Sharp and Moon

[2016] FCCA 2141

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARP & MOON [2016] FCCA 2141

Catchwords:
FAMILY LAW − Whether family violence affects wife’s contributions.

Legislation:

Family Law Act 1975 (Cth), ss.75, 77A, 79

Cases cited:

In the Marriage of Doherty (1996) FLC 92-652

Kennon & Kennon [1997] FamCA 27

Applicant: MS SHARP

Respondent: MR MOON

File Number: MLC 7145 of 2015

Judgment of: Judge Phipps

Hearing date: 24 March 2016

Date of Last Submission: 24 March 2016

Delivered at: Dandenong

Delivered on: 19 August 2016

REPRESENTATION

Counsel for the Applicant:   Mr Sheen

Solicitors for the Applicant:   Littleton Hackford

The Respondent:   Appearing on their own behalf

ORDERS

1. That this is in order to which s.77A of the Family Law Act 1975 (Cth) applies.

2. The amount of $10,000 of the monies ordered to be paid to the wife is attributable to the provision of maintenance for the wife.

3. The order for spousal maintenance made 28 September 2015 and arrears of payments under the order is discharged.

4. That the husband pay the wife the sum of $78,965 (“the payment”) on or before 20 October 2016 (“the date”).

5. That contemporaneously with the payment the wife do all acts and things and sign all such documents as may be required to withdraw any caveat she has over the land known as Property C (“the real property”).

6. That in the event that the whole of the payment has not been made by the date the husband sign all documents and do all things necessary to transfer to the wife the real property to be held on trust for sale (“the sale”) and the real property be sold (“the sale”) and upon completion of the sale, the proceeds of sale be applied:

   (a)First to pay all costs, commissions and expenses of the said trust transfer and sale;

   (b)Secondly to discharge the mortgage and all other encumbrances affecting the real property;

   (c)Thirdly so much of the payment as is then outstanding to the wife;

   (d)Fourthly the balance to the husband.

7. That the wife’s solicitors prepare minutes of a proposed order for a splitting of the husband’s superannuation with a base amount of $33,756 in favour of the wife, provide procedural fairness to the Trustee of the husband’s superannuation fund and deliver a copy of the minutes of proposed order and evidence of procedural fairness to the Associate to Judge Phipps.

8. That unless otherwise specified in these orders and save for the purposes of any monies due under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;

   (b)Insurance policies remain the sole property of the owner or beneficiary named thereon or therein;

   (c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

9. The application is adjourned to 22 September 2016 for the making of the superannuation order unless made earlier in chambers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 7145 of 2015

MS SHARP

Applicant

And

MR MOON

Respondent

REASONS FOR JUDGMENT

Introduction

1. The husband and wife dispute the distribution of their matrimonial property.  The principal issues are:

   a)The value of any jewellery sold or retained by the wife;

   b)The extent of any debts of the husband and whether they should be treated as matrimonial debt;

   c)Whether there was family violence and should it be taken into account in assessing contributions;

   d)Whether some of the amount awarded to the wife should be treated as spousal maintenance.

2. The applicant wife proposes that the property should be divided 70% to her and 30% to the husband and the husband’s superannuation divided equally.  The husband proposes that he pay the wife $20,000 and his superannuation be divided equally.

3. The steps in determining a property application under s.79 of the Family Law Act 1975 (Cth) are:

   a)Identify the property, both assets and liabilities, including superannuation;

   b)Consider whether it is just and equitable to make an order;

   c)Assess the parties contributions in accordance with s.79(4);

   d)Assess the relevant matters in s.75(2).

4. The agreed property is:

Assets/Liabilities	Asset value	Liabilities value
Property C	$110,000
Husband’s Hyundai motor vehicle	$7,000
Total	$117,000
Husband's (omitted) Bank credit card	$1,508
Husband’s master card	$2,540
Total	$117,000	$4,120
Net total	$112,808
Husband’s superannuation ((omitted) superannuation)	$67,512

Background

1. Both parties were born in (country omitted).  The husband came to Australia in 1998.  The parties married on (omitted) 2004 in (country omitted) and the wife came to Australia on (omitted) 2006.  Throughout the marriage the parties lived in rented accommodation.  The husband purchased Property C by paying a deposit of $50,000 and completed the purchase in 2012.  The property is a block of land.

2. The husband worked throughout the marriage and the wife maintained the family home and did some study.  Both parties travelled during the relationship.  The wife travelled to (country omitted) in (omitted) 2011 for her sister’s wedding.  Between 2007 and 2012 both parties travelled to (country omitted) on 3 occasions to visit family.  In 2011 both travelled to (country omitted) for about a week.  The husband was travelling as part of his employment.  In (omitted) 2012 the wife travelled to (country omitted) to attend her father’s funeral and in 2007 both parties travelled to (country omitted) to attend a wedding. 

3. From late November 2014 to 31 January 2015 the wife travelled to (country omitted) to stay with her mother.  The parties separated on 2 February 2015 when the police removed the husband from the matrimonial home and the wife left as well.

4. After the commencement of these proceedings the Court made an order on 28 September 2015 that the husband pay $150 per week interim spousal maintenance to the wife.  The husband paid $500 on 26 November 2015, 20 December 2015 and 14 January 2014, meaning he was in arrears.

Disputed assets and liabilities

1. The husband alleges that the wife had $30,000 worth of gold jewellery which she took with her when the parties separated.  The wife says that is not true.  She says that during the marriage she sold some jewellery for $600 and otherwise does not now have any.

2. The wife says that the marriage certificate shows that she received (omitted)/- worth of jewellery including a gold necklace and 11 bangles.  She says that many (country omitted) is approximately AUD$1,500.  She says that the husband’s mother loaned her jewellery to wear for the marriage ceremony, which was returned after the ceremony, and that her sister loaned her jewellery for the same purpose which was returned to her sister after the parties’ (omitted).  She says that the husband also received jewellery.  She says that she sold jewellery remaining, 11 gold bangles in 2009 and received AUD $600.

3. The husband says that prior to the (omitted) ceremony in 2004 the wife was given large amounts of gold jewellery.  He says that this was 14 (omitted) of gold as shown in the marriage contract annexed to the wife’s affidavit.  He says that at the subsequent marriage ceremony she was given in excess of 38 (omitted) of 24 carat gold, so that she received a total of 52 (omitted).  He says the wife’s calculation of the value of the gold is incorrect and he does a calculation which he says on today’s prices is $34,400.  He denies that any of the jewellery the wife was wearing and shown in the photographs of the ceremonies was borrowed.

4. The wife is the more credible witness.  My reasons for this are given later.  I accept what she says that much of the jewellery she is shown wearing at the (omitted) and wedding ceremonies was loaned and then returned and that she has sold what she had in her possession for $600.

5. The husband says he owes loans to her friends, $8,500 to Mr J and $8,400 to Mr A.  The husband annexed to his affidavit of 18 March 2016 a document headed “Final Notice of Demand” dated 16 September 2015 from Mr J which claims that $10,500 is owing.  The husband said he subsequently repaid $2,000.  He annexed another document headed “Re-: Payment of Money Owed” from Mr A which claimed the amount of $8,400.

6. The husband said that he borrowed $50,000 from Mr J and opened a (omitted) Bank Account.  The (omitted) Bank account documents, having been subpoenaed, were tendered in evidence and they showed a $50,000 credit on 22 April 2013 with the particulars being “Ref. Mr J”.  The husband said that three debits of $5,000 each described as “loan repayment”, “loan returned 2” and “Loan returned 3” were returns of the money to Mr J when he asked for them.  He said he made other similar returns from his (omitted) Bank account.

7. The other debits in the account are 7 June 2013 marked “Withdrawal” $10,000, 17 January 2014 marked “Withdrawal”, $5,000, 24 January 2014 marked “To (omitted)”, 11 March 2014, “To (omitted) Loan”, $10,000, and 19 March 2014 marked “Withdrawal” $5,000.  The husband does not give an explanation for any of these amounts other than the three repayments of $5,000 each to Mr J.

8. At one point in his evidence the applicant said that he needed the money because the development company for the land in Property C required $20,000 to finish the purchase.  The statement from (omitted) which the husband annexes to his affidavit of 24 September 2015 shows that the final payment was made on 5 June 2012.  It shows the initial payment of $41,000 and $10,000 on 20 August 2010 and 6 September 2010.  It shows a payment of $10,000 on 25 November 2011 and a final payment of $1,102 but otherwise all the payments were regular instalments of $2,000.  These payments are not consistent with the husband’s evidence that he needed the loan from Mr J to pay an amount of $20,000.

9. The husband said in his evidence that the project was supposed to finish at the end of 2012 but eventually he got the property under his name in the first quarter of 2014.  He said he had to pay an additional $20,000 to the development company.  He does not produce any documents to show this.

10. There is no evidence from Mr J and no explanation of how the loan was reduced from $50,000 to $10,500 as stated in the notice of demand dated 16 September 2015.  There is no evidence from Mr A.  The husband has not established that he owes either of the amounts to Mr J or Mr A.

11. The husband obtained a (omitted) Credit loan account on 28 May 2015 for $30,000.  In his Financial Statement of 22 March 2016 he gives the amount owing as $26,700.  His explanation for this loan is that the fees for legal representation in criminal proceedings arising out of the events which took place on the day the parties separated were $25,000.  The loan is post separation, is not related to matrimonial property and so should not be treated as something to which the wife should contribute.

Contributions

1. The husband was employed throughout the relationship.  He commenced employment with (employer omitted) as a (occupation omitted) in (omitted) 2008 and was promoted to a (occupation omitted) on (omitted) 2010.  He was made redundant on (omitted) 2016.  He has (omitted) degrees in (omitted).  At the time of his redundancy his gross salary was $1,660 a week.

2. The husband made all the financial contributions throughout the marriage which included costs associated with the wife obtaining a visa to live in Australia and her travel to Australia.  He paid the costs of the wife’s travel and his travel to (country omitted), (country omitted) and the wife’s travel to (country omitted).

3. The contract by which the land at Property C was purchased is not part of the evidence.  From the husband’s description it appears to have been a contract to pay a deposit and then instalments as the subdivision was developed leading up to a final payment and the transfer of the title.  The deposit was $50,000 in August 2010.  This came from the husband’s savings.  The period over which those savings had accumulated is not shown by the evidence but I consider it probable that most were accumulated in the four years from 2006 when the parties started living together.  The husband gave evidence of expenses at the time of the wedding and in obtaining the wife’s visa and that suggests that the savings for the deposit came largely after that time.

4. The wife did not work.  She says this was because the husband wanted her to remain at home.  She studied TAFE courses, paid for by the husband.  The husband says it was the wife’s decision not to work but I do not accept that.

5. The wife says that the husband was violent and controlling.  She says he would ring her during the day to ensure that she was at home.  She would have to tell him what she was doing.  She could not leave the home without him.  He directed her how to conduct herself.  She says he monitored her communication with her family.  She says he withheld information concerning his financial matters.  She became aware only in early 2008 of the purchase of the land in Property C.

6. The parties have no children.  The wife had trouble in falling pregnant and miscarried.  She says this led to escalating levels of abuse and violence.  This prompted her to spend time with her mother in (country omitted) from (omitted) 2014 to (omitted) 2015.

7. The wife says one night prior to her going to (country omitted) he abused her because he had been embarrassed in front of a friend because he did not have a child.  She says he abused her saying it was her fault.  Her lips were bleeding and she rang her mother.  She says that the husband told her mother that he was not happy with her, he had family pressure to get another marriage because this wife could not give them a child.

8. She says this statement to her mother by the husband that he did not want the wife anymore was repeated by telephone the next day.  The wife’s brother offered to pay for a flight to (country omitted) and eventually the husband said he agreed that she go and purchased the ticket.  She says abuse continued.

9. On 2 February 2015 the wife called the police because the husband was abusing her.  She says he abused her and hit her.  In her police statement she says that he called her mother and threatened to finish her off.  She says she was really scared.  He went out into the garage and she locked the door and called police.  The husband broke the lock on the door and came in and took her phone.  She says she was in the bathroom and the husband broke the bathroom door as well.  She had a bruise on her face which the police saw.  The police arrested the husband and they took her to hospital.

10. The police issued a safety notice against the husband and subsequently obtained a Family Violence Intervention Order against him protecting the wife.  The husband, despite the intervention order, continued to attempt to contact the wife by text message and telephone attempting reconciliation.  The husband says he spent two occasions in police custody once for 22 days and the other 19 days.  It seems this is because he returned to the parties apartment after the issue of the safety notice or the Interim Family Violence Intervention Order and because he was telephoning and contacting the wife.

11. The wife made a statement to the police setting out in detail what she said had occurred.  She also made a statement which alleged that the husband had raped her but then did not continue with the complaint.  She did this because she learnt that the husband had sent a copy of her statement made to a male police officer to her brother and had asked her brother to pass that on to her mother.  In a statement she made to the police she said the husband was doing this to embarrass her in front of her mother and her brother and other family members and so she did not continue with the complaint.

12. The husband acknowledges that on 7 April 2015 he pleaded guilty to unlawful assault, intentionally damaging property, contravening a family violence safety notice, making a threat to kill and threatening to inflict serious injury.  The court adjourned the hearing to 15 April 2016 without a conviction with an order that the husband continue counselling and complete a Men’s Behaviour Change program.

13. The husband continued to attempt to contact the wife.  He was again arrested, not given bail and remained in police custody for 19 days.  On 18 May 2015 he was convicted of Persistently Contravening a Family Violence Intervention Order.  He was placed on a community corrections order for 12 months.

14. The husband says he pleaded guilty on 7 April 2015 because he wanted to be released from prison.  He denies that on 2 February 2015 he struck the wife.  He admits there was a heated argument and admits that he broke the lock on the security door so he could get back into the house.  He did this because his wife locked him out of the house.  He acknowledged taking her telephone knowing she was ringing the police because she should not have done it.

15. The husband’s plea of guilty accepts the wife’s allegations of the behaviour which constituted the offences of unlawful assault, intentionally damaging property, contravening a family violence safety notice, making a threat to kill and threatening to inflict serious injury.  His explanation for doing so is unconvincing.  He had legal representation and so advice which makes his explanation even more unconvincing.  In addition, the husband was an unconvincing witness, unlike the wife.

16. Particularly convincing was the wife’s evidence from the witness box about the husband’s behaviour.  She says he would start abusing her and it would escalate.  He would then hit her and then rape her.  He would then tell her that was God’s punishment.  She did not say how many times this happened throughout the relationship.  I accept that what she described happened regularly.

17. The wife’s description of the husband’s behaviour is consistent with the tenor of telephone conversations which I accept he had with the wife’s mother.  He was abusive to the wife’s mother about the wife.  His behaviour and his attitude to the wife shows that he considered that he could treat the wife as he wished.

18. Leaving aside considerations of family violence the parties contributions were equal.  The husband made all of the financial contribution but I accept the wife’s evidence that he did not want her to work and wanted her to remain at home.  I accept the wife’s evidence that the husband’s agreement to her commencing study was reluctant on his part.  The parties living arrangements were as required by the husband.  He was the one who insisted that he be the sole contributor financially and the wife contribute as homemaker.  From this it follows that contributions were equal, the husband’s financial contribution being matched by the wife’s contribution as homemaker.

19. Adjustment should be made for the family violence the wife suffered.  In the Marriage of Doherty (1996) FLC 92-652 was an appeal where the judge at first instance had made an allowance for contribution for the domestic violence the wife suffered.  On appeal the Full Court of the Family Court of Australia said:

    Although the domestic violence complained of related to a relatively small period of time at the end of the marriage, nevertheless, his Honour would, in my opinion, have been entitled to have found that because of the Palace conduct, the respondents contribution as a homemaker was increased and the appellant similar contribution is diminished as a consequence, leading to the overall weighting based upon contribution in favour of the wife being increased, albeit only slightly, having regard to the facts of this case.

1. In Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757  the Full Court said :

   However, in our view, s.79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.

   And:

   It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). Similarly, in Killick v Killick (1997) 21 Fam.L.R. 331 at 341, in proceedings under the De Facto Relationship Act 1984 (N.S.W.), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.

2. I accept that the husband controlled the wife’s life and required her to remain at home acting as the homemaker.  I accept that the violence the husband inflicted on the wife was serious and persistent.  It included repeated episodes of abuse, hitting and rape.  It comes within the narrow band of cases addressed by the Full Court.  It had a significant effect on the wife in her contribution as homemaker.  She continued in that role notwithstanding the husband’s conduct.  The adjustment in contributions in favour of the wife is 7½%.

Section 75(2)

1. The husband was employed throughout the relationship.  He was made redundant shortly prior to the hearing.  He has two (omitted) degrees and his employment with (employer omitted) was for eight years.  His financial statement of 22 March 2016 shows an average weekly income of $1,660 per week or about $86,000 per year.  His employment prospects on a good salary are reasonable although he now has the problem of his criminal justice record.

2. The wife has not worked since she came to Australia.  At the time of the hearing she was on a Newstart Allowance, or unemployment benefits.  She has done some study but her prospects of employment are doubtful and she would earn considerably less than the husband.

3. The husband was to receive a redundancy payment of six weeks.  That would have some taxation taken out but that would be about $30,000.  Much of this amount is attributable to the period of the parties’ relationship.

4. Both parties are in good health and relatively young.

5. The husband has not paid all of the spousal maintenance.  I will discharge the spousal maintenance order and all arrears and take that into account.  The small size of the property pool is relevant.  The wife is not pursuing a final maintenance claim other than having part of any order in her favour treated as maintenance.

6. All these matters make an adjustment in favour of the wife of 12½% appropriate.

7. The division of property 70% to the wife 30% to the husband.  I will allow the husband 60 days to pay the amount and if not paid the property at Property C must be sold.  The parties agree that the husband’s superannuation to be divided equally.

8. There is no evidence of procedural fairness to the superannuation trustee.  Make an order that the wife’s solicitors prepare the order provided procedural fairness.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  19 August 2016