Shaw and Shaw
[2008] FMCAfam 1024
•19 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHAW & SHAW | [2008] FMCAfam 1024 |
| FAMILY LAW – Parenting – family violence – protecting children – meaning of family violence – capacity to provide for needs. FAMILY LAW – Property – disposal of van after separation – waste – disputed loans – contribution – s.75(2) factors. |
| Family Law Act 1975 ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 67ZN, 75(2), 79 |
| D & D (2003) FMCAFam 74 Altobelli T, ‘Family Violence in Children’s Cases – Implications in Practice’ (1998) 13 (1) Australian Family Lawyer 6 and (1998) 13 (2) Australian Family Lawyer 38. |
| Applicant: | MS SHAW |
| Respondent: | MR SHAW |
| File number: | SYC 1739 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 12-13 May, 10 July 2008 |
| Date of last submission: | 10 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Johnson |
| Solicitors for the Applicant: | John Spence & Associates |
| Counsel for the Respondent: | Ms Judge |
| Solicitors for the Respondent: | NA Lawyers |
ORDERS
Within 28 days the husband is to do all things and sign all documents as may be required to transfer to the wife all of his right, title and interest in and to the property situated at and known as Property R.
The wife is to henceforth indemnify the husband, and keep him indemnified, in relation to the liability secured over the home to the ANZ bank, as well as loans from Ms B, Ms D, and Ms O. The wife must, as and when they fall due, make all necessary payments in relation to these liabilities.
In order to implement this order the wife must, within 14 days of the date of these orders, provide to the husband a Real Property Act Transfer in registrable form for his execution. The husband must sign such transfer and return the same to the wife within 28 days of these orders.
In the event that either party refuses or neglects to execute any deed or instrument required to give effect to these Orders, a Registrar of the Court or their appointee pursuant to Section 106A of the Family Law Act may execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of such deed or instrument.
Each party is declared the beneficial of all other property in their possession or control.
That all prior parenting Orders be discharged.
The mother have sole parental responsibility for the children of the marriage [X] born in 1993, [Y] born in 1999 and [Z] born in 2000.
That the children live with the mother.
That the father have reasonable communication with the children by letter, cards and telephone.
IT IS NOTED that publication of this judgment under the pseudonym Shaw & Shaw is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES |
SYC 1739 of 2007
| MS SHAW |
Applicant
And
| MR SHAW |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the orders that I have made in these proceedings. The applicant wife is Ms Shaw. She is 35 years old and lives with the three children of the marriage at Property R, a Sydney suburb. The respondent is her husband, Mr Shaw. He is 36 years old and lives in [A], another Sydney suburb. The parents have three children, [X] who is 15 years old, [Y] who is 9 years old, and [Z] who is 8 years old. Currently they live with their mother and do not spend time or communicate with their father.
The proceedings related to both parenting orders for the father to spend time with the children, and an application for alteration of property interests, commonly known as a property settlement. There is a very high level of conflict between the parties and, regrettably, their children are very much caught up in this parental conflict.
Background
The parties married in 1992, a relatively short period of time after the father came to Australia from Lebanon. They lived with the wife's mother in her home for a period of four years, rent free. They then purchased their first home at Property P in 1996 and moved in. That home was sold in 2000 in order to purchase the former matrimonial home at Property R, where the wife and children continue to reside.
The parents finally separated in March 2006.
During the marriage the parties' three children were born and the husband established a business known as [Omitted]. The wife alleges that the husband was violent towards her, sometimes in the presence of the children, at various times during the marriage. It seems common ground between the parties that it was a difficult relationship between them and, at the very least, they argued and there were frequent separations. Indeed, the husband asserts that in fact they only really cohabited between 1992 and 1997, and then from 1998 to 2000, and that for the entire rest of the period of the marriage, whilst they resided under the same roof, they were none the less separated. The wife agrees that there were frequent separations.
In my opinion nothing much turns on whether or not the parties were in fact separated though living under the same roof for the periods that the husband asserts. It is somewhat inconsistent with the material produced on subpoena by various third parties, but there is no need to go into that. I find that it was a tumultuous relationship marked by frequent separations.
Regrettably, the post separation period was equally tumultuous. The husband initially commenced proceedings in this Court for parenting orders in April 2006 but discontinued them in August 2006. Nonetheless on 17 November 2006, acting on the wife's application, Housego FM made parenting orders including orders providing sole parental responsibility to the mother.
In the post separation period, the wife experienced severe financial difficulties. She filed her application for property settlement on
12 March 2007. The husband filed a response including orders to spend time with the children. The matter came before me on a number of occasions to deal with interim parenting matters. Various orders were made. For reasons that will become apparent below, the children have not been seeing their father for a considerable period of time.
At the hearing both parties were capably represented by solicitors who had instructed counsel. Each party relied on the affidavit evidence that they had filed themselves, or on their behalf. I had available to me a large volume of subpoenaed material. There were two family reports, the first one prepared by family consultant Julie Schwarz on 9 August 2006, and the second one prepared by family consultant Virginia Longmore on 26 February 2008.
Issues
A large number of issues emerge from the evidence. I propose to deal with the parenting orders first, and then property.
Parenting:
a)Is there a meaningful relationship between the children and their father, and what is the nature of that relationship?
b)Is there a need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence?
c)What weight should be given to the views of the children?
d)Is the mother willing and able to facilitate and encourage a close and continuing relationship between the children and their father?
e)Does the father have the capacity to provide for the needs of the children, including their emotional and intellectual needs?
f)What are the attitudes of the parents to the children, and to the responsibilities of parenthood, as demonstrated by each of them?
g)Has there been family violence, and what is the relevance of this, irrespective of whether the children need to be protected from the same?
Property
h)What is the pool of assets in this case, particularly having regard to disputes about loans made and monies provided for the benefit of the parties, loans incurred by the parties, particularly since separation, and in view of a waste allegation made by the husband against the wife?
i)How should I assess contribution between the parties up until the date of separation, including a consideration of the wife's claim for a Kennon type adjustment in her favour?
j)How should I assess post separation contribution?
k)How should I assess the s.75(2) considerations that affect the wife?
l)What is a just and equitable order to make under all the circumstances?
Applicable Law
Parenting
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)another child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Family Violence, Family Law and Parenting
From a legal perspective, family violence is relevant for many different reasons. The Family Law Act expressly refers to family violence in several provisions which I refer to below. Thus one of the objects of Part VII is to ensure that the best interests of children are met by:
s.60B(1)(b):
protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
The second of the primary considerations in s.60CC(2)(b) is:
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In terms of the additional considerations set out in s.60CC(2)(c) there are two that expressly refer to family violence:
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Apart from these express references, family violence may also be relevant because it impacts indirectly on some of the other additional considerations, eg:
a)s.60CC(3)(b) the nature of a child’s relationship with a parent; or
b)s.60CC(3)(c) the willingness and ability of a parent to facilitate and encourage a close and continuing relationship between the child and the other parent; or
c)s.60CC(3)(f) the capacity of a parent to provide for the needs of a child including emotional needs; or
d)s.60CC(3)(e) the attitude of a parent towards the responsibilities of parenthood.
The term ‘family violence’ is itself defined in s.4(1) in these terms:
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
It is important to note that s.4(1AB) provides a very expanded definition of who is “ a member of the person’s family”, and s.4(1AC) defines who is a ‘relative’. It is also important to note that the definition of family violence refers to conduct that causes a person to fear not just for their safety but “personal wellbeing”. Accordingly this goes beyond the physical and into the psychological. It includes all forms of physical abuse and violence and all forms of psychological abuse such as the making of threats and controlling behaviour whether this control is physical, sexual, psychological or economic.
Family violence is relevant not just from a strict legal perspective, but also from a procedural perspective. Thus Divison 12A of Part VII of the Act, which sets out principles for conducting child related proceedings, expressly acknowledges the impact of family violence on how cases are conducted. The third principle set out in s.67ZN states:
5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence, child abuse and child neglect; and
(b) the parties to the proceedings against family violence.
Moreover s.69ZN is intended to facilitate the provision of relevant information to the court about child abuse or family violence, particularly from certain State or Territory agencies.
This comprehensive modern statutory scheme for having regard to family violence in parenting cases in fact had its genesis in the decided cases. The common law itself evolved over a period of twenty years in Australia. Thus, eg, early decisions such as Heidt (1976) FLC 90-077 might be viewed as indicating insensitivity to the issue of family violence unless the case is understood in its historical context (see Altobelli T, ‘Family Violence in Children’s Cases – Implications in Practice’ (1998) 13 (1) Australian Family Lawyer 6 and (1998) 13 (2) Australian Family Lawyer 38). By 1994, however, there was a dramatic shift in attitudes eg Jaeger (1994) FLC 92-492, JG and BG (1994) FLC 92-514 and Patsalou (1995) FLC 92-580. The 1995 amendments to the Family Law Act inserted as an express factor for consideration in children’s cases family violence and family violence orders.
Family law and procedure in the context of family violence is in itself reflective of and based on the foundation of social science research which has itself evolved over time. There is some recent research, for example, that explains why family violence is relevant to determining post-separation parenting arrangements: Jaffe PG, Johnston JR et al ‘Custody Disputes Involving Allegations of Domestic Violence: Towards a Differentiated Approach to Parenting Plans’ Family Court Review Vol 46 No 3 July 2008 at 501-504. The context of this research is to emphasise that different types of violence might indicate the need for different types of parenting arrangements. The authors look at the different studies that have been undertaken from which they glean insights and then make reasonable hypotheses about relevant factors and the rationale for making certain types of orders. They make the following observations:
a)Family violence does not necessarily end with separation;
b)In extreme cases family violence can be lethal;
c)Perpetrators of family violence are more likely to be deficient if not abusive as parents;
d)Individuals who have a pattern of abuse of their partners and those who commonly resolve conflicts using physical force are poor role models for children;
e)Abusive former partners are likely to undermine the victim’s parenting role;
f)Abusive former partners may use litigation as a new forum to continue their coercive controlling behaviour and to harass their former partner;
g)Diminished parenting capacities among victims of family violence often occurs;
h)Victims’ behaviour under the stress of the abusive relationship and during the aftermath of a stressful separation should not inappropriately prejudice the decision about parenting arrangements;
i)Victims of abusive relationships may need time to re-establish their competence as parents and opportunity to learn how to nurture and appropriately protect themselves and their children.
These factors are already reflected in many of the decided cases about family violence in Australia, but it is useful to have such a clearly articulated list to reflect on.
The types of family violence that have been categorised in the Jaffe, Johnston et al research include the following:
a)Abusive-controlling violent relationship, also called battering or intimate terrorism or coercive controlling violence;
b)Conflict instigated violence, also called situational or common couple violence;
c)Violent resistance;
d)Separation-instigated violence.
The authors of this research provide further descriptions of these types of violence, and then suggest possibly appropriate parenting arrangements based on the types of violence. They further provide some principles for making parenting orders and resolving the conflicting priorities that almost always arise in these difficult cases (eg balancing the two primary considerations in s.60CC(2)). At p 509 they state:
In most domestic violence cases there are multiple factors to consider. What is needed is a risk-benefit analysis of different kinds of parenting plans that are in the best interests of the particular child and family. What are some guiding principles for undertaking this kind of analysis? It is submitted that the goals of any plan should be prioritized in the following order:
1. Protect children from violent, abusive, and neglectful environments;
2. Provide for the safety and support the well-being of parents who are victims of abuse (with the assumption that they will then be better able to protect their child);
3. Respect and empower victim parents to make their own decisions and direct their own lives (thereby recognizing the state’s limitations in the role of loco parentis);
4. Hold perpetrators accountable for their past and future actions (i.e., in the context of family proceedings, have them acknowledge the problem and take measures to correct abusive behaviour); and
5. Allow and promote the least restrictive plan for parent-child access that benefits the child, along with parents’ reciprocal rights.
Premised on the notion that the goal of protecting children must never be compromised, the strategy is to begin with the aim of achieving all five goals and to resolve conflicts by abandoning the lower priorities.
Another useful resource is Kelly JB and Johnson MP ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications For Interventions’ Family Court Review Vol. 46 No.3, July 2008. This is particularly useful because of its detailed discussion of the types and terminologies of family violence.
This research is very important, useful, and interesting in its own right, but its real significance is that it provides background and context to the court which can be used in understanding the legislation and any expert evidence that is adduced. The social science research is not, however, evidence in this case.
Property
The preferred approach to the determination of an application under s.79 of the Family Law Act is set out in a passage found in the Full Court’s decision in Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at 39.
The Full Court states that there are four inter-related steps:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
One of the legal issues that arises is whether I should adopt a global or asset-by-asset approach to contribution. The authority in this regard is, the High Court’s decision in Norbis v Norbis (1986) 161 CLR 513 per Wilson and Dawson JJ at 534-5. It is clear from this statement of the law that either approach is available to me, in part or in whole.
My discretion in this regard should be exercised having regard to the facts of this case.
The husband raised what is, in effect, a waste argument. A succinct statement of the law in this regard is the statement by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76 644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Specific Factual Findings Necessary
Before dealing with each of the issues that I have identified above, it is necessary to identify, and then to make factual findings, in relation to the evidence of three matters, all of which were hotly contested between the parties. The findings I make will provide background for, and further inform, the findings I make in the context of the specific issues that will be discussed below.
Accordingly, specific factual findings are necessary in relation to these three issues:-
(a)allegations of family violence
(b)the post separation financial circumstances of the husband
(c)an undated letter allegedly sent by the oldest son, [X], annexing the parties' certificate of divorce.
Allegations of Family Violence
The evidence about this issue comprises the affidavits and the oral evidence given by the husband and the wife, the observations contained in the two family reports, and medical records and police records produced on subpoena.
At the outset it is important to recognise that family violence is a primary consideration referred to in s.60CC2(b) together with an additional consideration referred to in s.60CC3(i)(j).
In a case like this where the wife asserts that, not only was the husband physically violent towards her but intimidated her as well as sought to control her behaviour, it is very important to recognise that the definition refers not just to conduct going to a person's safety, but conduct which goes to "personal wellbeing". This is an important distinction to make. A person might not be fearful of their safety in the sense of being free from danger or risk of injury, but nonetheless be concerned about their personal wellbeing in the psychological sense. The distinction is particularly important in the context of controlling behaviour.
In my opinion, therefore, the definition of family violence clearly encompasses controlling behaviour even if at the time there was no concern about safety issues. This is a common sense, logical interpretation to be accorded to the definition of family violence, otherwise a whole range of behaviours that are recognised in practice, and in the social science research, as being associated with violence would be excluded. For example, the description of violence contained in the National Committee on Violence Against Women Position Paper[1] refers to violence as including physical violence, the installation of fear, the making of threats, psychological abuse, social abuse, economic abuse and sexual violence.
[1] Canberra : Australian Government Public Service, 1993
Indeed, the position paper seeks to define male violence against women as:-
… a behaviour by the man, adopted to control his victim, which results in physical, sexual and/or psychological damage, forced social isolation or economic deprivation, or behaviour which leaves a woman living in fear.
It is interesting to note that this definition commences from the premise that family violence is controlling behaviour rather than adopting a definition that does not refer to such controlling behaviour.
The wife's affidavit evidence about violence is contained at paragraphs 44 - 46 of her affidavit filed 21 April 2008. In addition, the wife read as part of her case, paragraph 17(e) of her affidavit filed 12 March 2007. By way of overview, the wife gives evidence about physical violence towards her, perpetrated by the husband, and describes only "the most serious incidents" on 12 August 2001, 27 August 2005,
19 March 2006, 20 April 2006 and October 2006.
From the husband's perspective, both in his affidavits and in oral evidence he has consistently denied that there was physical violence.
The documents produced on subpoena relating to hospital admissions and medical records tend to corroborate the wife's evidence. For example, there are [S] Hospital records for 28 August 2005 that record her allegations of being assaulted by the husband on that date, and also record the observations of medical staff about contusions to the lower leg caused by an assault by a blunt object.
Those documents record the history given by the wife of an "alleged assault from husband". The records refer to “multiple hits to head, right shoulder pain, left leg pain - visible bruising." The letter from the Resident Medical Officer to the treating doctor contains a diagnosis of domestic assault. It records "significant soft tissue bruising to the left scapular region but no shoulder injury, soft tissue injury to left thigh, hips intact." The records also indicate that the mother was interviewed by a social worker who made a report to the Department of Community Services in relation to the three children. The documents record the wife's allegation at the time that similar assaults had taken place in the past.
The notes of the social worker record the wife stating that the husband had returned from holidays earlier today and was angry with her because she had rung him on the phone while he was away. She asserts that he asked the children to go to their bedrooms and watch TV and he then started to scream at her and began hitting her in the leg and shoulder while she was on the couch. He then got a small coffee table and hit her with it until it broke. He then allegedly kept hitting her on the leg with the table leg. She then went out to the car and locked herself in until a neighbour came round to visit and brought her to the hospital.
The social worker records that the mother gave a history that the children did not witness the event but were aware that something had happened and that their mother was in hospital. Further, the note records the mother didn't want to report the incident to the police and became quite upset when she was informed that a DOCS notification was mandatory.
There are no police documents produced on subpoena that refer to this incident.
Medical records are also produced by [C] Hospital, relating to an alleged assault on 12 August 2001. The documents refer to the wife's allegation that she had been assaulted by the husband and hit on the head with a high chair. She fell to the ground and was then kicked by the husband. The records contain observations about abrasions and bruising to several parts of the body. There are also observations about multiple old scars on the buttocks and thighs. The clinical record also records as follows:-
Apparently has been assaulted by husband many times but has not been reported.
Again, a DOCS notification was made in relation to the children.
No police records are produced to the Court in relation to this incident.
In relation to both of the incidents referred to above, I do note that there are slight inconsistencies between the medical records, and the description of these events contained in the wife’s affidavit. I do not regard these as significant, or as otherwise detracting from the weight to be given either to the wife's evidence or to the medical records. It is significant, I record, that the wife was not cross-examined about these inconsistencies and, indeed, her cross-examination about the assault allegations was limited to the very broad assertion that her husband had not perpetrated the violence to which she made allegations.
The wife refers at paragraph 45 to an incident that took place on
23 April 2006 when she returned from a weekend away from the children, came home to observe that a number of items had been removed by the husband, and a telephone call to the husband in which he admitted that he had removed the items. She says that she became so distressed at the husband's behaviour that she went to [C] Hospital for treatment. Medical records produced by [C] Hospital confirm that at about 9.20 pm on 23 April she attended the Emergency Department in an emotionally upset state having developed epigastric pain. It also records her assertion that her house had been broken into by her ex-husband while she was away on the weekend.
This allegation is consistent with records produced by the New South Wales Police Service who attended the wife's home at 8.17 pm that evening. The records indicate that the wife informed the police that property had been removed from her premises by the husband, though she was not at home when the property had been removed. The records do confirm that the police contacted the husband who "stated to police that he did remove property such as work tools and other personal items." The husband therefore conceded to the police that this event occurred. The wife asserts that this event caused her to be fearful or apprehensive, ostensibly within the definition of family violence referred to above.
The wife gives evidence about an alleged assault on the date of separation, 19 March 2006, at paragraphs 44(b) and (c). The police records produced on subpoena corroborate the allegations made by the wife. The records state, in part, as follows:-
The accused started spitting on the victim and hitting the victim's head with his thongs. The accused was also slapping the victim on her back, the accused hit the victim twice in the head with a closed fist. The accused was yelling out to the victim, 'You called her mum, her brother.' The victim said:' I don't know what you're talking about.' The victim believes that the accused was referring to a rumour about the accused sleeping with another woman. The victim went into the bathroom and returned a short time to her bedroom where the accused had attempted to block the victim's path by placing a chair in the hallway. The victim managed to get past the chair. The victim went into her bedroom where the victim grabbed her handbag and left the house. A short time later police attended and obtained a statement from the victim, who at the time was willing to provide police with a statement in relation to the assault. The accused was cautioned and placed under arrest for the assault and conveyed to [H] Police Station where he was introduced to the custody manager and later charged with the assault, which is now before the Courts.
The records indicate that the husband was, in fact, charged with actual assault and also that an apprehended violence order was taken out as a result of this incident.
In oral evidence it emerged that the criminal charges against the husband were dropped. The husband alleged that this was because the wife chose not to give evidence against him, a matter which he asserted was consistent with the event never having taken place as alleged by the wife.
The husband gave oral evidence in cross-examination about the incident on 19 March. He agreed that there had been a serious argument between them but denied that he struck the wife in any way. He agrees that he told the children to go to McDonalds and gave them $20, before anything happened between the wife and himself.
He agreed in cross-examination that he did this because he knew there was going to be an argument with the wife. He agrees that there was swearing and raised voices but he denies raising a hand to the wife.
He agrees that the wife became distressed but denied saying to her that, "I'll see you on the street."
The husband denied any knowledge of an assault on 27 August 2005 and alleges that he did not know that the wife had been to the [S] Hospital. He agrees, however, that when he returned from a few days in Jindabyne that he and the wife "had a little argument". He expressed surprise that the wife attended hospital after that event. He agrees that there were raised voices during this incident.
The husband asserted in cross-examination that he didn't recall the alleged assault on 12 August 2001, or the wife getting injured. He agrees that there was an argument but he thought that the wife simply went to her mother's home and did not know she went to [C] Hospital. He agreed that he returned from Jindabyne with the intention of arguing with the wife.
When the husband was asked if the wife ever became distressed in such a way that the children might get upset he said, "Maybe".
Both family reports contained some observations relevant to the family violence. The first report prepared by Ms Schwarz at paragraph 11, states as follows:-
Regarding the concerns raised about regarding the presence of violence in the marriage, Mr Shaw was somewhat dismissive; he was also a little disparaging about his wife’s ability [to] provide a reasonable account. He described
Ms Shaw as a ‘naïve…vulnerable’ woman who is considerably under the influence of her mother. In fact, Mr Shaw blamed the latter for the vast majority of marital difficulties, saying his mother-in-law was excessively interfering in the marriage and an overly frequent visitor to their home. He saw his wife as having struggled with her feelings of loyalty towards her husband and her mother.
It is important to note that when the husband saw Ms Schwarz on 17 July 2006 he acknowledged that there had been some breakages.
There are also some observations about comments made about the children at paragraphs 29, 30 and 31 of this family report:-
29. The children were also seen together, during which time they played together quite companionably. They said that they did not know about the reasons they were present at court, but acknowledged that they were aware of the fact that their parents had separated. When asked if they were aware of arguments, [Y] and [Z] chorused they were aware of ‘fighting’. [X] also commented that it was ‘better not to know’; and advised the assessor: ‘Don’t ask’.
30. Following the observations, some time was spent with [Y] and [Z]. They gave ambivalent views about their father with each saying ‘I want Dad’, while also expressing some anger about him leaving home. They also made comments about their father screaming at, and hitting, their mother. [Y] said that [Z] had witnessed this and she had been told about it. She also spoke of furniture that had been broken by her father.
31. When [X] was seen alone, he spoke with some wistfulness about his father. He volunteered very little but acknowledged that he was aware the Police had been to his home. He seemed uncomfortable when asked if he was aware of broken furniture, and briefly mentioned a small coffee table, saying he had seen it in its broken state but that he did not see who broke it.
These are very disturbing observations of the family consultant. The children were clearly caught up in the crossfire of their parents' conflict and make observations consistent with having been exposed to family violence, even if they did not necessarily witness the same.
The evaluation of this family consultant records her impression that family violence had in fact occurred. The relevant paragraphs are 34 - 36:-
34. One of the outstanding features of this assessment is the inconsistency in Ms Shaw’s presentation and the degree of fearfulness this implies. The hospital records show a history of serious injury and it therefore appears that the alleged violence has occurred. The level of denial shown by Mr Shaw and the apparent absence of any steps taken to address these issues indicates that the possibility of repeated violence is an ongoing and serious risk.
35. Ms Shaw’s vacillations whereby she retracted her statements about violence and then her more positive depiction, is consistent with having been a victim of such violence for several years at least. This presentation can be viewed as indicative of her feelings of powerlessness and fear, rather than a lack of conviction. It is also common in these situations for a victim of spousal violence to experience some ambivalence about the aggressor. This may be occurring in this matter and also contributing to Ms Shaw’s changeable presentation, It also raises some questions about her ability to protect the children from exposure to violence because of the mixed messages she may give to those attempting to support her. It is therefore important that Ms Shaw seeks and receives ongoing professional support to assist her with understanding her own feelings and attitudes, as well as to provide input on protecting herself and the children.
36. Mr Shaw’s denial of the history of the violence, even though he was aware of the hospital records, suggests an entrenched belief system of denial and externalisation of responsibility. His comments about not needing any professional input further adds to this impression and does not inspire confidence that his behaviour will change and that the violence and threats will cease.
There is more relevant evidence about this issue and which goes to the general issue of whether I should accept the evidence of the husband over the wife, or indeed precisely the opposite.
The husband was cross-examined about a series of text messages that he sent to the wife after separation. He agreed that he probably sent at least four text messages to the wife in 2006 though he could not recall whether they were, as alleged by the wife, between July and October 2006. When it was put to him that he was angry when he sent those text messages, he agreed, but added that he was also probably depressed. It was put to him that between August and October 2006, his wife had to put up with receiving text messages from him, the effect of which were to express his lack of satisfaction with her. His response was that he could not remember. He agreed, however, that at this time she was responsible for feeding, clothing and looking after the children because he was only ever paying child support as assessed which was a maximum of $26 per calendar month. He denies that on
2 August he sent to the wife a particularly offensive text but agreed that it probably came from his mobile telephone.
At a later time he was again examined about the text message of
2 August 2006, the effect of which was "I will see you out on the street". This time, in cross-examination, he agreed that he was both angry, and he was the person who sent the text message. It was put to him that this text message was "probably one of many" to which he replied: "There was probably more than one but I can't remember how many."
The issue of the husband's anger arose several times during the evidence. He agreed in cross-examination that he intensely disliked the wife's mother and sister and that, together with the wife, he described them as "the gang of three" a term he used when he was angry. He agreed that he went to a form of anger management counselling and was seeing a psychologist until at least September 2007. Indeed, attached to the husband's affidavit filed 20 June 2007 is a report from the husband's treating consulting psychologist, Mr M, dated 21 May 2007. This document records that the husband attended on the psychologist five times between 26 February 2007 and 3 April 2007. It describes the husband, on presentation, as being "very depressed and stressed". It records that: "he also stated that he suffers from anger". The results of the Beck Depression Inventory indicated moderate to severe depression. He received treatment by way of counselling, psycho-education, anger management and stress management and relaxation and support therapy to assist him in coping with his emotional difficulties and depression.
The final piece of evidence which I consider to be relevant in the context of this issue relates to a discussion that took place on Christmas Day 2007 and a subsequent event. The husband, the wife, the children, and the husband's partner, Ms K, spent time together at the husband's residence on Christmas Day. The wife's evidence about what happened differs materially from that of the husband and Ms K. However, it does appear to be common ground that the three adults did, at some stage, talk about the wife attending her cousin's wedding as a bridesmaid. In Ms K's affidavit filed 21 April 2008 she says that she offered to take the wife to the hairdresser to do her hair and nails and in fact did so. In cross-examination, however, she agreed that in fact the wife had asked the husband to lend her money so that she could have her hair and nails done for the wedding and that it was in fact the husband who had asked Ms K to accompany the wife. Ms K agreed in cross-examination that she had formed the impression that there was no way that the mother could afford to do this and that the husband had agreed to meet the cost.
Now, from the husband's perspective, no doubt it is asserted that the fact that all of them spent Christmas Day together is a matter that is rather inconsistent with the fears that the wife expresses in relation to family violence. For my part, I believe that the wife's behaviour on this day was that described in the evaluation of the family consultant on
9 August 2006 at paragraph 35 namely that her behaviour is in fact consistent with having been a victim of violence for a period of time. Indeed, I think that this incident demonstrates precisely the feelings of powerlessness and fear to which the family consultant refers. The wife's financial circumstances were such that it was acknowledged that she could not possibly afford to have her hair and nails done so that she could be bridesmaid at her cousins wedding. Rather than the husband provide money to the wife, he agrees that he will pay for it provided his current partner takes the wife to the hairdresser. On behalf of the wife it was asserted that this is an example of controlling behaviour which is entirely consistent with the wife's evidence about the husband's violent behaviour. I accept and agree with this submission.
The totality of all of the evidence that I referred to above leads me to conclude that, on the balance of probabilities, the husband perpetrated family violence on the wife, as defined in s.4(1) of the Family Law Act on 18 August 2001, 28 August 2005, 19 March 2006 and 23 April 2006. I have formed the strong impression that there were other acts of family violence in respect of which, for whatever reason, the wife did not lead evidence. I do not accept the husband's evidence in relation to family violence. I accept the evaluation made in the first family report at paragraph 36 that the husband's denial of the history of violence, even though he was aware of the hospital records, indicates an entrenched belief system of denial and externalisation of responsibility. I agree with paragraph 38 of the same report where the family consultant suggests that the husband has, through these events, portrayed a lack of insight regarding the children's reactions to the parental conflict. Perhaps most disturbing of all, the events of Christmas Day 2007, and the husband's attempt to control the wife's behaviour by insisting that his current partner be present when the wife had her hair and nails done in order to attend her cousin's wedding, indicates behaviour inconsistent with a man who has acknowledged his past violent behaviour and recognised the traumatic impact of this upon his wife and children. In this regard, I note that this is a pre-condition referred to at paragraph 25 of the second family report, to the father spending time with his children.
Post Separation Financial Circumstances of the Husband
Another significant issue in this case which requires a factual determination relates to the financial circumstances of the husband as a result of the separation. At the time of separation the husband was conducting his business as a [omitted]. He says that after the incident on 19 March 2006 he was “forced” out of the home and that, shortly thereafter, the wife sold the van that he used in the course of his business. It is interesting to observe that the first family report, dated
9 August 2006, and based on an interview conducted on 17 July 2006, records the observation at paragraph 9 that the husband "initially …. seemed pre-occupied with the demise of his business…".
In the second report dated 26 February 2008 based on interviews held on 5 February 2008 the family consultant notes at paragraph 13 that "Mr Shaw reports that he has suffered the loss of his business and his financial plans from the break up of his marriage. He alleges that his wife "took everything" and that his parents-in-law raided his house and ruined his business. The loss of his previous financial situation was frequently mentioned by Mr Shaw, who reports that he currently earns little money to contribute towards financially supporting his children."
In his affidavit filed 18 April 2008 at paragraph 17 he asserts that "my business is still suffering from the wife's actions". In the same paragraph of his affidavit he gives evidence that the wife took his work van and sold it, through her brother-in-law, Mr B, to [T] Toyota at [F] for $16,500. He says that he saw the van by chance and then repurchased it for $19,800 in order to use it in his business. In addition he says that as a result of the wife's actions in removing the same, he had to replace his tools of trade as a [omitted], replace a GPS navigator which he used in the course of his work, and a computer as well as restocking paints. In short, the husband asserts that the wife's actions in selling the van and disposing of the stock and equipment set him back financially to such an extent that he was not able to provide financial support for the family in the post separation period, and continuing. Indeed, his evidence is that he has still not recovered from the consequences of her actions.
In relation to the sale of the van, his case was advanced primarily on the basis that the wife received the benefit of the $16,500 being the sale proceeds of the van, and not the brother-in-law. Alternatively, if her brother-in-law in fact purchased the van from her for a much lower price than this was an act of waste on her behalf and the difference in value should be added back as a notional asset.
It is important to recognise the two dimensions to the husband's argument. The first dimension focuses on what he asserts was the wife's act in dissipating an asset from which he made his living. The second dimension is that as a result of the wife's actions, he became financially crippled and thus could not provide further assistance to his family in the post separation period.
The wife gave oral evidence about the sale of the van on the first day of the hearing. The van was actually registered in her name. She gave evidence that she sold the van to pay bills that were then outstanding as she had no access to any money at all. She sold the van to her sister's boyfriend (now, it would seem, her brother-in-law) for $5,000. She was able to produce a bundle of correspondence, invoices and accounts to demonstrate the depth of her financial plight at or about the time of separation. She said that most of the bills were paid from the sale proceeds of the car, that she was also dependent upon assistance from Centrelink and the Salvation Army.
Her evidence-in-chief was somewhat inconsistent with the evidence she gave in cross-examination. In cross-examination she explained that not only was the money from the sale proceeds of the van used to pay bills, but it also funded the purchase of the current vehicle she drives, a Hyundai Excel, for about $2,100. Given that the totality of the bills referred to in the documents she produced was about $4,000, she could not really explain how they were paid from the sale proceeds of the vehicle, other than by reference to borrowing from her family. She agreed that when he left her the house the van was there complete with paint, ladders, tools of trade and signage. Indeed, she recognised that that the vehicle was part of her husband’s ability to earn his income. She says that she sold the van to her sister's boyfriend within a week or two of separation, after she had arranged for the signage to be removed. She denies having any contact with [T]'s Toyota and indeed any knowledge of what happened to the vehicle after it was transferred to Mr B. She denies that anything more than $5,000 was paid for the vehicle and indeed denies being aware of the fact that he then sold the vehicle for $16,000 within days of it being transferred to him. The subpoenaed material confirms this transaction.
The wife agreed in cross-examination that she sold the vehicle for much less than it was worth but this was on the basis of necessity - she needed money to pay the mortgage and feed the children. It was put to her that she could have taken the vehicle to a car yard but she says there was no time. She also gave evidence that before selling the vehicle she took the shelves out of it and placed them, together with the paint, tools and GPS in the garage. She denied that she had disposed of these items and in fact asserted that the husband had taken them on the weekend when he had broken into the house (presumably, the weekend of 23 April 2006 referred to in the previous section of my judgment). The wife denied in cross-examination that her actions in any way stopped the husband from working and she asserted that he continued to work after separation.
The husband has failed to satisfy me that, on the balance of probabilities, the wife in fact received more than $5,000 from Mr B. The onus of proof in this regard was on the husband. Mr B did not give evidence.
However, the evidence does satisfy me that, on the balance of probabilities, the wife sold the vehicle in question for $5,000 when its value at the relevant time was $16,500. In effect, the husband asserts that this was an act of waste by the wife, and that in accordance with the Court's decision in Kowaliw the difference in value ought to be added back as notional property. The wife's actions were clearly reckless, but she says it was necessary. Baker J's decision in Kowaliw refers to two alternative criteria in order to establish waste. Firstly, a party must have embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets. I doubt if that was the wife's intention. It was not put to her in cross-examination. I find that she did not, on the balance of probabilities, sell the van with a view to reducing or minimising the value of matrimonial assets.
The alternative criterion, however, is that a party has acted recklessly, negligently, or wantonly the overall effect of which has reduced or minimised the value of assets. This is much more complicated. The wife says that an almost immediate sale at an undervalue was necessary because of the financial circumstances that she found herself in. I accept that all of the money went towards paying the debts of the family and/or the purchase of a substitute family vehicle. Ironically, had she sold the vehicle at its proper value she would have had more funds with which to meet these expenses, and indeed, having regard to all the other evidence, would probably have had to borrow less from her family. She probably acted negligently, albeit in good faith. When one has regard to the findings about family violence that I have made in the previous section of my judgment one can only imagine the emotional turmoil confronted by the wife at the time of what must have felt like (and indeed was) the final separation from her husband who was the main financial provider for the family. She had a very substantial mortgage commitment to meet, bills outstanding, and three children to feed. At the time, she appears to have been entirely dependent upon Centrelink benefits. Thus, she acted negligently, but in good faith, and the transaction lacks the element of "mean spirited gesture" referred to in D & D (2003) FMCAFam 74. It is hard to avoid the conclusion that her actions also had the overall effect of reducing the matrimonial pool either in the sense of the difference in value of the van ($16,500 - $5000 = $11,500) or in the sense that she was forced to incur post separation borrowing unnecessarily. This must be reflected in the final alteration of property interests.
However, my finding above does not mean that I accept the husband's evidence about the crippling effect of this on his business and his earnings. Indeed, his evidence in this regard was carefully tested in cross-examination, by counsel for the wife. This evidence indicates that when he left the home at separation his business account probably had about $1,000 or $2,000 in credit. He denies taking any cash from the home. He had $50 cash in his wallet. He took with him a yellow motor vehicle. He agreed in cross-examination that he sent two friends to the former matrimonial home to collect some tools of trade. He asserted that he was completely out of work for three months after the date of separation that is until the end of June 2006. He agrees that in the 2007 financial year he earned more from his business than in the 2006, and therefore no action of his wife damaged his business that year.
The husband's affidavit and oral evidence, together with the documents produced on subpoena, enables me to make the following findings about his financial circumstances at separation. As well as the money referred to above, on separation he had a yellow car which he sold about three weeks later for $1,500. He also had a Honda motor cycle which he sold in May for about $1,500. On 27 April 2006, less than six weeks after separation, the husband applied for income protection insurance. On his application form he indicated that his gross income in 2005 was $80,000, and his personal/taxable income was $32,000. For 2004 he asserted that it was $80,000 and his personal/taxable income was $32,000.
On 29 April 2006, again less than six weeks after separation, the husband went to [T] Toyota and purchased the Toyota van that he used in the course of his work prior to separation. He paid $19,800, on finance requiring payments of $650 per calendar month.
On 20 May 2006, about two months after separation, the husband's partner, Ms K transferred to him her Honda Prelude motor vehicle. This was sold in early 2007 for between $2,500 and $3,000.
On 23 November 2006 the husband purchased a Suzuki motorcycle for $13,000.
On 12 April 2007, less than a year after separation, the husband purchased a red BMW 323CI two-door coupe for $40,000. A letter from the husband's accountant addressed to GE Automotive Finance represents that the husband's taxable income estimate for the year was $41,000. He paid a $10,000 deposit, and the monthly cost of his finance was $516 per calendar month.
The husband agreed in cross-examination that, at the moment, between his partner and himself there are two BMWs in their household. He also agrees that he operates a Visa card credit card which, on average, indicated expenditure of between $2,000 and $2,500 per calendar month, since separation.
He was cross-examined about a financial statement previously sworn in these proceedings on 1 May 2007 in which he disclosed that his income was $400 per week, but he did not disclose the fact of his relationship with Ms K. The husband attributed this to "an honest mistake of my solicitor". He agreed in cross-examination that the $400 per week was a net income which translated to about $20,800 per annum.
In addition, the husband produced a number of tax assessments and a few taxation returns, though not for the 2007 or 2008 years. His personal/taxable incomes for the years 2001-2006 are as follows:
a) 2001 $30,809;
b) 2002 $24,744;
c) 2003 $29,545;
d) 2004 $24,887;
e) 2005 $17,805 and
f) 2006 $8,100.
The totality of this evidence about the husband's post-separation financial circumstances leads me to make the following findings. If the husband indeed suffered financially as a result of the separation it was for a minimal period, and certainly for no more than three months. The totality of the evidence indicates that the by the start of the 2007 financial year he had recovered to at least the position he was in during the 2005 financial year. In any event, I have grave reservations about the veracity of the information the husband has provided in relation to his income for the 2006 financial year. His actions speak far louder than his words, or the financial information he has provided. Less than six weeks after separation he is confident enough about his financial circumstances to be able to incur a debt of almost $20,000 repayable at the rate of $650 per calendar month. Within eight months of the date of separation he is confident enough to be able to purchase a Suzuki motorcycle for himself. Within 13 months of separation he is confident about his own finances such that he can purchase a red BMW coupe for his own purposes. These actions are plainly inconsistent with his assertions about the terrible impact on his business of the wife's actions in selling the van together with some of his work equipment and tools of trade. His actual financial situation is plainly inconsistent with his assertion of inability to provide any assistance to the wife in repaying the mortgage or paying anything other than nominal child support.
I accept that the husband had threatened the wife to "see her out on the street" in August 2006 at a time when he knew that the wife's financial position was perilous, and his own financial position had, in all probability, already recovered to its premarital state.
The Post-Divorce Letter
The wife's evidence about this issue is contained at paragraph 34 of her affidavit filed 21 April 2008. She explains that the husband commenced proceedings for dissolution of marriage, and that a divorce was granted on 31 January 2008. She says that she did not discuss the divorce with the children. She asserts as follows:
The respondent sent members of my family copies of the divorce certificate. The letters were addressed to family members and were supposedly sent by my son [X]. Annexed hereto and marked R is a copy of the letter and the envelope. Similar letters were forwarded to each of my sisters and myself.
The copy of the letter attached to the affidavit is one addressed to "Dear Aunty: [Ms D]" and purports to come from: "[X], [Y] and [Z]". The closing signature is "[X]". The text of the letter is as follows:
We just sending you from behalf of us: the Certificate [sic] of the divorce Between [sic] mum and dad. For you to play the big role in example: Calling the police… Give my mum the order to Throw [sic] my dad out of the house… Taking his van strip it then sell it [sic]... Its very big achievements that you made [sic].
See you should have known that my dad is smart and he made it on his Own [sic], he is rebuilding stronger than ever. I look at the picture now My Mum don’t talk or friends with you & she knows the truth that she was weak and you used her [sic]. See what im gonna [sic] blame my dad fo [sic]!!!
The HOLIDAYS.. The CARS.. The GFTS [sic] & Life was giving us or I try to believe he had Girrrrrlfreinds [sic]… The life that were [sic] living now we cant [sic] even have a car to go school [sic] with, I know who to blame. See my mum doesn’t let us see dad because she it too hurting 4 him [sic] & he was nothing but a good man and the truth will always be there.
Well I believe my mum doing [sic] the TIME for MOTHER & SISTER that did the CRIME [sic].
What goes around…Will come around [sic]
Attached is the certificate of divorce which must have been issued after 1 March 2008. Also annexed is a further document in these terms:
"To: [M] or [Mr B]
From: [X]
That's your certificate …..
Frame it and hang it on top of your bed …
You did a good job with the van.
Before referring to the evidence of the husband in relation to this letter, it is important to set out the context of his cross-examination. The annexure Q to the wife's affidavit is a copy of the letter dated
21 August 2006from the husband, to Glennis Court, the wife's solicitor. It deals with a number of issues, some of which become relevant later in these reasons. What the wife's counsel considered to be significant, however, was what appears, at least to the naked eye, to be the similar style of type used in the husband's letter, being annexure Q, and the letter being annexure R, supposedly from the older son [X]. Another similarity is the use of italic and the use of upper case. No expert evidence was called from a forensic document examiner about the two annexures.
The husband agreed in cross-examination that he was in court at the time that the divorce application that he had lodged was granted. He denied writing the annexure N. He denied that it was written on his computer. He had no explanation for it. He asserted that the first time he had seen it was when it was presented to him in cross-examination, but then he immediately agreed that he had heard counsel for the wife cross-examine the family consultant about the letter at a much earlier stage in the hearing. Nonetheless, he denied having anything to do with this letter. It was put to him that he in fact sent the letter and the divorce certificate to the relatives. The husband replied that he would not do a silly thing like that. It was put to him that the language in that letter was similar to the letter that he had written to Ms Court, the wife’s solicitor. He agreed that it was similar, that the font was matching, but pointed out that it was not hard for anyone to reproduce the same. He says that he did not send the letter. He agreed that he was very angry when the wife took the van. He says that he did not know who would write such a letter. He agreed, however, that if the children saw this letter it would be damaging to them. He agreed that no-one else had access to his computer. He also agreed that [X] would not send the letter.
The totality of the evidence does lead me to conclude that, on the balance of probabilities, the husband did send the letter in question. There is no-one else who would have the motive to send the letter. The similarities between the letter in question and the letter that the husband sent to the wife's solicitor are noteworthy. As the standard of proof is on the balance of probabilities, I accept that it is more likely than not that the husband sent this letter. I could not reach the same conclusion if the standard of proof were beyond a reasonable doubt. The actions of the husband in sending this letter are consistent with his behaviour in relation to family violence, and his controlling behaviour of the wife, and of his financial actions in the post-separation period. At the very least, the sending of this letter demonstrates an appalling lack of insight. At worse, it demonstrates amazing irresponsibility and vindictiveness on the part of the husband which certainly helps one to understand the concerns that both family consultants, and the wife, have about the children spending time with the father.
Is there a meaningful relationship between the children and their father, and what is the nature of that relationship?
The first family report, dated 9 August 2006, presented a reasonably positive report on the observation of the interaction between the children and the father. For example, at paragraph 25 the family consultant notes that when "the children were seen in the company of their father, they greeted him with some familiarity and warmth …
Mr Shaw was very boisterous and jovial and the children seemed to respond to this". Nonetheless, at paragraph 32 the family consultant observed that both younger children expressed some ambivalence towards their father, and the oldest son [X] seemed more subdued and strained. The recommendation of the first report was for contact at a supervised contact centre and, subject to the provision of a favourable report on the children's reactions during their time with their father, unsupervised contact on a regular and consistent basis.
Eighteen months later, the second report dated 26 February 2008 presented a much darker picture. Between the two reports I had made interim orders for the father to spend six hours of time with the children each Sunday. Notwithstanding that, the husband reported to the family consultant that he had had no time with the two younger children since just after Christmas 2007, and had not spent time with his eldest child [X] since September 2007. The family consultant reported that all of the children refused to be interviewed with their father. In relation to [X], at paragraph 22 the family consultant notes:
[X] refused to be interviewed with his father and told the family consultant that he did not want to spend time with his father. [X] did not disclose what was behind this wish, but he stated his wish clearly and emphatically.
The child [Y] also expressed that she did not want to spend time with her father and did not want phone calls from him. The child [Z] also stated he did not wish to see his father, though he did admit that he would like some phone contact with him.
I will deal with the issue of the children's views in due course. My strong impression from the reports is that there is no meaningful relationship between [X] and his father, at least for the time being. In the second report, even the father seemed to acknowledge this. However, I would not be prepared to say, at this stage, that there is no meaningful relationship between the younger children and the father. Clearly their relationship at this time is a strained one. The mother believes that is because of the previous history of family violence and lack of support provided by the father. The father believes that it is because of the mother's negative influence. There is probably an element of truth in the views adopted by both parents. I think this is reflected in the evaluation contained in the second report. It should be noted that the second report states that no order for time between the father and the children should be made, though phone calls, exchanges of cards, gifts, etc., should be facilitated. Despite this, I find that there is a meaningful relationship between the younger children and their father, though I would describe the relationship as a strained one, at least for the time being. If both parents were to take on board seriously the recommendations made by the family consultant, this could change. Specifically, the mother would benefit from counselling to assist her to strengthen emotionally and better protect the children from her own distress, hopefully allowing the children to leave her to see the father without too much anxiety. The father needs to acknowledge his past violent behaviours towards the mother and recognise the traumatic impact this has had on his wife and children, rather than minimising the consequences. Moreover, increasing financial support for his family would also improve his relationship with them. These recommendations are clearly articulated at paragraphs 24 and 25 of the second report.
Is there a need to protect the children from harm, abuse or neglect?
Based on the evidence which has been set out above, about family violence, I am satisfied that since separation there has not been physical violence. However, as recently as Christmas last year I am satisfied that the husband was still trying to control his former wife's behaviour, thus indicating to me that the influence of previous family violence has not yet abated. Moreover, that controlling behaviour is manifest also in his lack of financial support, about which I will have further to say below, specifically in the context of health insurance. The evidence I have set out above about the husband's post-separation financial circumstances leads me to conclude that he has behaved quite irresponsibly towards his children, from a financial perspective. This financial irresponsibility does not fall within the statutory definitions of either "family violence" or "abuse", but it does, in my opinion, fall within the definition of "neglect". The husband gave evidence that, currently, he has a nil assessment which I presume is either no child support per month, or the minimum amount of child support per month. However, he also gave evidence that he spends $30 a week on gym membership fees. I ask him to reconsider his sense of priorities. At the moment he is neglecting his children.
Family violence casts a long shadow. It is often the case that events involving violence that have occurred long in the past continue to influence present and future events. That this is so reflects the pernicious, insidious effects of family violence. The physical violence has stopped, but its psychological impacts have not. These psychological impacts are referred to, at length, in the family reports. Even if the children have not witnessed violence, they have experienced it in their own way and continue to suffer from it. For the time being, I find that for the children to spend time with the father there is the risk of at least psychological harm arising out of past acts of violence.
What weight should be given to the views of the children?
In the second family report [X], who was then aged 15, clearly articulated his views not to spend time with his father, or even to have contact with him. I must give weight to those views.
The same cannot be said, however, for the views expressed by the youngest children. At paragraph 23 of the second report the family consultant acknowledged that the expression of their views may well have been influenced by their older brother's stance. I agree that this is understandable, but it also means that I would not be making a decision in relation to the two younger children, based on the views they have expressed.
The mother's willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father
Despite the mother's repeated assertions in evidence that she wants the children to have a relationship with their father, my overall impression is that she fails to understand how her own behaviour is inhibiting this taking place. At paragraph 24 of the second family report the family consultant refers to the wife's "distress, conflicting feelings for her husband and her anxiety for the children spending time with the father, are evident and she appears to be struggling emotionally. She impresses as a loving and concerned parent who is working hard to support her family." Later on the family consultant records the wife's surprise to learn that the children were feeling the level of anxiety that she herself felt and, indeed, the wife agreed that she needed to try harder to protect the children from this.
I am satisfied that, under the circumstances, the wife is doing all that can be reasonably expected of her, having regard to what she has experienced. She has managed to keep the family together since separation under enormously difficult circumstances. I am satisfied that she has survived years of family violence. The husband is correct, however, in submitting that the mother could, and should, try harder to facilitate this ongoing relationship, at least for the sake of the children. It is ironic indeed, however, that the husband would adopt this stance in circumstances when he has so actively caused the very circumstances that help one to understand why the wife might be regarded as unwilling to so act.
The capacity of the father to provide for the needs of the children
Firstly, there is no issue about the mother's capacity to provide for the needs of the children. Indeed, the father in cross-examination, much to his credit, acknowledged that she is and was at all relevant times a good mother for the children. Indeed, I think the children are very lucky to have her, under the circumstances. The issue, thus, is the capacity of the father to provide for the needs of the children. This additional consideration refers to the needs of the children, including emotional and intellectual needs. It thus goes beyond the physical. As I have indicated above, the nature of the father's relationship with the younger children is strained and this inhibits his capacity to provide for their needs. I believe the evidence indicates that, in so many ways, the husband lacks this capacity. Most of it is related to lack of insight. It starts with lack of insight in relation to the impact of his violence, including the text messages sent to the wife, the controlling behaviour, and his financial irresponsibility in the post-separation period, and continuing. His lack of insight was further evident in cross-examination when it became plainly obvious to me that he did not agree that there was any issue arising out of his relationship with Ms K, a former teacher of one of the children, and the children's uneasiness about spending time with her. Regrettably, the totality of the evidence leads me to conclude that, for the time being, the husband does not have the capacity to provide for the needs of the children, be they physical, emotional or intellectual.
The attitudes of the father towards the children, and to his responsibilities associated with parenthood
Much of the evidence to which I have referred to above already reflects poorly on the husband's attitudes towards the children, and to his responsibilities of parenthood. Perhaps the most disturbing evidence of all relates to the health fund membership. At paragraph 18 of the husband's affidavit filed 18 April 2008 he explains that he still has the children covered under his health fund and as a result pays a higher premium of about $105 per month.
At paragraph 30 of the wife's affidavit filed 21 April 2008 she explains that all the children require orthotics, that the younger children wear glasses, and that she had instructed her solicitor to write to the husband seeking details of his health insurance fund. The correspondence is annexed to her affidavit.
Specifically, the husband's response is the annexure Q. This is a letter dated 21 August 2006 sent by the husband personally to Ms Court, the wife's solicitor. I extract the relevant part as follows:‑
Replying to your letter which your client requesting my NRMA health fund details [sic]. I would like to inform you that your client will not get anything more than $26.50 per month for what you call child support. With me being the dad for those kids (a) she wants to fight me with those kids by not having any contacts [sic]. I will never be easy or support with any other way [sic]. It will always work both ways, when there is contact there will be support [sic].
The letter indicates, quite clearly I believe, that in the husband's mind access to the health insurance was dependent upon the mother providing time between the children and himself.
He was cross‑examined about his health insurance. In response to a question about allowing access to the health fund, he indicated that he would not give such access unless he himself took the children to the doctors. When it was suggested to him that he had never freely given the wife access to the health fund, he indicated that he would have been happy to do so if he had got time with the children. When he was asked whether he was now prepared to let her use the health fund, his answer was a clear "No".
The following evidence he gave presents a picture of a father who had entirely blamed the mother for the children not wanting to spend time with him, and accepting no responsibility whatsoever of his own actions.
He was cross‑examined further about this issue, at a later time. He acknowledged that he had become aware that his son needs orthodontic treatment but was still not prepared to allow access to the health fund. He continued to express the view that he had never said she can't use it, but if she gave the children to him, then he will do these things himself.
Clearly, the husband is unable to separate his own feelings towards his former wife and the breakdown of their relationship from his feelings and responsibilities towards the children. He cannot see that he is hurting the children by his actions. It demonstrates, regrettably, an appalling lack of insight into the needs of his children, a very poor attitude about their needs, and a high degree of irresponsibility in relation to the duties of parenthood.
A further example of his poor attitude, and irresponsibility as a parent, is demonstrated in cross‑examination. He agreed that he had said to the children "I've won the Court case" after the interim order was made. On the 22nd of August 2007, at the same time as making the interim orders for supervised time, I had also restrained the parents from discussing the proceedings in the presence or hearing of the children. The husband's actions were irresponsible.
A further example of irresponsibility, and a poor attitude, arises out of the evidence that the husband gave that he spends about $30 per week on gym membership but is currently paying no child support.
Conclusion about parenting orders
The wife sought orders that, in effect, provided for the children to live with her and for her to have sole parental responsibility in relation to the children. She also proposed that the husband have reasonable communication with the children, cards and telephone.
Having regard to all of the evidence, I agree that these are the appropriate orders to make in this case. The presumption of equal shared parental responsibility set out in 61DA of the Act is rebutted because of the family violence, and in any event would be negated because the presumption would not be in the best interests of the children. There is no communication between these parents, which is highly problematic. It is inconceivable that there should be joint decision‑making having regard to the findings that I have made.
Making an order for no time between the father and the children is not an order that is made lightly. However, that is what was recommended in the second family report and indeed paragraph 25 of that report seems to indicate that, as at the date of the interviews, the husband had accepted this as the outcome of the case. Nonetheless, he chose to pursue the proceedings again without regard to the impact of this on the wife, and therefore on the children.
An outcome wherein the children have no time with their father is a very sad, and disappointing one but it is an outcome that the husband has brought upon himself as a result of his actions and inactions. It is not an irreparable situation, but there is much work that he needs to do in order to lay the ground work. The second family report clearly articulates what he needs to do.
Alteration of Property Interests
Identifying the pool of assets and liabilities
I was only provided with one list of assets and liabilities at the end of the hearing, and that was from counsel for the wife. This was despite a direction that had been made well before the hearing for one document to be provided on behalf of both parties, clearly identifying the contested issues. I reproduce the document produced by the wife below but I will incorporate matters raised on behalf of the husband:‑
| Asset | Wife’s value | Husband’s Value | Agreed Value |
| 1 | Property R – Joint | $455,000 | |
| 2 | Wife’s furniture and contents | $3,000 | |
| 3 | Husband’s furniture and contents | $3,000 | |
| 4 | Husbands tools and plant | ||
| 5 | Husband’s business | Not known | |
| 6 | Wife’s Hyundai vehicle | Nil | |
| 7 | Husband’s Bank Account | N/K | |
| 8 | Husband’s BMW vehicle (joint with Ms K) | $15,500 | $12,750 |
| 9 | Husband’s Suzuki motorcycle | $9,639 | $7,000 |
| 10 | Husband’s Toyota Hiace Vehicle | $19,800 | $10,000 |
| 11 | Husband’s Honda Prelude | $2,200 | |
| 12 | Husband’s BMW vehicle | $3,200 | |
| TOTAL | $53,339.00 | $32,750.00 | $455,000.00 |
| Liabilities | Wife’s value | Husband’s Value | Agreed Value |
| 13 | ANZ Bank (joint secured by mortgage) | 330,000.00 | |
| 14 | Debt allegedly relating to husband’s BMW vehicle (joint with Ms K | ||
| 15 | Debt allegedly relating to Husband’s Suzuki Bike (Reg [T]) | ||
| 16 | Debt allegedly relating to Husband’s Toyota Hi Ace (Reg [E]) | 7,793.16 | |
| 17 | Ms B | 27,208.64 | |
| 18 | Ms D | 7,000.00 | |
| 19 | Ms O | 2,500.00 | |
| TOTAL | $36,708.64 | $7,793.16 | $330,000.00 |
| Superannuation | Wife’s value | Husband’s Value | Agreed Value |
| 20 | Club Plus (nominal)(Wife) | N/K | |
| 21 | R.E.S.T. (Wife) | 2,030.00 | |
| 22 | No fund disclosed by the Respondent | N/K | |
| TOTAL | $2,030.00 | $0.00 | $0.00 |
The husband also asserted that the wife owned a Mazda motor vehicle which he says was worth $20,000, and had superannuation to the value of $2,030. He also asserts that included as a liability should be his NAB Visa card with the balance of $5,753.22, his ANZ overdraft with a balance of $8,000, and legal fees he has paid to date of $7,425.
Referring, firstly, to the list of assets and liabilities referred to above, there is a clear lack of agreement about the values referred to in items 8, 9 and 10. In submissions, counsel for the wife agreed that I should adopt the figures advanced on behalf of the husband because they were, at the very least, an admission against interest. I agree that that is appropriate. I will adopt as the values of items 8, 9 and 10 the values asserted by the husband in his financial statements filed 21 April 2008.
In relation to items 11 and 12, the wife's counsel, in closing submissions, suggested that the figures should be adopted on the basis of add backs i.e. a property that the husband had on separation which he disposed of. I decline to do so. I am not satisfied that the evidence enables me to make the finding value referred to. In any event, it will be seen that items 14 and 15, liabilities for the purchase of motor vehicles by the husband, are blank. Indeed, the husband advances no evidence about the debt owing on the BMW or the Suzuki bike, even though it was clearly appropriate for him to do so. There is some evidence to indicate that these vehicles were purchased using, at least in part, moneys from the sale of vehicles that might include those referred to at items 11 and 12. That is another reason for excluding these assets.
I find it extraordinary that the husband advances no evidence about the debt owing for the items referred to at items 14 and 15. So be it. He was well represented at the hearing.
I accept item 16 as being the only evidence of this debt, being an admission against interest.
Item 17 is contentious, and I will need to make findings in relation to the same.
Items 18 and 19 are post separation loans advanced but to the wife. The evidence is contained in various affidavits. In each case the husband did not require the deponent to be cross‑examined.
I agree that the wife's REST superannuation should be included in the pool of assets, though she asserts that it was accumulated after separation.
There was no evidence before me about the value of the NAB Visa card debt, the ANZ Bank overdraft or legal fees. Nothing turns on this, in the end result. I will not take them into account but they were, in any event, the post separation personal liabilities of the husband. If he had sought to have me include these in the alteration of property interest, proper evidence should have been advanced in relation to these liabilities.
It is convenient to deal with the waste issue in relation to the van. I discuss the evidence under the heading of "Post separation financial circumstances of the husband" above. I agree that there was waste and that there should be notionally added back into the property pool, on the wife's side of the ledger, the sum of $11,500 representing the difference between how much the wife received from the sale of the vehicle to her future brother‑in‑law, and what he later sold it for.
The loan from Ms B, the wife's mother, is contentious. Ms B was extensively cross‑examined by counsel for the husband. The real thrust of this cross‑examination was not so much to establish whether the moneys had, in fact, been provided by the mother, to the wife, but rather the source of the funds. The husband sought to establish that the source of the funds was, at least in part, the actual proceeds of the sale of his van by the wife to her future brother‑in‑law and then on to [T]. This was unsuccessful.
I am satisfied with the evidence that Ms B gave about the source of these funds, and I accept that the vast majority of the funds came from the sale proceeds of land in Lebanon. I am satisfied that she didn't have anything to do with the sale of the van. Indeed, I am satisfied that the wife only received $5,000 from the sale of the van.
I note I have already made findings about waste in the previous section of this judgment.
Accordingly, the asserted loans to the wife post separation should be included in the balance sheet. I am satisfied that without this loan it would not have been possible for the wife to pay the mortgage on the property, and meet her post separation living expenses for the family. The loan was directly attributable, therefore, to preserving the main asset of the parties, namely the former matrimonial home.
I am left in no doubt, from the evidence, that there was at least one time post separation (and possibly two times) when a mortgagee sale was imminent, but was staved off by the wife as a result of the support of her mother and sisters.
Based on my findings, therefore, the final balance sheet is:
| Asset | Value | |
| 1 | 10 Property R, Property R – Joint | $455,000 |
| 2 | Wife’s furniture and contents | $3,000 |
| 3 | Husband’s furniture and contents | $3,000 |
| 8 | Husband’s BMW vehicle (joint with Ms K) | $12,750 |
| 9 | Husband’s Suzuki motorcycle | $7,000 |
| 10 | Husband’s Toyota Hiace Vehicle | $10,000 |
| 11 | Add-back to wife re sale of the van | $11,500 |
| TOTAL | $502,250.00 |
| Liabilities | Value | |
| 13 | ANZ Bank (joint secured by mortgage) | 330,000.00 |
| 16 | Debt allegedly relating to Husband’s Toyota Hi Ace (Reg [E]) | 7,793.16 |
| 17 | Ms B (wife) | 27,208.64 |
| 18 | Ms D (wife) | 7,000.00 |
| 19 | Ms O (wife) | 2,500.00 |
| TOTAL | $374,501.80 | |
| NET NON-SUPERANNUATION POOL | $127,748 (rounded off) |
| Superannuation | Value | |
| 20 | Club Plus (nominal)(Wife) | N/K |
| 21 | R.E.S.T. (Wife) | 2,030.00 |
| 22 | No fund disclosed by the Respondent | N/K |
| TOTAL | $2,030.00 | |
| TOTAL COMBINED POOL OF ASSETS | $129,778 |
Contributions up until the date of final separation
It should be noted that almost 14 years elapsed between the date of marriage and the date of separation during which time the husband and the wife both made diverse and different contributions for the purposes of s.79 of the Family Law Act. Other than a number of specific issues that arise on the facts of this case, and to which I will shortly refer, I find that their contribution in the broad sense was equal. Even if it was the case that the husband was earning more than the wife, she bore the primary responsibility for caring for the children.
However, a number of very specific issues were raised on behalf of the wife. She asserts that she had $10,000 in savings at the time of marriage, that her mother provided them with four years of rent‑free accommodation, and that the mother provided them with a further $12,000 as part of the deposit towards the purchase of their first home at Property P. The father denies that the mother had savings at the time of their marriage, agrees that the mother did provide them with four years rent‑free accommodation, and strongly denies that the mother provided any funds towards the deposit for Property P. Indeed, he asserts that he had savings in the marriage, and that by the time they purchased Property P in 1996, four years after marriage, they had together managed to save the deposit.
The wife then raises the further issue of whether a Kennon‑type adjustment should be made in her favour. In essence, her argument is that as a result of the family violence perpetrated by the husband against her, her contribution became much more arduous and therefore needs to be recognised in the ultimate adjustment under s.79. I will come to this in due course.
Both the husband and the wife were extensively cross‑examined in relation to all of the above issues. There were no documents produced to verify the assertion that the wife had savings at marriage and I would be very surprised indeed if that were the case having regard to her age and earning capacity. Even if she did have $10,000, however, it was at the commencement of a relatively long marriage that produced three children and so much has happened since then that I would not be prepared to place any significant weight on it.
I do not accept the evidence that the wife's mother provided them with $12,000 towards the deposit on the purchase of their Property P home. It is far more likely than not that, after four years of marriage, and residing in the mother's home, the husband and the wife were able to jointly save the deposit on this property. In any event, the evidence about this $12,000 provided by the mother was less than convincing. The wife gave inconsistent evidence about how much was provided, saying it was $24,000 in an earlier affidavit but only $12,000 in her affidavit of 21 April 2008.
The evidence from Ms B (the wife’s mother) on this issue was, again, less than convincing. The photograph that she purported to rely on as corroboration of the making of this gift did not provide the level of evidence that one would expect. Moreover, the manner in which she gave evidence about this gift was notably different to the manner in which she gave evidence about the post separation loans. Accordingly, I do not accept that any funds were provided by the wife's mother towards the deposit.
However, it is highly unlikely that the husband and the wife would have been able to save the deposit of $30,000 towards the purchase of their first home but for the mother's generosity in providing rent‑free accommodation to her daughter and son‑in‑law. This needs to be recognised as a meaningful contribution which is made through the wife. The net pool of assets in this case is not large, which makes the mother's contribution more significant. Even so, it was of indirect financial assistance and it is likely, for example, that even if the husband and wife had been renting they might have been able to save funds.
Under the circumstances, I believe that a 10 per cent adjustment in favour of the wife for this contribution made through her mother, is just and equitable under the circumstances.
The wife seeks a further adjustment pursuant to the Full Court's decision in Kennon & Kennon (1997) FLC 92‑757. On behalf of the wife it was submitted that she was subjected to violence and abuse over a significant period of time during the marriage, and indeed afterwards, which made her already substantial contribution more onerous and more significant. I have made findings of violence which certainly started no later than 12 August 2001, but which may have started earlier.
I am satisfied that the Full Court in Kennon intended that an adjustment could be made if there was a course of violent conduct by one party towards the other which is demonstrated to have had a significant adverse impact on that party's contributions to the marriage, or that their contributions were significantly more arduous than they ought to have been. But the principle in Kennon was deliberately framed in narrow terms, and would apply only to a very limited range of cases. It would be necessary to show that the conduct had a discernable impact on the contributions of the other party.
As reprehensible that I find the husband's conduct to be, I can only make findings on the evidence based on two events before the day of separation i.e. 12 August 2001 and 28 August 2005. These were clearly events of a distressing nature to the wife. However, the only evidence that she gives about the consequences of these assaults on her capacity to contribute is at paragraph 46 where she asserts that she received permanent damage to her left shoulder, a permanent numbness in her left hand, and that she suffers severe pain across her shoulders and headaches. She produces no corroborating evidence in this regard, even though one would have thought it was easily available. Moreover, none of her evidence actually explains how her contributions were rendered more arduous. At most, I am left to draw an inference that this was plainly a case where, in view of the nature of the allegations, and the findings I have made, it is reasonable to infer that her contributions were more arduous. I don't believe that the Full Court's decision in Kennon allows me scope to make these findings based on an inference in a situation where the evidence could easily have been led. Accordingly, I decline to make a further adjustment based on the Full Court's decision in Kennon.
Thus, I find that up until the date of final separation, the wife's contribution should be assessed at 60 per cent, and the husband's 40, primarily to reflect the generous provision by her mother to them of four years rent‑free accommodation, during which they were able to save the deposit on their first home.
Post separation contribution
In my discussion of this issue, I incorporate the findings I have made in relation to the post separation financial circumstances of the husband, and the wife's disposal of the husband's work van. There is no doubt that for more than the last two years since separation the wife has carried the load both financially and non‑financially in terms of preserving the matrimonial asset, being the former matrimonial home, as well as attending to the needs of the family. She has had considerable financial assistance from her mother, and two sisters, but if I allow these loans as liabilities that ought to be taken into account in the final alteration of property interest and shared between the husband and the wife, then I need to be very careful not to double‑dip in making an adjustment in her favour for post separation contribution.
However, the fact is that the three loans in question amount to just under $37,000. In the 24 month period immediately after separation, the mortgage payments alone were $48,000. There is clearly a separate adjustment called for to reflect what I consider to be the very significant efforts of the mother in meeting the needs of the children with hardly any financial assistance from the husband, and at all times whilst under financial duress. Moreover, this contribution to the welfare of the family took place in the context where I have found that not only did the husband not provide, but he had the capacity to provide support and chose not to do so. It must be recalled that his evidence is that he was spending $30 a week going to the gym, but paying less than that each month by way of child support, at most.
In the husband's household there is not just one but two BMWs. He has a work van and a motorbike. His lifestyle with his new partner is plainly inconsistent with the financial position that he presents to the Court. By contrast, the wife was left almost exclusively to care for the three children of the marriage and somehow also preserve the matrimonial assets.
Having regard to all the evidence, I am satisfied that a further adjustment to contribution for the post separation period is called for. I believe that, under the circumstances, a further 10 per cent adjustment in favour of the wife is appropriate.
Section 75(2) adjustment
When pressed, counsel for the husband conceded that a s.75(2) adjustment be not less than 10 per cent having regard to the three children of the marriage. On behalf of the wife, it was submitted I should make an award at the highest possible level having regard to the small size of the assets pool. Counsel for the wife emphasised that the evidence did not really reveal the true extent of the husband's earning capacity, though, arguably, it has to be more than disclosed in order to fund the lifestyle that he appears to have enjoyed post separation.
Counsel emphasised that two of the children were young, and one experienced learning difficulties. The history of the matter post separation indicates that there will never be any guarantee that meaningful child support will be paid and, indeed, my findings in relation to the husband's post separation financial position confirms this.
I accept and agreed with submissions made by counsel for the wife. The s.75(2) considerations overwhelmingly favour the wife and assume a greater significance when the pool of assets is as modest as it is. Under the circumstances, I think an adjustment in favour of 25 per cent is warranted.
A Just and Equitable Order
If the wife receives 60 per cent for contribution until separation, 10 per cent for post separation contribution and 25 per cent for s.75(2) considerations, this means her entitlement in this case is to 95 per cent of the net matrimonial assets. Even after an adjustment based on the notional property of the van, this gives her an opportunity to retain the former matrimonial home at Property R.
The wife’s entitlement pursuant to these Orders is 95% x $129,778 = $123,289. This will comprise:
Property R $455,000
Furniture 3,000
Add-back 11,500
Less Mortgage (330,000)
Less other debts (36,708)
to her family
Add Super 2,030
$104,822
This leaves a shortfall of $18,467. I propose not to order the husband to pay this amount to the wife. I must leave something to the husband. Out of a small property pool he will retain his vehicles, personal property, and his debts, whatever they are.
Having regard to my findings, and also considering what the children and the wife have been through to date, I believe this is an entirely just and appropriate outcome.
There is, of course, a mortgage over the property. Counsel for the wife has urged me to make an order that only requires the wife to indemnify the husband in relation to this liability, rather than requiring her to refinance. She urged upon me the fact that the wife has already demonstrated for the last two years that she is able to service this debt. Indeed, if the wife fails to service the debt, she is the one most to lose so I am satisfied that there is little or no risk to the husband if I simply order her to indemnify him in relation to the mortgage debt. She will have to assume responsibility for the loans from her mother and sisters.
The husband will, of course, retain the items of property that he has in his possession or control, whether he has disclosed them to the Court or not. It is interesting to note, however, that the husband retains what is probably the most valuable asset that exists in this case ‑ his earning capacity. His earning capacity is not something that is treated under contemporary family law as an asset that may be valued, and then allocated between the parties by way of alteration of property interests. Even so, it is a tangible thing that he takes with him wherever he goes and which, I am satisfied, has provided him with a comfortable lifestyle after separation.
On the facts of this case, I am satisfied that the outcome is just and equitable.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 19 September 2008
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