WHATLEY and WHATLEY
[2023] FCWA 110
•7 JUNE 2023
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WHATLEY and WHATLEY [2023] FCWA 110
CORAM: O'BRIEN J
HEARD: 11, 12 & 13 APRIL 2023
DELIVERED : 7 JUNE 2023
FILE NO/S: 2227 of 2014
BETWEEN: MR WHATLEY
Applicant
AND
MRS WHATLEY
Respondent
Catchwords:
PROPERTY - long marriage - where parties separated finally some 20 years before trial - where parties agree to a "three pool" approach given their individual acquisition of property post separation - where the wife's contributions over the whole period to trial exceeded those of the husband - where those contributions were made more onerous by the effect of family violence - turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms R Milton |
| Respondent | : | Mr A Spashett |
Solicitors:
| Applicant | : | Baily Family Law |
| Respondent | : | CMS Legal |
Case(s) referred to in decision(s):
Anson & Meek (2017) FLC 93-816
Benson & Drury (2020) FLC 93-998
Bolger & Headon (2014) FLC 93-575
Browne v Dunn (1893) 6 R 67
Bulleen v Bulleen (2010) 43 Fam LR 489
Calder & Calder (2016) FLC 93-691
Calvin & McTier (2017) FLC 93-785
Dickons v Dickons (2012) 50 Fam LR 244
Fields & Smith (2015) FLC 93-638
G v H (1994) 181 CLR 387
Holland & Holland (2017) FLC 93-798
Jones v Dunkel and Anor (1959) 101 CLR 298
Kennon v Kennon (1997) FLC 92-757
Kowaliw and Kowaliw (1981) FLC 91-092
Loncar & Loncar (2021) FLC 94-054
Lovine & Connor and Anor (2012) FLC 93-515
Marsh & Marsh (2014) FLC 93-576
Norbis v Norbis (1986) 161 CLR 513
Steinbrenner & Steinbrenner [2008] FamCAFC 193
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whatley and Whatley has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
1The financial proceedings between [Mr Whatley] ("the husband") and [Mrs Whatley] ("the wife") were commenced by the husband in September 2015 and, after numerous false starts, proceeded to trial on 11 April 2023.
2The parties, who are in their late 70's, both seek orders for the alteration of their property interests. The most significant of those interests is a jointly owned property at [Suburb A] ("the home"). The wife has continued to live in the home for the nearly 20 years since the parties separated.
3The husband seeks orders for the sale of the home, with the wife to be responsible for any necessary repairs and the associated costs to prepare it for sale. In the event that he incurs any expense in preparing the property for sale, he proposes that he be repaid. Otherwise, he proposes that the net proceeds of sale be divided equally. He proposes that each party retain their own separate property and responsibility for their own liabilities.
4The wife initially sought orders for the transfer of the home to her, with no payment to the husband. At a subsequent stage in the proceedings, she effectively sought a life tenancy in the home, with that life tenancy to end if she was to cease residing there for a continuous period of more than six months, and the proceeds of any subsequent sale of the home to be divided as to 80 percent to her (or her estate) and 20 percent to the husband (or his estate). By the commencement of trial on 11 April 2023, she sought orders for the transfer of the home to her upon payment to the husband of $80,250. She otherwise proposes that each party retain their own separate property and responsibility for their own liabilities.
5Both parties allege they were victims of family violence perpetrated against them by the other. On the wife's case, her contributions during the marriage were made more arduous by the effects of family violence on her. The husband was convicted [in 2020] of assault occasioning bodily harm to the wife perpetrated [in 1977]. He was acquitted [in 2019] of two charges of sexual penetration of the wife without consent, with those offences alleged to have occurred between 1994 and 1996. In December 2022, the wife received a Criminal Injuries Compensation payment of $99,000.[1] The relevant injuries for which she was compensated were inflicted by the husband.
[1] After deduction of $1,000 for report expenses.
6The requirements of s 102NA(2) of the Family Law Act 1975 (Cth) ("the Act") were enlivened by the husband's conviction. Both parties were represented at trial.
Brief background
7The parties were married in 1964. They had four children, all of whom are now adults. On the husband's case they separated in late 2003; on the wife's case they separated on a final basis in 2004. Nothing turns on that discrepancy.
8The husband was born in 1944. He continues to work part‑time [in either of two different public administration and safety positions], and otherwise receives a partial age pension. He lives in a de facto relationship with [Ms A] in a property [in Regional Town B], which they jointly own ("the Regional Town B property").
9The wife was born in 1945. She is not employed and receives an age pension. She has not re-partnered, but lives in the home with one of the adult children of the marriage, [Adult Child B] born in 1971. Adult Child B has significant health issues and is dependent on government benefits.
10It is unnecessary to recount in detail the difficult progress of the proceedings. It is sufficient to note that they were first listed to a trial which was to commence on 31 October 2017 before a magistrate. They were derailed at that point by the need to await the determination of the criminal charges against the husband. Subsequent efforts to progress the matter to trial were unsuccessful for a variety of reasons.
11On 26 October 2022, the parties were advised that the proceedings had been listed for trial before me to commence on 11 April 2023. Given the history of the matter, a procedural hearing was listed for 28 February 2023. At that hearing, orders were made by consent in terms jointly proposed by counsel, which if complied with would see the matter ready for trial. While compliance with those orders was only partial, the trial was still able to proceed in a procedurally fair manner.
The legal principles and the issues as defined by the parties
12The Court has a wide discretion conferred by s 79(1) of the Act. That discretion must be exercised in accordance with legal principle, and without assuming that the parties' interests in assets are or should be different from those determined by common law and equity.
13The Court must be satisfied that it is just and equitable to make an order adjusting existing property interests.[2] That requirement is readily satisfied in most cases, including this one. The parties are long separated, and both seek to discontinue their joint ownership of property. It is common ground that it is just and equitable to make orders, and the evidence supports that common position.
[2] Family Law Act 1975 (Cth), s 79(2).
14In determining what orders will be just and equitable, the Court's power is not confined by any "steps" or "stages". Having said that, a court will satisfy the legislative requirements if it identifies and values the assets and liabilities of the parties (to the extent the evidence permits), takes into account their respective contributions (including contributions to any assets which have ceased to be owned by them),[3] assesses the factors in s 79(4)(d) to (g) of the Act (to the extent they are relevant), and considers whether the proposed orders are just and equitable.
[3] Ibid, s 79(4)(a), (b), (c).
15The Court is required to consider the respective contributions of the parties, both financial and non-financial, holistically over the whole period to trial. That does not lend itself (other than in an atypical case) to a strictly mathematical approach. The holistic approach to the assessment of contributions accommodates the wide range of factual scenarios dealt with by the Court.
16Nothing in the Act requires the Court to express in percentage terms its assessment of contributions, or its assessment of the factors in s 79(4)(d) to (g), although that is often convenient and practical. Similarly, nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party.
17There is no presumption that, even over the course of a long marriage, the contributions of the parties are to be regarded as having been equal.
The length of separation
18As already noted, by the time of trial the parties had been separated for nearly 20 years. That gave rise to questions as to the approach to be adopted in the assessment of contributions.
19Generally, the required holistic assessment of contributions is not assisted by any attempt to quantify in percentage terms the contributions of the parties in chronological tranches by reference to initial contributions, contributions during cohabitation, and post separation contributions.[4] "It is not the fact of separation or when contributions are made that is the delineator. It remains crucial to analyse and weigh the nature, form and characteristics of all contributions across the whole of the period under consideration".[5]
[4] Fields & Smith (2015) FLC 93-638, [75]; See also Dickons v Dickons (2012) 50 Fam LR 244, Lovine & Connor and Anor (2012) FLC 93-515, and Bolger & Headon (2014) FLC 93-575.
[5] Marsh & Marsh (2014) FLC 93-576, [107].
20That said, in the individual circumstances of this case the parties agreed a particular approach, which each contended would lead to a just and equitable outcome.
The agreed approach in this case
21Both parties correctly recognised that "there is no basis for excluding from consideration any property in which the parties have an existing legal or equitable interest".[6]
[6]Holland & Holland (2017) FLC 93-798, [31]; See also Calvin & McTier (2017) FLC 93-785, and Anson & Meek (2017) FLC 93-816.
22The husband acquired his interest in the Regional Town B property post separation, and the wife conceded that his current superannuation entitlements were also all acquired post separation. The wife received her Criminal Injuries Compensation payment only recently. The items just identified represent the bulk of the separate property of each party. Accordingly, at the commencement of the trial a question was raised as to whether the Court should adopt a "global approach" in the required assessment of contributions and the factors in s 79(4)(d) to (g), or a "three pool" approach, isolating the separate property and liabilities of each party into separate pools, with the joint property and liabilities falling into the third pool.
23Either approach is permissible.[7] While the global approach is more commonly adopted, it is not in any sense mandated. The "multiple pool" approach has been applied at first instance in a variety of circumstances, and the Full Court has observed that "in some respects, the approach of notionally dividing the assets into more than one pool is a matter of convenience for the author of the judgment".[8]
[7] Norbis v Norbis (1986) 161 CLR 513.
[8] Calder & Calder (2016) FLC 93-691, [102].
24The discretion to be exercised in adopting either approach is not limited by, and in individual cases may not even be informed by, reference to the time at which a particular item of property is acquired. Rather, the discretion is exercised by reference to the "nature, form and characteristics of the property in question and the nature, form and extent of the parties' contributions of all types across the entirety of their relationship".[9]
[9] Holland & Holland (2017) FLC 93-798, [33].
25The parties agreed that, in the circumstances of this case, the "three pool" approach foreshadowed above is appropriate. They agreed that the required holistic assessment of contributions and consideration of prospective factors would lead to a conclusion that neither should have any entitlement in relation to the separate property of the other, nor any responsibility for the associated liabilities.
26Accordingly, and in the somewhat unusual circumstances of this case, it is sufficient for me to record my view that the evidence supports both the approach proposed by the parties and their agreed position just described. In particular, a consideration of the nature and characteristics of the property of the wife, attributable to her receipt of compensation for violence inflicted on her by the husband, readily supports a conclusion that it would not be just or equitable for the husband to receive any interest in that property, directly or indirectly.
27The matters requiring determination, therefore, centre on what is to happen with the home and the remaining debt associated with it.
28On the wife's case, the required assessment of contributions would see her receive 75 percent of the net value of that property, and the assessment of prospective factors would see her receive a further 10 percent. On that basis, the transfer to her of the home, with her taking responsibility for the associated liabilities, would see her required to make a cash payment to the husband of $88,078.
29On the husband's case, the required assessment of contributions would see him receive 55 percent of the net value of that property, and the assessment of prospective factors would see the wife receive a further five percent, leading to an equal division overall. On that basis, the transfer to the wife of the home, if she took responsibility for the associated liabilities, would see her required to make a cash payment to him of $293,594. On the husband's case, there is no reasonable prospect of the wife being able to make such a payment and orders should therefore be made for the immediate sale of the home and equal division of the net proceeds.
Family violence
30The wife's case as to the appropriate assessment of contributions relies heavily on her contention that her contributions were made significantly more onerous by the husband's conduct, in the form of family violence.
31The Act as initially enacted "deliberately set out to exclude conduct from the assessment of financial adjustment between the parties".[10] The Family Court "carved out an exception to that general proposition[11] by acknowledging the effect that family violence in particular and conduct more generally might have upon the making of contributions by a party".[12]
[10] Loncar & Loncar (2021) FLC 94-054, [62].
[11] In Kennon v Kennon (1997) FLC 92-757.
[12] Loncar & Loncar (2021) FLC 94-054.
32Where the making of those contributions is found to have been made significantly more arduous by the conduct of the other party, the Court must take a holistic approach, weighing the contributions in question along with "all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder".[13]
[13] Benson & Drury (2020) FLC 93-998, [35].
33Relevantly in this case, "the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties".[14] In the process of fact-finding, inferences may be drawn as "an exercise of the ordinary powers of human reason in the light of human experience" unaffected directly "by any rule of law".[15] Of course, the strength of any inference drawn will depend upon the strength of the underlying evidence upon which it is based.
The evidence relied upon by the parties
[14] Ibid, [49].
[15] G v H (1994) 181 CLR 387, [4].
34The husband relied on the following affidavits:
(a)his consolidated trial affidavit, filed on 23 March 2023;
(b)his financial statement filed the same day;
(c)affidavits of the appointed Single Expert Witness valuer for the home, [Single Expert Valuer C], filed on 5 October 2017, 25 October 2017 and 15 August 2022;
(d)affidavit of the appointed Single Expert Witness valuer for the Regional Town B property, [Single Expert Valuer D], filed on 3 October 2022;
(e)affidavit of his partner Ms A, filed on 3 May 2017;
(f)affidavit of his friend [Mr E], filed on 10 June 2022; and
(g)affidavit of [Dr F], filed on 13 July 2017.
35Single Expert Witness Valuer C provided an updating report during the trial, providing his opinion as to the value of the home, specifying both the land and improvements components of that value. The husband argued that a failure by the wife to properly maintain the property had caused a reduction in its value. In short, Single Expert Valuer C concluded that of the current value of the property at $600,000, only $50,000 is attributable to improvements. While noting the poor condition of the home, he drew a proper distinction between the need for repairs to render it fit for sale, and renovations and modernisation required to increase its value. He was cautious as to the cost/benefit of expenditure beyond that needed to make the property compliant and thus fit for sale. He emphasised that even if repairs and some modest renovation were undertaken, the bulk of the relevant value is in the land.
36After Single Expert Valuer C gave his evidence, the husband sensibly did not pursue any argument based on a proposition that the wife had either wasted property or recklessly permitted a deterioration in its value.[16]
[16] Kowaliw and Kowaliw (1981) FLC 91-092.
37Single Expert Valuer D, Ms A, Mr E and Dr F were not required for cross-examination. That was sensible, as given the various agreed positions the evidence given by those witnesses was either noncontentious or of no relevance to the matters requiring determination.
38The wife relied on the following affidavits:
(a)her affidavits, filed on 12 April 2019 and 14 June 2022;
(b)her financial statement, filed on 29 March 2023;
(c)affidavit of her daughter [Adult Child G], filed on 16 July 2021;
(d)affidavit of her son [Adult Child H], filed on 19 July 2021; and
(e)affidavit of her psychologist [Ms I], filed on 16 June 2022.
39The wife received her Criminal Injuries Compensation payment after she filed her affidavit on 14 June 2022. She did not comply with orders to which she consented on 28 February 2023 for the filing of a consolidated trial affidavit, in which she could readily have given the relevant evidence about that payment.
40Given the significance of the payment and the circumstances leading to it, the husband sensibly agreed that the wife could give oral updating evidence in chief, and that the documents relevant to the payment could be tendered. In that way, the possibility of yet another adjournment of the trial was avoided.
41That evidence, however, was given after the husband's case had closed. To the extent that the documents tendered (including, in particular, the submissions made on behalf of the wife in applying for Criminal Injuries Compensation) contained specific allegations against the husband which were not put to him in cross-examination, I have disregarded them.[17]
Observations as to the evidence and credibility
[17] Browne v Dunn (1893) 6 R 67.
42In short, neither party was a particularly impressive witness.
43The husband was prone to blanket denials. His denials of physical violence towards the wife were entirely unconvincing. He was also inclined to give evasive answers, on occasion responding to a direct question by saying that "you can conclude" the proposition put. By way of example, he would not directly admit to having contracted genital warts from another sexual partner, knowing of his condition, and later having sex with the wife without alerting her to it.
44By the same token, the wife was also prone to blanket denials. That extended to, more than once, denying having ever seen documents that she had in fact signed. When the documents were put to her, on occasion she asserted that she had not read them before signing them and that their contents were inaccurate. Those assertions extended at times to sworn documents. On other occasions, she was quick to assert that she had no recollection of matters put to her, without any apparent reflection. At other times she gave what appeared to be reactive or anticipatory answers, before giving contradictory answers only minutes later.
45Other than in relation to the husband's denials of certain acts of violence, I do not conclude that either party was intentionally dishonest. I acknowledge that many relevant events occurred many years ago. That said, neither party was a reliable historian. Both had a clear tendency to respond to questions with an eye to their own interests rather than simply giving direct answers.
46It was submitted on behalf of the husband that the evidence of Adult Child G and Adult Child H should be discounted, and their credibility impugned, because of their alignment with the wife and their broken relationships with him. I reject that submission. Both gave their evidence in an entirely matter-of-fact way. While I accept that Adult Child H has a long held negative view of the husband, Adult Child G is the only child of the parties who endeavoured to maintain a relationship with him and to allow him involvement in the lives of her own children. Neither was directly challenged on their clear evidence as to their recollection of the husband's behaviour during their childhood. Even allowing for proper concerns as to reconstructive memory, and the reliability of recollections from childhood more generally, their evidence in that regard was compelling.
47Single Expert Valuer C and Ms I each gave evidence in an entirely straightforward, professional and helpful manner.
The existing interests of the parties in property
48To their credit, by the conclusion of the trial the parties had agreed not only the "three pool approach" described earlier, but also all relevant values and the amounts of all relevant liabilities. The agreed position in that regard is set out in the table below. I find that the existing interests of the parties in property, and the extent of their liabilities, are as the parties have agreed.
| Item | Legal ownership or liability | Value $ |
| The first pool - the husband's separate property and liabilities | ||
| Assets | ||
| The Husband's interest in the Regional Town B property | Husband and Ms A as joint tenants | 90,000 |
| Bankwest Account ending [redacted] | Husband | 3,087 |
| 2003 Mitsubishi Pajero | Husband | 5,650 |
| 2011 Mitsubishi Pajero | Husband | 15,700 |
| Boat and Trailer | Husband | 1,100 |
| 1977 Pop Top Caravan | Husband | 700 |
| Household Contents | Husband | 1,000 |
| Sub Total | 117,237 |
| Less Liabilities | ||
| Less the debt to Ms A per the Deed of Acknowledgement[18] | Husband | 68,956 |
| Net Property | 48,281 | |
| Superannuation | ||
| [Redacted] Superannuation | Husband | 7,714 |
| Total net agreed value for the first pool | Husband | 55,995 |
| The second pool - the wife's separate property and liabilities | ||
| Assets | ||
| Commonwealth Bank Account ending [redacted] | Wife | 61,931.91 |
| 2023 Hyundai Venue | Wife | 26,000 |
| Commonwealth Bank Account ending [redacted] | Wife | 787.81 |
| 1996 Mitsubishi Pajero | Wife | Nil value. |
| Household Contents | Wife | 1,500 |
| Sub Total | 90,219.72 | |
| Less Liabilities | ||
| ANZ Visa Credit Card | Wife | 792.34 |
| Go MasterCard Credit Card | Wife | 1,925.90 |
| Total net agreed value for the second pool | Wife | 87,501.48 |
| The third pool – joint property and liabilities | ||
| Assets | ||
| The home | Joint | 600,000 |
| Less Liabilities | ||
| Outstanding [Shire C] Rates | Joint | 11,818.71 |
| Outstanding Water Corporation Rates | Joint | 993.77 |
| Total net agreed value for the third pool | Joint | 587,187.52 |
[18] As discussed later in this judgment.
49Both parties had recourse to the Commonwealth Family Violence and Cross-Examination of Parties Scheme, and while both had otherwise incurred and paid legal fees from their own resources, neither suggested that any paid legal fees should be notionally added back for the purpose of any calculations required.
50I accept the evidence of the husband that he has a debt to Ms A in an amount of $75,500 for legal fees. Bearing in mind the provisions of s 117, and that neither party proposed that paid legal fees should be notionally added back, that liability is not appropriately included in any calculations for the apportionment of property between the parties. It may properly be taken into account in considering the husband's financial circumstances generally, by reference to s 75(2). Appropriately, the correctness of that approach was conceded by the husband at the commencement of the trial, and it was largely for that reason that Ms A was not required to present for cross-examination.
Evidence and findings as to contributions
The acquisition of property during cohabitation
51The parties were very young when they began cohabitation, when the wife was pregnant with their first child. Neither brought any property into the relationship. They initially lived in difficult circumstances, first in a shed in the property of the husband's parents and later in garage at the property of the wife's parents. They later moved into rental accommodation in [Suburb D], [in] New South Wales.
52In about 1966, the parties purchased their first property, a modest home in [Suburb E], [in] New South Wales. They sold that property in or about 1969 and applied the proceeds of sale to the purchase of a block of land in [Suburb F], [in] New South Wales. They built a home on that property, and rented a home in [Suburb G] in New South Wales during the build, which on the husband's evidence took approximately nine months.
53On a visit to Western Australia in 1973, the parties purchased the vacant block in Suburb A upon which the home was eventually built. The block remained vacant for some time. The parties moved to Western Australia in early 1977, having sold the Suburb F property, in New South Wales and applied part of the proceeds to complete the acquisition of the Suburb A block. They lived in rental accommodation for approximately two years before commencing to build the home. They borrowed the necessary funds for construction of the home. The husband obtained an owner builder licence, which on his evidence had its advantages. Both parties undertook work around the construction, which was otherwise undertaken by the builder they engaged. The husband continued to work full-time.
54In or about 1982, the husband left his employment and the parties established [an automotive] business. The business initially operated from rental premises, but an opportunity presented itself to purchase those premises ("the factory units") and the parties did so.
55In or about 1999, the parties purchased a property [in Regional Town H in Western Australia] ("the Regional Town H property").
56By the time of separation, the parties owned the home, the factory units, and the Regional Town H property, subject to encumbrances.
The disposition of property acquired during cohabitation
57After separation, the parties sold the factory units in October 2005 for $285,000. The units were unencumbered at the time of sale. After payment of the usual expenses associated with sale, and tax of $28,500, the remaining proceeds were divided equally between the parties. Each received $136,450.
58At that time, the loan taken for the construction of the home was secured against the Suburb A property, as were a separate business loan and an overdraft. The parties applied the net proceeds they received from the sale of the factory units to discharge two of those loans. On the husband's evidence, which was not contradicted, they each applied $52,500 towards the discharge of the primary loan secured against the home. From his share of the proceeds from the sale of the factory units, the husband paid a debt to the Australian Tax Office ("ATO") in the sum of $6,707 and a credit card debt in the sum of $23,000. From her share, the wife made a payment of $20,000 to clear the business loan.
59Once those payments had been made, there remained a $20,000 business overdraft which was owing. On the husband's case, part of the agreement between the parties was that the wife would make monthly payments towards that overdraft for what he anticipated to be a short period in which she would continue living in the home until it was sold, with the balance then remaining on the overdraft to be discharged from the proceeds of sale. The wife denies that there was any agreement involving the sale of the home.
60Nothing turns on that in the current analysis. It is common ground that the amount owing on the overdraft subsequently significantly increased as it was not being serviced. While the husband would attribute blame to the wife for that increase in the debt, she was later able to negotiate with the bank and have the debt forgiven. By that different route, the wife secured the discharge of the overdraft liability as the husband would say she had agreed to do. In effect, of the joint debts totalling $174,707 at the time of separation, the husband cleared $82,207 and the wife cleared $92,500, albeit she relied on the good graces of the bank in part.
61The parties sold the Regional Town H property in March 2004. The property was unencumbered when sold, and after payment of the usual expenses of sale, the net proceeds amounted to $38,331. The husband says that the proceeds were divided equally between the parties; the wife said in her trial affidavit that she did not know what happened to the proceeds of sale, but assumed they were applied towards secured debt. When relevant bank statements were put to her at trial, she agreed that in fact she had received half the proceeds.
The acquisition and disposition of property post separation
62It is common ground that in August 2006 the husband and Ms A jointly acquired the Regional Town B property. On the husband's evidence, which was not contradicted, the entire purchase price was borrowed, with the borrowing being secured against Ms A’s separate property. That separate property was subsequently sold, and the proceeds applied to clear the debt secured against the Regional Town B property, with the consequence being that the husband owed Ms A just under $69,000 for "his share" of the discharged liability. A Deed of Acknowledgement of Debt was executed on 2 October 2014. The wife accepts that the debt is genuine and remains owing. The husband's interest in the Regional Town B property, the associated liability, and the superannuation he has acquired since separation, form the separate pool which it is agreed is to be retained by him, and to which the wife concedes she has made no contribution.
63The husband also purchased a vacant block [in Regional Town I] for $3,000. That block was subsequently sold in November 2010 for $19,500 and the husband retained the proceeds.
64The wife was involved in a motor vehicle accident not long before separation. In July 2007, she received an award of damages for injuries received in that accident. She was awarded $52,500 in damages, and $7,000 costs. After payment of medical expenses and legal fees, she retained those proceeds.
65In September 2022, the wife lodged the claim for Criminal Injuries Compensation referred to earlier in these reasons. In December 2022 she was awarded the maximum amount then available under the relevant legislation, in the sum of $100,000. Expenses of $1,000 associated with the necessary reports were deducted and she received the balance. She applied some of the proceeds to the acquisition of the Hyundai motor car which she retains, some to general living expenses and the like, and has otherwise retained the balance in her bank account. Those are the funds and property isolated by agreement into a separate pool, to which the husband concedes he has made no contribution.
Inheritances
66In 1991, the husband received an inheritance of approximately $36,000 after the death of his mother. The money was applied to the business, to the benefit of the family.
67The wife's mother died in November 2014. After payment of various expenses, the wife received an inheritance of approximately $50,000. On her unchallenged evidence, those funds were spent in repayment to her siblings for financial assistance they had given her post separation in meeting various living expenses, and in providing some financial assistance to the adult children.
Other direct and indirect financial contributions
68It is common ground that the husband worked full time throughout the relationship, either as an employee or in his own business, and that he was the primary breadwinner for the family.
69During the periods of the husband's employment at [Car Dealership A], and later [Car Dealership B], the wife was employed to work as his assistant. When the husband left that employment in or about 1982, the parties established the automotive business in which they were equal partners. The husband worked full-time in the business, and the wife undertook bookkeeping and administrative tasks. On her unchallenged evidence, she also worked full-time. That arrangement continued until the business was sold in 2005.
70Both parties contributed their employment and business income to their mutual benefit and that of the family. The husband earned the higher income throughout.
Direct and indirect non-financial contributions
71The parties both undertook significant labour in the construction of the home. On the wife's unchallenged evidence, labour undertaken by her included mixing and carting cement, painting, assisting bricklayers, and other general labouring work. While the husband did not give detailed evidence in that regard, the wife does not suggest that he did not also undertake significant work in the construction of the home. Some years later, both parties undertook further work on the home in the context of changing banks and seeking a new loan.
72When the parties purchased the Regional Town H property as a vacant block, they undertook significant work on part of the property, on the wife's evidence planting "thousands of trees". As earlier noted, the property was subsequently sold for a modest profit.
73During the relationship, both parties undertook general maintenance work at the home. I accept the husband's evidence that, for example, he undertook gardening and general maintenance work and was primarily responsible for maintaining the parties' motor vehicles. During the period of her occupation of the home since separation, the wife has been responsible for any maintenance work that has been undertaken, within her physical and financial limitations. In noting that contribution, however, the very modest standard of the accommodation and its minimal value must also be borne in mind.
Contributions to the welfare of the family, including in the capacity of homemaker or parent
74The husband acknowledges that the wife was the "primary parent and homemaker". He describes his own contributions in that regard as primarily related to holidays and occasional recreational activities with the children, saying that he "helped [the wife] around the house as much as [he] could and cooked the occasional meal."
75On the wife's evidence, which I accept, she was almost exclusively responsible for parenting and homemaker duties throughout the relationship. I accept her evidence that the husband would often return home late from work and had minimal interest in or involvement with the day-to-day care of the children, their education, their transport and their extracurricular activities. Adult Child H and Adult Child G were not challenged on their clear evidence in that regard, which was consistent with that of the wife.
76It is relevant in this case to bear in mind that s 79(4)(c) requires the consideration of the contribution made by a party to the "welfare of the family… including any contribution made in the capacity of homemaker or parent." The section contemplates a contribution to the welfare of the family as being "something more than a contribution in the capacity of homemaker and/or parent".[19] As has been observed, "whilst parenting as an occupation might stop or become less burdensome once children become adults, the ongoing role of both parents and later grandparent is no less an ongoing contribution".[20]
[19] Fields & Smith (2015) FLC 93-638, [97] and the authorities there cited.
[20] Bulleen v Bulleen (2010) 43 Fam LR 489, [170] per Cronin J, cited with approval in Fields & Smith (ibid).
77In short, contributions of the nature contemplated by s 79(4)(c) do not automatically come to a halt when relevant children turn 18, nor on separation.
78It is common ground that, notwithstanding some efforts on the part of Adult Child G, the husband has no relationship with the adult children of the marriage, or his grandchildren. The wife has maintained those relationships and her involvement with the family. I accept her evidence that she has provided some financial assistance to Adult Child H, Adult Child G, Adult Child B and [Adult Child J] post separation, most particularly from her inheritance following the death of her mother. Her evidence that since separation the adult children have themselves been supported by her through a number of "major life events and challenges", including marriage and relationship breakdowns and disputes in this Court, was unchallenged.
79Adult Child B was the victim of an assault in 2013, as a result of which he has an acquired brain injury. On the wife's unchallenged evidence, he also has a terminal illness. He is dependent on the wife for his day-to-day support and needs, albeit he does assist with some tasks around the house. He has lived with the wife for 10 years and his children live with them when spending time with him each fortnight. His needs, including needs related to his brain injury, are significant and ongoing and they are met by the wife.
80I find that the wife has continued to make a very significant contribution to the welfare of the family since separation, and that the husband has made no such contribution.
81On behalf of the husband, it was submitted that as Adult Child B did not give evidence on behalf of the wife, I should infer that any evidence he might have given would not assist her.[21] That submission misunderstands the relevant principles, and I reject it. There was no relevant evidence which the husband sought to have accepted, and which might have been contradicted by Adult Child B. There was no proposed inference favourable to the husband and grounded in the evidence upon which evidence from Adult Child B might have shed light. There is accordingly no basis to draw the inference sought in relation to the wife's failure to call Adult Child B as a witness.
[21] Jones v Dunkel and Anor (1959) 101 CLR 298.
82The wife's trial affidavit was clear as to the assistance she provides to Adult Child B, and the husband did not respond to it in his subsequently filed trial affidavit. Rather, he simply said that to the best of his knowledge Adult Child B lived with the wife, but he was "not aware of the arrangements between them." He did not in any sense dispute the wife's evidence in that regard, nor was she substantially challenged on it in cross examination. When the husband was cross-examined, he confirmed that he was not aware of Adult Child B's medical issues, having had no communication with him since "the early 2000's".
Family violence
83The wife gave evidence of physically and verbally abusive behaviour by the husband throughout their relationship. She gave further evidence of financially controlling behaviour by the husband, and coercive and controlling behaviour extending to (for example) her choice of clothing.
84While the wife's trial affidavit referred to specific incidents, in his responding affidavit the husband did not generally descend into detailed responses. Rather, he denied that he is a "physically violent person" or that he had been violent towards her. He admitted that there had been incidents when both parties had been verbally abusive to each other, and then gave evidence of incidents where he would say the wife was the perpetrator of physical abuse against him. He said that he would "walk away usually in a conflict situation, but [the wife] would not allow [him] to walk away" and would "restrain [him] physically".
85While the wife alleges numerous occasions of family violence, it is sufficient for present purposes to make specific findings about certain incidents only. As earlier noted, I do not propose to make findings in relation to alleged incidents raised in documents related to the wife's Criminal Injuries Compensation claim, and in respect of which the husband had no opportunity to give evidence or otherwise respond.
86In 1970, at a time when the wife was pregnant with Adult Child B, there was a violent incident between the parties. What began as a verbal argument escalated. On the wife's evidence, during the argument she retreated to a bathroom to escape the husband, locking the door behind her. She says that the husband broke down the door, before striking her to the right side of her head with such force that her eardrum ruptured.
87On the husband's version of events, the wife was being violent towards him and there was a "scuffle". Having acknowledged that as a consequence of the "scuffle" the wife required surgery to repair her eardrum, he gave the following explanation:
Because there was a scuffle, and that scuffle had occurred in the bathroom, and [the wife] was being quite violent towards me, and on my recollection is that I tried to restrain her (sic), because we could have both finished up going through the shower screen in that particular confined space, and I remember constraining her. I did not hit her in any way, and that - I was trying to - as you do, to constrain somebody, hold their arms or whatever and there was probably - and we don't know for sure - probably an injury occurred to [the wife's] side of her head.
88When pressed, he acknowledged having told the police that "some part of [his] forearm [had] come into contact with her head".
89In his trial affidavit, the husband had said that the wife had been "pushing and shoving" him, before going into the bathroom. He said that he "followed her to make sure she was alright", whereupon she became more violent and having tried unsuccessfully to calm her down, he left the bathroom. During his cross-examination, I asked him why (if the wife had initiated violence but had then retreated to the bathroom) he had followed her. The husband gave an entirely unconvincing explanation, suggesting that he was "trying to calm her down" and "trying to present reason".
90I accept the evidence of the wife in relation to this incident and reject the evidence of the husband. It is common ground that as a result of the incident the wife had to undergo surgery on two separate occasions. It is not disputed, although the husband would purport not to know, that the wife has suffered permanent hearing loss in her right ear as a result of the incident.
91In her trial affidavit, the wife said that during the period when the parties were living in Suburb F in New South Wales the husband had affairs, including with her sister-in-law, and contracted genital warts. She said that he hid that from her, while maintaining their sexual relationship, and that as a result she contracted genital warts. She said that she knew she had contracted them from the husband, as she had never had another sexual partner.
92In his responding affidavit, the husband's only response was to say that "around this time [the wife] would frequent Gay and Lesbian bars around [New South Wales]."
93When cross-examined, the husband was evasive and inconsistent in his evidence. Initially he sought to suggest that he did not know which of the parties first contracted genital warts, saying they were "both sexually active at that time". He then reluctantly acknowledged that as far as he knew he was the wife's only sexual partner. He was evasive as to his own sexual history, before saying "we can conclude that [he] had a sexual partner that it may have been transmitted from." He eventually acknowledged that having contracted genital warts from another sexual partner, he continued having sex with the wife, before claiming that he could not remember whether he told her about his condition "before, after, [or] during".
94I find that the husband contracted genital warts from a sexual partner other than his wife and was aware of that fact. He did not disclose that fact to the wife and continued to have sexual relations with her. As a result, the wife contracted genital warts and had to undergo surgical treatment under general anaesthetic, being hospitalised for three days.
95[In] March 1977, on being taken to [a West Australian Hospital], the wife was examined. She had suffered a fracture of the floor of the left orbit (her eye socket). In February 2020, the husband was convicted of the assault which caused that injury. On the wife's evidence, which I accept, the injury was caused when the husband punched her in the face while drunk.
96I accept the evidence of Adult Child H as to his recollection of the husband's alcohol intake and his verbal and physical abuse towards the wife, and for that matter the children. I accept his evidence that he witnessed the husband punch, backhand and slap the wife. I accept his evidence that he recalls an occasion where he woke up to the sound of screaming and breaking glass, and saw that a glass door had been smashed, and that the husband later admitted having pushed the wife into that door, causing it to break.
97I accept the evidence of Adult Child G as to her recollection of the husband coming home drunk and assaulting the wife on numerous occasions. I accept her evidence that the wife tried to shield the children from the violence, but that they could "always hear the screaming". I accept her evidence as to the husband's regular excessive intake of alcohol.
98I accept the evidence of the wife, supported by Adult Child H and Adult Child G, to the effect that the specific incidents of violence detailed above were not in any sense isolated. I find that violence from the husband towards the wife permeated their relationship throughout cohabitation.
99I accept the evidence of the wife as to the impact of that violence on her and that on at least one occasion she became suicidal.
Conclusion as to appropriate alteration of property interests by reference to the assessment of contributions
100I readily conclude that, taking into account all the matters summarised above, the overall contributions of the wife up to the date of trial exceed those of the husband. The husband's direct financial contributions during cohabitation exceeded those of the wife, but she nevertheless made significant direct financial contributions, including income from employment, while being almost exclusively responsible for contributions to the welfare of the family, including as a homemaker and parent. Both parties made indirect financial contributions during cohabitation as earlier summarised. The wife has continued to make direct and indirect financial contributions to the maintenance of property since separation, albeit those contributions do not carry significant weight for the reasons earlier outlined, and given that she has also had the benefit of occupying the home. The wife has continued to make significant contributions to the welfare of the family since separation; the husband has made no contributions of that nature.
101I conclude further that the wife's contributions were made significantly more onerous by virtue of the husband's conduct and in particular his perpetration of family violence. The evidence of Adult Child H and Adult Child G as to the wife's efforts to shield the children from that violence need not be repeated. She suffered significant injuries at the hands of the husband, which themselves can only have made her contributions more difficult. She has also found it necessary to seek psychological assistance over many years; while she does not contend that her current mental health issues arise from the family violence to which she was subjected, contemporaneous medical records make it clear that she was reporting the impact of family violence upon her very shortly after separation.
102The difficulty associated with the necessary "leap from words to figures" is notorious.[22] Taking into account all the matters set out above, I conclude that contributions are appropriately assessed in the proportions of 65 percent to the wife and 35 percent to the husband.
Evidence and findings as to the factors in s 79(4)(d) to (g) of the Act
[22] Steinbrenner & Steinbrenner [2008] FamCAFC 193, [234].
103The husband is 78 years old. While he continues to work part-time, I accept that it would be entirely reasonable for him to cease work. I accept that he has various health issues as described in his trial affidavit, that his current financial circumstances are modest, and that his partner receives a partial age pension. I accept that he has an existing liability to his partner as earlier described.
104The wife is also 78 years old. She is dependent on an age pension, and I accept that she has no independent earning capacity. I accept also that she has various health issues as described in her trial affidavit.
105It may be inferred that the parties both have modest ongoing commitments to support themselves.
106The wife has ongoing personal, but not financial, commitments to support Adult Child B, given his health difficulties, but has no legal duty in that regard. Nevertheless, she does have responsibilities associated with Adult Child B's support and while they continue to cohabit, their mutual financial circumstances remain modest. While there is limited evidence as to the financial circumstances of the husband's cohabitation with his partner, nothing turns on that for the reasons already summarised. It may fairly be noted that the husband can anticipate a level of personal support from his partner on an ongoing basis, where the wife can anticipate ongoing responsibilities to Adult Child B with limited reciprocal support.
107Both parties remain eligible for age pensions, subject only to factors under their control and the resolution of ownership of the home. It is reasonable that they each be able to continue with a standard of living similar to that which they have had since separation, to the extent that is possible.
108While complaints were made on behalf of the husband in relation to the wife's non-compliance with her duty of disclosure, and her conduct of the proceedings more generally, those complaints do not warrant any adjustment in reliance on s 75(2)(o) in circumstances where the property available for division has been clearly identified.
109The wife has had the benefit of occupation of the home since separation. By the same token, she has met the admittedly modest costs associated with upkeep of the home. Particularly in the early years of the separation, the husband had the benefit of retaining his ongoing earning capacity, whereas the wife has been dependent on government benefits throughout.
110Taking all those matters, and the practical effect of the contributions-based alteration of the property interests of the parties into account, I conclude that there should be no adjustment grounded in s 79(4)(d) to (g).
111I accordingly conclude that the property in the relevant pool should be divided in the proportions of 65 percent to the wife and 35 percent to the husband.
Disposition and proposed orders
112On the agreed values, that division would require a payment by the wife to the husband of the sum of $205,516 if she is to retain the home, as she proposes, and responsibility for the outstanding rates.
113The wife's evidence as to her potential eligibility to borrow under a reverse mortgage, and the repairs that would be required to be undertaken to the home for that purpose, was somewhat confused. It appears at least possible that the only repairs required to secure a reverse mortgage are repairs which she can presently fund from her existing resources, and that she may well be able to borrow the amount required to pay out the husband.
114While on the husband's case the wife will not be able to borrow sufficiently to pay him out, he adduced no evidence in that regard. Sensibly, his counsel conceded that she could do no more than contend that it is unlikely that the wife will be able to borrow the required amount. Counsel also, again sensibly, acknowledged that notwithstanding the husband's firm position, she could not advance any argument against the proposition that the wife should be given at least a time-limited opportunity to raise the necessary funds to enable her to retain the home.
115I regard it as just and equitable to afford the wife that opportunity. She has lived in the home for some 40 years, including some 20 years post separation. She and Adult Child B currently face all the difficulties already referred to earlier in these reasons. She has an understandable and reasonable desire to remain in the home if she can.
116That said, while there was a very significant delay in the husband commencing proceedings, much of the delay which has occurred since then has been attributable to the conduct of the case on the part of the wife. Delay clearly favours her and prejudices the husband. There was, unfortunately, no evidence as to the timeframe within which it might be possible to have necessary repairs to the home undertaken prior to approval of a reverse mortgage; it appears that the loan process once initiated might take between six to eight weeks to complete.
117Doing the best that I can in the circumstances, I conclude that a timeframe of six months will represent an appropriate opportunity for the wife to retain the home if possible. I therefore propose to order her to pay the required sum to the husband within that timeframe, failing which the home will be sold and the net proceeds divided.
118In the event of a sale of the home, the husband proposed various orders including a requirement that if no sale is achieved by private treaty within three months, the property must be listed for sale by public auction. There was no evidence adduced as to the appropriate manner of sale of the property, and neither counsel put questions to the Single Expert Witness, Single Expert Valuer C, as to the prospect of a sale by auction. I am not prepared to make the pre-emptive orders proposed, but for obvious reasons the parties will have liberty to apply in relation to the terms and conditions of sale if required.
119Subject to any submissions as to form, I propose to make the following orders:
1.By no later than Monday, 11 December 2023, the Respondent Wife, [MRS WHATLEY] ("the Wife") must pay the Respondent Husband, [MR WHATLEY] ("the Husband") the sum of $205,516 ("the settlement sum").
2.Contemporaneously with payment of the settlement sum:
(a)the Husband must transfer to the Wife all his right title and interest in the property [in Suburb A] ("the home"), being the whole of the land described in [redacted]; and
(b)the Wife must indemnify the Husband and keep him indemnified in relation to any and all liabilities associated with the home, including any outstanding rates or taxes.
3.In the event that the Wife does not pay the settlement sum within the time specified in paragraph 1 of these orders, the parties must then proceed to offer the home for sale and sell it, in the following manner:
(a)the Husband must nominate three real estate agents which he would propose should be appointed to conduct the sale of the home;
(b)within seven days of receiving those nominations, the Wife must select one of the agents so nominated, and inform the husband of her selection;
(c)within seven days thereafter, the parties must each sign all documents and do all such things necessary to appoint the selected agent and place the home on the market for sale by private treaty in the manner advised by the agent and at an asking price nominated by the agent;
(d)the parties must do all things reasonably requested by the appointed agent to facilitate the prompt sale of the home, including but not limited to making the home available for inspection, signing all necessary documents, and giving all necessary authorities; and
(e)the parties must accept any unconditional offer to purchase the home at a price of $600,000 or above.
4.In the event that the home is sold pursuant to the immediately preceding order, the parties must do all things necessary to disburse the proceeds of sale in the following manner:
(a)in payment of agents fees, commissions and other expenses associated with sale;
(b)in payment of any outstanding rates and taxes;
(c)in payment of 65 percent of the balance then remaining to the Wife; and
(d)in payment of the balance then remaining to the Husband.
5.The parties have liberty to apply in relation to the terms and conditions of sale of the home.
6.Other than as expressly provided in these orders, the Husband's interest (if any) in the following vest in the Wife:
(a)chattels in the possession of the Wife, including motor vehicles and furniture and contents of the home;
(b)any monies standing to the credit of the Wife in any account in a bank or other financial institution, whether held solely in his name or jointly with another person; and
(c)the Wife's superannuation entitlements if any.
7.Other than as expressly provided in these orders, the Wife's interest (if any) in the following vest in the Husband:
(a)the Husband's interest in the property [in Regional Town B] being the whole of the land described in [redacted].
(b)chattels in the possession of the Husband, including motor vehicles;
(c)any monies standing to the credit of the Husband in any account in a bank or other financial institution, whether held solely in his name or jointly with another person; and
(d)the Husband's superannuation entitlements.
8.Other than as expressly provided in these orders:
(a)each party be solely responsible for liabilities in their sole name, or liabilities jointly incurred with any third-party, and pay and indemnify and keep the other party indemnified against such liabilities; and
(b)each party be solely responsible for and indemnify and keep indemnified the other party any liability attached to any property to be retained by them pursuant to these orders.
9.All outstanding applications and responses otherwise be and are hereby dismissed.
10.All documents produced by named persons pursuant to subpoena in these proceedings be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
11.In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the Chambers of Justice O'Brien at least 28 days, and no later than 42 days, from the date hereof;
(b)all parties must contact the Chambers of Justice O'Brien to arrange the collection of their exhibits;
(c)In default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena and to be dealt with under paragraph 10, will be destroyed by the Court without notice to the parties.
12.If any party seeks orders for costs, that party must file and serve written submissions within 28 days from the date hereof.
13.The respondents to any such application for costs must file and serve written submissions in response within 28 days thereafter.
14.Each party have liberty to seek a relisting for the making of oral submissions, such request to be made within 14 days after the expiry of the time for the filing of any responsive written submissions pursuant to the immediately preceding order.
15.In the event that no request for a relisting is received pursuant to paragraph 14 of these orders, any costs application stand to be determined by the presiding Judge in Chambers, and on the papers, with reasons to be delivered and orders pronounced from Chambers without necessity for any further appearance and without further notice to the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
7 JUNE 2023
120
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