Teesdale and Wileman

FAMILY COURT OF AUSTRALIA

TEESDALE & WILEMAN

[2014] FamCA 177

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Contributions – Where wife made greater initial contribution – Where wife made contributions during marriage by way of inheritance – Where value of inheritance increased during marriage – Where husband made contributions to the care of wife’s child – Domestic violence – Where husband committed domestic violence against wife – Consideration of Kennon & Kennon – Where case does not fall within compass of exceptional cases

Family Law Act 1975 (Cth), s 75(2); s 79

Kennon & Kennon (1997) FLC 92-757

APPLICANT:

Ms Teesdale

RESPONDENT:

Mr Wileman

FILE NUMBER:

SYC

3998

2010

DATE DELIVERED:

25 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

5 and 6 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Doyle Wilson Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Snelling

SOLICITOR FOR THE RESPONDENT:

Gelonesi Parasyn Solicitors

Orders

IT IS ORDERED

That within three calendar months of the date of these orders (“the due date”) the husband pay to the wife the sum of $116,000.
That upon payment to the wife of the sum of $116,000, the parties forthwith do all things required to transfer to the husband their right title and interest in the property known as “Property P” being the land described as Volume … Folio … .
That in the event that the husband does not pay the sum of $116,000 by the due date, then the parties shall do all acts and things to sell Property P and to disburse the proceeds of sale in the following manner and priority:
(a)In payment of the costs of sale including but not limited to agents’ commission and legal fees.
(b) In payment of the sum of $319,000 to the husband.
(c)In payment of 30 per cent of the amount by which the sale price exceeds $435,000 to the husband.
(d) The balance to the wife.
That other than as provided in Order 1, each party be entitled, as against the other, to retain all property, whether real or personal, in her or his possession at the date of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Teesdale & Wileman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3998 of 2010

Ms Teesdale

Applicant

And

Mr Wileman

Respondent

REASONS FOR JUDGMENT

Before the Court is an application for property settlement arising out of the marriage between Ms Teesdale (“the wife”) and Mr Wileman (“the husband”).
The husband was born in 1949 and is now aged almost 65 years and the wife was born in 1953 and is now aged 61 years. They commenced cohabitation in 1990 and were married in May 1993. When the parties started living together the wife had a child of a prior relationship, B, who was then nine years old, being born in 1980.
At the commencement of co-habitation the wife beneficially owned a property at C Street, Town D (“C Street”), which was subject to a mortgage. She owned a motor vehicle, a horse float and personal possessions. That evidence was unchallenged.
The husband’s evidence in relation to his initial contributions is found at paragraph 16 of his affidavit sworn 11 September 2013 and in his Financial Questionnaire which was signed on 26 August 2013. In the Financial Questionnaire at paragraph 4 the husband states that he had savings of $20,000 and personal property of $20,000 together with superannuation of $10,000. Part D of the Financial Statement contains the following words:
I believe that the facts contained in this questionnaire are true.
I understand that a Judge of the Court and the other parties in the case will rely upon the facts that I have set out in this questionnaire as being true.
The document was signed by the husband.
In his affidavit sworn about two weeks later the husband deposed to having:
a)Household Furniture
b)A Toyota Land Cruiser
c)An International truck
d)Two horses
e)Superannuation
f)Cash of about $5000
It will readily be seen that there is little similarity between the husband’s asserted contributions at the date of cohabitation in his Financial Questionnaire and the contributions which he asserts in his later affidavit.
The wife in her Financial Questionnaire has said that the husband had a bank account with approximately $400 and liabilities.
The husband was cross-examined in relation to his statements at paragraph 16 of the affidavit and was unable to produce any document evidencing the ownership of the Toyota Land Cruiser, the International truck, the horses or the cash which he asserted.
However in Exhibit 5 (to which reference will be made later in these reasons) there is a photograph with a handwritten note in the wife’s handwriting which reads “The [International] truck the yellow Toyota [the husband] had when I met him.” I interpreted this to be an admission on behalf of the wife that the husband owned both the yellow Toyota and the International truck at the commencement of cohabitation. There is however, no evidence of value of either of those items and neither is there any evidence about what became of them or what they were used for.
Having regard to the discrepancies between the husband’s two statements in relation to an issue of contribution and the fact that he was unable to produce any documents to substantiate his assertions, I find that the husband has been unable to establish that he had any significant assets at the date of co-habitation.
The parties initially lived together in the home owned by the wife at C Street.
In July of 1990 the parties purchased a property “Property P” for $170,000. The purchase price of the property was made up by way of a transfer to the vendor of the property at C Street for consideration of $75,000 and a loan jointly taken out by the husband and the wife with Westpac for $101,000.
There is no suggestion that the husband was able to pay any cash sum towards the purchase price.
The parties and B moved into Property P and that was the parties’ home until they physically separated in September 2009.
B lived at Property P until 1995. In 1993 and 1994 B lived with an older brother during the week in order to go to school. In 1995 B left Property P after the husband said to B “Roll your swag and fuck off out of my house.” The husband agreed that he had said those words. B then went to live in the home of a friend in Town D where B finished year 10 at high school and subsequently gained employment and ultimately an apprenticeship.
In the course of the marriage the wife received substantial inheritances, agreed to total $1,884,588.
The parties physically separated when the wife left Property P on 11 September 2009. The husband asserts that that was the date of separation. The wife asserts that there were periods of separation between 2001 and 2006 and that the parties finally separated in April 2006 although they remained resident under the same roof at Property P.
The only objective evidence of the date of separation is contained in an agreement entered into by the parties pursuant to section 90C of the Family Law Act 1975 (Cth) (“the Act”) on 14 August 2009. The agreement was signed by both of the parties and each of them had independent legal representation. The agreement recites that the parties separated in 2007 although they remained living in the same residence.
That agreement was set aside by consent but it retains evidentiary value as to the matters set out therein and agreed to by the parties.
In submissions on behalf of the applicant wife it was conceded that, although the wife believed that the parties were separated, they continued to operate their finances jointly and the state of their belief in relation to separation is irrelevant to the decision as to their respective contributions. Therefore, it is not necessary to make a finding about whether or not the parties separated at some time prior to 11 September 2009. There is no dispute that their finances continued to be jointly administered up until the date of the physical separation.
There is surprisingly little dispute between the parties in relation to the facts upon which this decision will be based. They agree with one exception upon the Balance Sheet. They agree on the value of the wife’s inheritance. They agree that the husband was the greater income earner during the time they lived together.
The matters in relation to which the parties do not agree and therefore the issues to be determined in the proceedings are these:

ISSUES

1.What weight should be given to the wife’s inheritance of a total of $1,884,588 in circumstances where the agreed assets of the parties at the time of trial (excluding the husband’s superannuation) are $1,476,264?
2.Did the husband make any contribution to the wife’s inheritance?
3.What value is to be ascribed to the husband’s superannuation entitlement?
4.What contribution the husband made to the financial maintenance and the parenting of B?
5.The wife’s claim that because of the husband’s behaviour towards her during the marriage, her contributions were made significantly more difficult and therefore there should be an adjustment in her favour (“The Kennon claim”).

THE WIFE’S INHERITANCE

The wife’s father died in 1997 and probate of his will was granted in May of 1997. The wife inherited a third of her father’s estate subject to a life estate in the income in favour of the wife’s mother. The other beneficiaries were the wife’s two brothers. The wife’s father had a substantial shareholding in a company, Teesdale Pty Ltd.
Teesdale Pty Ltd was a company in which the shares were owned by the wife’s father and the wife’s uncle. The principle assets of the company were agricultural properties located near Town D, the properties being run, prior to their deaths, by the wife’s father and the wife’s uncle.
Two of those properties were “Property E” and “Property F”. The wife’s father farmed Property F.
The documents indicate, and it is agreed, that the wife’s one third share of her father’s estate comprised the following:
1.2,068 shares in Teesdale Pty Ltd valued at   $35,869.
2.One third of a 20 per cent interest in Property E                  $19,000.
3.Cash of   $42,416
4.Total  $97,285.
The wife received the cash which she said was used, amongst other things, for work and improvements on Property P. She did not however receive a beneficial interest in the shares in Teesdale Pty Ltd or her share of Property E which remained encumbered by the life estate in favour of her mother.
In December 2000 the wife’s uncle died and the wife inherited from him 1,500 shares in Teesdale Pty Ltd with a total value of $216,900. The acquisition by inheritance of the 1,500 shares in Teesdale Pty Ltd by the wife in December 2000 did not give her the right to occupy or profit from any of the agricultural properties.
The wife’s tax returns for the financial years ended 30 June 2003 to 2009, show her receiving dividends (including franking credits) of $825 in 2003; $70 in 2004 and $132 in 2005. The source of the dividends is not specified.
In 2006 the wife received dividends of $156.88 from AMP and $1,071.43 from Teesdale Pty Ltd. In 2007 she received no dividends from Teesdale Pty Ltd. In 2008 she received dividends of $313.79 from AMP and $13,607.14 from Teesdale Pty Ltd.
On 26 September 2008 the wife and her two brothers entered into a deed with their mother whereby their mother surrendered her life interest in the income of the properties in favour of her three children.
The wife’s one third share in her father’s estate for the purpose of that transaction was agreed to be valued at $943,666. She also retained the 1,500 shares in Teesdale Pty Ltd which she had inherited from her uncle, thereby owning a total of 4,111 shares in Teesdale Pty Ltd valued at $1,488,182.
From 26 September 2008 the wife and her brothers became entitled to share in income from the Teesdale Pty Ltd shares.
In the year ended 30 June 2009 the wife received dividends (including franking credits) from Teesdale Pty Ltd of $13,607.14.
On 24 June 2010 the wife and her brothers entered into a shareholders deed providing for them to purchase the interests of the other four minor shareholders in Teesdale Pty Ltd. The wife purchased two parcels of shares totalling 3,416 shares bringing her shareholding up to 7,527. Those shares were valued at $2,724,774. In order to fund the purchase the wife borrowed $1,250,256. At the conclusion of this transaction the wife’s interest in Teesdale Pty Ltd is agreed to have been valued at $1,474,518.
On 13 October 2010, following the completion of the purchase of the minority shares on 12 October 2010, the wife was entitled to receive $279,225. That amount was paid to her by way of a transfer of livestock to the value of $261,744 and the payment of cash in the sum of $17,481.
On 23 June 2011 the wife, her brothers and Teesdale Pty Ltd (in liquidation) entered into an agreement to distribute the remaining assets of Teesdale Pty Ltd and the wife received $130,845.
Following the completion of the agreement in 2010 the property known as Property F which had been owned by Teesdale Pty Ltd was transferred to the wife subject to the mortgage for $1,250,256 which she had raised to fund its acquisition.
Thus, it will be seen, that whilst the wife first inherited from her father in May 1997, it was not until 26 September 2008 when she and her brothers entered into an agreement with their mother that the wife received any benefit from the inheritance.
At the time when the husband and the wife separated on 11 September 2009 the wife held 4,111 shares in Teesdale Pty Ltd but those shares did not, at that time, confer upon her the right to occupy any of the agricultural properties.
It was agreed that the value of the wife’s inheritances totalled $1,884,588 net, after taking into account the borrowing of $1,250,256 to fund the buyout of the minority shareholders.
To that sum must be added the dividends she received from 2006 to 2009.
It was because of the provisions of the shareholders deed dated 24 June 2010 that the wife became entitled to Property F and to farm the property and receive an income from her farming activities.
Whilst I accept the husband’s submission that the wife first became entitled by way of inheritance to Teesdale Pty Ltd shares in 1997 I find that those shares were of little or no value to her until 24 June 2010 after the parties separated.

THE HUSBAND’S CONTRIBUTION TO THE WIFE’S INHERITANCE

The husband’s claim to have contributed to the wife’s inheritance arises out of his assertion that he did work on various of the properties owned by Teesdale Pty Ltd. At paragraph 26 of his affidavit sworn 11 September 2013 he says:
My non-financial contribution to [Teesdale Pty Ltd] commenced at the beginning of our relationship and continued throughout the marriage. I spent time on the [Teesdale Pty Ltd] properties almost every time I was on a weekend break from work. Examples of my activities include:
a)Attending every annual stock branding session every year
b)I attended every annual weaning session:
c)I regularly shod [Teesdale Pty Ltd] horses and ponies this event took place every six to eight weeks.
d)Assisted with the mustering and provided my own horses and dogs to do so
It is the husband’s case that, having provided that assistance to the shareholders of Teesdale Pty Ltd, he in some way contributed to the wife’s inheriting the property. There is no evidence which supports that assertion.
The husband also says that he contributed in the manner set out above to the maintenance of the Teesdale Pty Ltd properties. That evidence is disputed by the wife, by B and by the wife’s brother.
At paragraph 15 of B’s affidavit sworn 4 February 2014, which was unchallenged, B says:
I accompanied my mother on trips she made to the [Teesdale Pty Ltd] properties and the only occasion I recall the respondent doing any work on those properties was on one occasion where my great uncle [Mr G] had paid for the respondent to put a new motor in his Toyota on the basis that the respondent did work for him. (as per original)
At paragraph 16 A says:
Up until I left “[Property P] I can only recall the respondent going to the [Teesdale Pty Ltd] properties 4 to 5 times a year as he was mostly working in the [mining industry]. I observed him arrive on Saturday lunchtime and leave about Sunday lunchtime during which time he would go shooting, drink beer and talk to my relatives. (as per original)
The wife’s brother, Mr H, in his affidavit sworn 29 January 2014, gave evidence that the husband attended at the properties to ride horses but was never asked to do any work.
Mr H agreed that the husband attended for stock branding and weaning sessions on occasions and when that happened “as often happens when people are visiting a country property” he joined in the farm activities.
Mr H denied that the husband had shod horses or ponies owned by Teesdale Pty Ltd. He gave evidence that Teesdale Pty Ltd employed two stockmen whose responsibility was to shoe the horses which they rode. Mr H conceded that the husband shod some of the children’s ponies from time to time but said that they had not had children’s ponies since about 2000.
Mr H in his oral evidence said that the properties only had one set of stock yards and that those yards were right beside the house in which he lived and that he was in a position to observe when the husband came and went and what assistance, if any, he provided.
Mr H’s evidence was unshaken in cross-examination.
I accept the evidence particularly of B and Mr H and I find that the husband made no contribution to the maintenance or conservation of the property of Teesdale Pty Ltd and therefore to the inheritance of the wife.

THE VALUE TO BE ASCRIBED TO THE HUSBAND’S CURRENT SUPERANNUATION ENTITLEMENTS

In his Financial Statement sworn on 5 December 2011 the husband deposed to having superannuation with J Super Fund of $127,000.
In the Financial Statement upon which he relied at trial, having been sworn on 3 March 2014, the husband said that his superannuation entitlement had been reduced to $42,769.97. When asked in cross-examination to explain the disappearance of some $84,000 worth of funds the husband said that he had used money drawn down from the superannuation fund to pay legal costs of $29,235.
The husband said that the balance of the funds drawn down from superannuation was used to pay off mortgages secured against Property P. I do not accept that evidence.
In his Financial Statement, sworn on 5 December 2011, the husband deposed to having superannuation of $127,000. He swore that the amount owed to the National Australia Bank was $2,830. He gave no evidence of any other liabilities secured over Property P. In those circumstances, I do not accept that the husband paid some $55,000 to the National Australia Bank after 5 December 2012 and before 3 March 2014 in relation to mortgages over Property P.
The husband was asked to produce any document available to him to show the disbursement of the superannuation funds but produced no document. He was unable to give any account or any evidence about what had been done with that money. In those circumstances I treat the husband as having had and received the sum of $55,000. I note, however, that he has $37,000 in his bank accounts and there is no evidence of his having earned such a sum from employment. It is most likely that the money in the husband’s bank account came from drawdowns on his superannuation and that the balance has been spent on living expenses.
That finding does not, however, detract from the fact that the husband’s evidence in relation to that issue was not credible.

THE HUSBAND’S CONTRIBUTIONS TOWARDS THE MAINTENANCE AND PARENTING OF B

The husband’s evidence in relation to B is contained at paragraph nine of his affidavit sworn 11 September 2013 where he says
I took [B] to school most mornings when I was at home, we went to [Sport I] on the weekends that I was at home. I took [B] to … weekend [Sport K] games and sporting events.
The husband’s evidence was disputed both by the wife and by B.
The husband in cross-examination conceded that he did not take B to school or collect B from school but rather he drove B on occasions to the bus stop. B disagreed. It was B’s evidence that B rode his bike or walked home in the afternoons from the bus. To the extent that the husband did that it can only have happened between 1990 and 1992 since in 1993 and 1994 B lived with B’s brother during the week so that B could attend school.
B in an affidavit sworn 4 February 2014 deposes to having had a good relationship with the husband for the first year after B’s mother and the husband started living together but not thereafter.
B’s affidavit was unchallenged and B was not required for cross-examination.
B observed that the husband would drink beer every day that he was at home. B said that the husband would often arrive home during the day with six or more large bottles of beer which he kept behind the seat of his Land Cruiser and which he drank during the course of the day.
B disputed the husband’s evidence that he had taken B to Sport I on regular occasions saying that B had been to Sport I no more than eight times and that once B reached the age of 13 or 14 years B was not particularly interested in Sport I.
B disputed the evidence of the husband that the husband took B to Sport K games and B said that B had never played Sport K ever in B’s life.
When B was 15 years old B left Property P after having been told by the husband to “Roll your swag and fuck off out of my house”. B then went to live at a friend’s house in Town D where B finished year 10 and ultimately took an apprenticeship.
I do not accept that the husband performed a parenting role for B.
However, I accept the husband’s submission that he contributed to B’s financial support.
B’s father provided no financial support and did not have a relationship with B.
In the financial years ended 30 June 1991 to 30 June 1995 the husband’s taxable income was $286,060.
There is no evidence of the wife’s taxable income for the same period except for that contained in her tax return for the year ended 30 June 1991 when her income was $7598 from a pension against which were offset losses from primary production. The wife gave evidence that she also had a very small income in that year from hospitality work.
It is not disputed that, in the period when B lived in the home of the husband and the wife, it was the mainly the husband’s income which supported the family and paid the mortgage payments and other outgoings in relation to Property P. I therefore find that for a period of five years, between 1990 and 1995, the husband contributed to the physical support of B.
Therefore some adjustment must be made in favour of the husband for his contribution to the financial support of B for a five year period.

THE WIFE’S KENNON CLAIM

In Kennon & Kennon (1997) FLC 92-757 the Full Court, dealing with allegations of domestic violence said:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous then they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that.
We think the earlier cases may have overlooked the distinction which more recent cases have emphasised. However, if it is thought now to be artificial to distinguish those long standing authorities in that way, it appears to us, having regard to the reconsideration which has been given to this matter over recent times, that it may now be appropriate for this court to treat those authorities as no longer binding and to be subject to the qualifications and distinguishing feature referred to in the recent decisions of this Court. There have been marked changes in perceptions, both legal and social, about domestic violence and its impact in recent times and it appears appropriate to give effect to them. (references to case law in original omitted)
However, it is important to consider the “floodgates” argument. That is these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.
However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of common sense for lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass … conduct related to the breakdown of the marriage.
The evidence upon which the wife relies in relation to her claim based upon Kennon comes from three sources.
In her affidavit sworn 10 March 2013 at paragraphs 40 – 43 the wife says:
40.The conduct of the respondent towards myself throughout the relationship was brutal and intimidating, instances of which are as follows: -
(a)Regular heavy drinking and verbal abuse which occurred almost daily;
(b)Physical assault at least every 2 weeks which would include attempting to and on at least one occasion lifting me by the hair and standing on my feet and pushing me with his body;
(c)On the 21^st of November 2001, he head butted me, splitting my eyebrow and pushed me around with his body and legs so that I could not get away from him.
41.As a result of the Respondents behaviour in 2001, I took out an apprehended violence order against him, a copy of which is shown to me at the time of swearing this affidavit and marked annexure 20.
42.The Respondents intimidating behaviour continued after the date of separation instances of which are as follows: -
(a)On the 25^th January 2009 the respondent pulled all my clothes out of the wardrobe and told me he was going to slit my throat if I did not leave;
(b)On the 29^th January 2009 he told me in the presence of my mother that he was going to shoot me.
43.The respondent’s conduct made it difficult for me to keep house instances of which are as follows:-
(a)On 18^th July 2009 he deliberately smashed the front windscreen of the Toyota Land Cruiser which at that time was the only vehicle we had;
(b) REJECTED
(c)He would take items out of the house and burn them. Some items he has burned include lattice work, a potato cabinet, a bar and my tablets. (as per original)
In cross-examination it was put to the wife that she had only applied for an Apprehended Domestic Violence Order (“ADVO”) on one occasion in 2001. It was put to the wife that her allegations were untrue. It was put to the wife that she and the husband had a lot of arguments, with which proposition she agreed, but that the arguments did not result in physical violence. The wife insisted that physical violence had occurred. When asked why she had made no complaint to authorities she said it was because the husband always promised after these episodes that he would behave better.
The wife denied that she exaggerated her accounts of violence. She agreed that she had driven to the Court on 23 January 2002 with the husband and withdrew the complaint founding the application for an ADVO and said that she did so because she was intimidated by the husband to do it.
When it was put to the wife that she would have complained to the police if the husband had behaved in the way she asserted, the wife said that there was always violence and that the husband would smash the house up and then say that he wouldn’t do it again.
There was no specific cross-examination of the wife about the husband’s drinking, his verbal abuse; the head butting incident on 21 November 2001 (which prompted the application for an ADVO); the events of 25 January 2009 or the threats made on 29 January 2009.
Neither was the wife specifically cross-examined about the smashing of the front windscreen of the Toyota Land Cruiser on 18 July 2009 or her allegation that he would take items out of the house and burn them.
The second source of evidence in relation to the Kennon claim is contained in the affidavit of B at paragraph three where he gives evidence about the husband’s drinking which is referred to earlier in these reasons. That evidence was unchallenged.
The third source of evidence in relation to the Kennon claim comes from a document which was tendered in evidence in chief by the wife and became Exhibit 5 in the proceedings. The document is a photograph album. The wife gave evidence that she took the photographs that are in the album and that the handwritten comments which are made beside each photograph were made by her and accurately represented what was seen in the photographs.
On page 1 of the album is a photograph of the lounge room at Property P showing the chair which the husband conceded was the chair in which he normally sat. The next photograph with the caption “When I come home from work” is a picture of the same chair removed from the lounge room and sitting on the ground in what appears to be a galvanised iron shed or perhaps a tank stand.
On page 3 of Exhibit 5 is a photograph of a neat bedroom with the words “Before I went to work” and underneath a photograph of what appears to be the same room, the bed piled with rubbish and the floor entirely covered with rubbish and captioned “When I come home from work”.
On pages 4, 5 and 6 are photographs of appliances upon which the husband has written messages using a felt pen including “Ring [Town L] Jail” and “… owns this.”
At page 9 is a photograph of the wife’s bedroom filled with junk including a rocking horse, kitchen appliances and other unidentifiable objects and similar photographs appear on page 10.
On page 11 are photographs of family photos which have been removed from the walls and stacked on the floor.
On page 12 is a photograph of the dining room in disarray with the caption “My dining room [the husband] would kick things pull things down and out home from work.” Also on page 12 is a photograph of a group of family photographs over which the husband has written using a felt pen in large letters.
On page 16 is a photograph of a cabinet with the caption “Laundry drawers [the husband] burnt when I come home.”
Also on page 16 is a photograph of a hose coming out from a tank which appears to have been cut off close the bottom of the tank stand with the caption “Hoses [the husband] would cut off so I could not wash.”
On page 17 there is a photograph of a chair which the husband conceded in cross-examination was the chair where he usually sat and arranged beside the chair are dozens of empty beer bottles.
Also on page 17 is a photograph of a dog with the caption “My little dog [the husband] kicked and killed.”
On page 19 there is a photograph of a section of burnt earth with the caption “Where [the husband] used to burn things.”
On page 20 is a photograph of the lounge room containing a bar with the caption “Lounge room before [the husband] burnt his bar.”
On pages 22 and 23 there are further photographs of hoses connected to tanks which have been cut off shortly after the connection with the caption “Hoses [the husband] would cut off so I could not wash.”
No questions were put to the wife in cross-examination about Exhibit 5. Her evidence was entirely unchallenged.
Exhibit 5 was put to the husband and he denied that he had been responsible for any of the conditions evidenced in the photographs with the exception that he admitted having written on the electrical appliances.
In the absence of any challenge at all to the wife about either the photographs or her descriptions of them I accept her evidence over the husband’s denials and I find that the husband behaved in the way that is evidenced by Exhibit 5.
However, Exhibit 5 contains 44 photographs, of which 30 are relevant to the wife’s complaints, commencing in 2006 and ending in 2009 and I do not accept Exhibit 5 as evidence of a continued pattern of behaviour from 1990 until 2006.
That the husband was verbally abusive to the wife is conceded although the husband could see nothing wrong with his verbal abuse describing it as normal between spouses.
The husband’s abuse was not confined to the verbal but was also written. On an envelope marked “[The husband’s initials] Tax 2004” the husband wrote to the wife “Nice tea bitch thank you leave cheque book out [the husband’s given name]” and “Fuckin (sic) sick of it get him to pay your friend (indecipherable).” The husband admitted that he wrote those things to the wife.
On a table napkin the husband wrote to the wife “You are not welcome here go back to your boyfriend. Fuck off.”
On the back of a pay advice slip dated 17 December 2005 the husband wrote to the wife “Did you cook all the bacon for your friends fuckin (sic) hungry (indecipherable) bread and cheese fuck you” underneath that “give me my money and cheque book fuck.” On the right hand side of the same document the husband wrote to the wife “You are a cunt (big)”.
It was submitted on behalf of the wife that her evidence in relation to domestic violence should be accepted because the husband’s evidence could not be accepted.
There is no doubt that the husband’s evidence was at times contradictory and at times frankly unbelievable. There are a number of instances where his evidence gave cause for concern that he was not telling the truth and some of them are set out below by way of example.
The husband was adamant in his oral evidence that he only found out that the wife had taken out an ADVO against him when she drove him to the Court House and told him that she was going to withdraw the application on 23 January 2002.
He maintained that evidence despite being shown a diary entry which he admitted was in his hand dated 28 November 2001 in the following terms. “[The wife] said she had taken an AVO out against me I told her there would be fun if she had I also told her to take her mother home (sick of her telling me what to do also just like [the wife]).”
The husband’s explanation was that perhaps he had written the diary entry on a day other than that printed on the entry. I find that explanation inherently unbelievable when multiple pages of the husband’s diary were tendered both in the wife’s case and in his case and it was not suggested, in the entries upon which he relied, that those entries were made other than on the day printed on the page.
I note in passing that the husband’s diaries are littered with offensive language which corroborates the wife’s assertion that that is the manner in which he spoke to her.
The husband denied absolutely and on more than one occasion that he and the wife had at any time slept separately and apart. In fact he insisted that they had been sleeping in the same bed until the date when she physically left the house. The diary entries clearly contain numerous complaints by the husband about the fact that he and the wife no longer sleep in the same room and indeed complain about his being excluded from the spare room on an occasion when the wife’s mother came to stay.
Diary entries were tendered variously by the husband and the wife for periods between November 2001 and August 2004. As early as 20 November 2001 the diary reads “Moved out of the main bedroom, living in single room.” Throughout the period of the diaries there are numerous references in the husband’s handwriting to his having decided to end the marriage and to his being abused by the wife. On 23 May 2004 there is a diary entry reading “Alone marriage gone but no money.”
The husband’s evidence in relation to the date of separation whilst not relevant to my findings in relation to contribution is relevant as to the reliability of his evidence. In oral evidence the husband was insistent that he had no idea that there were problems with the marriage until the day the wife moved out of the house. That evidence is entirely contradicted by the diary entries to which reference has been made earlier.
In a document entitled “Financial Agreement under section 90C of the Family Law Act 1975” dated 14 August 2009 the husband acknowledged that the parties had separated in 2007.
In the Application for Divorce filed by him on 25 June 2010 the husband signed Part G which includes the words:
Do not swear or affirm this affidavit until:
1.You and your spouse have been separated for at least 12 months.
The husband signed the document on 22 September 2009. At Part D paragraph 14 of the application the husband gave the date of separation as being 13 May 2009.
These are by no means all of the instances where the husband’s evidence was not credible.
I accept that the husband caused the damage shown in Exhibit 5, including cutting water hoses.
I accept that the husband used offensive language as a normal manner of communication to the wife.
There is no corroborative evidence of her allegations of physical assaults. With the exception of her allegations of head butting on 25 January 2009 and the threat to shoot her on 29 January 2009, there is no specificity in her evidence as to the time when incidents occurred or the precise nature of her complaints.
In order to come within the requirements of Kennon, the wife must demonstrate that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.
Her evidence in that regard is at paragraph 43 of her affidavit which is repeated here for ease of understanding:
The respondent’s conduct made it difficult for me to keep house instances of which are as follows:-
(a)on 18^th July 2009 he deliberately smashed the front windscreen of the Toyota Land Cruiser which at that time was the only vehicle we had;
(b)REJECTED
(c)he would take items out of the house and burn them. Some items he has burned include lattice work, a potato cabinet, a bar and my tablets.
The rejected passage of sub-paragraph (b) related to her allegation that the husband cut water hoses. That evidence was subsequently accepted on the basis of Exhibit 5.
She does not suggest that either the husband’s physical or verbal assaults, or his “smashing” the house, made her contributions more arduous. Submissions to that effect were made by Senior Counsel for the wife but she did not give that evidence.
I am unable to find that the incidents, which I accept occurred, as set out above, fall within the compass of exceptional cases as described in Kennon so as to justify a contribution adjustment in favour of the wife.

THE RESPECTIVE APPLICATIONS

The wife contended for a division of property which would result in the husband’s receiving 25 per cent of the net assets.
The husband contended for a division which would result in his receiving 55 per cent of the net assets.
Neither party resiled from its respective position in submissions.

THE PARTIES’ ASSETS AND LIABILITIES

At the commencement of the proceedings, Senior Counsel for the wife submitted that the matter should be dealt with using a two pool approach, with the wife’s currently owned property, Property F, sourced from her inheritance, being a second pool. Counsel for the husband contended for a single pool approach.
Ultimately, Senior Counsel for the wife conceded that the result would be no different on either approach and Counsel were told that a single pool approach would be adopted.
With the exception of the husband’s superannuation entitlement which has been dealt with earlier in these reasons, the parties are agreed that their assets and liabilities are:
Assets jointly owned
“Property P”  $435,000
Assets owned by the wife
“Property F”  $1,975,000
Westpac Bank account  $7,705
Community Mutual Bank account  $21,811
Toyota utility  $5,000
Toyota Corolla  $8,500
Tools, plant and farm equipment  $35,000
Livestock  $138,000
AMP Shares  $1,691
Household contents  $3,000
Assets owned by the husband
NAB Account  $37,000
NAB Account  $2,713
Toyota Land Cruiser  $25,000
Ford vehicle   $5,000
Household contents  $67,000
Total  $2,767,420
Superannuation
Wife  $25,371
Husband  $42,769
Total assets  $2,835,560
Liabilities of the wife
Westpac mortgage over “Property F”                  $713,754
2^nd mortgage over “Property F”  $519,000
Westpac Mastercard  $2,172
Sundry farm creditors  $81,601
Total  $1,316,527
Net assets  $1,519,033
The husband has no liabilities.

SECTION 79(2)

The parties jointly own Property P. It was purchased at the commencement of their relationship and the wife made a significant initial contribution to the purchase. They are no longer able to use that property for their joint benefit and thus it is both necessary and just and equitable to make orders which alter their legal interests in their property.

CONTRIBUTIONS

The wife’s contribution by way of her inheritances has been discussed earlier in these reasons.
The husband made a financial contribution by way of earnings as did the wife. However it would be simplistic to say that the husband’s contribution by way of wages was overwhelmingly greater than that of the wife as he submits. There were times when the wife was not earning any significant income but there were also times when the husband was not earning significant income.
The parties carried on farming operations on Property P. The wife gave evidence that they usually had about 10 head of livestock and sold their offspring each year. That enterprise not only brought in income but allowed costs of primary production, and expenses for Property P, to be offset against other income.
The wife tendered the whole of each of her tax returns between 2001 and 2009. The returns disclose that she was able to offset her losses from primary production against her income and thus paid no tax in most years.
Because the husband did not put the whole of his tax return into evidence it is not possible to conduct the same analysis of his financial management.
In relation to the years 2005 to 2009 when portions of his tax returns are in evidence, he claimed no deductions for primary production losses. I infer that the parties were content for the wife to claim the losses so as to significantly reduce her taxable income.
The wife gave evidence that she worked doing casual work. She gave evidence of undertaking stock work, cleaning, hospitality work, general farm work and operating an engineering vehicle. The husband agreed that she had done all of those things.
The husband’s occupation in the mining industry required him to be away from home for extended periods. Between 2001 and 2006 he was away for two weeks at a time. Between 2007 and 2009 he worked at Town M on a ten day on, four days off rotating shift.
In his absences, it must have been the wife who attended to the maintenance of the property and the primary production enterprise at Property P.
I do not accept the wife’s evidence that the husband gave her no assistance at Property P. In his diaries, tendered in both her case and his case, he refers to doing his washing (something the wife denied he ever did) and to performing various tasks at Property P.
The husband had an earning capacity because of professional qualifications which was greater than that of the wife. However, the evidence is that both of them worked according to their respective capabilities earning what money they each could and maintaining their property at Property P.
Because the husband made a further contribution in the financial care of B in the five years that B lived with them, there should be a small adjustment in his favour for that period of 2 per cent.
The wife’s financial contributions from her inheritance are overwhelming. They blossomed at the very end of the marriage with the Deed in 2008 and came into fruition in their present form after separation with the family arrangement in 2010.
The wife made the greater initial contribution. She put $75,000 into the purchase of Property P and the husband made no cash contribution. While the significance of that contribution has to be seen in the light of the contributions made by both of the parties to Property P over the next 19 years, some recognition has to be given to it.
In a pool of assets now worth $1,519,033, the wife’s contribution from her inheritance is $1,884,588 net, after taking into account her borrowing of $1,250,774 to fund the purchase of additional shares in Teesdale Pty Ltd. To that sum must be added the dividends she received from Teesdale Pty Ltd.
I consider that, taking into account the adjustment for contributions in favour of the husband of 2 per cent referred to earlier in these reasons, contributions should be assessed at 78 per cent to the wife and 22 per cent to the husband. That would result in a payment to the husband on a contribution basis of $334,187.

SECTION 75(2)

The husband contended for an adjustment in his favour of 15 per cent or a differential of 30 per cent. In this pool, that would result in an adjustment in his favour of approximately $456,000.
He is 65 years of age and not able to find work in the mining industry. He works as a casual labourer in agriculture. In cross-examination it emerged that he also works locally with stock but that income was not disclosed in his financial statement.
The husband was not able to produce any document to substantiate his present income. Having regard to the numerous times in which his evidence lacked credibility, I am unable to make any finding about his true income. I am, however, satisfied that he earns a modest income. He has reached the age where his superannuation is available to him but he is unlikely to acquire further assets from his own endeavours.
He is in good health.
He has legal fees outstanding of $23,826 which will have to be paid.
The wife has a loan for legal fees of $23,000 which she will have to pay.
The wife has an income from Property F but the expenses of earning that income must be met. After she meets payments on the mortgages and pays the expenses of the enterprise, she makes a loss. There was no challenge to the wife’s financial position as set out in her Financial Statement.
The wife has assets including Property F with a value of $2,195,707 and liabilities of $1,316,527 giving a net asset position of $879,180.
Although the orders will allow the husband an opportunity to purchase the wife’s interest in Property P, it is unlikely that he will be able to raise the necessary funds. In those circumstances, Property P will be sold. In the event that the sale price exceeds the value accepted for the purpose of these proceedings, being $435,000, then the husband should receive 30 per cent of that excess. However, in the event that the sale price is less than $435,000, then the husband will receive $319,000 and the wife will receive the balance. The fact that he will receive a sum certain and she will bear the risks of the sale is a matter which I have taken into account in determining the s75(2) adjustment.
I consider that a further adjustment in favour of the husband of 8 per cent would be appropriate, giving him an entitlement of 30 per cent of the net assets or $455,710.
The husband has personal property valued at $136,713, and should therefore receive a further $318,997 which is rounded up to $319,000 so that the husband, in the event of a sale of Property P will receive assets to the value of $455,713.
He should be given an opportunity to purchase the wife’s interest in Property P by paying her $116,000 being the difference between his entitlement on sale and the value of the property.
I consider that this division properly recognises the contributions made by both of the parties to Property P and the disparity in their respective financial positions as a result of the wife’s inheritances.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 March 2014.

Associate:

Date: 25/03/2014

[2014] FamCA 177

Key Legal Topics

Areas of Law

Family Law

Property Law