Shankar & Shankar
[2023] FedCFamC2F 880
•19 July 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shankar & Shankar [2023] FedCFamC2F 880
File number(s): SYC 1105 of 2021 Judgment of: JUDGE ELDERSHAW Date of judgment: 19 July 2023 Catchwords: FAMILY LAW – PROPERTY – FINAL ORDERS Consideration of Kennon & Kennon – Where the evidence establishes that the wife’s contributions were more arduous by reason of family violence Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Adair & Adair [2019] FamCAFC 70
Benson & Drury (2020) FLC 93-998;[2020] FamCAFC 303
Clauson & Clauson (1995) FLC 92-595;[1995] FamCA 10
Kennon & Kennon (1997) FLC 92-757;[1997] FamCA 27
Martell & Martell [2023] FedCFamC1A 71
Perrin & Perrin (No 2) [2018] FamCAFC 122
Simons & Simons [2020] FamCAFC 128
Stanford & Stanford (2012) 247 CLR 108
Division: Division 2 General Federal Law Number of paragraphs: 152 Date of hearing: 26 & 27 June 2023 Place: Sydney Solicitor for the Applicant: Mr Reeve, Marsdens Law Group Counsel for the Respondent: Mr Singh Solicitor for the Respondent: Rajesh Chand & Associates ORDERS
SYC 1105 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SHANKAR
Applicant
AND: MR SHANKAR
Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
19 JULY 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All prior orders in these proceedings be discharged.
Suburb C Property
2.By not later than 4.00 pm on 29 September 2023:
(a)The husband shall do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest in the property situated at B Street, Suburb C, being the whole of the land contained in Folio … (“the Suburb C property”); and
(b)The wife shall do all acts and things and sign all documents necessary to transfer to the husband all of her right, title and interest in the property situated at D Street, Suburb E, being the whole of the land in Folio …) (“the Suburb E property”).
3.Simultaneously with Order 2 herein:
(a)The wife shall do all acts and things to discharge the loan secured by mortgage in favour of the National Australia Bank (“the NAB”) with account ending …80; and
(b)The husband shall do all acts and things to discharge the loan secured by mortgage in favour of the NAB with account ending …21; and
(c)The husband shall pay to the wife the sum of $168,750 into a bank nominated by her in writing.
4.From the date of these Orders:
(a)The wife is solely responsible for the payment of the home loan repayments, council and water rates, insurances and all other outgoings on the Suburb C property and shall indemnify and keep indemnified the husband in respect of the same; and
(b)The husband is solely responsible for the payment of the home loan repayments, council and water rates, insurances and all other outgoings on the Suburb E property and shall indemnify and keep indemnified the wife in respect of the same.
5.By not later than 4.00 pm on 25 August 2023 from the date of these Orders, the parties are to do all acts and things necessary to cause the NAB Bank accounts ending …54 and …23 to be closed with any positive cash balance to be paid to the wife.
6.By not later than 4.00 pm on 25 August 2023, the wife shall provide to the husband all documents that she requires him to sign for the purpose of discharging the motor vehicle finance relating to the Motor Vehicle 1 and the husband shall sign and return such documents to the wife by not later than 4.00 pm on 1 September 2023.
7.Except as otherwise provided by these Orders:
(a)The wife shall retain, to the exclusion of the husband, the Suburb C property, all bank accounts, superannuation entitlements, pension entitlements, vehicles (including the Motor Vehicle 1, personal effects and household contents of which she is the account holder, named member or interest holder, registered owner or is otherwise in possession; and
(b)The husband shall retain, to the exclusion of the wife, the Suburb E property, all bank accounts, superannuation entitlements, pension entitlements, vehicles (including the Motor Vehicle 2 and Motor Vehicle 3), F Pty Ltd, F Pty Ltd (deregistered), personal effects and household contents of which he or the said corporate entity is the account holder, named member or interest holder, registered owner or is otherwise in possession.
8.Except as otherwise provided by these Orders, each party (“the first party”) shall be solely liable for any credit card, any taxation (including capital gains tax and personal income tax) or other debt howsoever incurred or arising, and standing in that party’s name at the time of the making of these Orders AND this Order may be relied on by the other party as a defence against any claim for the whole or any part of the said debt by a third party creditor, and against any claim for contribution or apportionment of such debt by the first party.
9.The husband shall indemnify and hold the wife indemnified with respect to any taxation or any other liability, claim, suit or demand against F Pty Ltd and F Pty Ltd (deregistered).
10.Each party must do all acts and things and sign all documents as may be necessary to give effect to these Orders.
11.Pursuant to s 121 of the Family Law Act 1975 (Cth), for the purpose of assisting in the orderly implementation of these Orders, each party is granted leave to provide a copy of these Orders to the New South Wales Land Registry Services, any lending institution or finance broker, to the agent who has been appointed to act on any sale of the properties, and for the purpose of giving effect to the indemnity provisions of these Orders.
12.All outstanding applications are otherwise dismissed and the proceedings are removed from the list of matters awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE ELDERSHAW:
INTRODUCTION
These are financial proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) between the Applicant wife, Ms Shankar born in 1974 (“the wife”) and the Respondent husband, Mr Shankar born in 1972 (“the husband”).
The proceedings were commenced by the wife’s Initiating Application filed 19 February 2021, to which the husband joined issue by his Response filed 29 April 2021.
Documents
The wife relies on her Amended Initiating Application, affidavit and Financial Statement all filed 24 February 2023, and her Case Outline Document filed 21 June 2023. The husband relies on his Response, affidavit and Financial Statement all filed 24 February 2023, an affidavit filed 23 June 2023 and a Case Outline Document filed 22 June 2023.
Both parties rely on a Single Expert valuation of Ms G (“the Expert”) dated June 2023 concerning the value of the husband’s business.
Applications
The wife seeks an overall adjustment of property of 65 per cent to her and 35 per cent to the husband. The husband seeks an overall adjustment of parity to each party. It is common ground that a property at Suburb C (“the Suburb C property”) should be retained by the wife in specie and a property at Suburb E (“the Suburb E property”) should be retained by the husband in specie, and that all other assets and liabilities remain where they stand.
BACKGROUND
The parties commenced cohabitation in 1999 and were married in 1999. They separated on 14 July 2020 and were divorced on 29 November 2021. The parties have three children, namely Ms H born in 2000 and now 22 years of age, Mr J born in 2002 and now 21 years of age, and X born in 2005 and now nearly 18 years of age.
Initial contributions
The wife gave unchallenged affidavit evidence that the parties lived at the home of the wife’s parents and paid no rent from the time they commenced cohabitation until about early 2001.
At the time of cohabitation, the wife had about $20,000 in savings, a motor vehicle, nominal superannuation and no liabilities. The husband's evidence is silent as to his assets at the time of cohabitation. In his oral evidence, the husband said that he had some savings but did not specify a sum.
At the commencement of cohabitation, the wife was earning about $43,000 per annum from her work as an allied health worker. In his oral evidence, the husband agreed that he arrived in Australia on a tourist visa. After about three months, he obtained a tax file number. Shortly after that, he acquired work. That is, at the commencement of cohabitation, the husband was unemployed.
The parties were married in 1999.
The 1999 Incident
There is no dispute that in 1999, at or about the time the parties were on their honeymoon, the husband became angry when he saw a photograph of the wife’s former boyfriend, Mr K, in the wife’s possessions. The husband accused the wife of having an affair.
The wife contends that the husband hit the back of her head with an open hand, the force of which caused her to feel pain and that her head was spinning, and the emotions of shock, surprise and fear. The husband says that he pushed the wife with the palm of his hand on her shoulder, but denied hitting her. The husband agreed that he used significant force. The husband agreed that it was to make sure she did not have the affair any more.
In my view, there is no real difference between hitting and pushing. Either way, the husband engaged in a physical act borne of aggression against the wife. I accept that whether the husband made contact with the wife’s head or shoulder, she felt pain and her head felt like it was spinning, given the force was significant. I also accept that, on either version, it is within the normal range of human emotions for the wife to have felt shock, fear and surprise.
Suburb C Property Purchase
In 2000, the parties acquired the Suburb C property for $220,000. The wife applied her savings of $20,000 to the deposit and this represented the majority of the deposit. The parties obtained a home loan for the balance of the purchase price. The Suburb C property was leased from 2000 to 2001 and the whole of the rental income paid the mortgage.
Ms H
In 2000, Ms H was born. The wife gave unchallenged evidence that she took six months’ leave from work. While she was on leave, she received payments from her accrued entitlements with which she made mortgage repayments, and the husband’s income met the costs of utilities, outgoings and general living expenses. The wife returned to full-time work in 2001. The paternal grandmother cared for Ms H from that time until Ms H turned one year of age, i.e. a period of six months.
2001 Alleged Belt Incident
The wife deposes that in 2001, when she was pregnant with Mr J, the husband hit her with a belt on her legs when she answered back to him. The wife adhered to this evidence in cross-examination. The husband denied the allegation. I will address this further at paragraphs 77 to 82 of these Reasons.
Mr J
In 2002, Mr J was born. The wife gave unchallenged evidence that she took six months’ leave from her work. While she was on leave, she received payments in the form of employment entitlements with which she made mortgage repayments, and the husband’s income met the costs of utilities, outgoings and general living expenses.
In her oral evidence, the wife agreed that the paternal grandmother cared for Ms H and Mr J when she returned to work after Mr J’s birth. She agreed that the paternal grandmother was present in Australia from time to time for periods of three to six months. The paternal grandmother otherwise resides in Country L. The wife agreed that this pattern of the paternal grandmother’s attendance in Australia continued until Ms H and Mr J completed primary school. The wife said that when the paternal grandmother was not in Australia, the wife arranged babysitters for the children. The wife agreed that during their childhoods, Ms H travelled to Country L for four months and Mr J travelled for three months (being part of the time Ms H was in Country L). While in Country L, the children were in the care of the paternal grandmother.
2004 Alleged Knife Incident
The wife deposes that in 2004, while at home, the husband intimidated her with a kitchen knife by saying the words “I am going to cut you with this.” The wife adhered to her evidence in cross-examination. The husband denied the allegation. I will address this further at paragraphs 77 to 82 of these Reasons.
Queensland Property Purchase
In 2004, the parties acquired a property at Suburb M in Queensland for $200,000 (“the Queensland property”). The husband gave unchallenged affidavit evidence that $30,000 was applied to the acquisition from savings. The parties otherwise refinanced the existing home loans to fund this acquisition. The Queensland property was tenanted and the rent applied to the loan, with any shortfall met from the parties’ income.
Sole Trading As F Pty Ltd
In 2006, the husband established a sole trader business trading as “F Pty Ltd.” The wife gave unchallenged affidavit evidence that she assisted in the business by preparing invoices, sending emails on the husband’s behalf to suppliers, and assisting in the collation of tax information and that this occupied about two or three hours per day and was done in addition to her full-time work as an allied health worker. The wife also deposed at paragraph 29 of her affidavit:
To the best of my recollection, [the husband] had a fluctuating income for a number of years ranging between $115,000 and $200,000 each year whilst operating as a sole trader. This included cash payments received by [the husband] for carrying [out] work.
Solicitor advocate for the wife deflected this evidence on the basis that it did not accord with financial documents for the period. I accept the affidavit evidence of the wife in its terms. She has provided a context for being able to give evidence of the fluctuating income, namely that she assisted in the preparation of invoices and collating information for tax returns.
X
In 2005, X was born to the parties. The wife gave unchallenged evidence that she took 12 months’ leave from her work. While on leave, she received payments from her accrued entitlements with which she made mortgage repayments, and the husband’s income met the costs of utilities, outgoings and general living expenses.
In 2006, the wife returned to full-time work as an allied health worker, where she has continued to work. In 2006, Ms H and Mr J were at school. In her oral evidence, the wife agreed that the paternal grandmother cared for X and the older children occasionally. The wife said that she otherwise arranged a babysitter for X and drove the older children to and from school before and after her work.
F Pty Ltd
The wife deposes that in 2006, the husband established F Pty Ltd through which he operated his business. The husband deposes to this occurring in 2008. Nothing turns on the variance of date.
The wife gave unchallenged evidence at paragraph 45 of her affidavit that:
In or about 2008, [the husband] and I purchased a [Motor Vehicle 4] shortly after selling our [Motor Vehicle 5]. The car was purchased in my personal name but was later subsequently transferred to the company name, [F] Pty Ltd. To the best of my recollection, [the husband] obtained a car loan in the company name, [F] Pty Ltd, in the amount of approximately $20,000 to fund the purchase of the [Motor Vehicle 4].
It is unclear whether the car loan was obtained at the time of the vehicle’s acquisition in 2008 or when the vehicle was transferred to F Pty Ltd, i.e. whether it was sold or gifted by the parties to F Pty Ltd. The more natural reading of the paragraph is that the loan was obtained in 2008 when the vehicle was acquired in the wife’s name. Given the loan was in the name of F Pty Ltd, I infer that the repayments were treated as pre-tax expenses of F Pty Ltd.
The husband deposes that he made lump sum payments of approximately $80,000 to the Suburb C property loan account between 2009 and 2021. In his oral evidence, the husband clarified that he made around eight payments of about $10,000. His evidence was otherwise unchallenged.
2009 Temporary Separation and First ADVO
In 2009, the parties separated for about three months. The wife deposes at paragraph 113 of her affidavit:
…I began speaking to lawyers about parenting orders and obtaining an ADVO but stopped because [the husband] said to me words to the effect of: “I am sorry, I will change, I never meant to hurt you” and “you are a bad mother if you leave, you are taking the kids away from their family, you cannot do that to them”. I felt I had to return home, and so [the husband] and I reconciled.
Counsel for the husband challenged the wife to the effect that there was no Apprehended Domestic Violence Order (“ADVO”) at this time, noting the words “I began speaking to lawyers about…obtaining an ADVO but stopped.” This proposition was inconsistent with the husband’s affidavit evidence on this issue, which is to the effect that, to the best of the husband’s recollection, an ADVO was granted. I accept that an ADVO was made for the protection of the wife in about 2009.
In his oral evidence, the husband agreed that the wife attempted to leave with the children and he did not want that to happen, he wanted to keep the family together. The husband denied saying words to the effect that “I can change and stop this” and denied saying anything to persuade the wife that the relationship would be better. I prefer the wife’s evidence. It is improbable that the husband would not have said anything to the wife to persuade her to return to the relationship in circumstances where he wanted the family to stay together and she wished to leave.
Renovations to Queensland Property
The Queensland property was renovated in 2010 and the husband arranged for the work to be performed by a building company in Queensland with which he had trade connections and by himself when he travelled to Queensland on a number of weekends. The work comprised of the installation of a new kitchen, bathroom and flooring.
2010 Noose Incident
At paragraph 117 of her affidavit, the wife deposes:
In or about 2010, after the children were asleep, [the husband] dragged me outside to saying words to the effect of, “I’m going to hang you now”. He then held me whilst he cut the clothes line with a knife that he had taken outside with him. He started to fashion a noose and again said to me words to the effect of, “I’m going to hang you”. I was extremely upset and frightened by his behaviour at this point.
In her oral evidence, the wife agreed that she did not seek medical attention. She agreed that the parties had been arguing about Mr K. Counsel for the husband suggested that the husband alleged to the wife that she had received phone calls and messages from Mr K, that the husband became upset, took a rope, made a noose and said “I’m going to hang myself.” The wife adhered to her version of events as set out in her affidavit.
In his oral evidence, the husband said that he threatened to hang himself because he had “had enough” of the wife’s ongoing association with Mr K. He agreed with the proposition that he was “not joking” about the proposed hanging. The husband agreed that he had not made any prior threats of self-harm, nor had a history of mental health issues. The husband did not think that the act would have been shocking to the wife.
Counsel for the husband did not challenge the wife’s evidence that the husband dragged her outside, nor that he had a knife with him as he went outside. Given the husband dragged the wife outside, it must be that he had the knife in his possession as he dragged her, so as to amplify the danger to the wife at that time.
Whether the husband threatened to kill the wife or himself does not alter the fact that in the context of an argument arising from the husband’s intolerance of the wife’s association with Mr K, the husband used a knife to cut a section of clothes line and fashioned a lethal device in the presence of the wife while the children slept.
Given the noose was fashioned in the context of an argument that involved the wife being dragged outside, it was reasonable for the wife to infer that the noose posed a threat of lethal harm to her.
On either version, the husband’s conduct was abhorrent, would have profoundly impacted the wife and constituted a significant act of family violence.
Other 2010 and 2011 Allegations of Family Violence
The wife deposes to three other alleged episodes of family violence in 2010 and 2011, to which the wife adhered in cross-examination. The husband denies each of these without offering an alternate version. The wife deposes:
115.In or about 2010, [the husband] threw his mobile phone at me which caused a cut to my forehead. I did not seek medical attention for the cut. [X] was 4 years old at the time and was present when this occurred. [X] observed me being upset and having blood on my forehead.
116.In or about 2010, I was seriously hurt and sustained bruising to my [body] as a result of being hit by [the husband]. All three of the children witnessed this and saw me crying and cowering whilst he kicked me repeatedly to the upper body. His kicks also hit my head, although the obvious injuries were to my arms and shoulders and consisted of bruising. I did not seek medical attention and it was about two weeks before I recovered.
[…]
118.In or about 2010, I was sitting on the lounge and watching television with the children. [The husband] became angry, though I don’t recall why. He slapped me with an open hand to the face and as I fell to one side he then kicked me to the side of the head. That resulted in significant pain to my jaw and ear area. My daughter [Ms H] said to me in the immediate aftermath, “Mummy why don’t you divorce him.” I was upset and tearful as a result of that which was observed by my children.
119.[In or about] 2011, I had an argument with [the husband] at home. He used the stroller of our youngest child, [X], to pin me against the wall.
120.[In or about] 2011, [the husband] threw [an object] at me whilst I was in the bedroom using the computer. The [object] struck me above the eye and I had a small cut at that time. I went to [Suburb C] police station. They asked me if I was seeking an ADVO. At that time, I did not want the police to bring that application and I said “no”. I do not believe they made an incident report. They gave me the contact details of the Domestic Violence Support Scheme and I left.
I have set out my finding of fact about the matters alleged in paragraphs 115 to 117, 119 and 120 at paragraphs 77 to 82 of these Reasons.
The 2011 Incident and Second ADVO
The wife deposes:
121.[In] 2011, I was in [Ms H]’s bedroom at around midnight. I had come home having spent the evening with a friend of mine. She was visiting from Brisbane and we had been to a mutual friend’s place. When I got home the children were still awake and [the husband] was supposed to be looking after them. The children had become tired and difficult and I was trying to get them to go to bed. A dispute arose in relation to that and [the husband], as a result of my answering him back, started swearing at me and then slapped me across the side of the face. The two girls observed that assault on me. I made a statement to the police about this incident.
[…]
123.[In or about] 2011, I returned home at about 2pm from the police station, and on that evening, [the husband] struck me with an open hand to my head.
124.On or about 2011, a temporary ADVO was made; however, [the husband] continued to be verbally and physically abusive towards me.
The wife adhered to the evidence about the incident described at paragraphs 121 to 124 of her affidavit in cross-examination. Without explanation, the wife has not adduced evidence from her friend who is said to have witnessed the incident.
The wife’s Statement to Police dated 2011 records:
4.About 12am [in] 2011, I was in my daughter [Ms H]’s bedroom with my friend [Mr K] watching video’s on the computer. I looked at the time and realised it was getting late so I began preparing to put the children to bed. I walked into my bedroom where the kids were playing and placed my right hand on my son [Mr J]’s shoulder and told him to go to bed. My son began crying because he didn’t want to go to bed and complaining that I had hurt him. My husband who was sitting in the lounge room, which is about 4 meters away, began shouting at me.
He Said: “Why did you hit [Mr J], why is he the only one you hit, why not the girls?”
5. My husband then spoke to [Mr J].
He said: “Did mummy hurt you? Did she hit you?
[Mr J] said: “Yes”
He said: “Was it hard?”
[Mr J] said: “Yes”
6. My husband then continued to shout at me:
He Said: “You have no respect for men”
I Said: “What about you, what about the respect you’ve given me?”
7.My husband began swearing and verbally abusing me. He stood up from the lounge chair and started walking towards me at a fast pace, I turned and began walking away taking about one step towards my bedroom. My husband grabbed me with his right hand by my neck and squeezing it tightly with his fingers. While doing this he was continuing to verbally abuse me. He pushed me causing me to loose my balance and take a few steps forward. He turned and walked away.
8.I walked into my bedroom where my daughters where sitting in my bed, they were afraid as they saw the whole thing, my daughter [Ms H] said to me “Mummy quick shut and lock the door before daddy comes again”. I shut the door and locked it and got into bed with my daughters and tried to go to sleep.
9.About 1.00am my husband came into the room and climbed into bed with me, I woke up from the movement.
I said: “What are you doing here you mother fucker, I don’t want you here with me, get out of the bedroom”
10.My husband suddenly slapped me across the right side of the face with his right hand as we were lying in bed. I felt sudden pain and my cheek felt like it was burning.
He said: “Don’t you ever swear at me again”
I said: “what about you, you do the same aswell”
11.My husband got up out of the bed and began walking towards the bedroom door, I swore at him again and he turned and walked back to where I was lying on the bed and he raised he left hand, swinging it hard hitting me in my right ear causing me to feel a shooting pain through my ear. He began abusing me again and left the room. My daughter [X] entered the room to see if I was okay and locked the door behind her. Afraid to do anything I went to sleep with my daughter in my bed.
12.[In or about] 2011 I went to [Suburb N Medical Centre] to have my ear examined by a doctor as the pain was excruciating and I could feel constant sharp stabbing internally in my ear, I received a prescription for pain killers from the doctor.
13. About 2.00pm I went to [Suburb C] Police Station to make a statement.
14.I fear for my safety as there has been previous incidents in the past of abuse and I believe he will hurt me again in the future. I wish for an Apprehended Violence Order to be applied for.
(As per the original)
In his oral evidence, the husband agreed that the wife swore at him and that this upset him. The husband denied slapping the wife but conceded that he pushed her on the shoulder. He said the reason he pushed her was to cause her to calm down and stop her swearing at him. He later said “It wasn’t a push…just hands on her shoulder.” He said the force was “minimal.” The husband agreed that an ADVO was made against him for the wife’s protection on or about 2011.
On any view of the evidence, there was an incident in 2011 in which the husband engaged in an act of physical aggression against the wife that was intended to control her behaviour. I accept that she was swearing and using profane language towards him and understand from his evidence that the verbal abuse was mutual.
However, the husband escalated that mutual violence by engaging in a physical act against the wife. The wife says that the husband slapped her across the face in the bedroom at about midnight and then struck her with an open hand on her head after she returned from the police station several hours later. The husband says that the physical act at midnight was a “push” and then downgraded to “just hands on her shoulder” with “minimal” force.
The wife does not explain why the adult witness to the midnight incident was not on affidavit, and counsel for the husband alluded to the drawing of an inference in his submissions. This is a fair submission. A countervailing factor is that the wife’s affidavit evidence accords with her contemporaneous statement to police, made at a time when the events were fresh in her mind.
The husband’s deviation in his oral evidence of at first a “push” and then “just hands on her shoulder” suggests that he sought to diminish the incident. He suggested that the force was “minimal.” I do not accept his evidence as it is improbable that a physical act intended to control the wife’s behaviour would have been other than sufficiently forceful to achieve his purpose.
I am cautious about too-readily accepting the wife’s version of events in its absolute terms given the unexplained absence of the adult witness. However, that makes no difference to my preparedness to accept that, in 2011, the husband physically assaulted the wife for the purpose of controlling her behaviour.
The husband agreed that the parties separated for several months in 2011. In late 2011, the wife filed an application for family law orders. Those proceedings were discontinued by consent in late 2011. The parties then reconciled.
Suburb E Property Purchase and Other Renovations
In 2012, the parties purchased the Suburb E property for $580,000. This was funded by the refinancing of existing home loans. The parties moved from the Suburb C property to the Suburb E property in late 2012.
The wife agreed that, in 2012, the Suburb C property was renovated. This involved the installation of a new kitchen, bathroom, timber floor and external rendering. The wife conceded that the husband:
(a)Purchased and installed the kitchen;
(b)Arranged sub-contractors to renovate the bathroom but said that her father worked on the project;
(c)Did renovations at the property, supervised the other trades, purchased and installed the timber floor; and
(d)Rendered the exterior.
The wife also agreed that, since 2012, the husband installed an air conditioner at the Suburb C property.
The husband deposes that, in 2014, the Queensland property was renovated. In her oral evidence, the wife suggested that the work occurred in 2010. In any event, a new kitchen, bathroom and floor were installed. The husband travelled to Queensland to oversee the works, which were performed by a local building company known to the husband, or by the husband himself.
2015 to 2017
The wife gave unchallenged evidence that, in about 2015, the parties purchased a Motor Vehicle 6 for about $50,000 in the name of F Pty Ltd. The purchase of the Motor Vehicle 6 was funded by the sale proceeds of the Motor Vehicle 4 and a car loan in the name of F Pty Ltd. The wife deposes:
…Although the [Motor Vehicle 6] was registered in the company name, it was used by the family for personal use.
Given the Motor Vehicle 6 was purchased in the name of F Pty Ltd, I infer that it was an asset of F Pty Ltd and the registration, insurance and other expenses of the vehicle were likely to have been treated as pre-tax expenses of F Pty Ltd.
The wife deposes that in about 2015, the husband purchased a Motor Vehicle 7 in the wife’s name for $7,000. In her oral evidence, the wife agreed that the husband transferred a pension fund from Country L to Australia. She said that the sum transferred was $5,000 and that this was used to purchase a car, although she could not recall what type of car. The husband deposes that he withdrew about $20,000 from the Country L pension fund and applied the money to renovations. Nothing was made of this in submissions by either party’s representative, for which reason I will place no weight on the evidence.
The wife gave unchallenged evidence that, in 2018, the Motor Vehicle 7 was sold and replaced with a Motor Vehicle 1. The Motor Vehicle 1 cost about $23,000 and was purchased in the name of F Pty Ltd using the sale proceeds of the Motor Vehicle 7 and a loan in the name of the company. Given the Motor Vehicle 1 was purchased in the name of F Pty Ltd, I infer that it was an asset of the company and the registration, insurance and other expenses of the vehicle were likely to have been treated as pre-tax expenses of the company. The Motor Vehicle 1 is the same vehicle that appears on the balance sheet as an asset of the wife.
In 2017, the wife obtained personal and credit card funds of about $60,000 to pay for an Australian permanent resident visa for the husband’s brother. In her oral evidence, the wife agreed that relations with the husband were amicable at that time.
W Pty Ltd
In 2019, the husband established W Pty Ltd. He is the sole director and shareholder. The husband ceased trading through F Pty Ltd and began trading through W Pty Ltd. The husband opened an account with ANZ Bank in 2019 ending …58 in the name of W Pty Ltd. The wife said in her oral evidence that she assisted the husband in the business by preparing quotations and delivering materials to work sites on weekends. The wife agreed that the husband worked six, and sometimes seven, days per week.
Suburb O Property
In about mid-2019, the parties acquired a property at Suburb O (“the Suburb O property”) for $900,000. This was funded by refinancing existing loans that secured the properties at Suburb C, Suburb E and Queensland. The parties approached a finance broker at “P Company” for this purpose. In his oral evidence, the husband agreed that he was the party who worked with the broker to arrange finance. The husband agreed that he told the broker the income that was available to service the loan.
The husband agreed that, in July 2019, he received a document styled “Broker Declaration,” which he signed. The husband agreed that he was familiar with telling banks about his financial position given he had arranged property finance in the past, and that he was the person satisfying the bank about the income and assets for the purpose of the application. The Broker Declaration was also emailed to the wife. There is no evidence that she demurred in relation to the information contained in the Broker Declaration.
The “Preliminary Assessment” dated 4 July 2019 records current total monthly after tax income as $24,325. The solicitor advocate for the wife put to the husband that the information in the application was misleading. The husband refuted that the application was misleading and said that the information was from the accountant.
The representation in the finance application stating post-tax income of $24,325 per month, or $291,888 per annum, to which both parties enjoined, was obviously incorrect. The rent schedules in both parties’ income tax returns for the financial year ending 30 June 2019 for the two investment properties record taxable losses. The wife’s personal income tax return for the financial year ending 30 June 2019 records a taxable income of $44.161. The husband’s Notice of Assessment for the financial year ending 30 June 2019 states a taxable income of $24,919.
The Suburb O property was leased until it was sold in 2022. The husband deposed that he installed an air conditioner and light fittings at the property in about 2020. I accept it as likely, as the husband attended to improvement works of this kind at each of the properties from time to time.
Q Company Credit Card
On 16 April 2020, Q Company offered to compromise the outstanding payment of a credit card debt of $32,795 to $17,000 on condition that the husband pay $4,250 on 30 April 2020, 29 May 2020, 30 June 2020 and 30 July 2020. In his oral evidence, the husband agreed that he defaulted on the payment plan. There is a tick beside the April payment as to indicate it was paid, but not against the May, June and July instalments.
The husband said that he defaulted on the payment plan because he was in financial hardship due to the separation. I do not accept that the hardship was due to the separation, given the parties had not separated prior to three of the four payments being due. However, I do accept that the parties were overly exposed with their home loans which had been extended based on inaccurate information about their net monthly income and that this was likely to have resulted in hardship.
2020 Incident and Third ADVO
The wife deposes:
125.On or about 2020, there was an incident where [the husband] slapped the back of my head with a right open hand. This caused me immediate pain and caused my head to jolt given the force of [the husband’s] slap.
126.On or about 2020, I reported the incident to police. To the best of my recollection and knowledge, [the husband] was charged with common assault and was due to appear in [Suburb R] Local Court [in] 2020.
The wife adhered to the evidence in paragraphs 125 to 126 of her affidavit in cross-examination. The wife said that she saw a medical practitioner at Suburb S about her pain.
In 2020, a provisional ADVO was made against the husband for the protection of the wife. The ADVO refers to the matter being listed before the Suburb R Local Court in 2020. The grounds for the ADVO application record:
About 1.00pm [in] 2020, the victim was driving the accused back home after he had [a medical procedure]. The accused was in significant pain and quite upset with the victim as she referred the accused to the [doctor] and [sic] was not pleased with the service. When they arrived home, the victim drove the vehicle up the driveway which caused the accused [pain].
OFFENCE 1: COMMON ASSAULT
The accused has reacted by slapping the victim to the back of the head with a right open hand. This has caused the victim immediate pain and her head to jolt as the accused used force. Both parties have then entered the home and days later, the victim has decided to leave the family home due to the intimidation and treatment by the accused.
About 2.00pm [in] 2020, the victim has contacted Police who attended a short time later. Police were informed by the victim that the accused would assault her every week by either punching her arm or slapping her, however these matters have gone unreported. The victim supplied Police a DVEC statement and the victim did not have any injuries due to the time the matter has been reported.
Police arranged the accused to attend [Suburb T] Police Station where he was arrested and cautioned with all the protocols and procedures of LEPRA 2002 adhered to. The accused was introduced to the Custody Manager and he was ERISP interviewed. The accused admitted to “pushing” the victim when she drive up the driveway, however denies slapping or punching the victim over their years of marriage.
The accused is before the court.
The victim is in fear of the accused and subsequently moved out of the family home to her mothers house.
(As per the original)
Counsel for the husband suggested to the wife that what occurred was an argument about whether they would attend a party that evening after the husband had a medical procedure. He was in pain afterwards. The wife agreed with this context. The wife adhered to her evidence that the husband slapped her to back of her head.
The husband pleaded guilty to the assault and was placed on a Community Corrections Order for two years and made the subject of an ADVO.
In his oral evidence, the husband denied that he struck the wife to the back of the head and denied that her head jolted. The husband accepted that he lost his temper and said he was in pain at the time. The husband said that the push “wasn’t that hard” but agreed it was hard enough to plead guilty. The husband then said that he “touched” the wife. The husband accepted that he has greater physical strength than the wife. He denied that the wife would be frightened of him when he lost his temper.
On any view of the evidence, there was an incident in 2020 in which the husband engaged in a physical assault against the wife borne of aggression. Whether it was intended to control her behaviour, punish her for driving in a way that caused him pain or was a reckless act in reaction to pain matters little. There is no justification for making forceful physical contact with the wife in the circumstances. The husband pleaded guilty to the offence.
I accept that the grounds of the application for an ADVO do not necessarily translate to the facts to which the husband entered his plea to the criminal charge. However, it was open to the husband to proffer a version of facts that he had negotiated with the prosecution or otherwise relied on in the criminal and/or ADVO proceedings to demonstrate why this Court ought to read down the matters set out in Exhibit W-8. I infer that such an alternate or limited version of the facts would not have assisted his case in these proceedings. I accept the wife’s account as set out in her affidavit at paragraph 125 and Exhibit W-8.
Disputed matters of fact concerning family violence
I return to the disputed factual matters contained in paragraphs 111, 112, 115, 116, and 118 to 124 of the wife’s affidavit. These relate to the alleged incidents of family violence in 2001, 2004, 2010 and 2011 to which the husband denies and for which the husband gives no alternate version.
Counsel for the husband identifies that the wife did not, in most instances, seek medical attention following an alleged incident. I am not persuaded that such an omission by her sounds against a finding of violence. Some of the incidents do not suggest a need for medical attention given there was no injury or the injury was superficial.
Furthermore, the omission by an alleged victim of family violence to seek professional assistance in its aftermath may paradoxically belie the occurrence of family violence. That is, the victim may decide against disclosing the matter to a third party where they reside with the perpetrator. To accept, as a simple proposition, that non-reporting or non-disclosure speaks against the probability of the fact is to fundamentally misapprehend the pervasive contours of family violence.
The husband denied the 2001 and 2004 incidents but he accepted that the wife sought to separate from him in 2009. For the reasons given at paragraph 31 of these Reasons, I accept the wife’s evidence that the husband promised to change if she returned to the marriage. The natural context of such promise to change is to cease being violent, suggesting underlying conduct. I am satisfied that that the events to which the wife deposed at paragraphs 111 and 112 of her affidavit occurred.
I pause to refer to paragraph 110 of the wife’s affidavit. I place no weight on this evidence as it lacks adequate specificity.
I accept the wife’s evidence at paragraphs 115, 116, and 118 to 124 of her affidavit. It is well particularised, precise as to date and context and does not seek to embellish or persuade. They are located within a series of events between 2009 and 2011, including the 2009 separation and ADVO, the 2010 noose and knife incident, and the 2011 ADVO incident. Although the husband did not concede the matters in the terms expressed by the wife, on any version of those events, there was an incident of family violence or connotation of the same.
Post separation
On 14 July 2020, the parties separated on a final basis. The wife moved from the Suburb E property to her parents’ home with Ms H and X, then aged 19 and 14 years respectively. Mr J, then aged 18 years, remained living with the husband.
In November 2020, the wife ceased making payments to the home loan accounts. Shortly after this, the National Australia Bank (“the NAB”) identified to the wife that the Suburb O property loan was in arrears of $39,131 and the Suburb E loan was in arrears in the sum of $19,325.
The wife commenced these proceedings on 19 February 2021. On 25 February 2021, the NAB demanded payment of $61,068 relating to default on home loans accounts ending …21, …08 and …80.
On 5 October 2021, orders were made by consent for the sale of the Suburb O and Queensland properties. These two sales occurred. The Orders provided that, after discharge of two of four loan accounts:
2.7 The remainder disbursed as follows:
2.7.160 per centum to be paid to NAB Home Loan account ending […]80, being the mortgage encumbering the property at [B Street, Suburb C] NSW, being the whole of the land contained in […] (‘the [Suburb C] property’); and
2.7.240 per centum to be paid to NAB Home Loan account ending […]21 being the mortgage encumbering the property [D Street, Suburb E] NSW being the whole of the land contained in … (‘the [Suburb E] property’).
Orders 6 and 7 of the Orders made on 5 October 2021 provide:
6.That from the date of these Orders, the Husband pay and continue to pay all outgoings associated with the [Suburb E] property as and when they fall due, including but not limited to mortgage repayments, council rates, water rates, and land taxes.
7.That from the date of her occupation of the [Suburb C] property, the Wife pay and continue to pay all outgoings associated with the [Suburb C] property as and when they fall due, including but not limited to mortgage repayments, council rates, water rates, and land taxes.
In his oral evidence, the husband agreed that each party was to maintain the loan attaching to the property they occupied. The wife moved into the Suburb C property in late 2021.
The husband agreed that the debit balance of the loan ending …21 increased by about $10,000 in the time since January 2023. He also agreed that the debit balance on the …80 account had reduced by about $5,000 in the same period. The husband explained that he stopped making regular payments to the …21 account after receiving an email from the NAB to the effect that it related to the Suburb C property. The husband gave unchallenged oral evidence that he began paying the …80 account. The wife deposes that she has made fortnightly payments of $1,000 to the loan account ending …80 since January 2022.
On 9 November 2022, the husband received an email from an officer of the NAB stating that the loan ending …80 is secured by the Suburb E property and loan ending …21 is secured by the Suburb C property. On 9 March 2023, the wife received an email from a different officer of the NAB stating that the …21 account was secured by the Suburb E and Suburb C properties and the …80 account was secured by the Suburb E property.
A letter of demand from the U Law Firm acting for the NAB dated 25 February 2021 lists the “Security Properties” as the Suburb C, Suburb E, Suburb O and Queensland properties and the “Accounts” as the four loan accounts including accounts ending …20 and …80. In my view, the most reliable document to express the relationship between the loan accounts and the security is that of U Law Firm acting on the instruction of the lender in relation to the recovery of the debt where the need for accuracy is integral to the debt recovery process.
Income and Employment
There is no dispute that, at all relevant times, the wife has worked as an allied health worker. She earns a full time base salary of about $65,000 per annum. There is some scope for the wife to earn additional wages for overtime and other loadings. In the current financial year, the wife has earned about $69,000. There is no evidence that the wife has other skills with which to augment her income earning capacity.
The husband’s taxable income for the financial years ending 30 June 2018 to 30 June 2022 was as follows:
Financial year ending Taxable Income 30 June 2018 $73,217 30 June 2019 $24,919 30 June 2020 $20,067 30 June 2021 $73,250 30 June 2022 $74,650
The husband is a self-employed tradesman operating through a corporation. The husband is a qualified tradesman. In his oral evidence, the husband said that if he was employed as a trades supervisor, he would be likely to earn about $120,000 per annum and agreed that he would also accumulate superannuation. The husband said that he would never work as an employed supervisor because he is better off working for himself.
The husband did not disclose financial documents for the financial years ending 30 June 2018 and 30 June 2019 for F Pty Ltd. He said that he could not get the documents from the former accountant as it was “very hard to deal with him.” The husband said he had “been to [the accountant’s] office many times and made many phone calls” but “I was ignored.” In evidence the following day, the husband said that the documents “went missing from my house” and that the accountant did not save the documents “in the computer.”
The husband accepted that his gross sales for W Pty Ltd were about $55,535 in the financial year ending 30 June 2020, about $189,000 in the financial year ending 30 June 2021, about $235,000 in the financial year ending 30 June 2022 and were about $278,000 for the financial year to date as at March 2023, which was annualised to $338,000 by the Single Expert. When asked to explain why the gross revenue had increased, the husband said that he got consistent work with some companies. He also remarked on the increased cost of materials. I am aware that sales or turnover is a measure of productivity, not a measure of value or profit.
The husband operates an ANZ bank account ending …58 being an account in the name of W Pty Ltd. The husband does not operate a personal bank account. The husband uses the account to meet his personal and business expenses and sales revenue is paid into this account. Solicitor advocate for the wife identified a number of payments made from the …58 account that could only be characterised as personal expenses such as family law legal fees and grocery purchases. There is no evidence of a Division 7A loan account between the company and the husband. It is clear that the husband’s personal financial affairs and those of the company are intermingled.
LEGAL FRAMEWORK
Section 79 of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or
[…]
(2) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
[…]
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage, or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage, or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
[…]
Before an order is made adjusting the parties’ property, the Court must be satisfied that it is just and equitable to do so: Stanford & Stanford (2012) 247 CLR 108 (“Stanford”).
When making a decision pursuant to s 79 of the Act, the “broad brush” approach, as opposed to a mathematical approach, is well established: Perrin & Perrin (No 2) [2018] FamCAFC 122 at [57]–[58].
When making an adjustment pursuant to s 79(4)(d)/75(2) of the Act, the real value of the adjustment in money terms is ultimately the critical issue, not its expression as a fraction or percentage of the overall assets: Clauson & Clauson (1995) FLC 92 - 595 at 81, 911; Adair & Adair [2019] FamCAFC 70 at [66]; Simons & Simons [2020] FamCAFC 128 at [18].
CONSIDERATION
What are the assets, liabilities and financial resources of the parties or either of them?
The joint balance sheet comprises the following:
ASSETS Owner Description Wife Husband Finding 1 Joint Suburb E property 1,160,000 1,160,000 1,160,000 2 Joint Suburb C property 900,000 900,000 900,000 3 Joint NAB account ending …54 49 49 49 4 JointNAB account ending …23(2)(2)0 5 Wife Westpac account ending …82 127 127 127 6 Wife Motor Vehicle 1 17,000 17,000 17,000 7 Husband Westpac account ending …17 262 262 262 8 Husband F Pty Ltd /loan to F Pty Ltd 36,131 36,131 36,131 9 Husband Motor Vehicle 1 25,000 16,200 25,000 10 Husband Motor Vehicle 2 60,000 15,000 25,000 11 Husband Added-back sale proceeds of Motor Vehicle 8 6,000 6,000 6,000 Gross assets and addback 2,169,569 LIABILITIES 12 Joint NAB Home loan ending …80 180,572 429,548 180,572 13 Joint NAB home loan ending …21 429,548 180,572 429,548 14 Wife Westpac Visa card ending …08 11,290 11,290 11,290 15 Wife Westpac loan ending …60 23,066 23,066 23,066 16 Wife CBA credit card ending …17 9,148 9,148 9,148 17 Wife Car finance for Motor Vehicle 1 8,076 8,076 8,076 18 HusbandLoan from husband’s wifeNIL46,9540 Liabilities 661,700 SUPERANNUATION 19 Wife Super Fund 1 Accumulation 139,554 139,554 139,554 20 Husband Super Fund 2 Accumulation 18,124 180,000 18,124 Total superannuation 157,678 Net 1,665,547
I have deleted Item 4 because it is de minimis.
I have termed Item 8 “F Pty Ltd /loan to F Pty Ltd.” The wife contends that the sum of $36,131 represents the value of the company and relied on paragraph 73 of the Expert’s valuation and its table in support of this contention. The husband contends that the company has a nil value but the husband is owed $36,131 by the company as to represent an asset of the husband. Nothing turns on this in practice. Regardless of how it is characterised, the parties agreed that there is a sum of $36,131 owed to either the husband or the company which will be retained and controlled by the husband and from which the husband will derive benefit. For this reason, I have ascribed a generic description.
As to Items 9 and 10 respectively, in their closing addresses, the husband conceded the wife’s value of $25,000 for the Motor Vehicle 1, and the wife adopted the husband’s value of $25,000 for the Motor Vehicle 2.
As to Items 12 and 13, I have attributed a value of $180,548 to the loan account ending …80 and $429,548 to the loan account ending …21. The account statements for those accounts appearing at pages 164 to 171 of Exhibit W-6 establish that the smaller debt is located in loan account ending ..80 and the larger debt is located in loan account ending …21.
I have deleted Item 18 for want of evidence. I will adopt the wife’s value of the husband’s superannuation at Item 20 because its specificity suggests that the value was taken from a source document.
The financial contribution made directly or indirectly by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property
The evidence establishes that the wife made an initial contribution of $20,000. The husband said he had some savings at the commencement of the relationship but did not demonstrate a sum. I place no weight on that oral evidence. The wife made a greater initial contribution.
There is no dispute that the wife’s savings provided the majority of the deposit monies for the Suburb C property. I accept the wife’s advocate’s contention that this was “seed capital” although place modest weight on the fact it occurred in 1999 and contributions are viewed holistically.
During the relationship, the wife worked full time as an allied health worker earning a salary of between about $43,000 and $65,000 per annum gross. She continued to earn an income while on leave after the births of the children.
The husband was unemployed for the first three months of the relationship but has worked in the trades industry at all other times. The husband established a sole trader business in 2006. His income fluctuated between $120,000 and $200,000 per annum. There is no evidence as to whether this income was net of operating expenses and other deductions. The husband’s taxable income in the financial years ending 30 June 2018 was $73,217, 30 June 2019 was $24,919 and 30 June 2020 was $20,067.
The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property
The husband undertook and/or oversaw and arranged improvement works at the Suburb C, Queensland and Suburb O properties. I am satisfied that the effort and exertion made by the husband in this regard represents a non-financial contribution by him. To the extent the husband paid for the materials and other costs of the works, such payment must have come from his income, which I have already addressed in the context of direct financial contributions.
The wife’s parents provided rent-free accommodation to the parties from late 1999 until about early 2001. I am satisfied that this represents a non-financial contribution by the wife.
The paternal grandmother provided care for the children for periods of three to six months until Ms H and Mr J finished primary school. The paternal grandmother was in Australia for six months to care for Ms H for six months in 2001, made a similar contribution when Mr J was six to 12 months of age and cared for Ms H and Mr J for concurrent four and three month periods in Country L. While the evidence of the paternal grandmother’s assistance in Australia is imprecise, I am satisfied that this represents a non-financial contribution by the husband as, when she was not providing such assistance while the children were very young, the wife needed to arrange babysitting at a cost.
The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
There is no dispute that the wife undertook the role of primary homemaker and parent prior to and since separation.
The effect of any proposed order upon the earning capacity of either party to the marriage
There is no evidence that an order would affect the earning capacity of either party.
The matters referred to in subsection 75(2) of the Act so far as they are relevant
The parties are approximately the same age, with the wife aged 49 years and husband 50 years. The youngest child of the parties, X, will be eighteen in 2023. No adjustment for the future care of the children or the age of the parties is warranted.
Income disparity
The evidence establishes that the wife works full-time as an allied health worker employed by V Company. She earns about $65,000 per annum although she may earn some penalty rates at times. The wife has worked as an allied health worker since prior to the parties’ commencing their relationship. There is no evidence that the wife has any additional skills with which to augment her income.
In 2006 or 2008, the husband incorporated his business with the first of two corporate entities, F Pty Ltd. There is no evidence of the income figures derived from F Pty Ltd other than $73,217 for the financial year of 1 July 2017 to 30 June 2018. The husband’s income for the financial years 1 July 2018 to 30 June 2019 was $24,919 and represented part F Pty Ltd and part W Pty Ltd earnings.
The husband’s taxable income for the financial year ending 30 June 2019 was $24,919. The husband’s taxable income in the financial year ending 30 June 2020 was $20,067. This included about four months of the COVID-19 pandemic, which may have impacted the husband’s income.
The husband’s taxable income for the financial years ending:
(a)30 June 2021 was $73,250. Gross sales of that year were $189,000; and
(b)30 June 2022 was $74,650. Gross sales for that year were $235,000.
The husband’s taxable income for the financial year ending 30 June 2023 is not yet known. Gross sales for the period have been estimated by the Single Expert to be about $338,000. The husband said that the cost of materials has increased and this may explain why his sales revenue has increased. I infer from this that his invoices include materials, such that an increase in materials would increase in the sum claimed on the invoice but would not necessarily represent an increase in profit. That said, the husband agreed that his increase in gross revenue related to having some stable clients who provide ongoing work. On this basis, I am satisfied that the husband’s taxable income for the financial year 2023 is likely to be not less than his 2022 income.
The husband also holds a trades license. He said in his oral evidence that an employed trades supervisor earns about $120,000 per annum and accepted that superannuation may increase this to a package of about $130,000. The husband said that if he worked as a tradesman, he would do so on a self-employed basis. There is no evidence to suggest that the husband could not exploit his income earning capacity by working as a self-employed tradesman or trades supervisor and earn about $120,000 per annum plus superannuation.
Through self-employment, the husband can legitimately derive financial benefit from his business to fund such costs as a telephone, internet service, vehicle loans, some vehicle expenses and building materials, which may be paid for with pre-tax income. The husband can also diversify his work to that of a licensed tradesman. The wife does not enjoy those benefits as a PAYG employee.
For these reasons, I am satisfied that an adjustment should be made in favour of the wife based on income disparity, the husband’s capacity to appropriate gainful employment by diversifying his work to include working as a tradesman and access to financial resources.
Section 75(2)(o): Non-payment of loan account …21
The husband ceased making regular payments to loan account …21 in late 2022 after being informed by an officer of the NAB that the account related to the Suburb C property. I am satisfied that the husband was entitled to believe the information contained in the email given it came from an officer of the NAB.
The wife contends that the husband ought to have been paying the …21 loan and an adjustment should be made to the account for the about $10,000 increase in indebtedness on that account.
In my view, the Orders from 5 October 2021 were confusing. It is clear from the letter from U Law Firm that all home loans (then numbering four) were secured by all properties. The email from the NAB to the wife described both accounts being secured by the Suburb E property. There is no suggestion that the husband was liable to pay both loans given he lived in the Suburb E property, yet that is the effect of the document on which the wife relies. Solicitor advocate for the wife promoted a balance sheet that removed any property-based reference to the two loan accounts which is appropriate given such references are misleading. In any event, the husband gave unchallenged evidence that he began paying the other loan upon receipt of the email from the NAB.
In my view, to make an adjustment in favour of the wife relating to the increased indebtedness of the …21 loan would occasion an injustice on the husband.
Section 75(2)(o): Capital Gains Tax
Solicitor advocate for the wife points to the “raw increase” in value of the Suburb C property since its acquisition in 2000 and the fact that the property has been mainly tenanted to found the submission that I should recognise a possible capital gains tax impost on the wife if the Suburb C property is realised. There is no evidence that the wife intends to sell the property. No adjustment will be made.
Section 75(2)(o): Family Violence
The wife contends that her contributions were made significantly more arduous than they ought to have been by reason of family violence, and these are facts which I am entitled to take into account in assessing the parties’ respective contributions within s 79 of the Act. The husband resists the proposition.
The wife’s case is framed by reference to the jurisprudence developed in Kennon & Kennon (1997) FLC 92-757 (“Kennon”). The substance of the proposition as framed by their Honours in Kennon, together with an analysis of the law and policy since that time, is conveniently captured by Aldridge J in Martell & Martell [2023] FedCFamC1A 71 (“Martell”) delivered on 15 May 2023. It is useful to reproduce those passages:
18.In Kennon v Kennon (1997) FLC 92-757 (“Kennon”), Fogarty and Lindenmayer JJ outlined principles to be taken into account when assessing findings of the occurrence of family violence in property settlement proceedings. As their Honours identified, they did so because the “pervasiveness and destructiveness of domestic violence” had in recent times become to be acknowledged and that there had “been a marked and long overdue change in those attitudes” so that ‘the law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences” (at 84, 290–84,291).
19.It is safe to say that such awareness and disapproval has continued to increase since then. Importantly, this increase in understanding directly led to changes in the Act. A new definition of family violence, which is in probably broader terms than would have been envisaged in 1997, was inserted into the Act in 2011 in the form of s 4AB.
20.Although widely quoted and followed, the principle stated in Kennon cannot be treated as if they were those of a statute – immutable and unvarying. At the least, those words must be read in the light of the Act as it speaks now.
21.Justices Fogarty and Lindenmayer were concerned about the opening of “floodgates” saying at 84,294–84,295:
That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition there is the risk of substantial additional time and cost.
…
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that 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).
29.The primary judge did not use those words. Rather, her Honour said “the wife’s non-financial contributions were impacted and made more difficult and distressing” (at [46]) and “more arduous” (at [126]). They were found to be of such a nature so as to require consideration.
30.I would not take that to be an incorrect application of the principles set out in Kennon.
31.The difficulty that arises in this matter is, however, that the primary judge did not explain how the acts of violence of the husband led to the non-financial contributions of the wife being made difficult, distressing and more arduous. The reasons are silent on the issue.
32.In Maine, the Court held that the application of the principle in Kennon “required of his Honour findings in respect of evidence that addressed specifically… the impact that the violence had upon the wife’s contributions” (at [52]).
33.The requisite finding could, as discussed, be inferred as explained in Benson & Drury at [50].
34.The husband submits that the absence of this discussion indicates that her Honour did not understand and did not correctly apply the principles set out in Kennon (Ground 2(a)). Alternatively, it is said that the failure itself is an error (Ground 1(c), Ground 2(b) and Ground 3).
35.I incline to the latter view, but either way, error has been demonstrated. Whilst the events described by the wife were no doubt distressing, the evidence and the findings did not deal with the magnitude and extent of its effect. Whilst matters can certainly be inferred, that inference must be properly based on the evidence before the court.
In Benson & Drury (2020) FLC 93-998, the Full Court of the Family Court of Australia held at [50]:
Here, the primary judge found the appellant perpetrated family violence upon the respondent and drew an inference that such violence did have an effect upon the respondent’s contributions, making them “all the more arduous” (at [162]). 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]).
Is there an incidence of family violence?
In turning to the evidentiary requirements of a Kennon-style claim, it must first be determined whether there is an incidence of family violence. For the reasons already given, I am satisfied that:
(a)There was an incident of family violence in 1999 when the husband engaged in a physical act borne of aggression against the wife;
(b)The husband struck the wife with a belt when she was pregnant with Mr J in 2001;
(c)The husband threatened the wife with a knife in 2004;
(d)In 2010, 2011 and 2020, the husband:
(i)dragged the wife from the home with a knife and cut a length of line, which he fashioned into a noose, threatening either to kill her or himself with it;
(ii)Threw a mobile phone at the wife causing a cut to her forehead and bleeding, in the presence of X;
(iii)Hit and kicked the wife on her back, arms, legs and head in the presence of the children causing bruising, and the wife needed a week or two to recover;
(iv)Slapped the wife with an open hand on her face and then kicked her in the head in the presence of the children, causing significant pain to her jaw and ear area;
(v)Pinned the wife against the wall at the home using a child’s stroller;
(vi)Threw an object at the wife while in the home causing a cut above her eye;
(vii)Physically assaulting the wife on two occasions in 2011; and
(viii)Physically assaulting the wife while she was driving in 2020.
Should the conduct be recognised in determining contributions?
Having found that there was family violence, I turn to the question framed by Aldridge J at [25] of Martell being whether the “conduct [had] a discernible effect on the contributions of the wife such that it should be recognised in determining the respective contributions of the parties.”
The evidence concerning the incident in 1999 establishes that the husband perpetrated physical violence on the wife from the outset of the marriage in order to control her behaviour. This related specifically to the husband’s intolerance of the wife’s association with Mr K and attempt to prevent this from occurring. The wife was entitled to associate with Mr K. I accept that the wife experienced fear as a result of this incident.
The husband struck the wife with a belt in 2001 when she answered back to him and was threatened by a knife in 2004. I infer that these events would have induced fear in the wife’s mind.
The wife separated from the husband in 2009 and obtained a temporary ADVO. She returned on a promise that the husband would change. While the wife adduces evidence of three specific events between 1999 and 2009, I infer that the fear of physical retaliation was pervasive and continuing by reason of his promise in 2009 to change.
I infer that the fear experienced by the wife was likely to have had a debilitating and destabilising effect on her. I am satisfied that such effect would have made the wife’s contribution to household tasks, parenting and her work more arduous.
Each instance from 2010 described in paragraphs 115 to 118 of the wife’s affidavit indicate that the wife was in the home and the children were present. As the children’s primary carer, I infer that she was attending to their needs or otherwise available to them. That the children were asleep during one of the incidents makes no difference as children often awaken in the night and need comfort or assistance.
The throwing of a mobile phone at the wife’s head, having regard to the hard material from which the phone is composed renders the item a weapon. The kicking and hitting of the wife described in paragraphs 116 and 118 of her affidavit represent significant acts of violence. I have already made findings about the abhorrent nature of the husband’s conduct during the noose incident and incorporate them without need of repetition.
I infer that the events of 2010, operating as a cluster of events, instilled sustained fear in the wife lest she should act in a manner that antagonised the husband. I infer that such fear is likely to have had a debilitating and destabilising effect on the wife and thus made it more arduous for her to contribute in her role as parent and homemaker, and to go about her work. The fact the children witnessed certain of the events is likely to have added to the task of parenting the children as they are likely to have required comfort, protection and reassurance, being assistance they would not have required but for witnessing the incidents.
As to the events in June 2011, as described in paragraphs 119 and 120 of the wife’s affidavit, I repeat the analysis contained in the preceding paragraph of these Reasons. Although the evidence at 119 and 120 does not place any or all of the children at the scene, it may have moderated the need for the wife to provide additional comfort, protection and assurance to the children. That said, the time and energy required by the wife to attend the police in June 2011 was time that could have been applied to her usual family and work related duties. That is, the wife’s attendance on police, which I accept was a proper thing to do, was an opportunity cost that added to her overall workload.
Counsel for the husband also made reference to the nine-year gap between the evidence of violence in 2011 and 2020. As I understood his submission, his client contends that these were years of amicable relations. The wife conceded that relations were amicable in 2017 when a visa was sought for the husband’s brother.
One explanation for the absence of complaint in the period 2011 to 2020 is that there was nothing about which to complain. Another is that the cluster of violent events in 2010 and 2011 made a lasting impression on the wife’s mind as to her need to modify her behaviour as not to antagonise the husband. I take the evidence about the nine-year gap in evidence of family violence no further as to do so calls upon impermissible speculation.
As to the incident in 2020, the wife was driving the husband home from a procedure and in so doing, making a homemaker contribution. His act of physical aggression against her while driving obviously made that task more difficult.
For these reasons, I am satisfied that conduct had a discernible effect on the contributions of the wife such that it should be recognised in determining the respective contributions of the parties.
Assessment
I am satisfied that contributions for the purpose of s 79(4)(a), (b) and (c) should be assessed as equal. The wife’s initial capital, and 17-months of rent-free accommodation through her parents, greater homemaker and parenting contributions, and continuous contribution of a salary-based income (whether wages or accrued entitlements) approximates by the husband’s greater salary and wage based income and effort and exertion in the form of improving the parties’ real property, and provision of assistance from his mother.
Considered as a whole, I assess the adjustment in favour of the wife for matters pursuant to s 75(2)(o) of the Act to be at 10 per cent.
As such, the wife shall receive 60 per cent of the net assets of the parties and the husband shall receive 40 per cent. I am satisfied that such orders are just and equitable in all the circumstances.
The orders will not contain a default sale provision in the event one party cannot refinance the loan for which they are responsible. The evidence does not permit me to fashion orders that I can be certain will account for the interest of the NAB bearing in mind the loans are cross collateralised. In the event enforcement orders are required, a party can file an application in the usual course.
CONCLUSION
For the Reasons given, I make the following orders.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Eldershaw. Associate:
Dated: 19 July 2023
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