WARNER & PELLIN
[2020] FCCA 1175
•1 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARNER & PELLIN | [2020] FCCA 1175 |
| Catchwords: FAMILY LAW – Property proceedings – addbacks – where wife received post-separation inheritance and husband received insurance payment – contributions – where both parties made substantial contributions over long period – adjustments – where the wife seeks a Kennon adjustment by reason of family violence perpetrated by husband and it is accepted that the wife’s case falls within the exceptional category identified in Kennon – where the wife is to retain her full inheritance – where there be a 5% adjustment of remaining matrimonial property to husband resulting in 54/46 division in favour of Husband – just and equitable outcome. |
| Legislation: Family Law Act 1975 (Cth), Pt VIII |
| Cases cited: Kennon & Kennon (1997) FLC 92-757 Kowaliw & Kowaliw (1981) FLC 91-092 |
| Applicant: | MS WARNER |
| Respondent: | MR PELLIN |
| File Number: | NCC 185 of 2018 |
| Judgment of: | Judge Betts |
| Hearing dates: | 4, 5, 6 & 13 May 2020 |
| Date of Last Submission: | 13 May 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 1 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Byrnes Lawyers |
| Counsel for the Respondent: | Michael Weightman |
| Solicitors for the Respondent: | Trisley Lawyers |
ORDERS
Within seven (7) days, each party do all such acts and things required to release the funds held by B Solicitors in a controlled monies account on behalf of the parties as follows:
(a)$239,376 to the husband;
(b)$242,441 to the wife.
(c)Any balance exceeding $481,817 to be disbursed 54% to the husband and 46% to the wife.
Within seven (7) days, each party do all acts and things required to sell the jointly owned C shares and distribute the sale proceeds 54% to the husband and 46% to the wife.
The wife be entitled to her interest in the property purchased by her “off the plan” and the husband relinquishes any interest in that property.
Except as otherwise provided for by these orders, each party is declared to have the sole right, title and interest to the exclusion of the other in respect of all assets in their name, including but not limited to:
(a)Chattels, goods, furnishings, motor vehicles and other personal property which are at the date hereof in their possession respectively;
(b)Any monies in bank accounts or any other financial institution;
(c)Shares; and
(d)Any present or future expectation they have under a trust or estate.
Each party shall indemnify, and keep indemnified, the other party from any liability held in their own name.
If either party refuses or neglects to sign or execute and return a documents within seven (7) days of a written request to do so then the Registrar of the Newcastle Registry of the Federal Circuit Court of Australia is hereby appointed under Section 106A of the Family Law Act1975 to sign or execute such document on behalf of that party upon lodgement of such document and the filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
IT IS NOTED that publication of this judgment under the pseudonym Warner & Pellin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 185 of 2018
| MS WARNER |
Applicant
And
| MR PELLIN |
Respondent
REASONS FOR JUDGMENT
Introduction:
These are contested property settlement proceedings between Ms Warner (“the Wife”) and Mr Pellin (“the Husband”).
The parties commenced cohabitation in 1985, married in 1986 and separated in early 2016 after thirty-one (31) years together. They have two (2) adult children, Ms D (33) and Mr E (31).
At trial the parties were in dispute as to various Balance Sheet items, the weighting of their respective contributions and the impact of the relevant section 75(2) factors.
The contributions weighting was the major focus. While both agreed that the Husband’s initial financial contributions provided the financial “springboard” for the parties, they disagreed as to the weight to be attached to same. The Wife also asserted that she was entitled to a Kennon adjustment in her favour on account of the Husband’s family violence.[1] The Husband conceded some “terrible incidents of violence” on his part but submitted that the case did not fall within the relatively narrow band of cases warranting a Kennon adjustment.
[1] Kennon & Kennon (1997) FLC 92-757, a decision of the Full Court of the Family Court of Australia
Material relied upon at trial:
Given the COVID-19 pandemic, the trial proceeded electronically.
At trial, the Wife relied upon the following documents:
(a)Outline of Case filed 1 May 2020;
(b)Trial affidavit of the Wife filed 14 April 2020. Annexure “L” was a report from the wife’s treating psychiatrist, Dr F, who was also made available for cross-examination;
(c)Financial Statement of the Wife filed 14 April 2020;
(d)Supplementary affidavit of the Wife filed 1 May 2020;
(e)Affidavit of Ms D (the parties’ adult daughter) filed 11 September 2019.
The Husband relied upon:
(a)Outline of Case filed 1 May 2020;
(b)Trial affidavit of the Husband filed 17 April 2020;
(c)Financial Statement of the Husband filed 17 April 2020;
(d)Affidavit of Martin Trisley (the Husband’s solicitor) filed by leave on 12 May 2020.
Each of the parties tendered various exhibits in the course of the trial, which will be referred to as relevant. The parties’ written submissions were also marked as exhibits for convenience.[2]
[2] Exhibits 6, 7 & 8
I have had regard to all of the above material, as well as the oral submissions made at the close of the trial.
Brief observations and findings concerning the witnesses:
The Wife:
The Wife came into the trial with a major credibility problem.
In 2017 her mother died. Consequently the Wife, a beneficiary of the estate, inherited $214,930.21 in 2018. The Wife made a calculated decision not to disclose the inheritance.[3]
[3] For completeness, she also inherited some items of personalty but these were of nominal value only.
At the very outset the Wife arranged for the inheritance to be paid directly into her daughter (and husband’s) joint mortgage offset account. Shortly afterwards, she transferred the bulk of those funds into a joint savings account operated by her daughter and husband.
In the meantime the Wife’s filed court documents deliberately omitted any reference to the inheritance. She consistently misrepresented her true financial position.
In the end the Wife only confessed to the true position just days prior to trial – and only then in response to a specific query from the Husband’s legal representatives as to the source of some deposit moneys she had applied to an off-the-plan unit purchase. Although her trial affidavit had falsely deposed that her daughter had loaned her those moneys, the Wife then admitted to the inheritance and said that they were the source. This was deposed to in the Wife’s supplementary affidavit.
In the overwhelming majority of cases such conduct would warrant a devastating credit finding. But each case is different. In this case I accept that the Wife was a victim of longstanding and at times harrowing family violence at the Husband’s hands and I accept her oral evidence that she concealed the inheritance because she was afraid the Husband would take it from her. He had told her many times that if she left him she would “leave with nothing”.
Put into context, the Wife felt financially vulnerable after separation. The Husband had remained in occupation of their home until its sale and in the meantime the Wife had largely been “couch surfing”. Her fears that the Husband would somehow take her inheritance were not necessarily rational, but they were genuine - a legacy of the Husband’s substantial past family violence perpetrated against her over many years.
In the witness box, the Wife was at pains to apologise for her deception and she appeared genuine.
In my view, the Wife’s giving of false evidence as to the inheritance does not reflect generally on her credibility in relation to the other aspects of her evidence. However, her conduct would potentially be highly relevant to any later costs application.
The Wife was cross-examined at some length about the extent of her drinking. But as the Husband disavowed any waste argument,[4] the issue of the Wife’s drinking was an attack on her credibility more than anything else. He submitted that her drinking was relevant when determining disputed facts, particularly concerning family violence.
[4] See the line of jurisprudence commencing with Kowaliw & Kowaliw (1981) FLC 91-092
Certainly the Wife admitted to substantial alcohol consumption and it seems that in the early to mid-1990s the Husband cajoled her into drinking bottled wine instead of cask wine so that she would drink less. But while the extent of her drinking does potentially bear on her reliability, the Wife’s evidence of family violence finds substantial independent support. There have been five (5) previous Apprehended Violence Orders protecting the Wife from the Husband, and he has four (4) criminal convictions for assaulting her. There is also corroborating medical evidence and the evidence of their daughter.
Save for her decision to conceal her inheritance, the Wife was otherwise a credible and at times compelling witness. She made proper concessions, including that she regularly drank alcohol to excess during the relationship. It was for her a maladaptive coping mechanism. When challenged about drinking wine while making dinner at night, she said the Husband would be on his computer exchanging sexual messages with other women – causing her to feel “worthless”. Drinking numbed the pain.
I accept the Wife’s poignant evidence that during the relationship the family dynamic was such that “If Mr Pellin was happy, everyone was happy”. She did what she could to keep the peace and used alcohol as a crutch.
Ms D:
I was impressed by the evidence of Ms D, who was clearly a reluctant witness. While she had agreed to accept the wife’s inheritance moneys into her (and her husband’s) joint account, she acknowledged that it was wrong and I accept that she had only done so in order to help her mother who she described as being “extremely scared” of the Husband.
I accept Ms D’s evidence of family violence set out in her affidavit.
When challenged about the incidents of family violence during her childhood, Ms D became visibly upset. In my view, she was re-living past trauma.
She distinctly recalled the Wife physically putting herself between the Husband and the children at times when things became heated, with the Wife deflecting his anger at them back onto herself.
I accept her evidence that she regularly witnessed the Husband shouting and screaming at the Wife and on occasions violently assaulting her. She witnessed him belittling her even when others were present, making her anxious about inviting friends over. She could recall Police attending their home and an Ambulance being called for the Wife at Christmas 1997 (a specific event referred to later).
Ms D made proper concessions. She admitted that she and her brother Mr E had probably been misbehaving on occasions when the Husband was physical towards them. She accepted that Mr E may have been “laughing” when he climbed back into the boat after the Husband had thrown him into the ocean. But she was adamant that he was upset at the time, explaining that Mr E had one of two choices in that situation – either to laugh or to cry. (Notably, Mr E was wearing his usual clothes, not togs, when he was thrown in.)
She said that as a child she thought both her parents drank too much and that alcohol made their arguments worse. I accept her recollection that the Wife would cook dinner, and end up on the lounge slurring her words and “chilling out” before going to bed. In contrast, the Husband’s alcohol consumption could make him more argumentative.
I accept Ms D’s evidence that the Husband would hit and belittle both children and that, although he sometimes apologised, his behaviour towards them did not change. Family life meant living “on eggshells”.
Dr F, psychiatrist:
Dr F did not have her file with her when she was cross-examined. Nor did she have her report to hand. As a witness, it was apparent that she had not had any preparatory conference with the Wife’s solicitor. Nonetheless, having seen the Wife some ten (10) times or so, Dr F was quite familiar with her medical condition.
Dr F clarified that her report, though undated, was written for the Wife’s GP in September 2018 in support of the Wife’s application for a Disability Support Pension (“DSP”) that had earlier been rejected. It was not written for this court.
Dr F’s report supported the Wife’s DSP application. She opined that the Wife was presenting with features of post-traumatic stress disorder in the context of a violent and abusive marriage, with a secondary major depressive disorder complicated by longstanding alcohol use disorder which had worsened over time. Her report stated that the Wife required a mental health plan including psychological therapy (a CBT-based trauma approach), regular exercise and significant alcohol reduction. But even with treatment Dr F thought that her condition was sufficiently chronic and stable that the Wife would qualify for a DSP.
Dr F’s report noted that the Wife had a family history of mood disorders. She recommended routine follow-up medical tests to exclude physical causes for the Wife’s mental health problems (such as blood tests, liver function tests, thyroid tests etc).
In cross-examination it emerged that those physical tests had never been conducted even though Dr F explained that it was always standard practice to rule out physical causes in a situation like this.
I found Dr F’s evidence useful.
The Husband:
The Husband came across as a markedly more confident witness than the Wife. He had a certain force and charm about him, exuding the aura of a self-made man who has always charted his own path.
As a witness, his evidence was mixed.
When it came to the financial history, dollars and cents as it were, he was a generally reliable witness. He had a highly detailed recollection of the works he had carried out on various homes and sailing vessels that the family had owned over the years.
But when it came to the topic of family violence the Husband’s evidence was most unimpressive. He greatly downplayed and minimized it.
His March 2018 affidavit had falsely denied ever being abusive to the Wife, either verbally or physically. When challenged about it in the witness box, he blamed his former solicitor for the drafting, saying he was under that solicitor’s guidance at the time and “didn’t know the implications of the affidavit at the time.” I reject that explanation. The Husband is an articulate and intelligent man, who well understood what he was deposing to in that affidavit.
In his trial affidavit the Husband dealt with the family violence issues under the heading “Ms Warner’s problems with alcohol” – attempting to set the context for the court. But even that affidavit omitted and grossly downplayed his actions.
In the witness box, the Husband displayed a distinct lack of empathy for both the Wife and his children’s experiences. While he said he had “apologised profusely” to the Wife on numerous occasions for his violent behaviour during the marriage, he also said that on the last occasion of family violence at separation he had “done very little inappropriate”, and that he hadn’t physically or verbally abused the Wife. This was far from true. He also said that he had only pleaded guilty to assault on that occasion on legal advice as it was “not worth the grief” of taking the matter to court and “dragging the whole thing out of proportion”.
The Law:
These proceedings are governed by the provisions of Part VIII of the Family Law Act.
I intend to adopt the following approach:
(a)Firstly, I will identify and value the property, liabilities and financial resources of the parties;
(b)Secondly, I will consider whether it is “just and equitable” to make a property settlement order;
(c)Thirdly, I will identify and assess the respective contributions made by each of the parties towards the net assets pursuant to s 79 of the Act. For convenience, each party’s respective contributions–based entitlement will be expressed in percentage terms;
(d)Fourthly, I will identify and assess the relevant “future factors” set out in s 75(2) of the Act. I will also consider any relevant matters arising pursuant to s 79(4)(d), s 79(4)(f) and s 79(4)(g) of the Act. Having done so, I will then determine what (if any) adjustment ought to be made to each party’s respective contributions-based entitlement. In doing so I will be mindful of not only percentages (which are often a convenient tool for the court) but also of the underlying dollar figures that the percentages represent (which are the practical consequences to the parties).
(e)Lastly, I will consider the effect of my findings and proposed orders so as to satisfy myself that any property settlement order that I am contemplating is “just and equitable”.[5]
[5] The pathway I am adopting is primarily based upon the Full Court decision in Hickey v Hickey & Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, adapted by me to take into account the High Court’s decision in Stanford v Stanford (2012) FLC 93-518.
Step 1 – Identifying and valuing the property, liabilities and financial resources of the parties:
The Balance Sheet was largely agreed [6] and is reproduced below. The non-agreed items are asterisked and my reasoning for those follows.
[6] Exhibits 6 & 8
Ownership
Description
Value/Amount
ASSETS
1
Joint
Controlled Monies Account
$ 481,817
2
Joint
C Shares (827 @ $5.40)
$ 4,446
3
Wife
C Shares (103 @ $5.40)
$ 556
4
Wife
Motor Vehicle 1
$ 500
5
Husband
Motor Vehicle 2
$ 2,500
6
Husband
“H” yacht
$ 65,000
7
Husband
Pole Mooring
$ 1,500
8
Husband
Polycraft Boat
$ 1,250
9
Husband
Large Trailer
$ 5,000
10
Husband
Tools
$ 2,000
11
Husband
Fishing equipment, polycraft trailer and motor
$ 1,000
12
Husband
Partial Property Distribution
$ 200,000
13
Wife
Partial Property Distribution
$ 200,000
14
Wife
Inheritance
$ 156,936*
16
Husband
Insurance Payment/Ute
$ 3,000*
Total
$1,125,505
The Wife’s inheritance:
The Husband contended that the wife’s entire inheritance of $214,930 should be notionally added back into the Balance Sheet.
The Wife contended that only the sum of $156,936 should be added back, comprising:
(a)the exact deposit moneys paid for the Wife’s unit - $49,385;
together with
(b)the balance of the inheritance monies the Wife says is remaining, including monies loaned to Ms D and her husband of $107,551.
In support of his position for a full add-back, the Husband’s counsel pointed to the Wife’s deliberate non-disclosure. He also submitted that the Wife’s add-back figure equated to her having spent in the order of $616 per week over the relevant timeframe – which he submitted was a disproportionately high figure. (By a different methodology, the Husband’s counsel had calculated that the “unaccounted for” inheritance moneys came to $61,669 rather than the $58,994 difference between the two competing add-back figures [7] but I consider the difference between those figures immaterial).
[7] $214,930 - $156,936 = $58,994
The Wife was cross-examined about her expenditure of the inheritance. It was quite apparent during the Wife’s evidence that, because she had never initially intended to disclose the inheritance, she had not been properly accounting for its expenditure as she went along.
She said she had loaned some moneys to her daughter and son-in-law pursuant to their verbal agreement to repay her. She had also intermingled some of the inheritance moneys with theirs, explaining that she had for the most part been living in their home and that she saw the intermingled moneys as a contribution towards their household expenses.
She explained that she had used some of the inheritance moneys to meet personal expenses. She had used inheritance moneys to pay rent on a property for some six (6) months between November 2018 and May 2019. She had used $25,000 to pay a legal bill to her former solicitors although that could not be corroborated by any documentary evidence.
So what amount should appropriately be added back?
It is quite clear that, post-separation, parties are not expected to live in a state of suspended economic animation. The Wife was entitled to spend the post-separation inheritance moneys received from her late mother; as a beneficiary of the estate those moneys belonged to her. It was entirely reasonable for her to apply the moneys towards her reasonable self-support, particularly noting that she had no home.
I am satisfied that the Wife did spend $25,000 of the inheritance moneys on her former solicitors as she claimed, noting there was no other evident source of funds for that payment. I am also satisfied that she rented a property for 6 months and that those moneys are forever gone. I also accept that the Wife enjoyed some relative “luxuries” in terms of her personal expenditure over and above those set out in her Financial Statement – but after allowing for rent and legal costs these come to much less than the $616 per week contended for by the Husband.
The husband conceded that adding back the full amount of the inheritance was “the high-water mark” noting that the inheritance was received over two (2) years ago.
In the end I am satisfied that the Wife’s figure is substantially accurate and will add back that amount which I note in any event comprises some 73% of the total she received.
Husband’s insurance payment / ute:
In July 2019 the Husband’s motor vehicle was stolen, resulting in an insurance payout of $12,700. He had never disclosed this payment in his filed material.
The Wife contends that the full amount should be added back.
The Husband’s oral evidence was that he had used $3,000 of that money to purchase a ute, and a further $3,000 repairing it. He said he had applied the rest of the insurance moneys towards berthing costs for the “H” yacht at $620 per month. Ultimately his counsel submitted that I should add back $4,000, apparently on the basis that although the husband spent a total of $6,000 on the vehicle that I could somehow take judicial notice of the fact that it would be worth less, in this case the contended $4,000.
I propose to add back $3,000 only - on the basis that the berthing costs and the vehicle repair costs were reasonably incurred by the Husband. With his trade qualifications, and having regard to his own modest financial position, I consider that the Husband would not have incurred the vehicle expenses unnecessarily.
Step 2 – Considering whether it would be “just and equitable” to make a property settlement order:
In Stanford & Stanford (2012) FLC 93-518, the High Court held that the court is not to make any property settlement order pursuant to Part VIII of the Act unless doing so would be “just and equitable.”
This case involves a lengthy relationship which produced two (2) children. There was significant intermingling of the parties’ assets. Their relationship having failed, the parties each find themselves unable to access substantial jointly-owned funds presently invested for them in a controlled moneys account.
Both parties seek a property settlement order, albeit on different terms. Both contend that the “just and equitable” requirement is easily made out here. I respectfully agree.
Step 3 – Assessing each party’s financial and non-financial contributions towards their net assets:
Given the length of this relationship I propose to assess the parties’ respective s 79 contributions in a broad-brush manner, consistent with the authorities.
In the exercise of my discretion, I propose to divide the matrimonial property into two (2) separate categories for contributions purposes.[8]
[8] See Norbis & Norbis (1986) FLC 91-712.
The first category consists of the Wife’s post-separation inheritance to which the Husband concedes he made no contribution. Thus I find that the Wife’s contributions towards that asset are 100%.
What follows will deal with the second category only – being all the other matrimonial assets to which both parties made substantial contributions. I will assess their respective contributions to those assets in a global way.
In the interests of transparency, I will deal with the Kennon claim separately. In taking this approach however I do not want it to be thought that I have in some way given the Kennon claim some special weighting over and above that which a proper reading of s 79(4) would warrant.
I should also record that, save for the Kennon claim, the evidence concerning the parties’ respective contributions was largely uncontroversial.
Early contributions:
In 1985 the parties formed a relationship and commenced cohabitation on the Husband’s yacht “J”. At that time the Husband was 32 years old and the Wife was 26 years old.
The Husband was a qualified tradesman, running his own business. He owned a real property at Town K, the yacht “J” and various tools of trade.
The Wife was doing administration work. Her assets comprised a Motor Vehicle L, some furniture and jewellery.
Within a matter of months, the Husband had sold the Town K property for $54,000 net.[9] The parties then sailed “J” to the Town M River, ultimately settling in Town N where they purchased a property in 1985 for $105,000. To assist the purchase, the Husband’s father gave them an interest-free loan of $40,000.
[9] A copy of the relevant Transfer is exhibit 4. The prior mortgage to his parents’ company had been discharged in 1981 - see exhibit 5.
The Town N property was on acreage. The Husband undertook significant renovations over the next few years. The Husband’s father also gave the Husband some farm equipment, including a tractor.
Both parties were in employment at that stage. In 1986 the Wife inherited $10,000 and sold her motor vehicle, applying the moneys towards a motorbike for the Husband.
In 1987 the Husband sold “J” for $95,000 less commission of $5,000, which when combined with the sale proceeds of the Town K property, effectively crystallised the Husband’s “initial” contributions at $144,000.[10]
[10] It is appropriate to take into account the realisation value of the yacht as sold in 1987: see Williams & Williams [2007] FamCA 313 (Family Court of Australia, Full Court).
When “J” was sold, the parties repaid the $40,000 to the Husband’s father. They invested $50,000 of the sale proceeds into shares, but the 1987 stock market crash dropped their share portfolio by $20,000. The Husband then travelled to Sydney to cash in the remaining $30,000. His persistence and force of will paid off; he returned with the money.
Ms D was born in 1987 and the Wife left the paid workforce in order to care for her.
At the end of 1987, the parties sold the Town N property for $118,000, netting $115,000 after commission. The property had increased by $10,000 in value. The Husband also sold the farm equipment that the Father had given him, so that the parties had approximately $155,000 in cash at that time. (The Wife deposed that the Town N property had been sold for $132,000 “to the best of my recollection” but I prefer the Husband’s evidence which was more definitive.)
The parties then briefly rented at Region O before the Husband purchased another yacht, “P” for $127,000. The parties sailed the yacht from Brisbane to Sydney where they settled, the Husband obtaining work at a marina at River Q.
The Husband substantially refurbished the yacht. It was sold a year later for $165,000, effectively recouping the monies the parties had lost on the share market.
Mr E was born in 1989.
Around 1989 the parties purchased a property at Suburb R in Sydney for $180,000, borrowing $40,000 from the Husband’s Father to assist with the purchase. As before, the Husband undertook some renovation work.
The Husband worked variously as a transport worker (which he found stressful), or as a tradesman. The Wife obtained employment with Employer S.
The Husband left the workforce for a period, attending full-time TAFE and obtaining professional qualifications. During this time the Wife was the sole breadwinner for the family.
Regrettably, both children became ill with pneumonia while the parties were living there and so the family moved to Town T, selling the Suburb R property in 1991 for the same price they had paid for it. Upon sale, they repaid the monies borrowed from the Husband’s Father.
Town T property:
The parties rented a home in Town T, in the meantime purchasing a block of land there for $32,000 upon which they had a home constructed. The Husband undertook significant work to assist the builders and thus defray costs. This included landscaping, painting, fencing and the like. The Wife assisted with various aspects, such as painting on weekends while also caring for the children.
The total build cost was approximately $120,000.
Suburb U property:
In 1993, the Husband’s parents gifted the Husband a one half share of a property owned by them at Suburb U in Sydney. By agreement, his sister transferred her half share of Suburb U to the parties in exchange for their interest in the Town T property. The interests being exchanged were of similar value.
The family lived at the Suburb U property for about ten (10) years during which time it significantly appreciated in value. As before, the Husband undertook significant renovation work to the property. He replaced floorboards, upgraded wiring, improved the drainage, did landscaping work and attended to numerous other improvements.
The Wife was in full-time employment, doing office work. In the mid-1990s she received both an unfair dismissal payment of $25,000 and a workers’ compensation payment of $20,500. These moneys were applied for joint benefit of the parties.
In 1994 the parties purchased the “H” charter boat for approximately $42,000. To fund the purchase, they borrowed against the Suburb U property.
Over the ensuing years, the Husband substantially renovated and upgraded the boat in just about every aspect at a cost estimated by the Wife of around $100,000.
From 1998 the parties began to conduct the charter boat business, initially out of Sydney Harbour. During the week the Wife was working in a full-time administrative role and the Husband was generally based at home – attending to sales and marketing for the business, doing work and maintenance on the boat, as well as renovating around the home and assisting with the care of the children.
On weekends the Husband skippered the boat; often Mr E went with him. Ms D generally stayed home where the Wife cared for her.
Though the Husband essentially ran the business for the parties, the Wife did provide some assistance. She would deliver equipment to the boat early in the mornings and help clean the boat at the end of the day. She also attended to some of the administrative work for the business, including preparing BAS statements and the like.
Region O & the sale of Suburb U:
In 1999 the parties purchased an investment property at Suburb V in Region O for $205,000 - borrowing against the Suburb U property to do so.
Around 2002, the parties relocated their charter boat business to the Region O area. The Suburb V property had been damaged by the previous tenant and the ensuing repairs (claimed on insurance) took about 12 months following which the parties moved in themselves.
In 2003 they sold the Suburb U property for $1,175,000. The property had tripled in value over the 10 years they had owned it. They were financially comfortable, netting around $860,000 after payment of the mortgage.
They used the sale proceeds to repay a $500,000 line of credit and to purchase another investment property at Region O (Town W) for $375,000 which they then rented out.
In 2004 the parties borrowed $200,000 to renovate the two Region O properties. As before, the Husband was primarily responsible for the renovations.
The Wife obtained work in the Region O area as well as continuing to assist the Husband in the charter boat business. She also obtained her Deck Hand Certificate.
Town X:
Around the same time, the parties also purchased an investment property at Town X for $385,000 which they then rented out.
In 2006 the parties sold that property for $430,000 – a modest profit.
The “Y”:
In 2007 the parties purchased a houseboat, the “Y”, by way of a line of credit. The sold it 4 or 5 years later for the same amount.
Suburb Z:
In 2009 the parties purchased a property at Suburb Z. It was intended as a base for the children to live in while they studied in City AA. Again the Husband undertook substantial renovations.
Sale of Region O & Suburb Z properties & the purchase of BB Street, Town CC:
In 2010 / 2011 the parties sold the two Region O properties and the Suburb Z property. They made a modest profit on the Region O properties but the sale of Suburb Z was a “break even” proposition given the associated renovation expenses.
In 2011 the parties then purchased their final matrimonial home at BB Street, Town CC for $750,000. Because the parties were “cashed up”, they did not require a mortgage. They did however take out a line of credit to fund some property renovations.
Parties retire & access their superannuation:
Around 2011 the Husband effectively retired, closing down the charter boat business. He began to receive a Disability Support Pension on account of his numerous health issues.
The Wife, who had been undertaking temporary work, successfully applied for a Carer’s Pension following which she also effectively retired from the paid workforce.
In 2013 the parties accessed their respective superannuation funds, the Wife’s being $35,000 and the Husband’s $42,000. Those moneys were subsequently spent by the parties.
Renovations to BB Street, Town CC / Husband is injured:
In 2015, while renovating the BB Street, Town CC property, the Husband fell from a ladder, landing on his head. He was taken by Ambulance to Town X Hospital suffering severe concussion.
Though the Husband has suffered from neck and shoulder pain ever since, and his injuries have obviously slowed him down, he nonetheless continued to renovate the BB Street, Town CC property.
Such was the situation in early 2016 when, following a harrowing act of family violence, the Wife finally left the Husband and moved out of the BB Street, Town CC property.
Homemaking & parenting contributions throughout:
It was common ground that the Mother was the primary carer for the children throughout their lives. She was the parent who attended their school and extra-curricular events. To be fair to the Husband, the charter boat business operated on weekends so he was unavailable to assist at those times.
The Husband did make some parenting contributions; he assisted at times by making breakfasts during the week when he was at home and the Wife was working.
The Wife did the majority of the domestic chores including shopping, cooking dinner, cleaning, washing and ironing.
Post-separation contributions:
After separation the Husband stayed on at BB Street, Town CC and continued renovating it, albeit at a slowed pace. He ceased making repayments towards the line of credit; in that sense he was living “rent free”.
The Wife was initially “couch surfing” but by late 2016 she had returned to live at BB Street, Town CC. She only stayed there for about 3 months in total before leaving again. Thereafter she either “couch surfed” or lived with her daughter and son-in-law.
From March 2016 to August 2018, the balance of the line of credit increased by approximately $51,000. During this period, the Wife paid an insurance bill for BB Street, Town CC of $3,151 when the Husband failed to.
The Wife sold some shares valued at $7,637 and also exchanged some of her personal jewellery for board and accommodation. The Husband sold a motorbike and retained $3,200 from that. Each of the parties withdrew some $18,000 monies from the line of credit for their own use.
Each was in receipt of Centrelink benefits at all relevant times.
The Wife received the inheritance from her late Mother and expended some of it as referred to earlier.
The Husband deposes in his trial affidavit that, in the period from 11 January to 21 March 2016, the Wife made various withdrawals from the parties’ joint account totalling $31,238. [11]
[11] Paragraph 140
However, in cross-examination the Husband conceded that $10,000 of that figure should be disregarded as this was an agreed withdrawal to “square up the ledger” as it were.[12] The Husband conceded that a $3,600 withdrawal that he had attributed to the Wife was in fact a payment towards his own credit card and that a $2,000 withdrawal had in fact been made by him rather than the Wife.
[12] He admitted that he had received $10,200 - consisting of a cash withdrawal of his own, coupled with the sale proceeds of a jointly-owned Motor Vehicle 2
He conceded that a withdrawal of $1,754 could potentially have been attributable to either of the parties.
In the end, there was real uncertainty as to the Husband’s figures and I consider that his evidence on this topic does not meaningfully advance his case. Moreover, given that the Wife was “couch surfing” for a time it is difficult to see why any contributions adjustment against her would be warranted if in fact she did withdraw more than he did.
In December 2018 the BB Street, Town CC property was sold for $1,075,000. By agreement, each party received $200,000 from the sale proceeds.
Thereafter the Husband moved onto the “H” yacht where he has continued to live ever since.
Overall assessment of contributions – subject to the Kennon argument:
In my view both parties made substantial contributions over a long period.
Certainly the Husband’s initial financial contributions were superior and constituted their seed capital. Moreover, his family provided the parties with some interest-free loans (and some farm assets in the early years). The half share of the Suburb U property, exchanged for Town T, turned out to be a particularly valuable property but to be fair the Wife had by then made real contributions in respect of the Town T property.
I have no evidence as to the value of the renovations undertaken by the Husband over the years of the relationship either in terms of the boats or the homes that they owned - but I accept that he made significant contributions.
The Wife’s contributions must also be given real weight. She worked; she cared for the children; she undertook the bulk of the domestic tasks. Like the Husband, her contributions were substantial.
Post-separation the Husband had the use of the BB Street, Town CC property and ran up the debt on the line of credit. But he also continued renovating it.
Overall the Husband contended that, putting the Wife’s inheritance to one side, contributions should be assessed as 62.5% - 37.5% in his favour. The Wife contended that the assessment should be 55% - 45% in his favour.
I assess the Husband’s contributions at 56% and the Wife’s at 44%.
Kennon’s case – the law:
In Kennon’s case [13] the Full Court (Fogarty & Lindenmayer JJ) held that:
“[W]here there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79…
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 affect and of necessity it does not encompass…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).” [14]
[13] (1997) FLC 92-757
[14] Per their Honours’ joint judgment at pp 84, 294 – 84,295.
In Spagnardi & Spagnardi [2003] FamCA 905, a differently constituted Full Court (Kay, May & Carter JJ) re-visited Kennon’s case.
This appeal was concerned with the adequacy of the wife’s Kennon evidence presented at trial. Their Honours affirmed that a Kennon claim does not fail merely because the victim spouse has failed to expressly state that the acts of violence impacted on their contributions. There must be cases where, by reason of the nature of the violence alleged, an adverse impact on contributions is an obvious or very likely inference.
Their Honours emphasised however that the Kennon principles would only apply to a relatively narrow band of cases in which a party could show that the violence had had a “significant adverse impact” and a “discernible impact” on the victim spouse’s capacity to make contributions.
Their Honours ultimately held that:
“47.An insufficiency of evidence in the present case leaves the court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish:
·The incidence of family violence;
·The effect of family violence; and
·Evidence to enable the court to quantify the effect of that violence upon the parties capacity to “contribute” as defined by section 79(4).”
The wife’s Kennon claim failed in that case because the Full Court considered that there was a complete absence of evidence as to how the Husband’s violent conduct had affected the Wife’s capacity to contribute.
Spagnardi’s case has been recently re-visited by the Full Court in Keating & Keating [2019] FamCAFC 46, unreported, 21 March 2019.
Though the wife’s appeal succeeded on other grounds, the joint judgment of their Honours Ainslie-Wallace and Ryan JJ went on by way of obiter to discuss the wife’s Kennon claim that had been dismissed at trial.
Having observed that the wife had given “evidence about a course of significant family violence which was prolonged, had a significant adverse effect on her, and undermined her parenting and her ability to contribute” [15] their Honours went on to observe:
“38.At first blush the reference in Spagnardi to “quantification” seems to elevate the need for an evidentiary nexus or “discernible impact” between the conduct complained of and its effect on the party’s ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence. That impression is reinforced by their Honour’s reference to and comparison with the husband’s failure to adduce evidence to demonstrate the impact on the value of the house by his renovations and improvements…
39.This uncomfortable analogy does not illuminate what “quantification” of the effect of violence on contributions might look like. It suggests something more than the evidence by the victim spouse. We struggle to understand what that “quantification” evidence might be beyond that given the victim spouse as to the incidence and effect of the violence as identified in Spagnardi in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in Spagnardi said governed the situation. Perhaps the use of the word “quantification” is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and/or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse’s contributions, how difficult it might be for the court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). But we did not have the benefit of argument on the point (nor it seems did the primary Judge) and prefer to express no final view about it.”
[15] Paragraph 34 of the joint judgment
Austin J expressly dissented on this particular point, observing that the wife’s evidence of family violence had been contested at trial and that her allegations of more high level violence on his part were uncorroborated. Though corroboration was not essential, the wife had not properly explained her failure to call corroborating evidence at trial when such evidence should have been available on her version of events. His Honour highlighted the point that, like other contentious allegations of fact, the veracity of family violence allegations must be properly tested and evaluated. His Honour also observed that the wife’s medical evidence as to her anxiety, depression and PTSD did not demonstrate a causal link to the husband’s alleged violence. Citing Kennonand Spagnardi¸ his Honour said that the absence of a causal link “was critical, if not fatal, to acceptance of her claim. That would be so even if an inference was available that her psychological condition did make her contributions more arduous, which finding was not made in this instance.” [16]
[16] Paragraph 66 of his Honour’s judgment
Austin J went on:
“67...[W]ithout in any way trivialising the serious repercussions of family violence, the Wife needed to do more than allege her victimisation by the Husband and express her distress about it before her contributions could have been accorded greater weight under Part VIII of the Act. If that were the test, Kennon would be commonly invoked, since the definition of “family violence” is very wide (s 4AB of the Act) and most people would be saddened by their partner’s violent or disrespectful behaviour, sufficient to meet that definition. Whilst ever Kennon remains good law, its guidelines are reserved for what the Full Court called a “relatively narrow band of cases” (at 84,294). I am unwilling to join in any analysis of the correctness of Spagnardi, absent reasoned argument about it, and there was no argument at all, either at trial or in the appeal.”
I cite the dissenting judgment of Austin J in some detail because it was submitted to me by the Husband’s counsel that his Honour’s judgment was more in accord with a correct interpretation of Spagnardi.
In Britt & Britt (2017) FLC 93-764, the Full Court[17] allowed an appeal against a decision by a trial judge to exclude evidence of family violence on the basis that, even if admitted, the evidence would not rise to the relevant Kennon standard.
[17] May, Aldridge & Cronin JJ
The Full Court emphasised the need for courts to act cautiously before rejecting such evidence as, in an appropriate case, inferences can be drawn which give rise to a Kennon adjustment. The question was whether the impugned evidence was, or was not, capable of establishing a claim that the appellant’s contributions were made more onerous by the conduct of the respondent:
“74.The respondent submitted that the appellant’s evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions.
75.The real question is whether the evidence, taken as a whole, is capable of leading to such an inference…”
So, if a victim spouse need not directly spell out the impact of the violence on their contributions, but can merely leave it to the court to draw appropriate inferences, what “quantification” evidence is still required in accordance with the third bullet point of [47] of Spagnardi ?
While the applicant for a Kennon adjustment must carry the onus of proof, such a claim is not a “cause of action” in a strict sense. As Kennon itself makes clear, the basis for the adjustment must be that the violence significantly impacted the other party’s “contributions” in the s 79(4) context.[18]
[18] Section 75(2) could also be engaged; for instance where an assault resulted in an incapacity to work
It seems to me that an applicant for a Kennon adjustment is wise to call medical or other expert evidence as to the impact of the violence upon him/her where this can reasonably be done. But medical or expert evidence is not necessarily required; each case must turn on its own facts. If an applicant does call medical evidence then logically this will need to demonstrate some causal link to the proven violence, as Austin J observed in Keating.
An applicant is not expressly required to expressly spell out what the impact was upon them of the violence. But it seems to me that the less sustained and/or egregious the violence, the wiser it would be for an applicant to do so – rather than relying on the court to draw the necessary inference.
In closing, Keating & Keating:
(a)is a very recent re-statement of the law by a majority of the Full Court, albeit by way of obiter;
(b)has been cited with apparent approval by Stevenson J in the Family Court: Baldini & Baldini [2020] FamCA, unreported, 5 March 2020 (specifically at paragraph 61 of her Honour’s judgment); and by Forrest J in Eaton & Eaton [2020] FamCA 446 (paragraph 46 of his Honour’s judgment);
(c)has been applied in this court by her Honour Judge Kari: Drury & Benson [2020] FCCA 250, unreported, 10 February 2020.
In my view it is ultimately a question of fact and degree in each case as to whether or not an applicant has make out a Kennon claim to the requisite standard.
Factual findings in relation to family violence in this case:
I have already made a number of observations and findings concerning the evidence of the witnesses.
I am comfortably satisfied that the Husband perpetrated family violence against the Wife throughout the relationship. He had a short temper throughout and I accept the Wife’s evidence that she felt she was “walking on eggshells” at home.
The Husband regularly made abusive remarks to the Wife throughout the relationship, calling her fat and ugly and criticising her appearance. He threw items in anger.
There were occasions where he would stand directly in front of her with his face close to hers, screaming at her, making her walk backwards, pulling her hair, dragging her by the hair and otherwise threatening to hit her. I accept that she was scared or frightened on these occasions.
Like many victims of family violence, the Wife generally did not report the violence but simply accepted it as part of her existence. On occasions he actively dissuaded her from calling Police by threatening that she would end up dead.
There were a number of specific, high level physical assaults.
In 1987, with Ms D present as a baby in the car, the Husband backhanded the Wife across the mouth while they were driving. Her mouth was swollen and sore as a result. She did not report this incident to the Police.
On Christmas Eve 1997, there was a particularly violent assault when the Husband arrived home intoxicated after a work function, behaving aggressively towards the Wife and upsetting the children. The Wife told the Husband to go to bed, which he did.
Later on, Ms D wet the bed. The Wife, who had also been drinking, got up to tend to her on the toilet. I accept the Husband’s evidence, corroborated by her daughter, that the Wife was yelling at Ms D in frustration. Her yelling awoke the Husband.
He then came into the room, pushing the Wife, and hitting her in the head and neck. He pushed her out the front door.
The Husband’s version of this event was sanitised to the extreme; according to him he merely walked the Wife out the door. In the witness box, he described himself as a “pacifier and protector” of Ms D, though notably conceding that he “possibly could’ve handled it better”. He accepted that the neighbours had called an ambulance for the Wife but maintained that he did not inflict any injuries on her. He reasoned that there was every chance she had “fallen down the stairs” after he walked her outside.
It is common ground that the ambulance took the Wife to the Region DD Hospital. The Wife’s contemporaneous account to the hospital staff is the most reliable evidence now available. According to their notes, the Wife complained of an assault by the Husband. She had a painful right side to her face and neck. She had chest pain and hand pain. The Wife admitted she had drunk 3 glasses of wine that night and she said the Husband had hit her in the head. She thought she may have blacked out briefly but then “came to” when the Husband started dragging her by the hair.
Ms D also corroborated the Husband’s physical violence on this occasion.
In my view, this was an event of high level family violence.
Police later charged the Husband with assault. He pleaded guilty.
There was another violent incident in 2001 when the Husband shouted at the Wife that he “should have strangled her” years ago. Both she and Mr E fled the home, running to a neighbour’s place from where they called the Police.
The Police arrived and an AVO was later taken out.
The Husband continued to behave in an aggressive, abusive and threatening manner towards the Wife afterwards. As a result he was charged with, and pleaded guilty to, breaching the AVO.
By and large, the Wife put up with the Husband’s behaviour, although her own self-description is that she was beginning to suffer anxiety and depression by this stage. She also had to deal with the Husband’s aggression towards the children, having to reassure them despite their fears and convince them that he loved them. Her evidence in this regard was strongly corroborated by the evidence of Ms D whose childhood recollections including the Husband’s regular verbal abuse of the Mother, including shouting and screaming at her. She remembers her mother being called a “fucking bitch”, “fucking slut”, “worthless piece of shit”, “fucking idiot”, “fucking fat”, a “fucking disgrace” and the like.
I accept her evidence that she witnessed numerous physically violent altercations between her parents, usually accompanied by yelling and screaming.
The Husband had very high sexual needs which the Wife had little option but to accommodate.
It was common ground that after the Wife’s hysterectomy in 1999, her sexual interest declined. With her approval, he regularly visited prostitutes, and exchanged sexually explicit messages and material with women over the internet.
The couple engaged in group sex on occasions but it was always the Husband instigating such encounters. The common theme was that he was very demanding; she acquiesced. It was by no means a mutual pursuit. She was to a large extent downtrodden. When it was suggested to her that she only had “regrets in hindsight” she did admit that she “never said no” as she felt she wasn’t strong enough.
There were also occasions where both parties jointly participated in sex with other people, at the Husband’s instigation. The Wife went along with it, her evidence being that “If Mr Pellin was happy, everyone was happy”.
The sexual conduct per se does not constitute “family violence” but it sheds light on the nature of the parties’ relationship: Britt & Britt. To be clear, the Wife generally acquiesced in the Husband’s sexual behaviours. But it impacted her self-esteem and contributed to her ongoing drinking problem.
In 2007, when the parties were on a holiday in the Country EE, the Husband organised a threesome with one of his girlfriends. The Wife refused to participate. The Husband became angry, yelling at her “What the fuck is wrong with you!” He then punched her. She locked herself in the bathroom before going onto the balcony and jumping across to the next unit, banging on the door for the occupants to let her in.
The local police were called and she was taken to Hospital with a number of bruises.
In cross-examination, the Husband’s counsel put to her that she had initially agreed to participate in the threesome and had then reneged. She agreed. She had clearly omitted this detail from her affidavit. She was clearly embarrassed and regretful about having agreed in the first place. The violence itself was not challenged.
If anything, this particular line of cross examination only underscored the dynamics of the relationship. Notably, when the Wife did refuse to go ahead with a sexual encounter on this occasion, she was assaulted.
In 2007 the Wife broke a dinner plate in response to which the Husband verbally abused her before grabbing her by the neck. He took her handbag, her mobile phone, her wallet and credit cards and pushed her outside onto the balcony, locking her out. When she tried to get back in, he forced her onto the balcony, holding her by the throat. She had to call a neighbour to help. Police attended, charged him with assault and took out an AVO for the Wife’s protection.
The Husband later threatened her not to proceed, threatening that she would “lose everything” and “regret it”. In the end, feeling fearful, she ultimately contacted Police and asked for the assault charge to be withdrawn.
There was a further violent incident at Town FF in 2009. The parties were camping together and had been drinking. They ended up arguing about one of the Husband’s girlfriends. He told her to shut up, punching her a number of times to the face with a closed fist. She pleaded with him to stop and he punched her to the right side of her mouth. He then pushed his finger into her ear and it started bleeding. She was crying and saying that she was sorry and he then hit her across the face.
The Wife pretended to be unconscious and waited until the Husband fell asleep, at which point she then ran up the hill in the dark without any shoes on. She awoke the office staff who in turn called Police.
The Wife attended the Region GG Hospital. Their contemporaneous notes [19] record that she had a 1.5cm laceration to her lip and a 2cm deep laceration to her ear. She was complaining of an escalating pattern of family violence from the Husband over the past ten (10) years. She said she couldn’t cope with his assaults any longer. She was concerned she would “drink herself to death” or retaliate against him. She said she was ready to leave the marriage for good, and was willing to undergo family violence counselling but said she felt she needed to address her drinking issues first.
[19] Exhibit 2
A Social Worker at the Hospital also spoke to the Husband who “appeared angry and agitated, had a number of excuses for his behaviour.” Although the Social Worker did not want the parties to go home together, they did so. The Social Worker provided the Husband with some contacts to “address his anger issues”. The Husband, confronted about his abuse on this occasion, said that he would get help “this time” – acknowledging his past violence.
The Husband pleaded guilty to assault as a result of this event and another AVO ensued. In the witness box the Husband admitted he had made “a terrible mistake” and said that he repeatedly apologised to the Wife as well as undertaking an anger management course.
A further violent incident occurred in 2011 when the parties again argued about the Husband’s sexual behaviours. They were at dinner but the Wife walked home alone, going to bed downstairs and falling asleep. I accept her trial affidavit account of what followed:
“180.After I fell asleep I was woken by being hit to the left side of the face by the Respondent. He was standing over me yelling: “You fucking idiot – you locked me out of the house. I’ve been in a fucking car for two hours”. Eventually he left the bedroom and I pushed the wardrobe to block the door. He then pushed the door back open and punched me again. He then grabbed me and opened the trapdoor under the floor and pushed me underneath. He then shut the lid and stood on the trapdoor.
181.It was extremely cold and dark. I believed I was going to die. The Respondent was shouting at me saying “Don’t fucking come out”.
182.Eventually I heard him walk away. I waited for a period of time and then lifted the lid.
183.When I climbed out and attempted to run from the home through the rear door I found it locked. The Respondent saw me and said “You’re not fucking going anywhere”. I pleaded with him to let me go. I said “I will break the laundry window and tell the Police that an intruder hit me”. The Respondent said: “Alright”.
184.I had to smash the laundry window. I cut myself in the process. The Respondent then let me out.
185.I ran to a neighbour’s house and an ambulance and the Police were called.”
The Husband’s affidavit had grossly downplayed the event, merely observing that he had “slapped [the Wife] two or three times across the face”. But in the witness box he soon admitted that he had himself had to crawl through the trapdoor to get into the house that night, that he had pushed the Wife down into the trapdoor and that he was standing on it.
The Husband explained the paucity of his affidavit version by saying he had “not realised I had to go into every minute detail.” However, as the Wife’s solicitor wryly observed, the Husband was quite willing to go into substantial levels of detail where it concerned the work he had carried out on their homes and boats over the years.
These events resulted in another assault charge and plea of guilty, and another AVO. The Husband was resentful about the Wife’s complaint to Police and complained to her that she would have to keep working to pay for the lawyer and the counsellor.
I accept the Wife’s evidence that on an occasion in 2015 the parties had an argument in the course of which the Husband grabbed the Wife’s hair and ripped out a number of strands. He denied this event but in my view he only denied it because there was no corroborating record. In light of all of the other evidence and findings I have made, I accept the Wife’s evidence.
The final act of violence, leading to the parties’ separation, occurred on an evening in March 2016. Once again the violence erupted from an argument about the Husband’s sexual activities. The Wife had telephoned one of the women he had been communicating with and when he got home he yelled at her that she was a “slut”, a “liar” and a “whore bag”. She became scared and started running away, but the Husband chased her down the stairs slapping her across the side of the face with an open hand. She rang Police and he grabbed the phone out of her hands and told them to “ignore the call – she has mental health problems”.
The Wife fled the home in the rain, with no shoes on and she started walking towards the nearest town (Town HH). The Police responded to her 000 call and came across her as she was walking. She gave them a statement. They took her to the park at the Town CC toilets and told her to wait for their return. She had no phone and she ended up spending all night there, returning home after dawn had broken.
The Husband was again charged with assault, and pleaded guilty. Another AVO was taken out against him.
In all, there have been 5 x AVOs protecting the Wife from the Husband and on four (4) separate occasions he pleaded guilty to assaulting her. I am satisfied that the Husband was a consistent perpetrator of family violence throughout the relationship, at times at a high level.
Effect of the violence – “quantifying” its effect on the Wife’s contributions:
The Wife’s own evidence is that she struggled to cope with the Husband’s behaviours throughout their relationship. Her evidence is that her self-confidence was eroded; she felt anxious and depressed as a result of his ongoing violence, abuse and humiliation. She felt trapped. Like many family violence victims she tried to hold the family together as best she could.
She sought some counselling from a GP and, although initially resistant to anti-depressants, she started taking them around 2008. She consumed alcohol to excess as a coping mechanism.
Towards the end of the relationship her feelings of anxiety and depression became worse and she suffered “flashbacks” of prior violent incidents.
She had some counselling from Victims Services before ultimately attending upon a psychiatrist (Dr F) and a psychologist (Ms JJ).
The Wife’s affidavit evidence is that “I continue to suffer from anxiety and depression. That impacts on my ability to carry out my day to day chores. I require assistance from my daughter with some of those tasks. I do not feel well enough to return to the workforce. I do not believe I could cope with the stress associated with a job. Accordingly, whilst I am physically able to work in certain capacities, I do not believe that I am mentally well enough to do so.
I have been assessed as qualifying for a Disability Support Pension. I currently receive that pension.” [20]
[20] Wife’s Trial Affidavit, paras 274-276.
Dr F’s evidence broadly corroborates the Wife’s evidence, noting features of post-traumatic stress disorder in the context of a violent and abusive marriage, and a secondary major depressive disorder complicated by longstanding alcohol use disorder.
I am satisfied on all the evidence that the Husband’s violence is causally linked to the features of the Wife’s post-traumatic stress disorder. Violence aside, there is no evidence of any other relevant traumatic events in the Wife’s life. I am also satisfied that the family violence is causally linked to her depression. But her alcohol use disorder also contributes to, and complicates, her depression.
The Husband’s counsel criticises the report of Dr F on the basis that it only provides information as at the date of the report - some 2 ½ years after the marriage broke down. Moreover, he contends that Dr F made no final diagnosis.
The September 2018 report of Dr F may be a “snapshot” in time, but Dr F is well familiar with the Wife’s condition as she has been an ongoing patient. It is common ground that she qualifies for, and receives, a Disability Support Pension.
The Husband’s counsel points to the absence of evidence that (for instance) the violence caused the Wife to have to take time off work during the marriage. But while this is true, it is not a complete answer. Each case turns on its own facts. Married life involves working, caring for children, homemaking and the like. The Wife’s capacity to keep working and holding the family together was made substantially more arduous by the violence she was enduring at home.
In short, I infer from my findings as to family violence in this case that such violence in fact made the Wife’s contributions substantially more arduous; it had a discernible impact.
In the exercise of discretion I would quantify the appropriate adjustment to the Wife at 7% of the net matrimonial property (excluding the inheritance).
Before proceeding further, I should note two matters by way of postscript.
Firstly, the Husband’s counsel made the novel submission that Kennon may no longer be good law in any event. He pointed to the Full Court’s decision in Kane & Kane (2013) FLC 93-569, seemingly eschewing the concept of “special contributions”. I respectfully reject that submission. The broad language of s 79(4) permits consideration of family violence in the appropriate narrow band of cases identified by Kennon. In any event such an argument is properly for the Full Court or the High Court to consider. In the meantime this court is bound to follow Kennon.
Secondly, the Husband’s counsel submitted that if Kennon potentially enables an adjustment to the Wife on the basis that her contributions were rendered “significantly more arduous”, then the Husband is entitled to a similar adjustment. His reasoning was that, after sustaining serious injuries when he fell from the ladder in 2015, the Husband had continued to renovate the Town CC property prior to its eventual sale in 2018.
I have already considered that matter in the context of contributions. The Husband was not contributing to the line of credit after separation and I have no evidence as to the value of the renovations he carried out. Moreover, those contributions made by the Husband were over a relatively short period in the context of this marriage.
While I do not minimize the Husband’s efforts, they do not warrant some additional loading on the basis of being “significantly more arduous”.
Conclusion as to the respective contributions-based entitlements of the parties:
On the basis of the above analysis, I have concluded that:
(a)the parties’ respective contributions-based entitlements to the net assets (excluding the Wife’s inheritance) are 49% (Husband) and 51% (Wife);
(b)the Wife has a 100% contributions-based entitlement to the inheritance.
On the Balance Sheet herein, the assets (excluding the inheritance) come to $968,569. The Husband’s 49% share amounts to $474,600 (rounded) and the Wife’s 51% comes to $493,969. As the Husband holds assets of $281,250 he has a further contributions-based entitlement of $193,350. As the Wife holds assets of $201,056 she has a further contributions-based entitlement of $292,913.
The parties’ further contributions-based entitlements would come from the sale of the joint C Shares ($4,446) and the division of the remaining Controlled Monies Account ($481,817).
Factoring in the Wife’s inheritance, she ends up retaining $650,905 to the Husband’s $474,600.
Step 4 – Identifying and assessing the relevant “future factors”:
Both parties are in their 60s and receiving Disability Support Pensions.
While the Husband points to the Wife retaining various personal items from the home at separation, including jewellery and other items. Moreover, after separation the Wife discovered that the Husband had given away or sold various of her other personal items to a second hand store after separation. There is no evidence as to the value of any such property and I propose to disregard it.
In reality, the only real point of difference between the parties is the Wife’s inheritance. It gives her a measure of financial security that the Husband does not have. Because the Husband’s inheritance came during the marriage, it has already been shared with the Wife.
Each party needs to have a reasonable standard of living.
Taking into account each parties’ circumstances I consider it appropriate to make a s 75(2) adjustment to the Husband of five percent (5%) of the non-inheritance property, which equates to $48,428 or just under two (2) years’ worth of weekly expenses as per his Financial Statement.
Step 5 – Ensuring a “just and equitable” outcome:
For the above reasons, I have determined it would be “just and equitable” that the Wife solely retain her inheritance and for all of the remaining matrimonial property to be divided as to fifty-four percent (54%) to the Husband and forty-six percent (46%) to the Wife.
The orders to achieve such a division are set out at the commencement of these reasons. The interest on the controlled moneys account, probably de minimis, is to be divided in the same proportion.
One of the orders the wife seeks is the sale of “H”. However, it is the husband’s home and he has clearly invested enormous man hours into looking after it over the years. In circumstances where its value is agreed, I do not consider it appropriate to require its sale.
I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of Judge Betts
Associate:
Date: 1 September 2020
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