband’s arrest in 2020, the husband’s direct contributions to the wife and children ceased. At the time of his arrest, the parties’ daughter was aged 15 and in Year 10 while one of the parties’ sons was aged 17 and in Year 12. The eldest two boys were studying at university. While the husband’s direct contributions to the wife and children ceased, the wife continued to make contributions towards the welfare of the family as well as the maintenance of the parties’ assets and paying the husband spousal maintenance for a substantial period.
The wife for a period received the benefit indirectly of some of the O Pty Ltd monies, some of which existed at the time of separation.
In the period post-separation, the wife drew down and later refinanced various facilities secured against the matrimonial home for which the husband retained a substantial portion. In that respect, of the $415,000 drawn against the various mortgage facilities, it is not in issue that the husband received by March 2021 approximately $350,000. The facility was further refinanced prior to the sale of the home with the husband receiving a further $309,000.
However, it was to the wife that fell the sole responsibility of meeting the costs associated with that facility as well as meeting the mortgage payments on the existing mortgage over the home, the outgoings and living expenses of the family, and school fees. I am satisfied that this contribution was a significant contribution by the wife in the period post the parties’ separation.
The parties agreed to a sale of the home. It was to the wife that fell the responsibility of preparing the home for sale, keeping it clean and tidy and managing its’ presentation. The wife had to thereafter pack up the home and move to a new residence.
The wife solely made the direct contributions to the children under 18, post-separation. This included managing the task of the children’s HSC preparation as well as attending to all their care which had, to the time of separation, been shared between the parties. The wife also made a significant contribution in relation to the care of the two children in the unique and tragic circumstances that befell the family following the husband’s arrest. It was to the wife that fell the responsibility of meeting the youngest children’s emotional and psychological needs following the husband’s arrest and revelations in relation to his criminality and betrayal of trust.
Senior counsel for the husband conceded that the post-separation contributions were dominated by the wife but maintained that the husband made some indirect contributions which included the retention by her of the income and earning capacity to which he had made a contribution over the relationship, the benefit of occupation of a home to which he had made contributions as well as access to the facilities which were drawn down and then upon sale to part of the proceeds. I accept this aspect of his senior counsel’s submissions.
The wife’s affidavit filed 23 September 2024 addressed a history of family violence that spanned a significant part of the parties’ relationship. The history involved assertions of physical, emotional, psychological, and verbal abuse of the wife and children. The physical assaults of the wife were significant and included her sustaining physical injury which required medical intervention. Several of the instances of assault referenced by the wife were the subject of findings of guilt in the husband’s criminal proceedings.
The wife’s evidence of family violence is a relevant in the context of the obiter comments of the Full Court in Kennon & Kennon (1997) FLC 92-757 (“Kennon”). In that respect, their Honours observed:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
And at 84-294–84-295, their Honours said:
It is essential to bear in mind that the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct relating to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). …
In Keating & Keating (2019) FLC 93-894, the Full Court referenced both Kennon and the Full Court’s decision in Spagnardi & Spagnardi [2003] FamCA 905 observing:
39.… the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse's contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). …
40.In any event, the primary judge gave no consideration to the inferences that might properly be drawn from the wife’s albeit limited evidence as to the effect on her of the husband's violence taken in conjunction with her evidence of the severity of the violence...
It is well settled that the necessary nexus between the alleged conduct and the contributions being made significantly more arduous can be established either by direct evidence or inference. As the Full Court observed in Britt & Britt (2017) FLC 93-764:
74.The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
While in Benson & Drury (2020) FLC 93-998, the Full Court observed:
50.… An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278 per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–307 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).
In Giunta & Giunta (No 3) [2021] FamCA 272, McClelland DCJ observed:
511.By way of summary, in applying Kennon and S & S, a victim of family violence, seeking to have their circumstances considered in a family law property matter, is required to establish that their situation gives rise to an “exceptional case” where:
(1)they were the subject to a course of violent conduct during the course of the marriage;
(2) they demonstrate:
(a)the violence had a significant adverse impact upon that party’s contributions to the marriage, or
(b)the violence made his or her contributions significantly more arduous than they ought to have been;
(3)they quantify the effect of the violence on that party’s ability to contribute in terms of section 79(4)(c); and (4) they demonstrate the above by direct evidence or “where it is an obvious or very likely inference” from the facts that the violence had the requisite effect on the party’s ability to contribute to the marriage.
512.More recently, appropriately, in my view, the Full Court has taken a more expansive approach to the principles adumbrated in Kennon and S & S. In that respect, the Full Court, in S & S at [42], acknowledged that it may be possible for the Court to draw an inference that family violence perpetrated by one party to a marriage may impact upon the contributions that the other party was able to make to the property of the marriage. The Full Court held, at [45], that inference must be one that “it is obvious” or “very likely”.
513.Significantly, more recently, in Britt & Britt (2017) FLC 93–764 (“Britt”), the Full Court did not add those words of limitation to the drawing of such an inference. In that respect, at [74], the Full Court said:
The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
514.I respectfully agree with and apply the approach taken by the Full Court in Britt, which is to be preferred to the approach taken in the earlier authorities, for the following reasons.
I also note the observations of Aldridge J in Martell & Martell [2023] FedCFamC1A 71 to the following effect:
22.It has to be said, that their Honours terms “exceptional” and “narrow” lose much of their force if cases involving significant violence are to be the subject of the application of the principles. Such cases might have been regarded as exceptional at the time Kennon was decided but they cannot today be so regarded. Unfortunately the prevalence of family violence is wide and artificial barriers to its recognition, such as trying to limit its recognition in property cases to exceptional or narrow cases, has no basis in principle. As I shall endeavour to explain shortly, the focus of the majority’s reasoning was on the nature and quality of the contributions themselves which were not limited by such qualifying adjectives.
23.In Kennon, the principle was identified as follows:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79.
24.For the reasons given, the words “significantly” and “more arduous” are not to be read as coterminous with “exceptional”. Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person’s contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been “significantly impacted” or made “more arduous”. The focus is not on the conduct per se, but on its effects on contributions.
25.The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
26.That, in my view, should be the focus and terms such as “exceptional” or “narrow”, or indeed, “onerous” add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a “significant adverse impact” upon a party’s contributions. The word “significant” was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.
27.More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to “quantify” that effect (Maine & Maine (2016) 56 Fam LR 500 at [47]–[52] (“Maine”); Britt & Britt (2017) FLC 93-764 at [74]–[75]; Keating & Keating (2019) FLC 93-894 at [27]–[43], [52]–[67]; Benson & Drury (2020) FLC 93-998 (“Benson & Drury”) at [47]–[50]).
28.It seems to me that regarding Kennon claims as “special” or “exceptional” is apt to mislead. In reality, all the majority said in that case was that a person’s contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons (2012) 50 Fam LR 244; Jabour & Jabour (2019) FLC 93-898).
The husband puts in issue both the actuality of family violence perpetrated upon the wife (in each instance every allegation is denied) and the necessary nexus that her contributions were made more arduous.
On 10 May 2024, orders were made preparing the matter for final hearing. One of those orders required the wife to within 28 days provide the husband with details and particulars of the assaults and injuries during the relationship including those alleged and those for which he had been convicted. The Points of Claim was received by the husband on 17 June 2024.
The Points of Claim (Exhibit 5) identified various assaults perpetrated by the husband on the wife in or around 1990, 2007, 2008, 2009, 2010 to 2012, 2013, 2016 and assaults between 1990 and 2016. Because of those assaults, the Points of Claim contended the wife’s contributions as a homemaker and parent were made more arduous. The husband was convicted of the assault on the wife that occurred in 2008, in 2010, in 2013 and in 2016 as well as assaults upon the parties’ children.
Thus, by the time the husband came to file his evidence, he was conscious that a constituent part of the wife’s s 79 relief involved the actuality of and impact of the conduct that she asserted he had perpetrated on her and the children.
Conscious as he was, his affidavit records the following:
23.[In] 2023, I was found guilty of one sexual assault offence in the District Court of New South Wales, with those offences relating to [Ms P], and […] assault offences against [Ms P]. I was sentenced in relation to these convictions [in late] 2023 to […] imprisonment with a […] non-parole period. I have filed a Notice of Intention to Appeal in relation to these convictions and sentence.
24.I maintain my innocence in respect of these charges relating to [Ms P] and reserve my further evidence in circumstances where I am intending to appeal with the potential of there being a retrial ordered.
…
27.[In early] 2024, I stood trial in relation to […] assault charges relating to assaults against [Ms Schultheiss], [Mr C], [Mr E] and [Mr D]. I was convicted of [some of the] offences. I maintain my innocence in respect of the […] offences for which I was convicted and my denial in respect of the […] offences of which I was not convicted. I was sentenced in relation to these convictions [in mid] 2024 to […] imprisonment, with [a period] to be served concurrently with my other sentence of imprisonment, increasing the non-parole period of my sentence […].
28.It is my intention to appeal these convictions also. I am therefore reluctant to give evidence about these allegations at this time.
The wife bears the onus of establishing the case she advances on the balance of probabilities (Evidence Act 1995 (Cth) s 140). In relation to those matters the subject of conviction, the conviction establishes the fact. Of the balance, she carries the onus of establishing the facts to the reasonable satisfaction of the Court on the balance of probabilities.
At a time shortly after Captain Cook visited Australia, Lord Mansfield observed in Blatch v Archer (1774) 1 Cowp 63 at 65:
It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and the power of the other to have contradicted.
On the question of evidential burden, Heydon J in Strong v Woolworths Ltd (2012) 246 CLR 182 (“Strong v Woolworths”) observed as follows:
52.In the first sense, “evidential burden” refers to the duty of one party (usually the party bearing the legal (ie persuasive) burden, who in most instances will be the plaintiff) to call sufficient evidence to raise an issue as to the existence or non-existence of a fact in controversy. This must be done to prevent a no case submission succeeding (or if the relevant evidential burden rests on the defendant, to prevent the issue otherwise being withdrawn from the jury). The Privy Council (Lord Hodson, Lord Devlin, Viscount Dilhorne, Lord Donovan and Lord Pearson) criticised the expression “evidential burden of proof” as follows:
“It is doubtless permissible to describe the requirement as a burden, and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof.”
However that may be, this is what Wigmore called the duty of producing evidence.
53.In the second sense, “evidential burden” refers to circumstances in which a plaintiff calls evidence sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in the plaintiff's favour. There is then said to be an “evidential burden” in the sense of a “provisional” or “tactical” burden on the defendant: if the defendant fails to call any or any weighty evidence, it will run a risk of losing on the issue – that is, a risk that at the end of the trial the trier of fact will draw inferences sufficiently strong to enable the plaintiff to satisfy the legal (ie persuasive) standard of proof. The “provisional” or “tactical” burden raises the question whether a defendant should as a matter of tactics “call evidence or take the consequences, which may not necessarily be adverse”.
54.The third sense in which the expression “evidential burden” is employed arises where a plaintiff, in discharging the evidential burden in the first sense, calls evidence so strong that a reasonable trier of fact would be bound to decide the issue in the plaintiff's favour if the defendant calls no evidence. It is sometimes said that an “evidential burden” rests on the defendant which, if not discharged, will cause the defendant to lose and which, if discharged so as to cause the trier of fact either to reject the plaintiff's evidence or to be undecided, will result in the legal (ie persuasive) burden on the plaintiff not being satisfied.
(Footnotes omitted)
The husband made an election to adduce no evidence. The consequence of the husband’s deliberate election is that there is no contradictory account beyond a blanket denial. He is quite entitled to give no evidence but must accept the evidentiary consequence of doing so.
In Norris v Brooks (2022) NSWSC 804, Justice Robb observed:
65.…Plainly the Court cannot conclude from a blanket claim of innocence that any or all charges are true. The court is required to carefully review all of the evidence to determine whether it should accept that any of the husband’s denials are inconsistent in a significant way with what the evidence objectively establishes. If the court makes such a finding that will throw doubt over all of the husband’s denials and may make it easier for the court to accept the evidence that tends to establish other aspects of wrongdoing on the husband’s part.
I respectfully adopt his Honour’s observations. The wife’s case, as articulated in the Points of Claim, was in the Strong v Woolworths “third sense” (at [54]) convincing, persuasive, and compelled a contradictory explanation beyond mere denial to avoid the possibility of a finding in the wife’s favour.
The cross-examination of the wife amounted to no more than the putting of the husband’s denial, suggesting that the wife had contrived a case for the purposes of punishing the husband and that the versions of events given by her to doctors explaining her physical injuries was truthful. In those circumstances, it is unnecessary nor serves any purpose to recite the wife’s many instances of family violence for the purposes of consideration and finding where it was unchallenged beyond denial and there was no evidence by contradiction beyond denial other than in respect of what the wife reported to medical practitioners.
I accept the entirety of the wife’s evidence in her affidavit of family violence perpetrated by the husband upon the wife, the parties’ daughter, and the sons for the following reasons:
(a)I found the wife to be a truthful and honest witness. She did not embellish her evidence and made appropriate admissions and concessions.
(b)I found each of her sons to be honest and truthful witnesses. They did not embellish their evidence and made appropriate admissions and concessions.
(c)The wife’s evidence was on several key events corroborated by the evidence of her sons.
(d)The evidence of the wife and the sons on the issue of family violence was not impeached in cross examination, nor do I find it to be inconsistent with other evidence or implausible when put in context and after acceptance of her explanations.
(e)The wife’s explanation for why she said what she reported to medical practitioners was convincing and I accept her explanation for why she said what she said as truthful.
(f)Beyond the bald denial and the putting of a denial there was no cross-examination of the rich detail provided by the wife and the sons nor any probative testing of her or them about the detail of the assaults.
(g)The husband’s denials are inconsistent with the recorded convictions and otherwise inconsistent with the corroborated evidence of the wife and her witnesses.
(h)There was no contradictory account given by the husband.
(i)The husband provided no credible explanation sufficient to cast doubt on the credibility of the wife or her sons or to call into question the reliability or truthfulness of their evidence.
I am comfortably satisfied that the husband perpetrated the acts of family violence set out in the evidence of the wife and her sons.
The next aspect is whether the wife has adduced evidence that demonstrates that her contributions were made more arduous than they might otherwise have been by virtue of the family violence.
The husband in his cross-examination was reluctant to make any admission that his conduct, even those incidents for which he had been convicted, might have made the wife’s contributions more arduous. The highest it got was a reluctant admission that it would have been a shock to the wife consequent upon the husband’s arrest albeit he did not know whether it would have made things difficult for his daughter.
Senior counsel initially submitted that there was no evidence of the necessary nexus between her evidence of the husband’s conduct and her contributions being made more arduous. The absoluteness of this submission was subsequently retracted, and he properly conceded that there was evidence in some of the incidents of the physical assaults of her contributions being made more arduous. Nevertheless, he maintained that it even in those discrete instances, the myriad of the husbands’ contributions over the length of this long relationship were such as to ameliorate their significance. I do not accept this submission.
I am not satisfied that the evidence of the wife’s contributions being made more arduous is simply limited to the instances of physical assaults. I am satisfied it is much wider and more extensive. I accept the wife’s evidence, including the instances referred to below, as examples of her contributions being made more arduous because of the behaviour, conduct and circumstances, created entirely by the husband, in which she made them.
The wife gave specific evidence in her affidavit filed 23 September 2024, including, as follows:
(a)That to stop his anger, she would “apologise to him and to pretend as if [she] was at fault” (wife’s affidavit filed 23 September 2024, paragraph 38);
(b)That as a means of coping following the husband’s arrest:
43.I continued to work, support and comfort the children and my means of coping was to put my head down and focus on work and keeping the household unified… I then still had to focus on keeping myself as strong as I could be for the next trial for the assaults on me and the boys. That did not finish until […] 2024…
(c)The period subsequent to separation and the criminal hearings had left her:
44.… depleted of energy, tired, depressed and increasingly unable to focus. To date I have not been able to sleep properly. It is rare that I can sleep for more than four to five hours a night. I was the sole breadwinner and parent for the children…
(d)She says:
44.4I tried to refocus [Ms P’s] mind on other more joyful activities. We spent a lot of time on walks, playing board games, watching TV, going to get our hair done and grooming matters. I became more involved in her [sport].
(e)She says:
44.8All the additional time I spent trying to help [Ms P] meant that I had less time or rather more pressure to complete my work commitments and my household commitments
(f)She said that after the husband was released on bail her fear and anxiety increased around the safety of herself and the children and that:
44.9Every day I would check with the children as to where they were going, when they would come back. I drove them to their appointments and social functions rather than them taking public transport or going on their own.
(g)She gave evidence that following an assault in 1998/1999 she:
49.…started to develop flight/freeze reactions being very afraid and helpless and not knowing what he would do or how he would react or what would happen to me. I started to use ways to defuse tense moments by agreeing to whatever his requests were and viewpoints just to end the argument or dispute.
(h)She said that in 2008/2009 the husband punched her and she was left with bruising. She said:
59.The visible bruising required me to dress more carefully, wearing more layers to hide the marks. When I had the bruising, I had to get up earlier in the morning and attend to my grooming to make sure the children did not see the marks and that they were ready in time to go to school. Sometimes when I had bruising in my torso area it was also painful to put my seatbelt on when I was driving.
(i)She gave evidence of an assault in 2011 where the husband threw a cup at her that cut her on the side of her body. She says that she had to clean up the mess caused by the husband, and it left her feeling intimidated and afraid (wife’s affidavit filed 23 September 2024, paragraph 60);
(j)She gave evidence of an assault in 2010 where she was punched in the torso that caused her excruciating pain and restricted her movement. She says:
65.…I could not carry my handbag or anything in my […] arm. Lifting my […] arm was painful. I could not sleep properly because I had to lie in a different position. Typing at work hurt and slowed me down. I was required to continue to do the cooking and housework but it was made more difficult as I did not have the full use of my arm. It took me longer to complete those tasks. I also took painkillers, Nurofen. The pain and the restricted movements resolved after two to three weeks.
(k)She gave evidence of an assault in 2013 where the husband’s punch caused an injury. She said the pain was excruciating and constant for a week or two and thereafter says:
71.I took Panadol for the pain. During this period I could not concentrate or focus as normal. I tried not to move around and move my head. I tried not to watch TV so that I would minimize screen time. I struggled to do my housework and house duties.
(l)She gave evidence of another assault in 2016 where she was punched in the face. She said she had to go to the hospital and then later to see a specialist. She said that:
97.[In] 2016 I saw the [specialist] surgeon. There was ongoing swelling and I was still having pain.
98.[A few days later] I returned to [the hospital] and [an] operation procedure was done […]. After that time a splint was put in place and was removed [later].
…
100.Following the incident I could not go back to work however I worked from home until after the surgery. After the surgery I went to work with a splint […]. It was very embarrassing as the splint was large and obvious. I did not undertake any social activities during this time…
101.I had a lot of pain until the surgery. After the surgery the pain and discomfort continued. I was on pain killers. I had to sleep on my back. I was told to be careful not to make any movements and to treat my face with tenderness including when showered. I continued to do the housework and my paid work despite the pain and discomfort. The pain and discomfort resolved about a week after the splint was removed.
…
107.I was having headaches and migraines. These last half a day to a day. When I have these headaches it is hard to focus and I had to catch up my work and housework at a later time.
I accept the wife’s evidence of the effect of the husband’s conduct upon her. This evidence was not the subject of any challenge. There is no issue that during the period of these incidents, the wife was making contributions of all types. His conduct made the discharge of her contributions more arduous.
I am satisfied that there is both direct evidence of the impact of the husband’s behaviour on the wife’s contributions and there is evidence from which I can infer that those incidents would have impacted significantly and adversely on her capacity to make her contributions, such that making them was made more arduous.
I find that an environment created by the husband in which the wife felt fearful, afraid and intimidated made her contributions more arduous. I find that the wife in having to counsel, protect, and reassure her children in the context of the husband’s violent and criminal behaviour was making contributions that were made more arduous by his conduct.
I am satisfied that each of the physical assaults perpetrated by the husband made the wife’s contributions undertaken while suffering injury, pain, and humiliation significantly more arduous than they should otherwise have been.
I am satisfied that a party who must spend additional time covering up the conduct of the other party is contributing over and above that identified by the Full Court in Kennon. Thus, a party who must tidy up mess and deal with the havoc caused by a violent partner, as the wife did, is making a contribution. A party who must cover their face and/or body with clothing or make up to hide the marks and bruises caused by the violent conduct of their partner, as the wife did, is making a contribution. A party who deflects the anger of their violent partner onto themselves in protecting their children, as the wife did, is making a contribution (wife’s affidavit filed 23 September 2024, paragraph 76).
In Norris v Brooks (2022) NSWSC 804, Robb J observed as follows:
482. A judge hearing a case like these family law proceedings should have the emotional empathy necessary to make a reasonable assessment of the subjective effect of family violence, where the effect of that violence is not as obvious as, say, the result of debilitating physical injury. The work of caring for and nurturing the physical and emotional needs of children and the general maintenance of a household may be made significantly more adverse if it has to be undertaken in a state of fear, depression, uncertainty or self-doubt. So much is a matter of general human understanding.
I respectfully agree with his Honour’s observations. I am satisfied that the wife has established that the husband perpetrated family violence on her during the relationship which made her contributions more arduous.
In adopting a holistic approach to the assessment of the parties’ contributions over this very long relationship, I have had regard not just to the contributions over the years of the relationship made by both parties but also in the years post-separation made predominantly by the wife. I have considered the myriad of contributions made by both parties and the impact of family violence perpetrated by the husband on the wife’s contributions, making them more arduous, not just during the relationship, but also post-separation.
An assessment of equality as urged by the husband manifestly fails to properly recognise the true enormity and extent of the wife’s contributions of all types referred to above made during the relationship and post-separation. The wife’s contributions vastly exceed those of the husband. I assess the wife’s contributions at 63 percent.
ADJUSTMENTS UNDER S 75(2)
The husband is aged 57 and the wife is aged 56.
The husband describes himself as being in “tolerable physical and mental health” (husband’s affidavit filed 23 September 2024, paragraph 54). He contends that he suffers from a pain condition and has a medical condition which is managed by medication. He will remain incarcerated until he is aged 70, subject to the fate of his appeals. He says that after release from prison, he anticipates he will be unable to engage in paid employment owing to his age.
The husband concedes that most of his day-to-day expenses are met by Corrective Services NSW and that the balance of his expenses is otherwise met by his parents.
The wife has health issues as well. She has been diagnosed by the single expert as having observable symptoms of significant emotional difficulties, she is notably depressed and suffered from persistent depressive disorder and post-traumatic stress disorder which the single expert opines as chronic. He says she will:
… require lengthy psychological treatment to be able to integrate her traumatic experiences into her personal history. Full recovery could take 12 months to two years.
(Report of Mr Q dated 17 October, paragraph 4.12.1)
He opines that she would benefit from Cognitive Behavior Therapy and should continue to engage with her current psychologist.
The wife ceased work in mid-2024. Her evidence is that she does not consider that she has the mental capacity for appropriate gainful employment at the present time and says that if she returns to employment, it would not be for at least six to twelve months (wife’s affidavit filed 23 September 2024, paragraph 299). During cross-examination, she conceded that she will have to return to work for the purposes of obtaining some form of financial security.
I am satisfied from a combination of the wife’s evidence and that of the single expert that the effect of the husband’s behavior on the wife will continue to adversely affect her ability to return to employment for a period of time. Whilst the wife had well remunerated employment with her employer and has an earning capacity, there is no evidence before me that would permit me to find that such work is still available to her or will be available to her should she recover in the timeframe opined by the expert or in the time estimated by her.
The wife has a significant financial resource represented by her Superannuation Fund 1 Pension which, according to her Financial Statement filed 23 September 2024 provides her with a weekly payment of $993. According to the wife’s Financial Statement, about which she was not challenged, her expenses exceed her weekly income by approximately $1,352 per week, albeit some of that is offset by payment of rent from the two youngest children who live under her roof. The wife also has more superannuation than the husband and the capacity to increase it over time.
The O Pty Ltd monies were asserted by the husband’s senior counsel to be considered under s 75(2)(o). I have recognised in the contribution analysis that the wife indirectly received some of the O Pty Ltd monies through the payment of rent and by way of contribution to household expenses. There was no quantification of the actual amount received by the wife from her sons. It does not represent an ongoing financial resource to the wife nor is there any evidence that the funds are the source from which the wife currently receives a contribution by way of rent from her son.
I also have had regard to the contribution finding that I have made and the composition of assets the parties have and will retain.
On balance, I am satisfied that a small adjustment in favour of the husband is called for in recognising the financial resources the wife has, the contribution-based finding and the wife’s earning capacity. I assess that adjustment at 1 percent.
CONCLUSION
Having regard to the contribution matters to which I have referred to above as well as the matters under s 75(2), I am satisfied that a division of the parties’ assets as to 62 percent to the wife is a just and equitable determination.
Accordingly, having regard to the net pool of assets as found by me totalling $4,760,610, 62 percent of that sum to the wife amounts to $2,951,578. The wife currently has assets having a value of $2,932,772 considering that orders have already been made for her to receive the balance of the proceeds of sale of the former matrimonial home. The difference is a sum of $18,806.
The wife was clearly conscious of the mathematical effect of the orders that she sought (wife’s Aide Memoir) and did not seek a further payment from the husband beyond seeking the totality of the funds held on trust. In those circumstances and having regard to the relative modesty of the sum, I do not propose to make an order beyond that sought by the wife.
I am of the view that this, mathematically in a dollar sense, constitutes a just and equitable division of the party’s property and will make orders to give effect to this determination.
In circumstances where there are extant costs issues, the parties will be given the opportunity to address on this issue within 28 days.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 12 November 2024
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