Tolbiac and Tolbiac and Anor
[2008] FamCA 265
•17 April 2008
FAMILY COURT OF AUSTRALIA
| TOLBIAC & TOLBIAC AND ANOR | [2008] FamCA 265 |
| FAMILY LAW - PROPERTY - husband’s brother added as respondent - inadequate disclosure - declaration husband and wife beneficial owners of real property registered in name of brother - claim by trustee in bankruptcy - relevance of family violence to assessment of contributions. |
| Family Law Act 1975 (Cth) ss 91B, 79(4)(a) to (c), 79(4)(d) to (g) Bankruptcy Act 1966 (Cth) ss 58(1), 116(1), 149 Children and Young Person’s Act 1989 (Vic) s 69 |
| Kennon v Kennon (1997) FLC 92-757 |
| HUSBAND: | Mr Tolbiac |
| WIFE: | Mrs Tolbiac |
| SECOND RESPONDENT: | H Tolbiac |
| FILE NUMBER: | MLF | 1281 | of | 2002 |
| DATE DELIVERED: | 17 April, 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J. |
| HEARING DATE: | 10, 11, 12 December, 2007 |
REPRESENTATION
| COUNSEL FOR THE HUSBAND: | Mr. Whitchurch |
| SOLICITOR FOR THE HUSBAND: | Agricola, Wunderlich & Associates |
| COUNSEL FOR THE WIFE: | Mr. MacFarlane |
| SOLICITOR FOR THE WIFE: | Slater & Gordon |
| THE SECOND RESPONDENT: | In person |
Orders
That the sum held in trust in the name of the wife in the Supreme Court of Victoria be disbursed forthwith as follows :
(a)$10,989 to Marshalls and Dent, Solicitors;
(b)$15,000 to K School;
(c)to Mr V, the husband’s trustee in bankruptcy, the sum certified by him to be due in respect of unpaid creditors’ claims, the trustee’s fees and disbursements, and the unpaid taxed costs of the petitioning creditor for the sequestration order, the court noting that the trustee estimated the total sum due (in an affidavit sworn on 7 September, 2007 and filed herein) to be $47,380;
(d)60% of the balance to the wife; and
(e)the balance to the husband.
IT IS DECLARED that H Tolbiac holds the real property situated and known as H Street, R (“R Property”, or “H Street, R property”) in the State of Victoria being the whole of the land more particularly described in Certificate of Title volume … folio … (“the real property”) on trust for the husband and wife, and that the husband and wife, as tenants in common, are the beneficial owners of the property to the exclusion of H Tolbiac, and H Tolbiac be and is hereby restrained, by himself, his servants and agents, from selling, assigning, transferring, leasing, encumbering or otherwise dealing in any way with the real property, save pursuant to these orders.
That within 21 days hereof H Tolbiac do all necessary acts and sign all necessary documents to transfer the real property to the husband and wife, as tenants in common, to be held by them on trust to effect these orders, and that until:
(a)payment to the wife pursuant to paragraph (6)(c) hereof (if the husband exercises the option pursuant to paragraph (6) hereof); or
(b)settlement of the sale pursuant to paragraphs (7) or (8) hereof;
the husband and wife be and are, by themselves, their servants and agents, restrained from selling, assigning, transferring, leasing, encumbering or otherwise dealing in any way with the real property, save pursuant to these orders.
That if H Tolbiac fails or refuses to comply with the preceding paragraph :
(a)pursuant to s.106A of the Family Law Act 1975 a registrar in the Melbourne registry of this court is hereby appointed to execute all deeds and documents in the name of H Tolbiac, and do all acts and things necessary to give validity and operation to these orders; and
(b)H Tolbiac in default is ordered to pay any and all foreseeable damages to the wife caused by such default; and
(c)H Tolbiac in default is ordered to pay all reasonable costs incurred by the wife for the purpose of enforcing this order and proving her damages.
That it shall be sufficient authority for the registrar to act pursuant to paragraph (4) hereof to have before him or her an affidavit sworn by the solicitor for the wife, filed and served on the other parties, deposing to the default (whether referable to the execution or production of documents or otherwise) and the action sought and the requirement to file a separate application is dispensed with.
That the husband have an option to purchase the wife’s interest in the real property on payment to her of the sum of $228,000 (being 60% of the found value of the real property), as follows :
(a)the option must be exercised in writing, addressed to the solicitors for the wife, and received by them within one month hereof;
(b)a deposit of $22,800 must be paid by the husband to the solicitors for the wife at the time he gives written notice pursuant to sub-paragraph (a) hereof, and the option shall not be deemed exercised unless the deposit is paid at the time notice is given pursuant to sub-paragraph (a); and
(c)the balance of the sum due must be paid to the solicitors for the wife within three months hereof (“the option settlement date”).
That if the husband exercises the option pursuant to paragraph (6) hereof but fails to pay the balance on the due date, the real property shall forthwith be offered for sale by a real estate agent nominated by the wife, and the wife shall have the sole conduct of the sale, and may determine whether it be by private treaty or public auction, the reserve price and the terms on which it is offered for sale, and on settlement of the sale the proceeds shall be disbursed as follows :
(a)first, the costs, commissions and expenses of sale;
(b)second, all outstanding council rates and water charges;
(c)third, a sum to the wife, which, including the sum paid by way of deposit, is equivalent to 60% of the net proceeds of sale (“the wife’s entitlement”) together with interest on the difference between the deposit and the wife’s entitlement for the period from the option settlement date to the date of payment, at 11.75% per annum, adjusted monthly; and
(d)fourth, the balance to the husband.
That if the husband does not exercise the option pursuant to paragraph (6) hereof, then as soon as practicable the real property be listed for sale and in the absence of agreement to the contrary between the husband and wife, the following provisions shall apply :
(a)the real property shall be listed for sale by an agent (who is also a sworn valuer) nominated by the wife;
(b)the listing price of the real property shall be as agreed between the husband and wife, and failing agreement, as set by the agent appointed pursuant to paragraph (6)(a) hereof;
(c)the real property shall be offered for sale by private treaty but if it remains unsold within three months of the listing date, it shall be sold by public auction, without reserve within a further two months; and
(d)the wife shall have the conduct of the sale.
That upon completion of the sale of the real property, the proceeds of sale shall be applied as follows :
(a)first, to pay all costs, commissions and expenses of the sale, including the cost of any maintenance or other work undertaken prior to the sale on the recommendation of the agent;
(b)second, to pay outstanding council rates and water charges;
(c)third, 60% of the balance to the wife; and
(d)fourth, the balance to the husband.
That until payment in full (if the husband exercises the option) or settlement of the sale, the husband have the right to occupy the real property, subject to compliance with the following conditions :
(a)the husband shall pay all council rates, water charges and other outgoings as and when they fall due;
(b)the husband shall maintain the real property in good order and condition; and
(c)the husband shall provide free access to any agent appointed pursuant to these orders and to all persons who the agent seeks to have inspect the property or enter upon the property to undertake any maintenance or other work recommended by the agent.
That the parties have general liberty to apply, on notice in writing, to seek further orders relating to the sale of the real property.
That unless otherwise specified in these orders :
(a)each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for the payment out of such entitlements; and the chattels in the real property are deemed to be in the possession of the husband; and
(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That each party be at liberty to file and serve any written submission in relation to the costs of the applications for final property orders within 28 days hereof, and :
(a)each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party; and
(b)each party have a further fourteen days in which to file and serve any written submissions in reply; and
(c)each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
That within 24 hours of the filing of any submission pursuant to this order, the party filing it fax a copy of the submission to the associate to the Honourable Justice Brown.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Tolbiac & Tolbiac and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1281 of 2002
| MR TOLBIAC |
Husband
And
| MRS TOLBIAC |
Wife
And
| H TOLBIAC |
Second respondent
REASONS FOR JUDGMENT
The husband and wife married in August 1984. They have three children; Z is 23, N is 17 and M will be 16 in September. After an earlier separation and reconciliation, the parties finally separated in January 2003.
On 11 June, 2004 the husband filed an application for final property orders in which he sought that the net proceeds of sale of the former matrimonial home (held in trust in the Supreme Court) be paid to him and that he and the wife otherwise retain all assets and liabilities then in their possession. That application was amended several times; the application relied on at trial was filed on 26 June, 2007. In it the husband sought final parenting orders in respect of N and M. The property orders sought in the initiating application were reiterated, and the husband claimed an entitlement to the contents of a safety deposit box held with the Commonwealth Bank of Australia which, he asserted, held gold valued at approximately $10,000.00.
The parties resolved their dispute about M and N (Z being beyond the jurisdiction of the court) by final parenting orders made on 10 September, 2007. Pursuant to those orders, the husband has sole parental responsibility for M and the wife has sole parental responsibility for N. M lives with the husband, N lives with the wife. Orders provide for each child to spend time with the other parent, as arranged.
In her initial response to the husband’s application, filed 23 September, 2005, the wife sought that the funds held in trust be paid to her, that the husband pay her a sum equal to 50% of the parties’ remaining assets, and that the parties otherwise retain all assets and the liabilities currently in their possession. She sought to be excused from further particularising her claim until the husband provided full disclosure of his financial position. She also sought final parenting orders in respect of N and M.
In an amended response filed on 2 December, 2005, the wife named a second respondent, being the husband’s brother, H Tolbiac. Although successfully seeking his joinder, the wife sought no declaratory relief against him until the trial, when she sought a declaration that he holds a property at H Street, R on trust for the husband and wife. In this judgment I will refer to him as H, to avoid confusion with the husband.
That response, too, was further amended and before me the wife relied on an amended response filed on 26 September, 2007. She sought to retain the whole of the sums held in trust and that the husband pay her a further sum, as deemed appropriate by the court. In default of payment, she sought the sale of the R property and orders requiring the husband’s brother to transfer that property to her on a trust for sale.
The husband’s brother acted for himself. An affidavit affirmed by him on 22 June, 2007 (filed 26 June, 2006) was before the court; it was prepared by the solicitors for the husband and filed at that time in the husband’s case. An order made by Guest J. on 10 September, 2007 gave the wife leave to file a further amended response joining the husband’s brother as a respondent (it was pursuant to this order she filed the amended response on 26 September, 2007) but made no provision for the filing of responsive material by the husband’s brother, or the husband. The three parties were ordered to disclose all relevant documents in their possession within 28 days. The husband’s brother disclosed none. All further affidavits were to be filed by 23 November, 2007. The husband’s brother swore no affidavit other than the one filed in June 2007.
In the course of final submissions, counsel for the husband and wife each tendered a minute of orders sought. A copy of each is attached to this judgment.
The case came before me for trial some three years after its commencement. In all the circumstances, I determined it should proceed. In an oral response, the husband’s brother opposed orders sought by the wife relating to the R property, and otherwise sought no orders, save orders for costs. I am satisfied the husband’s brother was aware of the nature of the wife’s claim on the R property well before Guest J’s orders and well before he swore the affidavit filed in June 2007; he knew that she filed a caveat in 2004 or 2005 and that she asserted that she and the husband owned the R property.
EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The husband relied on an affidavit sworn on 22 June, 2007 and a financial statement sworn the same day. He also relied on the affidavit affirmed by his brother on 22 June, 2007.
The wife relied on an affidavit sworn by her on 28 June, 2007 and another affidavit and a financial statement, both sworn by her on 30 November, 2007. She also relied on an affidavit sworn by her brother on 30 November, 2007, some parts of which were struck out after objection. Her counsel foreshadowed the calling of a witness on subpoena, Mrs Y. Mrs. Y and her husband were the sole registered proprietors of the R property prior to the husband’s brother’s acquisition of it. Mrs Y attended court in answer to the subpoena on the first day of the trial; the court was subsequently advised that the wife did not seek to call her, and she was excused.
The husband’s brother relied on the affidavit he had affirmed as part of the husband’s case.
The husband, wife, husband’s brother and wife’s brother were all cross-examined.
Before the court was an affidavit sworn by Mr W, a single expert witness, on 28 June, 2007, annexing a report and valuation of the R property. The valuation not being contested by any party, he was not called.
Also before the court was an affidavit sworn by Mr V, as trustee of the husband’s bankruptcy, on 7 September, 2007. Orders of 10 September, 2007 granted Mr. V liberty to intervene. He did not do so.
Mr. V deposed to his appointment as trustee on 11 March, 2004 pursuant to a sequestration order made in the Federal Magistrates’ Court that day, in which the petitioning creditor was BMW Finance. Mr. V deposed that the husband was discharged from bankruptcy by way of automatic discharge on 26 May, 2007, pursuant to s.149 of the Bankruptcy Act 1966.
Mr. V deposed to his belief that any claim the husband has to the funds in trust vest in him pursuant to ss.58(1) and 116(1) of the Bankruptcy Act 1966 and to his capacity to make a claim in relation to those funds, notwithstanding the husband’s discharge from bankruptcy. The creditors’ claims in the bankrupt estate total $31,005.50. There are unpaid fees and disbursements to the trustee of $16,376.50 plus GST and unpaid taxed costs in relation to the obtaining of the sequestration order, which he estimated to be $2,000.
In paragraph 9 of the affidavit, Mr. V deposed :
The realisations to date have been insufficient to enable a dividend to be paid to any class of creditor. Further, as there are minimal funds in the administration, I am unable to be significantly involved in the current proceedings.
Attached to Mr. V’s affidavit is a copy of a Statement of Affairs declared by the husband on 17 March, 2004. The wife annexed a copy of the same Statement of Affairs to her affidavit sworn on 30 November, 2007, deposing to its receipt from the trustee. The husband did not deny the statement was made by him.
Mr. V’s affidavit was prepared by McPherson and Kelly, solicitors. On the day fixed for the trial to commence, a person identifying herself as being from McPherson and Kelly telephoned the court at 9:45 am. and advised that there would be no appearance for the trustee in bankruptcy but “as a matter of courtesy to the court”, someone would be available on a provided telephone number.
Neither the husband nor the wife taking any objection to reliance on the affidavit of Mr. V, it was included in the evidence before the court. The trial proceeded on the basis that $47,380 is due to the trustee in bankruptcy.
Many of the contested facts in issue could have been proved by documentary evidence, of which there was a dearth, despite the obligations imposed on the parties by the Family Law Rules 2004 and specific orders. The husband and wife each alleged an inability to access documents accrued during the marriage, each attributing responsibility to the other. I appreciate that the costs of a subpoena can be a disincentive to using that avenue to obtain evidence, as can the costs of obtaining copies of financial records, but the court cannot conjure facts from thin air.
Neither the husband nor the wife could be found to be a consistently reliable witness. Their animosity to each other was palpable. The wife acknowledged a poor memory and her knowledge and understanding of transactions during the marriage was, I am satisfied, limited by her lack of access to that information when the parties were together and problems she experienced as a consequence of her exposure to violence at the hands of the husband, and psychiatric problems. I am satisfied she endeavoured to tell the truth as she recalls it.
I regret that I cannot make that finding about the husband. I am satisfied he was prepared to reconstruct and invent evidence to assist his case and have no confidence whatsoever in his capacity for objective recollection.
The husband’s brother’s evidence posed different problems. He was not legally represented, filed no response to the wife’s claims, failed to comply with orders requiring production of documents and was, unsurprisingly, partisan to the husband’s cause. He was courteous and quiet (so quiet that at one point his status as a party was overlooked) and as a party, was present in court when the husband and wife gave evidence. He thus heard, for example, the husband add a claim of borrowing $16,500 from him, a claim made neither in the husband’s affidavit nor his own, although each dealt with the issue of borrowings from the husband’s brother and their repayment. When the husband’s brother then, in oral evidence, deposed to lending the sum of $16,500, and could give no credible explanation for his earlier omission of any such evidence, I could not find it to be coincidental that each of the men “forgot” to mention such a loan until the trial.
I have slightly more confidence in the husband’s brother’s evidence of his own business dealings and those of the husband than in any of the various and contradictory accounts of the husband, but aspects of the husband’s brother’s account were implausible and inconsistent. On occasions, the husband’s brother’s attempt to tailor aspects of his evidence when taxed with accounts given by the husband, and this resulted in sometimes risible evidence, such as his explanation (when it was put to him that something the husband said happened in November 2002 was said by him to have occurred in the middle of the year) that to him, November was the middle of the year.
I do not have confidence in the husband’s brother’s evidence of loans made to his brother, the financial dealings relevant to alleged loan repayments and his continuing ownership of the R property.
CHRONOLOGY
The husband is 48 and the wife 45. The husband remarried in May 2005. He and his present wife, Mrs S, have a daughter, P, born in January, 2007. The wife also remarried, in March 2006, but separated from her second husband in May 2007.
The wife’s evidence was that she was forced into marriage by the husband, who raped her and threatened to tell her family, and the Turkish community, that she was no longer a virgin. The allegation was denied by the husband, as were allegations of the wife that, throughout the marriage, she was subjected to physical and sexual violence, and emotional abuse.
At the time of their marriage, the wife was working in the Commonwealth Bank and the husband was, initially, unemployed, commencing work at a primary school a short time later. In oral evidence he said he worked as a labourer until 1993 when he started a building business under the name K Company which he conducted until late 2001.
In 1985 the parties purchased a house in C. The wife’s evidence was of obtaining a mortgage from the Commonwealth Bank at a discounted interest rate available to employees. After that purchase the parties lived with the husband’s parents for approximately 12 months, renting the C property. They then moved into that property and lived there until it was sold, in approximately 1989.
In 1990 or 1991 the parties bought land in D, on which a home was subsequently built. The proceeds of sale of the C property went into that property and, again, a mortgage was obtained at favourable interest rates. The wife’s recollection was of a mortgage of about $60,000. The husband’s evidence in his affidavit was of borrowing $35,000 from his father to fund that purchase. It was always the wife’s case that this was a gift, rather than a loan, and the husband conceded the accuracy of that evidence in the trial. The house was substantially built by the husband, with help from friends. It was subsequently damaged in a fire and the parties received $108,000 from their insurer, plus another $35,000 for furniture. The husband deposed in his affidavit that “I rebuilt the house as an owner builder”, but his oral evidence was that he and his brother rebuilt the house before the family moved back into it in late 1997.
The husband’s evidence was of the wife ceasing to work for the Commonwealth Bank after M’s birth, in 1992. Her initial evidence was of working at the bank until 1997, at which time she accepted a redundancy package of approximately $100,000. That both parties’ recollections were wrong was demonstrated by a certificate of service, tendered as exhibit W-5, which certified that the wife was employed by the bank from 24 November, 1981 until 3 May, 1996. The wife’s recollection of working for the bank for some 15 years was close to the truth, but she finished in 1996, rather than 1997.
In 1996 or 1997 the parties purchased a property at T for $85,500, which was registered in the sole name of the wife. The wife’s evidence was that this purchase was funded by the sum paid to her when she left the Commonwealth Bank, being a redundancy package, superannuation and other benefits. It was her evidence that she received some $100,000; according to the husband, she received only $18,000 to $20,000. No evidence was adduced from an objective source. The wife’s evidence was that the purchase price for the T property was $105,000; $100,000 came from the CBA payment and the balance of $5,000 was borrowed from her mother. Her recollection of the price was wrong but I accept her evidence that her substantial redundancy package (which included the maximum superannuation withdrawal then possible) funded that purchase. That property was rented, and sold in late 2001. The wife’s evidence was of sale proceeds of about $120,000; the husband’s affidavit evidence was of proceeds of around $145,000 and his oral evidence upped the figure to $150,000. A copy of the stamped transfer of land was tendered, showing a sale price of $154,500; it is dated 14 December, 2001.
By late 2001 the family was in crisis. In early December the husband arranged to go to Turkey in early January, for one month. On or about 27 December, 2001 Z attempted suicide and was hospitalised. The Department of Human Services became involved. A bundle of general case notes for the period December 2001 to February 2002 was tendered.
The husband left for Turkey with his mother, probably (based on a DHS case note) on or about 5 January, 2002.
The husband did not operate K Company or work in that business after his departure for Turkey. I will consider the evidence referable to this later.
Interviewed by DHS workers on 31 December, 2001 in hospital, Z disclosed to workers that she had thought of suicide for a number of years, due to family conflict, and disclosed a number of incidents, including her exposure to domestic violence between her parents and as a victim of her father’s violence. The wife confirmed that Z had witnessed her physical abuse and disclosed physical, sexual and verbal abuse by her husband. At that time the wife was staying with Z in the hospital and the husband refused to advise workers of the whereabouts of their sons, save to say that they were with his brother, in D.
Z was discharged on 4 January, 2002. A general case note of an interview with the wife and Z on that date records that Z stated that she was looking forward to her father leaving for Turkey the next day, as it “will allow for her mother, siblings and her to escape the violence they are enduring”.
The evidence satisfies me that the wife took advantage of this enforced contact with DHS and the husband’s trip to Turkey to, to use her word, escape. It was her evidence, and that of her brother, that she had tried to escape before, but was always persuaded or forced to return to the husband. With the assistance of DHS, refuge accommodation was obtained and the wife and children left the matrimonial home. DHS made representations to the Department of Housing and other organisations in Sydney and the wife set up a residence there. The husband was not advised of her relocation.
The wife, who had no income, accessed the proceeds of the T property to pay living expenses after leaving the family home and to set the family up in Sydney. The husband said she took proceeds of (variously) $145,000 or $150,000. She said she took $120,000, closing a joint account in which was that sum and transferring it into a new account in her name in Sydney. No documentation was adduced into evidence. The wife did concede that her memory was “not good any more” but said the husband used part of the T property proceeds to pay for tickets for himself and his mother to travel to Turkey to seek help for his “psychotic, abusive behaviour”.
The wife’s evidence was of arranging for correspondence to be forwarded to the husband in Turkey on 12 January, 2002, advising him that she considered the marriage to be over and that she had left the former matrimonial home.
The general case notes record contact with the husband’s sister on 15 January, 2002, seeking information on behalf of the husband, and a general case note dated 15 January, 2002 records that the husband had been ringing from Turkey, wanting to know where his family was. The general case note records a denial by the husband of violence towards family members. It notes that the writer explained to the husband that DHS did not know where the family was, that it had no responsibility for his wife leaving him, that the wife was very scared for her safety and life, and that he needed to make an application to the Family Court if he sought contact with his children, and to locate them. It records advice from the husband that his family had told him to go away to Turkey, to “make things better” and to start from scratch, which he had done. He initially stated he was not violent but then stated that there had been no violence for a while at home, as he had not been there for ten days. He said there was a level of violence from his wife, but not from him. He is recorded as saying, variously, that he may not return to Australia and was prepared for a divorce, and that he was coming home as soon as possible.
On 16 January, 2002 the husband’s brother, H Tolbiac, signed a cheque for $200,000, drawn on the CBA account of K Company Pty. Ltd. and made payable to H Company. I will refer to these business dealings later.
The DHS file records a conversation between a worker and a women’s refuge in Sydney with whom the wife had made contact and which provided crisis accommodation for some weeks.
It is clear that the husband made a number of calls to DHS from Turkey and, on 29 January, advised he would be arriving back in Melbourne on 6 February. DHS agreed to forward letters faxed to it by the husband to the wife, as by then workers knew the location of the refuge in which she and the children were staying.
By 19 February, 2002 the husband had advised DHS that he had located the wife and children in a house in Sydney some ten days earlier; the file records his advice that Z had contacted him, and asked him to visit her there. On 18 February a solicitor acting for the wife (who had had earlier contact with DHS) advised DHS of his instructions that the husband had taken Z and returned with her to Melbourne.
The DHS documents tendered include a copy of an affidavit in support of an application for a warrant to take possession of Z, pursuant to s.69 of the Children and Young Person’s Act 1989 (Vic.). The deponent (a protective worker) deposed to police being called in Sydney on the weekend of 16 and 17 February, after the husband attended the family home in Sydney. She stated Z had told her father their whereabouts. The husband was distressed and threatening to harm himself. He was admitted to St. Georges Hospital. Z then contacted a suicide helpline. She, too, was collected by police. After an urgent mental health assessment, she, too, was admitted to St. Georges Hospital. The deponent recorded the “belief of Protective Services that the father took [Z] from the hospital”. Concerned about her welfare, a warrant was sought, and issued.
It is probable that all three children struggled after the relocation to Sydney, where the wife had no contacts and little support, and that after Z was taken by the husband, the boys became increasingly upset. The wife had paid six months rent in advance to obtain private accommodation but resolved to return to Melbourne, despite the financial loss.
DHS made a number of attempts to find Z in Melbourne. The husband failed to provide information as to her whereabouts, saying she was not in his care. A general case note dated 25 February, 2002 records a telephone conversation between a DHS worker and a worker from the Fairfield office (New South Wales) of DOCS, who contacted DHS to advise that Z and her father had been to the DOCS office to make a notification in relation to alleged concerns regarding the wife’s mental health and ability to care for the younger children. The DOCS worker advised that Z and her father told him they were aware of the warrant and that DHS wanted to “arrest” Z. Z told the DOCS worker that she wanted to stay with her father.
Another general case note dated 26 February, 2002 records further discussions between DHS and DOCS workers and advice that the husband and Z were still in Sydney, but were to return to Melbourne that evening or the following day. On 28 February, 2002 workers met with Z and her father. Z was clear that she wanted to remain in her father’s care in Melbourne and said she maintained daily phone contact with her mother. She told workers that she suffered from anxiety and depression, she would like to be linked in with a mental health service and she would also like to resume school. The husband advised DHS workers that he was seeing a private psychologist and was prepared to attend MEND (an anger management course) in relation to his violence. Following this discussion, the s.69 warrant was cancelled.
The first application filed in this Court was made by the husband’s father, on 21 January, 2002. It named the wife as respondent and sought contact with the children. It also sought that the husband have contact with the children and, as an interim order
. . . that pending any determination of property proceedings between the husband and the wife, the wife herself, her servants and agents be restrained from dealing with or disposing of the net proceeds of the sale of the house of the parties currently held by the wife in the account in her name with the Commonwealth Bank at [T].
The application was listed for hearing (on its face) on 18 February, 2002.
On 23 January, 2002 an amended application was filed, still naming the husband’s father as the applicant and the wife as the respondent. The amendment was minor, relating only to the named Commonwealth Department in an application for a Commonwealth Information order. However, the hearing date on the face of that document is 6 February, 2002.
An order made on 6 February, 2002 records an appearance by one counsel for both the husband and the paternal grandfather, and counsel for the wife. By consent, a number of orders were made. They provided for the husband and wife to remain jointly responsible for the long term care, welfare and development of the children, for the children to live with the wife and for her to have responsibility for their day to day care. Until further order, there was to be no contact between the husband and the children, save by letters written in English or as organised by the psychologist who, the orders provided, was to meet with the husband, wife and children to prepare a family report. The orders provided for the filing of documents. Each of the husband and wife was restrained from removing the children from Australia, and the children’s names were put on the Airport Watch List.
The orders also dealt with financial matters. Until further order, the wife was restrained from dealing in any way with assets in her possession or control and, in particular, the net proceeds of the sale of the T property (described in the orders as being in B). The husband was, until further order, restrained from dealing in any way with his interest in the M property, his interest in the estate of any member of his family or third party and with any car registered in his name or T Company Pty. Ltd. He was also restrained from dealing with assets of T Company Pty. Ltd. and the Tolbiac Family Trust.
The husband’s father was not called in the proceedings before me. I cannot say on what basis he asserted standing to seek the financial injunction described, and the orders made by consent on 6 February, 2002 make no reference whatsoever to him. It seems he played no part in the proceedings thereafter. The application was otherwise adjourned to 10 April, 2002. An order was made by the court requesting intervention by DHS, pursuant to s.91B of the Family Law Act 1975.
On 8 March, 2002 the case was back at court. Paragraph (2) of the orders of 6 February, 2002 (which provided for the children to live with the wife, until further order) was suspended in relation to Z. Orders provided for each of the parties to attend upon Mr B, psychologist, at specified times. An order provided for the husband to do everything necessary to ensure Z attended Skye Centre (a mental health service for young people and youths) at the Royal Children’s Hospital in order to seek counselling for her emotional problems. A child representative was appointed and the applications were otherwise adjourned to 15 March. An undertaking was given by the husband (with a denial for its necessity) providing that he would not attempt to locate, approach, contact, telephone or harass the wife or her extended family, or discuss the proceedings or denigrate her in the course of telephone contact with the children.
On 15 March, 2002 further orders were made. Orders provided for the husband to have some specified additional contact with the boys and he was restrained from making or attempting to make any contact with the wife or of being present when she attended the children’s schools. The orders provided that, until further order, Z live with the husband and he be responsible for her day to day care, that the wife’s contact be as agreed and that changeovers occur outset the B Police Station. Orders provided for Z to continue to attend at Skye Centre.
In April 2002 the parties reconciled. On 23 April the husband and wife appeared before Carter J. By consent, an order was made permitting the husband and wife to take N and M out of Australia for the purpose of a holiday, and for their names to be removed from the Watch List for that purpose.
On 6 May, 2002 all extant applications were adjourned until 11 November, 2002; the file records an appearance for the wife, and a fax from the husband in which he stated that he consented to an adjournment of approximately six months, as he and the wife had reconciled. On the adjourned date (11 November) the only appearance was by the child representative and the proceedings were struck out with a right of reinstatement.
After they reconciled, the family spent about three months at A in rented accommodation. The family then went to Queensland for a holiday, where they stayed for about three weeks. The husband’s brother’s evidence was of lending the husband around $35,000 so the family could go to Queensland and to Turkey, but that the travel to Turkey did not eventuate. The husband, too, deposed to borrowing $35,000 in cash from his brother for these purposes. No documentary evidence supported the transaction. In oral evidence, the husband said he borrowed an additional $16,500 from his brother to buy tickets for the whole family to travel overseas. He said he paid $12,000 of this in cash for the tickets but as “DHS wouldn’t let us out of the country”, he lost $9,000. His evidence was of using the balance of cash borrowings to live at A and holiday in Queensland. Again, no documentary evidence was adduced.
The wife’s evidence was that after the reconciliation she deposited the balance of the money she had left into the parties’ joint account. She sold a car she had purchased in Sydney (one of a number of cars) for $18,100 and a statement records that sum paid into an account in the name of the parties on 28 May, 2002. She said that sum funded the Queensland holiday and the balance of the funds went into properties at G and R. The statement records transactions totalling $3,465.46 made in northern Queensland between 28 June and 10 July, 2002. The statement also record transactions in Ankara between 6 June and 17 June, 2002, totalling $1,307, consistent with one account which had the wife travelling to Turkey briefly after the reconciliation.
The wife’s evidence was of spending $20,000 to $25,000 on travel to Sydney, rent, the establishment of a furnished home, school fees and living expenses in Sydney. She bought three cars. One, for which she paid about $9,000 (and which was repaired through an insurance claim after an accident in Sydney), is still in the husband’s possession. Another, bought for about $5,000, was acquired as she needed a car while the first one was being repaired. She had an accident in that car, too. It was traded for a new Toyota Corolla, with a changeover price of $24,000, and the Toyota was sold in Melbourne for $18,100 after the reconciliation.
The wife recalled there being $80,000 or $90,000 left when the parties reconciled, including the $18,100 realised for the sale of the car. No statement recorded the deposit of the balance of funds taken to Sydney. It may have been kept in cash, as were other large sums, according to the husband. It is unlikely the whole sum was expended on the Queensland holiday.
While the family lived in rented accommodation in A, the younger children continued to attend school in Melbourne, being driven by the husband. Z was in Melbourne, with relatives. After the parties reconciled, they sold the D property, in May 2002. The husband recalled the sale price to be $277,000, which is the figure in the copy transfer. The net proceeds of sale at settlement on 7 November, 2002 were $113,517.
In mid-2002 the parties purchased a property in G for $420,000. The husband’s initial affidavit evidence was of buying this property in November 2002, but the settlement date demonstrates the inaccuracy of that assertion. His evidence of registered ownership varied from saying that he thought both he and the wife were registered on the title, to the property being registered in his name only and then transferred, on the wife’s insistence, into her name only. It is probable from the outset the property was registered in the wife’s name only, and was intended as a holiday house. Settlement occurred on 6 September, 2002.
The husband deposed to needing $440,000 (including stamp duty) to purchase G property. He deposed to a mortgage of (variously) $236,000 or $230,000, leaving a shortfall (on his later figure of $230,000) of some $210,000. The husband and wife had interests in two blocks of vacant land in R, and these were sold to fund the purchase. According to the husband they realized a figure of $156,000 and a net figure of around $150,000. He said he borrowed the balance from “friends and family”. On those figures there would have been a shortfall of some $60,000, which he swore he borrowed from friends and family. No friend or family was identified, or called. In oral evidence he said his brother provided the balance of $30,000 or $40,000.
On the wife’s figures, the balance needed was a lesser amount, as it was her evidence that $169,534 came from the sale of the two blocks, rather than $150,000. Evidence showed that $169,534 was taken from the parties’ cash management account on 5 September, 2002 and paid at the settlement of the G property purchase the following day, and it is probable the wife based her evidence on that transaction. It is probable the husband’s figure of $156,000 nett from the vacant blocks is correct, and the difference between that figure and $169,534 came from savings. A mortgage of $230,000 would take the sum available at settlement to $399,534, leaving a shortfall (on the husband’s figure of $440,000) of just over $40,000. If the mortgage were $236,000, it would be smaller.
In Part E of the Statement of Assets, a question (number 50) enquired whether the person making the statement has “sold, transferred or given away any assets worth more than $1,000 in the last 5 years”. The husband recorded only one asset, being “my own house”. The date of disposal is November 2002. To the question “What was it worth?” he wrote $277,000; asked how much he received he wrote $113,000. He said nothing of selling the two vacant blocks in R.
In his affidavit the husband’s brother said nothing about providing any funds to settle the G property purchase, and I do not find it more probable than not that he did. I cannot specify the source of the shortfall, but it may well have come from cash held by the husband.
In June 2002, or soon thereafter, the husband’s brother became the registered proprietor of the property at R; the vendors were Mr. and Mrs. Y. The evidence about this property was confused and inconsistent but it is at the heart of the claims of the husband’s brother, the husband and the wife, and I will refer to it later. I am satisfied the wife, husband and children moved into that property in August 2002 and remained there until their final separation.
It was the husband’s case that the wife was mentally unstable for much of the marriage. He alleged she became extremely disturbed and violent after their reconciliation in 2002, stabbing him in the back with a knife in front of Z on one occasion, holding a knife to his throat on another and attempting to smother him with a pillow. He alleged she often threatened to kill herself and, on one occasion, took an overdose of tablets.
The wife’s evidence was that after their reconciliation the relationship was good for about two months but then deteriorated. The husband reverted to his abusive behaviour, which escalated during the year. She deposed to a dramatic deterioration in her health, the development of an eating disorder and regular attendances upon a psychiatrist. In early August 2002 she attempted suicide. Her weight dropped to 42 kilograms. She said the husband broke her finger and she tried to stab him.
In mid-January 2003, some nine months after their reconciliation, the wife left the R property, leaving the children with the husband. She received inpatient psychiatric treatment and then lived in a refuge in Melbourne, and another refuge in regional Victoria, and at one point was admitted to the regional Hospital. In a state of considerable distress, the mother was assisted by family members to travel to Turkey, with her mother. Her evidence was of hiding at various addresses there so the husband could not locate her and of seeing a psychiatrist/counsellor to assist.
The wife lived with her mother in Ankara for some two years. She took no money from Australia and had access to no income, save from her mother’s pension. Her mother looked after her, with the help of her brother. Her evidence was of trying to contact the children in Melbourne but of the husband changing telephone numbers.
The husband’s evidence was of consulting a solicitor in February 2004 and issuing proceedings, which had a first return date of 12 July, 2004. The application for final orders filed 11 June, 2004 is shown as being returnable on that date. The wife was not served with the application as, according to the husband, he did not know where she was. It was his evidence that it was not until October 2004 that he learnt she was in Turkey, evidence I take with a grain of salt.
The husband deposed that after the wife left he became “the sole caregiver to the children” and received a pension from Centrelink. He may well have received the pension but it transpired that the three children lived with the husband’s brother, his wife and their two children for ten to eleven months after the parties separated in 2003, and it was the husband’s brother who supported them. The husband’s brother’s evidence was of receiving no financial support for the children from his brother. He said his brother was “coming and going: no-one knew what he was going to do”. According to the husband’s brother, he (the husband’s brother) went and “checked on [R property]”, from time to time. Asked about this evidence he said the husband spent some time at the R property but also stayed with his parents and with friends in this period. It is probable the R property was not occupied for much of this time.
On 23 December, 2003, the property at G was sold by the mortgagee, CBA. A bank statement tendered records fortnightly dishonoured loan payment of $625 between 18 September and 27 December, 2003. The nett proceeds of sale were paid into the Supreme Court of Victoria; $177,378.32 was received on 4 February, 2004 and $106.94 on 20 February, 2004. The funds were invested in the wife’s name.
The husband deposed to spending time in Turkey with N in approximately 2004 and also to travelling to Turkey in August 2004 “with the intention of marrying”.
The husband remained in Turkey from August until December 2004, then returned to Melbourne for three weeks. He then returned to Turkey to arrange for a divorce from the wife pursuant to Turkish law, which was obtained. He married his present wife in May 2005 and an application was made for a visa. When a visa was granted, they returned to Australia in approximately July 2005. He was thus in Turkey from August 2004 until July 2005, save for the three week trip to Melbourne. His evidence was that during this period his mother and Z cared for the boys. In August 2003, Z was 18; she was 19 when he returned to Australia in July 2005. There was no evidence his mother moved to live in the R property and it is possible the R property was unoccupied for all or part of the lengthy period the husband was in Turkey.
After returning to Australia in November or December 2004, accommodation was arranged for the wife in a rooming house in W and she subsequently shared a house in V. From there she moved to a small, two-bedroom flat. She returned to Turkey for three months in May 2006 to care for her mother, who was ill, returning to Australia in August 2006.
On 28 September, 2005 orders were made providing for the children to live with the husband and an independent children’s lawyer was appointed. A family report was ordered and prepared by Mr A, a family consultant with this court. A report dated 6 October, 2006 was admitted into evidence and was before the court at the time the final parenting orders were made, by consent, on 10 September, 2007.
On 2 March, 2006 the wife married Mr D, who she had met in Turkey in 2004. She sponsored his residence in Australia after her return and he lived here with her from June 2005. They separated on 9 May, 2007; when she swore an affidavit in June that year, she deposed that he was due to be deported.
After the wife’s return to Australia she experienced significant difficulty in spending time with the boys. As the parenting applications resolved, evidence relevant to this was not explored. In December 2006 N left his father’s home and went to live with the wife, where he has remained. The husband’s evidence was of spending time with N at his mother’s home and of M spending time with the wife, on occasions. N and M are now at different schools. Z continues to live with the husband, his new wife and their baby.
The wife’s evidence, which I accept, was that Z came to her house on the Thursday before the trial, for the first time in about three years. Z said “the reason I am here is because my dad told me to tell you to back off and not go to court”.
The husband was discharged from bankruptcy on 26 May, 2007.
ASSET POOL
Funds in the Supreme Court
It was common ground that these funds, representing the equity in the G property, form part of the asset pool.
$200,000 withdrawn by the husband’s brother from K Company account on 16 January, 2002
The wife submitted that the sum of $200,000 should notionally be added back to the asset pool, as matrimonial funds removed by the husband’s brother and the husband. This was opposed by the husband. To understand the basis of the submission, it is necessary to look at the evidence of the husband’s business activities and those of the husband’s brother.
The husband’s case was opened on the basis that he operated a company, K Company Pty. Ltd., for about ten years, from about 1993. It was put that he was the sole director, and that he and his brother ran it as “a kind of partnership”. H Company Pty. Ltd. was the company through which the brother ran his business. The brothers “built separately, and together, on occasions”.
The husband’s account in his affidavit is in these terms :
27.I had worked full time as a builder from approximately 1990 until our first separation in early 2002. The first business was [T Company] which commenced in approximately 1990/91 and my brother [H Tolbiac], a friend and I worked in the business for some time. I then started working on my own under the name of [K Company] Pty Ltd in 1999, and my brother [H Tolbiac] would work with me when I needed him.
28.The wife has alleged that the business [K Company] Pty Ltd owned 9 vacant blocks of land which I sold, and I deny this. The Urban Land Authority owned blocks of vacant land and my business contracted with the Urban Land Authority, to build homes on the land. When the homes were completed, they would be sold by the Urban Land Authority to purchasers.
29.The business [K Company] Pty Ltd earnt a reasonable income for us until late 2001, when I stopped working in the business.
The husband’s oral evidence was different. He said he started K Company in 1993 and operated through it until December 2001; he has not been in paid work since that time. About the husband’s brother’s present situation, he said that he did not know, as he did not ask his brother, but he believed that his brother was working in the same trade, as a builder.
According to the trustee’s report to creditors, dated 22 November, 2004, the husband was appointed sole director, secretary and share holder of K Company Pty. Ltd. in October 1999. The company was wound up on 14 April, 2003 and no recovery was expected. Despite specific requests, and service of a subpoena, no documents relating to K Company were produced by the husband prior to trial. He produced no financial statements, tax returns, contracts or superannuation records. In the trial, he tendered a bundle of bank statements for K Company for the period 6 July, 2000 to 14 November, 2002.
The husband’s oral evidence was that in January 2002, he decided he was not going to work anymore. At that time, K Company was contracted to build a number of houses, and had started work on the various properties. He told his brother (“in relation to unfinished work of [K Company]”) that “you handle it, pay the debts and finish it off”. The husband’s brother agreed. Pursuant to this agreement, the sum of $200,000 was transferred from his company (K Company) to the brother’s company (H Company). His oral evidence was that K Company and H Company were one venture, although he also said that “we (he and his brother) operated [K Company], and [his brother] operated [H Company]”.
Soon after giving that evidence, the husband said that his brother was now working as a builder and that he (the husband) went to “help him out” sometimes, and was given a few dollars (albeit not enough to declare). Asked what work he did, he said he helped with building work, carpentry, framework, staircases and lock up work. It is trite to say this illustrated the falsity of his earlier evidence of not knowing whether his brother continued to work as a builder.
In his affidavit the husband said nothing whatsoever about his brother taking over unfinished work of K Company, or the transfer of the $200,000.
The husband’s explanation for giving up his building business was variously attributed by him to his health, his frustration with the clients and his marital problems. When he was asked how he was going to support the family after giving up the business (in late 2001) he said: “I said to my brother – you will give me money”. He then spoke of taking a long break, and of a six to nine month period. Given that the husband’s brother denied any agreement with his brother to take over the building work, deposing to unilateral action by him, I place no weight on the husband’s evidence (if that is what it was) of an agreement that his brother would support him after taking over the unfinished work.
The transfer of $200,000 occurred when the husband was in Turkey and after, I am satisfied, he had learnt that the wife had left him, with the children. The DHS file records a family member seeking information on behalf of the father from DHS as to the whereabouts of the wife and children, on 15 January, and conversations with the husband, in Turkey. The cheque, drawn on K Company, is dated 16 January, 2002. It was signed by the husband’s brother, who was, the husband said, a signatory to that account, albeit neither a director nor shareholder of K Company. The husband’s oral evidence was that the arrangement with his brother was made before he went overseas; integral to this account was his decision - made variously in November 2001, late 2001, December 2001 or January 2002 – to cease working as a builder and to cease operating through K Company. He was clear that he told his brother to transfer the money; on his account, this was an aspect of implementation of an agreement made between him and his brother.
According to the husband, the $200,000 paid to his brother was money received from people with whom K Company had contracted to build houses. It thus had to be available to his brother, as he was taking over the work, and his brother needed to utilise the funds to pay suppliers and contractors.
In his Statement of Affairs dated 17 March, 2004, the husband gave his “usual trade or profession” as builder. Question 22 asked “In the past 5 years, have you operated a business as a sole trade, via a partnership, via a company or a trust?” To this the husband responded “I don’t understand. I haven’t operated a business for nearly 3 years now”. That would date the cessation of business activities to a date soon after March 2001.
In Part D, relating to business details, the husband acknowledged having an ABN but wrote “I don’t know” in the space for the ABN number. Asked the same question (specifically relating to K Company) he wrote “I don’t remember now. I haven’t traded for 3 years.” He noted that a liquidator had been appointed; in the space provided for details, he wrote “I don’t know”.
In the husband’s brother’s affidavit he said nothing whatsoever about the companies, building contracts, taking over building work from the husband or K Company, or the receipt of $200,000. He did depose that in 2002 he agreed to supervise the building of a house by Mr and Mrs Y, on land they bought from the Urban Land Authority, in R. In oral evidence he gave a different version; on this account Mr and Mrs Y were owner/builders and “my brother was helping them, with me along”. He then said this was never a K Company job but that “we were helping them out and to be paid as supervisors”.
The husband’s brother’s account of the business structures was this. Initially, he, the husband and a friend with the surname “[U]” tried to start a business as T Company. They had no money, no paper work, and no licences. They built a house (possibly on a block bought by Mr. U) which meant that the building corporation could inspect the house for the purpose of a licence application. The three men subsequently were licensed to build as T Company.
The husband then started the business K Company, with his own licence for that company. The husband’s brother and Mr. U let their licences expire. The husband’s brother worked for K Company; he said he worked for the husband and was well paid. He was not a partner in the business or a director or shareholder. He and his brother laboured together. He also worked on other projects, including building his own home in D, very slowly; his evidence was of moving into that home in the summer of 2000, allegedly with the council’s knowledge, but of not obtaining a certificate of occupancy for the property until 2005. He also (either alone or with his brother) supervised building projects, such as that of Mr and Mrs Y.
The husband’s brother’s evidence was of working on a number of properties owned by the husband and wife. Cross-examined by him, the wife’s evidence was to the effect that both men, and their wives, worked on the other’s properties, on occasions. She did a lot of cleaning at the husband’s brother’s house when they moved in; his wife did cleaning at her home. At the husband’s brother’s home the husband did the same things the husband’s brother did at the husband’s home; she spoke of fixing, concreting, framing.
The husband’s brother’s oral evidence was that in mid-2001 he took over all the existing building contracts of K Company. He said “everybody” knew that the husband and wife had big problems. K Company had a lot of debts; “everybody” was complaining and “everyone” was upset with K Company.
It was hard to pin the husband’s brother down about an agreement made with the husband, which was unsurprising once he deposed that there was no agreement, and that he (the husband’s brother) simply, and unilaterally, “chose to do it”. His evidence was that K Company existed for another six months after he took over all its unfinished work in mid-2001. This work included a house for their sister in R, another house in the same street street for friends, a house at R (not the Mr and Mrs Y project) and a fourth at an unspecified address. Three were completed to the plastering stage; he estimated that 30% or more of the work remained to be done. He completed those three projects. He could not finish off the fourth and the owners made a claim, against K Company, to the insurer. The husband’s brother assumed that the insurer would have finished that house.
According to the husband’s brother, he made the decision to transfer the $200,000 from the K Company account to his account, without speaking to his brother. His evidence was that at that time, he did not even know where his brother was. The money had been paid to K Company by those for whom the company was building houses, and he needed it to finish off the work. Indeed, he said he took the money as he did not want the husband and wife to take it. The evidence that he did not know where his brother was is hard to believe. The husband was with their mother, in Turkey. The husband’s sister was in a position to make enquiries of DHS on her brother’s behalf on 15 January. Their father knew enough to file an application in this court on 21 January.
The sum of $200,000 was paid into the account of a new company, H Company Pty. Ltd., which the husband’s brother created in 2002. The husband’s brother was the only director of that company. He created that company because K Company “was falling apart”; it had a bad reputation and he decided to “open” his own company and finish up the work K Company had left behind. Thus, work undertaken on the unfinished K Company projects from January 2002 was done by H Company; that done by the husband’s brother from mid-2001 until January 2002 was done by K Company.
The statements from the Premium Business Account in the name of K Company record significant activity between the middle of the year (when the husband’s brother said he took over the unfinished projects) and 14 November, 2001. The statements record an apparently thriving business in 2000, with significant sums credited, and debited. Many credits were for large sums; for example $190,000 went into the account on 5 October, 2000, another $40,000 on 30 October, 2000, $4,377.28 on 11 December, 2000 and $19,859.46 on 27 December, 2000. In the first half of 2001, the account fluctuated; by 5 April, 2001 it was overdrawn $160.38 but significant deposits were made in April and May. By June there were a number of dishonoured cheques; the balance at 29 June, 2001 was $15,557.33.
In the second half of 2001 large sums moved through the account. Payments on 26 October, 2001 for $45,115.22 and 27 November, 2001 for $60,000 are characterised on the bank statement as “[O]/Base & Frame” and “[O]/Lock Up”, indicative of a lender making staged payments. Likewise, a credit of $56,000 on 18 December, 2001 is recorded as “Prog Payment – PC”. PC is the surname of the husband’s sister. Most deposits carry no attributions.
On 2 January, 2002, just before the husband left for Turkey, the account balance was $44,159.32. On 9 January, 2002, $177,338 was paid to the account. I can say nothing of its source. Seven days later, the husband’s brother wrote the cheque withdrawing $200,000; the account balance just prior to that was $203,252.24. By 5 February, 2002, the account had a debit balance of $564.91, but on 25 February, 2002, $25,000 was paid into the account. By then, the husband was back in Australia, had located the family in New South Wales, and removed Z, and the husband’s brother was operating through H Company. I can say nothing of the source of the $25,000, or who wrote cheques on the K Company account after the husband’s brother withdrew $200,000, including a cheque for $23,900 cleared on 28 February, 2002, three days after the deposit of $25,000.
The husband’s brother’s evidence was that it took over a year to finish the three unfinished houses, and “a lot of people” were not happy about H Company taking on the jobs. He was, to put it colloquially, tarred with the K Company brush, by virtue of his name and community knowledge. In due course, K Company went into liquidation and in March 2004 the husband was declared bankrupt, on the basis of a sequestration order in which the petitioning creditor was BMW Finance. The husband’s brother’s evidence was that after those things occurred he was unable to get cover from the housing guarantee fund, and could not maintain a licence. Since then, he has worked with friends and for many owner/builders who need help; one does not need to be a licensed builder to build in those circumstances.
In the period in which he was finishing off the K Company contracts, the husband’s brother was also supervising Mr and Mrs Y’s project (with or without his brother) and working on his own home in D.
If his initial evidence is right, and Mr and Mrs Y bought the R property in 2002, significant work must have been done on it by June 2002, when the transfer to him was registered; his evidence was that it was some 70% finished when he acquired it. Even if he is wrong, and Mr and Mrs Y bought that property in 2001, on his own account he was working on it in the first half of 2002. He was also working on his own home, in which he and his family were living, albeit without the benefit of a certificate of occupancy.
The husband’s brother’s evidence was that there were written contracts between K Company and the four clients, with payment schedules incorporating the usual division into three payments. According to him, he sat down with each property owner and worked out what had to be completed. They told him how much they had in the K Company account. He never saw a contract and insisted he did not need to do that, relying instead on what he was told. He denied he ever rendered any bills, saying “they made payments themselves all the time and I made payments for their material”. He said payments for material came from the pool of $200,000 and he told each of them that when their money in the pool ran out, they would have to pay. That this was not, on his account, a satisfactory arrangement was illustrated by his evidence that two of his former friends are now enemies, “because of these houses”. According to him, the husband got nothing from the $200,000. Nor did he. Indeed, on his evidence, he was paid nothing at all for finishing off the houses, labouring for well over a year for no reward.
The husband’s brother’s evidence was of finishing his sister’s house towards the end of 2002 and early 2003; his evidence (as I understood it) was that she had put $120,000 into the K Company account, to finish the home. The statements tendered show $56,000 paid to the K Company account for the sister’s house on 18 December, 2001, described as “second progress payment”. Any one of numerous large sums credited to the account in 2000 or 2001 could have been the first payment. His evidence was of getting another $22,000 from his sister, in respect of her house, and of that sum being paid to the H Company account. That may be a reference to the sum of $21,000, paid by Colonial into the H Company account, on 5 June, 2002, and described as “third progress payment”.
At one point the husband’s brother said he received no additional funds from the various owners but at others he referred to them making additional payments. He agreed that it was routine in building contracts, when people borrow money, for banks to require staged completion, and to inspect before authorising a payment at the conclusion of a stage. He could not say why, if owners were funding building by bank loan, money from them would have been in the K Company account, prior to the work being done.
What was absent from the accounts of the husband’s brother and the husband relating to the $200,000 transfer and the K Company contracts were two important matters. The first was an acknowledgement that K Company was a business, rather than a charitable venture. The evidence was that K Company supported the family for many years; the husband’s brother’s evidence was of being well paid when he worked for K Company. Whatever the contract prices for the four jobs to which the husband’s brother adverted, the price cannot have been simply that of the raw material and third party costs. The husband’s labour and that of the husband’s brother (given his evidence of working with the husband) must have been factored into the contracts, together with a profit on the job. Yet according to the husband’s brother and the husband, the whole of the sum of $200,000 was ear-marked for disbursement to suppliers, as were all other sums paid by the owners of the properties which the husband’s brother completed.
The second was an explanation of the source of the sum of $177,738 paid to the K Company account on 9 January, 2002, when the husband was in Turkey.
In the witness box the husband’s brother said that he had all the “cheque butts and bank statements”. None had been produced pursuant to the order of 10 September, 2007. He then tendered the following documents.
· One statement from a Commonwealth Bank cheque account in the name H Tolbiac, trading as H Company. The account number is …251. The statement covers the period 16 July to 14 October, 2002 and is described as Statement 3. It commences with a balance of $36,863.44 and records a number of deposits and numerous debits. The closing balance is $70,999.90.
· One book of cheque butts for Commonwealth Bank account …251 from 24 January, 2002 to 7 June, 2002.
· A partly used cheque book, for the same account, in which butts relate to the period 13 June, 2002 to 22 March, 2004.
Given the point at which these documents were tendered, there was no opportunity for the wife’s counsel to effectively cross-examine the husband’s brother about them. No adjournment was sought to inspect them.
It is impossible to relate the cheque butts to specific evidence of the husband’s brother. It is apparent on the face of the butts that additional information has been written on many of them. This is often in a different coloured pen, and in different handwriting to the initial bare bones of the butt. By way of illustration, cheque butt 05, dated 31 January, 2002, for $2,000 shows the payee as [SE]. In a different pen is written “given to [SE] to buy his own tiles”.
The handwritten additions may have been done in the course of reconciling payments but by whom, I cannot say. Many payees come within the categories of building suppliers or tradesmen and tend to corroborate the husband’s brother’s evidence of significant expenditure on building material and fixtures and fittings in the period from January 2002 to December 2002. However, numerous cheques do not fit these categories.
An analysis of the cheque butts shows items attributed to four properties. There are repeated references to SE’s house, KE’s house and PC’s house; PC is the husband’s sister. There are then frequent references to “[H Street]” or “[19 H Street]”. That references to a property in H Street are not references to SE’s house, or KE’s house, is demonstrated by cheque butts which allocate a total sum between three or four properties, named, variously, as SE, KE, H 1994 and PC. For example, butt 8, dated 4 February, 2002 is made payable to “Con-trench digging”. The figure of $600 is allocated “[PC] sewer 250, [SE] sewer 250, [H 1994] and [KE] – telephone – 100”.
Another example is butt 15, dated 13 February, 2002, made payable to “Joe – bob cat hire”. Of the $1,000 total, $600 is attributed to H Street 19, $200 to KE, and $200 to SE.
A reasonable inference is that “[H Street]” or “[19 H Street]” was the property initially owned by Mr and Mrs Y. This is borne out by butt 241, dated 4 August, 2002 which records the payee as “[Mr Y], for [19 H Street]”. The amount of the cheque is $15,000. The one statement tendered by the husband’s brother shows that this cheque was cleared through the account on 8 August, 2002, two months after the transfer of the R property to the husband’s brother. An earlier butt (no.67) dated 29 April, 2002 is for $3,300. The payee, again, is Mr Y and the butt bears the words “Paying bank for [19 H Street] land”.
The butts also record a payment of $6,005.40 to “Urban Land” on 12 April, 2002. The husband’s brother’s evidence was of buying the H Street, R property from Urban Land. That Mr and Mrs Y had been registered as proprietors is clear from the transfer. All or part of the consideration paid for the property could have been paid to the Urban Land Authority, as an amount owing in respect of the original land acquisition. The cheque paid to Mr. Y in August 2002 may have been an additional payment. The cheque for $3,300 dated 29 April, 2002 may have been an amount lent to Mr and Mrs Y to meet their mortgage obligations (as deposed by the husband’s brother) or a payment for other purposes.
Stapled into the second cheque book is a receipt for a bank cheque, paid for from the H Company account, on 6 June, 2002. Butt 98 records the payment of $80,109.73, which is the figure on the receipt. The receipt notes the payee on the bank cheque as the Commonwealth Bank. The record on the cheque butt is hard to decipher. The first word is E…n. Mr. Y’s name is recorded on the other cheque butts as E... It is likely the bank cheque was paid at the settlement of the purchase, from Mr and Mrs Y, of R property. The timing is right and the sum is right. The Commonwealth bank may have received the funds for Mr and Mrs Y or the Urban Land Authority. The funds came from the H Company account; there is no evidence that any contribution from the husband’s brother’s father went into that account.
It is clear that some of the cheques relate to the property once owned by Mr and Mrs Y. For example, cheques drawn on 7 June, 2002 (butts 99 and 100) are clearly referable to the registration of the R property in the husband’s brother’s name. One is for $1,720 and is made payable to “[H Tolbiac] – State Revenue Office”; this figure ($1,720) is shown on the copy transfer of land tendered, which was registered on 11 June, 2002. The other cheque is for $346 and is payable to the Land Titles Office. These came from the account into which the $200,000 had been paid.
Many more payments are specifically referable to 19 H Street. In some cases, part of a larger figure is allocated to this property; in others, the expenditure is solely attributable to this property. The table below sets out these specific payments.
Butt Date Whole/Part Payee & description Amount
08 4.2.02 Part Trench digging $ 100
09 7.2.02 Whole Bunnings (H Street) $ 62.73
10 7.2.02 Whole Lalor Timber -
Lockup for 19 H Street $ 836.95
11 13.2.02 Part Bob cat hire H Street 19 $ 600
17 15.2.02 Part AGL – H Street $ 35.99
22 25.2.02 Whole M ducted heating -
19 H Street $ 3,00027 28.2.02 Whole Brick washing 19 H Street $ 600
29 4.3.02 Whole Westside -
Material for 19 H Street $ 1,189.0531 5.3.02 Whole Lalor Timber –
19 H Street $5,00032 6.3.02 Whole Lalor Timber –
doors for 19 H Street $ 2,468.6234 7.3.02 Part Delightful Kitchens -
19 H Street $ 3,00035 7.3.02 Whole Plaster -
19 H Street $11,00036 12.3.02 Part B Electrician –
19 H Street $ 60038 17.3.02 Part Endless Spas –
19 H Street $ 1,40039 18.3.02 Part Airport doors –
19 H Street rollerdoor $ 2,20044 25,3,02 Part Thomastown Bathrooms –
19 H Street $ 65045 25.3.02 Part Lalor Timber –
19 H Street $ 325.4947 27.3.02 Part 19 H Street $ 1,600
51 29.3.02 Whole T painting -
19 H Street $ 3,00060 17.4.02 Whole T painting –
account for 19 H Street $ 3,00062 18.4.02 Whole M Insulation –
19 H Street $ 543.9069 30.4.02 Whole Advance Windows –
19 H Street $16,30672 2.5.02 Whole Plumber –
19 H Street $ 30073 4.5.02 Whole Rainbow Tiles
19 H Street $ 310.7074 6.5.02 Whole Surdex Steel –
for 19 H Street $ 9076 7.5.02 Whole R Tolbiac money
Paid cash for 19 H Street
Bob cat $ 95082 16.5.02 Part O A –
for 19 H Street $ 52883 20.5.02 Whole Bunnings –
19 H Street $ 144.9285 20.5.02 Whole Designer Screens
19 H Street $ 1,00086 21.5.02 Part Supervised Roofing
19 H Street $ 68088 22.5.02 Whole Bunnings – 19 H Street –
spa outlet $ 8489 22.5.02 Whole … – 19 H Street $ 400
90 22.5.02 Whole FCarpets – 19 H Street $ 3,000
91 23.5.02 Whole …
19 H Street $ 2,500201 13.6.02 Part T painting –
H Street $ 1,000207 24.6.02 Part Marino Insulation
19 H Street $ 650209 25.6.02 Whole … City Council
19 H Street $ 253212 29.6.02 Part …
for H 19 $ 446.69219 8.7.02 Whole …
19 H Street $ 2,000226 16.7.02 Part …
balcony balustrades 19 H $ 1,100230 22.7.02 Part … 19 H
(assuming one half as a secondprop.named without allocation) $ 1,500
236 29.7.02 Part SE
19 H Street $10,000
$84,456.04
This analysis shows that a significant part of all debits relates to the H Street property. Payments to Mr and Mrs Y total $18,300. Payments to register the transfer account for $2,066. Payments for materials, to tradesmen and to the City Council, amount to $84,456.04. Together, these add up to $104,822.04. The husband’s brother’s evidence was of incurring expenses totalling $32,000 for payments he made for Mr and Mrs Y, or to suppliers and tradesmen working on the building, a long way short of this figure.
The last butt which records a payment referable to a tradesman for H Street is dated 29 July. The payment of $15,000 to Mr. Y was made six days later, on 4 August, 2002.
The husband’s brother’s evidence was that payments that went through the H Company account were for K Company work, which he had taken over. Close to $105,000 relates to the H Street property, which was never a K Company project.
As noted, many butts record one figure, and a notation then divides the sum up into specific, and precise, figures. For example, butt 17 notes a payment to AGL on 15 February, 2002, of $220. The figure $220 is in black ink. In what looks like a different hand, and in blue ink, is a breakup, as follows :
[the husband] $199.35
[H Street] $35.99
Gas [the husband] $82.15These total $317.49.
On other occasions, a cheque was written for a round figure, and the funds then attributed to different jobs. Again, the sum total of the individual attributions is not always equivalent to the round figure. For example, butt 236, dated 29 July, 2002, shows the payee as SE and a sum of $20,000. Handwritten on the butt is :
[19 H Street] $10,000,
Ryan $5,000 (this figure has been changed from what looks like $3,000), Ryan Bricks $1,800
[…]$2,800- […] - $10,800These total $27,600 and no combination of the figures (including those crossed out) comes to $20,000. Yet the one bank statement tendered for the H Company account shows it was cleared through the account on 30 July, 2002 at $20,000.
It was the submission of the wife that the evidence established that she was subjected to physical and sexual violence and emotional abuse throughout the marriage, and that this should be taken into account when assessing the parties’ respective contributions.
The relevance of family violence to an application made pursuant to s.79 of the Act was considered by the Full Court in Kennon v. Kennon (1997) FLC 92-757. After analysing a number of earlier decisions, the majority (Fogarty and Lindenmeyer JJ.) said (at 84,294) :
Put shortly, our view is that where there is a course of violent conduct by one party to the other during the marriage which is demonstrated to have had a significant adverse impact on that party’s contributions to the marriage or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
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 longstanding 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 to be appropriate to give effect to them: see Nguyen (1990) 169 CLR 245; Farnell and Farnell (1996) FLC 92-681, and Ivanovic v. Ivanovic (1996) FLC 92-689.
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 policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the Court at an early stage when a case appears to raise those issues.
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). Similarly, in Killick v. Killick (1997) 21 Fam LR 331 at 341, in proceedings under the De Facto Relationship Act 1984 (N.S.W.), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.
The wife deposed to the violence directed against her in each of the affidavits on which she relied. It was her evidence that she was forced into marriage after she was raped by the husband, and that he first physically assaulted her some two weeks after their marriage. Her evidence was that his physical and sexual abuse continued when she was pregnant and during a period in which they lived with his parents, and that his mother condoned the abuse, justifying it as a legitimate response to the wife’s refusal of sexual advances and other behaviour which made the husband angry.
In her affidavit filed 30 November, 2007 the wife detailed a number of specific incidents. It was her evidence that she was not allowed to consult a doctor for injuries and the husband’s mother made home remedies, on occasions. She said she lied about her injuries at work. On the few occasions she called the police, she was too scared to ask them to press charges and, in any event, the beatings she received were worse after she involved police.
The wife’s evidence was of verbal abuse and controlling behaviour, such as demanding sexual favours in return for money, and determining what she and Z would wear. If the husband did not like the food she cooked, he would throw it in her face or on the floor, and he punched holes in walls and doors.
The wife’s evidence was that she did consult her general practitioner about headaches and depressive symptoms.
The wife’s evidence was that she attempted to leave the husband on seven or eight occasions but her attempts failed, as he would track her down and threaten her. He would tell her that if she left him he would kill her family and burn the house down, or take the children and she would never see them again. She said that after her relocation to Sydney in 2002, the husband found them and she gave into his constant pressure, and promises that he would change, and get help. According to her, those promises were short lived. Within a couple of months of reconciliation, he again commenced to physically abuse her. In August 2002, she attempted to commit suicide and was hospitalised for a short period.
The wife called no medical evidence. She relied on records from her general practitioner and a social worker who saw her when she was hospitalised after the suicide attempt in August 2002. She also relied on the DHS records and on what she submitted were admissions made by the husband in letters he wrote to her from Turkey after learning that she and the children had fled the family home.
The notes from the wife’s general practitioner refer to depression from at least June 1995, and the prescription of Arapax. There are references to fatigue, poor concentration, interrupted sleep, tiredness, forgetfulness, weight loss and poor concentration. A note made in December 2001 (the day of the month is obscured) records a history of being beaten by her husband and physically abused in the preceding week. It records bruises to the parietal and periorbital regions and that “this happening almost every one to two months”. The history recorded includes a statement that her sixteen year old daughter was on anti-depressants, her ten year old son wetting the bed, that she had been married for seventeen years and “this verbal and physical abuse continuing for so many years”. This was just prior to Z’s suicide attempt in late December 2001 and is consistent with the wife’s recorded advice to DHS of a significant assault some three weeks prior to DHS involvement.
An entry on 8 August, 2002 records a history of a Zanex overdose some ten days earlier, significant weight loss and problems with sleep, motivation and “not able to get out of house”.
An entry for September 2002 records an injury to her right hand (a subsequent X-ray revealed a bone fragment) and a history of falling on that hand. The wife’s evidence was of the husband breaking her finger late in the marriage. There are no entries between 22 October, 2002 and an entry in June 2005.
A record from the … Hospital relates to the suicide attempt in August 2002. It records the wife’s account of taking 50 Zanex tablets, 6 Panedeine tablets and 30-40 other tablets (the name of which is illegible). It records that the wife wanted to kill herself and “not happy with husband”. There is reference to “husband aggressive with kids”, domestic violence with husband, and long term conflict. The notes of the social worker who was involved with the wife at the Hospital are consistent with the description of them in the wife’s affidavit. The social worker recorded that on 16 August, 2002 the husband presented as defensive and annoyed at her interference, and as blaming the wife for not attending to home duties, as required.
A closure summary from Southwest Health Care dated 25 March, 2003 was tendered. The summary is in these terms :
[The wife] is a 40 y.o. woman of Turkish origin, referred by staff of […]. [The wife] came to [regional Victoria] to escape her husband, who she reported had verbally, physically and sexually abused her for the past 18 years. Relocation resulted in separation from her 3 children, family and social supports. [The wife] presented with a 6/12 history of depressive symptoms, including decreased appetite with significant weight loss (24 kg), poor sleep, nightmares, increased tiredness and crying, and significant decline in daily functioning. During this time she has had an overdose on Xanax (August 2002), fleeting suicidal ideation and guilty cognition’s. In addition to current episode of major depression, [the wife] has a long history of dysthymia. No family history of depression but her daughter attempted suicide in December 2001 in response to the family situation. [The wife] was admitted to inpatient unit in [B] for eight days in January this year, where she was started on Efexor.
[The wife’s] stay in [regional Victoria] was brief, she returned to Melbourne with her brother after a period of five weeks. Prior to returning to Melbourne [the wife] was admitted to the inpatient unit for four days, due to an increase in deliberate self-harm ideation. The precipitating stressor appears to be that that the security of [the women’s refuge] was breached, and as a result all residents were relocated to motels. On discharge, [the wife] caught a train to Melbourne to stay with her brother, with the plan to re-engage with her previous private psychiatrist. On return to Melbourne, [the wife] decided to return to Turkey for an indefinite period of time to stay with her mother.
The husband denied raping the wife prior to their marriage. Asked whether he ever hit her he said “we had arguments” and that she stabbed him, and broke his tooth. He said “if she hit me, I hit her”, that “very occasionally” we had fights, that he “only responded” and was never the first one to hit her. When asked where he hit her, and to what part of the body, he replied, on each occasion “I don’t know”. Asked the last time he hit her, he said “when she hit me”. He then spoke about the time they were back together when she hit him and stabbed him. He said “I don’t remember when I last hit her” and then that “I pushed her back, and hit too”.
Asked about hitting Z, his initial response was that “when she was young, I must have”. Then he said that he “maybe” hit Z once, many years earlier. He denied hitting Z shortly prior to her attempted suicide and said “the wife forced [Z] to try to commit suicide”.
When both specific and general allegations of sexual violence were put to the husband he responded with words to the effect :
We were married. How can you force a partner to have sex with you? I could have gone and married some other girl.
Asked about a specific allegation of slamming the car door and trapping her finger in November 1985, he said that the wife “trapped her own finger”.
The husband said he did not know if the wife had stitches after Z’s birth in December, 1985, denied forcing her to have sex ten days later and said he could not recall whether her wound burst and she required further surgery. He denied forcing her to have anal sex and said that no person would stay in a marriage if these things happened.
Asked about the wife’s evidence that her parents spoke to him about the alleged violence when Z was four months old, the husband conceded they visited but denied the visit had anything to do with alleged violence. He said that her father pushed him, he hit him back, her father grabbed a knife and police were called. He denied he took Z and ran out of the house. He denied telling the wife that day that if she wanted to see Z she must remain living with him, and that she was not allowed to see her parents, or let Z see them. When it was put to him that Z then did not see her maternal grandparents until she was two and a half years old, he said they were overseas a lot and the mother took her to see them when they were in Melbourne.
The husband agreed that “I did hit walls” but denied kicking them. He then said that he did once (this answer was ambivalent; it was after he said he did not kick walls) and that he made a hole but could not remember when. He attributed that to the wife making him angry. He initially denied that police came several times to the home but later said he did not remember.
The husband denied threatening to stab the wife’s belly and kill the baby when she was pregnant in 1990, and that his father intervened. He denied grabbing the wife by the throat when she was holding M as a baby and putting so much pressure on her throat, that she dropped the child.
Asked whether the wife spilt boiling water on her leg during a camping trip in 1993 he responded “not really”; this was in response to an allegation that he became very angry when she rolled up her trousers to expose her burnt leg. He denied bashing her head against the wall, kicking her in the head when she fell to the ground or kicking her in the stomach or leg. He did not recall her ever running out of the house at night. He denied verbally abusing her in front of the children, using words like “fat cow”, “slut”, “lazy”, “frigid” and “ugly”. He did say they called each other names during arguments.
The husband denied controlling money; it was his evidence that the wife controlled all of it. He denied threatening to kill her if she told hospital staff of the violence after Z attempted suicide.
Cross-examined about translations of letters he wrote to the wife from Turkey (sent to DHS with a request that they be forwarded), the husband initially said he did not remember the various protestations of regret, acknowledgment of her suffering and pleas for forgiveness. Shown letters he said they looked like his handwriting (save one) and then that they “probably are the letters I wrote”. He then retreated to saying that anything in those letters which read as an admission of violence or abusive behaviour was simply said in order to get the family back together.
Asked about a letter dated January 2002 in which he referred to the wife putting up with him for eighteen year, said she would never suffer again and that he was seeing a psychologist in Turkey, he said he did not remember writing it but did see a psychologist there, who was a friend. He denied the consultations related to his anger or violence. Asked about statements in which he described himself as sinful but as having learnt from his mistakes, knew how much he made her suffer, recognised he had acted like an animal but would never do it again, he said he had not acted like an animal or in a way of which he was ashamed.
I have earlier referred to notes in the DHS records of workers’ conversations with Z when she was in hospital after the attempted suicide, which record disclosures of violence directed at her and her mother and of threats to kill. Asked about these, the husband said the worker “was probably talking from my ex-wife’s mouth”.
In evidence was a letter from a protective worker at DHS to the Department of Housing in New South Wales, seeking priority housing for the wife and children at the time they were relocating to Sydney. The letter is dated 10 January, 2002 and is based on discussions with the wife and Z, and not with the husband. The worker sought priority housing immediately, given the “severity and nature of the domestic violence” and the “substantial emotional trauma” impacting on the family’s capacity to function. It recorded the accounts of the wife and Z, to which I have earlier referred. The application for priority housing was supported by a letter from Northern Family and Domestic Violence Services who were asked to assist in finding safe accommodation for the wife and the three children by the Department of Human Services on 9 January, 2002.
The husband’s evidence was that the wife was never bruised, never had swollen lips, and never had a black eye. Those statements were clear, and clearly inaccurate, as evidenced by the GP’s notes of December 2001 and the evidence of the wife’s brother.
The wife’s brother made it clear that he did not know what happened behind the closed doors of the family home. He said he was called out many times, with other friends, to attempt to reconcile the parties. He saw verbal arguments and he observed bruising and swelling on the wife’s arms, neck and face. The wife’s brother is a physiotherapist and he said he felt the lumps on her legs and arms when he massaged her, and treated her. This evidence was in stark contrast to the husband’s denial of any apparent injuries or bruising. While the wife’s brother could not give evidence of the source of the injuries, from his own observations, his evidence (which I accept) is inconsistent with the husband’s denial of any injuries (however caused), and I place weight on it.
The wife’s brother spoke of phone calls from the wife when he could hear the fear in her voice, and of her shaking and trembling. He gave her “the advice of a brother” and told her that police might be able to help her.
The wife’s brother’s evidence was that on one occasion when his sister “tried to escape the marriage”, the husband came to his house, became very abusive and police were called. Z was two or three and he recalled her hiding in a toilet. Police attended the home, evicted the husband, and told him not to enter the street.
The wife’s brother’s evidence was that he had been at the D property when police were called. He said it was hard to recall when, and could not say whether his sister, a neighbour or one of the children called the police.
The wife tendered an application for an intervention order in which the applicant was her brother’s wife, Ms O, and the defendant was the husband. Asked about this, the husband gave a version of events in which he was the injured party and he said he had been supported by the school (Ms O worked at K School). He said no order had been made. The evidence is to the contrary.
While Ms. O was not called, a copy of the complaint and an intervention order made in response to the application was tendered. The allegation in the complaint was of verbal harassment by the husband at K School on 15 August, 2003, continual harassment and stalking around the school, an insistence Ms. O tell him where his wife was, and threats to “rip my husband to pieces” if messages were not passed on. She alleged the husband left a message on her phone saying that they could not run away, that he would not touch them “today” but was going to do so. In the complaint she said that neither the principal, staff, her husband or her father had been able to get the husband to desist.
The intervention order notes that the defendant (the husband) was at court. It is dated 25 September, 2003 and was to last until 24 September, 2005. It prohibited the husband from assaulting, harassing or threatening Ms. O, approaching, telephoning or contacting her, being at or within 200 metres of her home, and damaging her property. Two paragraphs of the order specifically relate to K School. The first prohibited the husband from being on the premises of K School without the express permission of the school principal. It provided that he may deliver his children to school and collect them after school but may not enter the school grounds for that purpose without the express permission of the principal. The second order provided that “The defendant is forbidden to enter the primary teacher staff room under any circumstances located in primary school [K School].” It is thus clear an order was made and its effect was to limit the husband’s ability to enter the school grounds. That is not consistent with his evidence.
Also before the court was a report from Dr. LL, consultant psychiatrist, dated 28 February, 2003. Dr. LL assessed the wife at the out-patient clinic of South West Health Care in regional Victoria on 19 February, 2003. The wife was then staying in a women’s refuge in regional Victoria and was referred by personnel there. Dr. LL reported :
[The wife] has a long history of depressed mood for the past 18 years. This is in context of alleged longstanding physical and sexual abuse by her husband. As a result of this she has low mood, lack of concentration, sense of hopelessness and worthlessness and thoughts of harming herself. She is also experiencing sleep and appetite disturbance. All these symptoms have increased over the past six months. Currently I believe she is experiencing a Major Depressive Disorder on a background of Dysthymia. She has left her husband and children and has come from Melbourne to [regional Victoria]. There is no support for her at present. She has her family members back in Turkey and I feel that [the wife] will benefit if she returns to Turkey for 12 months. Her family members can provide adequate support and this will enhance her recovery from Depression.
Considering all the evidence I am satisfied that the wife was subjected to the physical, sexual and verbal violence to which she deposed during the marriage. I make no finding in respect of the alleged rape prior to marriage. I accept her accounts of the specific incidents referred to in her affidavit which occurred after marriage. Further, I find it more probable than not that Z and, albeit to a lesser extent, the boys, were subjected to the abuse alleged by the wife. It is probable all of the children witnessed the physical abuse of their mother. I am satisfied that the abuse made the wife’s contributions as a parent and homemaker, and a financial contributor, significantly more arduous than they ought to have been, and that this case falls within the category of exceptional cases in which abuse is relevant to the assessment of contributions.
I do not ignore the evidence of the wife’s violence to the husband after the parties’ reconciliation, which occurred at a time her psychiatric condition was deteriorating rapidly. I do not find it more probable than not that the wife was the primary aggressor during the marriage or that she initiated acts of physical violence against the husband prior to their separation in January 2002.
I am satisfied each of the parties contributed financially during the marriage. The wife maintained paid employment for many years; the husband worked as a builder until 2001.
While the husband may have made some contributions as a homemaker and parent, I am satisfied the brunt of those roles fell to the wife when they were together and the violence to which she and the children were exposed made those contributions more onerous.
In the Statement of Affairs declared by the husband in support of his bankruptcy, he said that after the wife disappeared (in January 2003) :
I was looking after the children for more two and a half years until my oldest daughter gets her licence. I can’t work.
The reference to Z getting a licence may be referable to the last phrase (I can’t work) or may be referable to the first part of the statement. Z turned 18 in December, 2003 so the statement was declared after her birthday. There is little doubt that Z has played a significant role in caring for the younger children since separation. So have the husband’s brother and, on the husband’s own account, his mother, and these contributions were made on the husband’s behalf. The reality is that the wife was unable to contribute to the children’s upbringing when she was in Turkey after the final separation, and had little involvement with them for some time after her return.
The gift from the husband’s father went into the D property, and I take that into account as a contribution made on the husband’s behalf. I accept the wife’s evidence of the financial generosity of the husband towards family members during the marriage and that matrimonial funds were used for that purpose. I take into account work done by the husband and the husband’s brother on the various properties owned by the husband and wife.
I do not ignore the funds spent by the wife during the period between separation and reconciliation but I am satisfied that expenditure was for legitimate purposes, and that whatever was left went back into the family coffers.
The husband has had the benefit of living in the R property for those periods he has been in Australia since separation in January 2003 and this time and it is probable benefited (albeit in ways I cannot quantify) from funds removed by his brother in early 2002.
Balancing all factors I find that contributions of all kinds from the date of marriage to date should be assessed as made 47.5% by the husband and 52.5% by the wife.
SECTION 79(4)(d) to (g)
I turn to the matters referred to in s.79(4)(d) to (g).
(d)the effect of any proposed order upon the earning capacity of either party to the marriage;
There is no evidence that any order made by the court in these proceedings will impact upon the earning capacity of either party, save that the conclusion of the litigation will remove one of the stressors which, the husband deposed, limited his capacity to work more than he does.
(e)the matters referred to in sub-section 75(2) so far as they are relevant;
I will consider each of the relevant paragraphs :
(a) the age and state of health of each of the parties;(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband is 48 and his evidence was of significant health problems which impact on his capacity to work. As with the wife, he called no medical evidence. On his own evidence he is capable of working, even if not on a fulltime basis. He is in receipt of Centrelink benefits and receives no child support from the wife. His evidence was that his mother, brother and sister all provide him with financial assistance.
The wife is 45. It is apparent that she carries the psychiatric problems which precipitated the final separation. She takes antidepressant medication and sees a psychiatrist weekly. As noted earlier, she called no medical evidence. She has not been in the paid workforce for over a decade and it is probable has no capacity for paid employment. She, too, is in receipt of Centrelink benefits. She receives no child support from the husband.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Each of the parties has the care of a child under 18. N is 17, M will be 16 later this year.
(d)commitments of each of the parties that are necessary to enable the party to support :
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
I take into account the husband’s remarriage and the birth of his daughter, and his obligation to support them.
(f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
There is no evidence of any superannuation benefits. I have referred to the parties’ Centrelink benefits.
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
This is a relevant factor. When he has been in Australia, the husband has spent much of the time in the R property, a property the husband described as having five bedrooms and the valuer, four. It has a number of living areas and the husband’s description of it is of a comfortable, large house, easily able to accommodate him, his new wife and baby, Z, M and N. The wife’s accommodation has varied, but she was reduced to finding accommodation through a charitable organisation at one point and is presently in very modest rented accommodation. If the R property is sold, the husband will have to accommodate himself and his family elsewhere.
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
There is no evidence that either party intends to retrain.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
It is probable that the wife’s acceptance of the primary role of home-maker and parent, which she performed in very difficult circumstances, enabled the husband to prosper in the building industry, until such time as he elected to withdraw from that trade. He maintains the capacity to work in it, demonstrated by his evidence of employment, on a casual basis, by his brother.
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
Without expert evidence, the court cannot specifically attribute the causation for the wife’s present psychiatric condition. Having accepted her evidence of the abuse to which she was subjected, over a long period, I can make the general finding that the marriage has adversely affected her earning capacity. When she married, she was employed with the Commonwealth Bank. In difficult circumstances, she maintained that employment until 1996. Observing her in court, it is difficult to imagine her undertaking any form of paid employment.
(l)the need to protect a party who wishes to continue that party’s role as a parent;
Each of the parties continues to have parental responsibility for one child of the marriage.
(m)if either party is cohabiting with another person - the financial circumstances relating to the cohabitation;
I take into account the fact of the husband’s remarriage, but can say nothing about their financial circumstances.
CONCLUSION
In the course of final submissions, counsel for the husband submitted that any adjustment in the wife’s favour should be slight. In my judgment, the position of the wife is much more parlous than that of the husband. He is able to work, on his own evidence. He adduced no evidence referable to his current wife’s capacity to undertake paid work. No evidence precludes that possibility. He deposed to parenting responsibilities for M and he would presumably be able to attend to his new child P, were her mother to obtain some form of employment outside the house, and were he to arrange his part time work with his brother around those responsibilities.
In the past, the husband has attributed his inability to undertake paid work, at least in part, to matrimonial problems. With this judgment, they should be behind him. He is no longer bankrupt and the creditors will be paid.
It is true the husband will need to reaccommodate himself and his family, once the R property is sold. He will be in the same position as the wife. An order could provide for him to buy the wife out of that property and give him a short period in which to elect to do so. As I have no confidence in any of his evidence about his present financial position, or about assets which may be available to him, I cannot assess the likelihood of him being able to obtain funds for this purpose.
The wife’s presentation could be described as that of a broken woman. It was marked not by histrionics but by pervasive despair. The court could not be optimistic about her prognosis.
The wife sought that she receive the funds held in the Supreme Court, less the sum due to Marshalls & Dent, plus $200,000 from the proceeds of sale of the R property. Taking into account her concession of other relevant matrimonial liabilities, this figure would be reduced. The husband sought an equal division, although that was of a pool that did not include the R property.
Balancing all factors I am satisfied there should be an adjustment of 7.25% in the wife’s favour, bringing her entitlement to 60% of the pool.
Allowing $20,000 for costs of sale, the nett pool will be about $464,000. Sixty percent of the pool is $278,400. The husband’s entitlement would be $185,600. In my judgment the difference ($92,800) is warranted. Each party will have to pay legal fees and will maintain the post-separation debts to family members. The husband retains the bulk of the matrimonial chattels, a car (albeit probably of little value) and may have other assets.
I am satisfied this represents a just and equitable distribution of matrimonial funds.
COSTS
Orders will provide for the filing of submissions, in the event a party seeks costs. I note the husband’s brother’s claim that the necessity for his attendance at court resulted in him losing $5,500 for a job he was to have done between Tuesday and Friday of the week of the trial. At this time I say nothing of the disparity between this assertion and his evidence of earning only $15,000 per annum at present and receiving Centrelink benefits. Were he to seek costs he would certainly need to adduce evidence, in admissible form, of his financial position and lost income; he would be wise to consider the provision of s.117, and take advice, prior to making an application.
I certify that the preceding
276 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2008.
…………………………………………
Associate.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Insolvency
Legal Concepts
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Costs
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Remedies
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Constructive Trust
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Injunction
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Appeal
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