Wallington & Spina (No 2) [2023] – Property Settlement Impacted by Domestic Violence under Kennon Principles

JUDGE ELDERSHAW:

INTRODUCTION

1. These proceedings concern financial proceedings pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
2. The Applicant de facto wife is Ms Wallington (“the wife”), born in 1964 and now 58 years of age. The Respondent de facto husband is Mr Spina (“the husband”) born in 1954 and now aged 69 years of age.
3. The wife contends that the parties met in 2013 and commenced living together in 2013. The husband contends that the parties commenced cohabitation in 2015. The parties separated on a final basis in May 2020. There are no children of the de facto relationship. The husband has two children from former relationships, Ms B and Ms C. The wife has three now adult children from a former relationship.
4. The wife commenced proceedings by the filing of her Initiating Application on 18 December 2020 to which the husband joined issue by his Response filed on 25 February 2021.

DOCUMENTS

5. The wife relies on her Further Amended Initiating Application filed 25 November 2022, her affidavit filed 1 December 2022, her Financial Statement filed 20 July 2023, the affidavit of Ms D filed 6 February 2023 and her Case Outline Document filed 20 January 2023.
6. The husband relies on his Amended Response filed 30 November 2022, his affidavit filed 2 June 2023, his Financial Statement filed 27 June 2023, the affidavit of Mr E filed 20 June 2023 and his Case Outline Document filed 21 July 2023.

Husband’s affidavit

7. The husband sought leave to rely on his affidavit filed on 2 June 2023, which the wife opposed.
8. Counsel for the husband submits that the Court should allow the affidavit because there would otherwise be no probative evidence in the husband’s case, such as to occasion a denial of procedural fairness. He submitted that there is no warrant for the case to be determined on an undefended basis. He says that the affidavit has been available to the wife since 2 June 2023 and she has had time to consider it.
9. Counsel for the wife submitted that no leave was granted for further material to be filed and that the husband has consistently disregarded Court orders concerning the preparation of the matter for final hearing. He says the affidavit was not served but that his instructing solicitors were told that they could find it on the Court portal.
10. The wife’s costs to date are $612,000, which counsel for the wife says reflect the manner in which the husband has conducted the litigation. Counsel for the wife contends that allowing the husband to rely on his 2 June 2023 affidavit would put the wife to more cost, as she would be required to engage her lawyers to interrogate the material.
11. On 29 June 2022, directions were made requiring each party to file their material by 25 November 2022. On 7 December 2022, the time for the husband to comply was extended to strictly no later than 16 December 2022, with which the husband complied.
12. The final hearing was due to start on 7 February 2023, but were adjourned because the husband was self-represented. The Court and the wife expected that he would be represented by counsel acting on a direct access basis, being an expectation based on what had transpired at case management events in late 2022. Given the allegations of family violence, counsel for the wife made an oral application for an order that s 102NA of the Act apply to the parties. The Court acceded to this application.
13. I do not accept counsel for the husband’s submission that the husband would be denied procedural fairness if unable to rely on the 2 June 2023 affidavit. Procedural fairness is afforded by the reasonable provision of the opportunity to participate in proceedings. It is not the provision of the opportunity to participate as and when, and in what way, a party chooses. The husband had a reasonable opportunity to file probative evidence pursuant to the 29 June 2022 Orders and the benefit of an extension to 16 December 2022.
14. Counsel for the wife’s proposition that his client was not served with the affidavit was not met with demur. I accept that she was not served.
15. While there is force to the wife’s submissions, I will nevertheless allow the husband to rely on his 2 June 2023 affidavit. The dispute contains real issue to be tried in that:

(a) the wife seeks orders for the adjustment of property interests in her favour whereas the husband seeks to dismiss the application. This is in the context of an asset pool of around $8 million including an inheritance from his husbands’ mother in 2018 and 2019, a relationship of between five and seven years; and(b) the wife seeks a greater weighting to her contributions by reference to the principles in Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757 (“Kennon”).

16. My jurisdiction to make orders pursuant to s 90SM if such orders are to be made, requires me to be satisfied that such orders are just and equitable in all the circumstances. Having regard to the nature of the issues to be tried, I am not confident that I could be so satisfied other than with the benefit of some level of probative material from the husband. I accept that the wife was not served with the affidavit, is inconvenienced by the affidavit and has been put to cost. That said, she has been aware of it since early June 2023 and is legally represented. The cost of the dealing with the affidavit has a remedy. I am not satisfied she is unfairly prejudiced by the affidavit.
17. The husband’s request for leave to rely on his affidavit filed on 2 June 2023 is allowed.

APPLICATIONS

18. The wife seeks that she retain about 18.3 per cent of the net assets to be comprised of $85,000 from a controlled monies account administered by CC Lawyers, the whole of the controlled monies account administered by R Lawyers, being the remaining sale proceeds of a property at Suburb G of $766,969 and that she otherwise retains her assets and liabilities.
19. The husband seeks that the wife’s application be dismissed with costs and mechanical orders for the disposition of funds in controlled monies accounts.

WITNESSES

20. Each of the parties were cross-examined by experienced counsel. I observed both parties giving their evidence in person and listened carefully to them both.
21. The wife was firm as to her evidence about family violence, precise with respect to dates and other details. At times, the wife was emotional, especially when asked about matters of family violence but composed herself promptly. The wife generally answered questions in a direct and coherent manner, and she appeared to make a genuine effort to engage constructively in cross-examination. I am of the view that the wife is a witness of truth.
22. From the outset, the husband was argumentative, and insisted on providing explanations where none was invited or required. The Court requested that the husband confine himself to the question being put to him and answer the question. At one stage, the Court adjourned briefly so that the husband could reflect on the way that he was attending to answering questions in the hope that he may return to the task with greater focus.
23. Such was his combative style, the husband repeatedly insulted counsel for the wife by telling him, for example, that he had not read the brief, was being untruthful and was, in effect, lacking skill and/or intelligence. The husband frequently spoke over counsel for the wife while being asked a question by saying “rubbish.” The “rubbishing” of a proposition was most notable during passages of cross-examination about family violence. The husband was repeatedly reminded by the Court to listen to the question before answering it so that the answer would correspond to the question.
24. On balance, the manner in which the husband gave his oral evidence results in me placing little weight on his evidence unless otherwise verified or inherently probable.
25. Ms D, the wife’s treating psychologist (“Ms D”), gave evidence by way of Microsoft Teams. Ms D impressed as a knowledgeable and experienced therapist. She did not embellish her evidence, and I had no sense that she was attempting to advocate for her client even when her answers revealed a limitation in her report. Ms D provided coherent and spontaneous answers in response to complex questions that invited her to differentiate between aspects of the wife’s trauma. I accept the evidence of Ms D as reliable.

EVIDENCE

26. The husband was born in 1954. The wife was born in 1964.
27. In 1985 and 1988 respectively, the husband acquired properties at H Street, Suburb J (“H Street”) and K Street, Suburb L (“K Street”). In 2001, the husband acquired a property at F Street, Suburb G (“F Street”).
28. In 2011, the wife sustained serious injuries during a workplace accident. In 2013, the wife underwent surgery to regain some mobility after the accident. The wife gave unchallenged evidence that she was assessed to have a partial whole body impairment and partial loss of feeling and immobility.

Mid-2013 to Early 2015

29. The parties met in 2013. In late 2013, the husband entered in to a lease for a unit at M Street, Suburb J (“the M Street unit”) and paid its rent.
30. The wife deposes that the parties began living together at the M Street unit in late 2013. She deposes that she paid for groceries, electricity and gas in that period. The wife adhered to her evidence in cross-examination.
31. The husband disputes the wife’s contention as to the date of cohabitation. He deposes that from mid-2013 to early 2015, he resided at the M Street unit but the wife lived elsewhere. The husband deposes that he paid all expenses the M Street unit. The husband deposes and then confirmed in cross-examination that the parties visited each other and that they would stay overnight together about three times a week.
32. As at 2013, C was two years of age and Ms B was about 16 years of age. The children spent three nights per fortnight with the husband during school terms and half of the school holidays. In her oral evidence, the wife said only one child stayed at the M Street unit at a time.
33. As at late 2013, the wife owned a property at N Street, Suburb O (“N Street property”) subject to a mortgage. She also owned a motor vehicle, had credit card liabilities of about $20,000 and superannuation of about $46,000. The wife worked as a health care worker earning a base salary of about $50,000 per annum.
34. As at late 2013, the husband owned H Street, K Street and F Street. The husband also had his business, shares, cash savings, Motor Vehicle 1, Motor Vehicle 2, Motor Vehicle 3, various other vehicles and a margin loan.

October and November 2013

35. The wife deposes that in or about October 2013, the husband collected the wrong take-away food. She said to the husband “Go back to the shop, it is only over the road, you may have someone else’s order.” The wife deposes that the husband then raised his voice and screamed at her “grabbing my arm very hard.” As he did this, she says his face turned red, he put his face close her and “eyeballed” her. The wife deposes that the husband raised his fist to her face and slammed his fist to the table and said “We are going to eat it. I will not go back to the shop.” The wife deposes the husband did not speak to her and just ate the meal. She felt shaken and locked herself in the bathroom in fear. The wife deposes that she heard the husband leave the home and that he kicked and slammed a door.
36. The wife adhered to this evidence when challenged in cross-examination. She said clearly and directly to specific negative propositions “He did eye ball me,” “He did raise his fist at me,” “Yes, he did slam his fist on the table,” “Yes, he did kick the door,” and “Yes, he did slam the door.”
37. The husband deposes that he picked up a takeaway order from a local shop. He recalled there was a minor error with the type of dish. The husband deposes that the wife demanded that he contact the owner of the shop and demanded that the order be returned and a new one given. The husband deposes that he said to the wife “This man is a friend, a client and extremely busy. I do not want to upset him when he is very busy, it is only a minor error, please do not worry about it.” The husband deposes the wife then telephoned the owner of the shop, shouted at him and demanded a new order. The husband said that the matter “resolved without incident.”
38. In his oral evidence, the husband denied any violence and said the parties “had a very minor difference and resolved very quickly,” “it was nothing,” “I did not touch her,” “We did not get to any level of argument”, and “We did not get to cross stage”. The husband said that the allegation was “Rubbish, absolute rubbish.” In his oral evidence, the husband adhered to his version of events as set out in his affidavit.
39. There is no objective evidence to which I can refer to assist me in determining what occurred in October 2013. Having regard to the findings at paragraphs 20 to 24 of these Reasons, I prefer the wife’s account of the October 2013 incident and find accordingly.
40. The wife deposes that in or about November 2013, the husband asked her to collect him from a sporting event in City P. The wife said she was unable to do this because she was working. The wife deposes that the husband raised his voice in anger and said “Don’t go against me,” You really are dumb and stupid with no brains. I want someone who can reason with me,” “I’m a [professional], you’ll do as I say or else, it will get very ugly” and “I’m a 1950s [Country Q] man, you don’t want to see my [Country Q] temper.”
41. The wife adhered to this evidence when challenged in cross-examination. She said clearly and directly “Yes, he did raise his voice.”
42. The husband denies the events as described by the wife in relation to the November 2013 sports event. He deposes that he had arranged for the wife to collect him from City P after the event and stay with him overnight at a hotel in City P. He says that the wife became upset and said she would not collect him from City P or stay at the hotel. The husband deposes that he went to City P, stayed overnight on his own and travelled back to Sydney by train. He then informed the wife that “her conduct was a complete disappointment and that I did not want to see her again.” The husband deposes the parties reconciled a week later. In his oral evidence, the husband adhered to his version of events as set out in his affidavit.
43. There is no objective evidence to which I can refer to assist me in determining what occurred in November 2013. Having regard to the findings at paragraphs 20 to 24 of these Reasons, I prefer the wife’s account of the November 2013 incident and find accordingly.
44. The wife deposes that, in late 2013, she suggested that he should consider counselling to address his angry outbursts. She deposes that, as examples of his angry outbursts, the husband said words to the effect that “I am only angry because of what is happening in my life,” “You need to be available when I need you,” “You need to make [Ms B] and [C’s] beds before you leave the house,” “You need to clean up after the children” and “You need to cook for me now and make food for the children, I haven’t got time for all this, this is what you women do.” The wife adhered to her evidence when challenged in cross-examination. Her tone was emphatic when she confirmed that the husband told her “You need to make [Ms B] and [C’s] beds before you leave the house.”
45. The wife deposes that, on one occasion in 2013, she overheard the husband speaking to C’s mother and saying “If you were standing right next to me, I would slam my fist into your face.” She says the husband spoke in a menacing tone and she felt frightened. The wife adhered to this evidence when challenged in cross-examination. When challenged about whether the husband threatened C’s mother, the wife said clearly and directly “Yes, he did say that.”
46. The wife deposes:
    30. From 2013, when [the husband] was physical, he would leave me with bruises, pressure marks which would aggravate previous injuries. He said to me after these incidents: “I know all the police in the area, I am a [professional], the police will believe me over you.”
    31. When [the husband] became physical with me, I would ask him to “stop” and say to him: ‘‘you are hurting me.” [The husband’s] response was always: “I see no marks where is your evidence, go get your camera? No one will believe you, I’m a well-respected [professional], my previous partners have tried that line.” Then he would get his phone, push it up against my face, raise his voice and scream: “ok here’s your chance what are you going to say to the police, no one will believe you, you ‘re an idiot you’re stupid with shit for brains.”
47. The wife adhered to the above evidence in cross-examination. She conceded she had no photographs of the bruises and could not offer a reason for this.
48. The husband deposes:

144. I deny I was the perpetrator of any family violence.

145. Any allegation and conversation that I showed frequent outbursts of anger or aggression and situations in which I have alleged to become angry, or screamed or threatened the Applicant in anyway, or acted in a controlling manner are completely false and denied.

49. The husband’s oral evidence was to the effect that “I treated her like an angel,” “I got on really well with her mostly,” “I am not saying I am a perfect human being, I am not a saint” and “I do get angry.” In response to the proposition that there were weekly outbursts of aggression, the husband said “Rubbish.” The husband denied threatening Ms C’s mother as alleged by the wife.

2014

50. At paragraph 27 of her affidavit, the wife deposes that, on at least 20 occasions from early 2014, the husband was physically violent towards her including shoving or dragging her into a corner and putting his fist into her face. The wife deposes the husband said to her:

“Don’t you go against me” or “Get out” or “When are you leaving this brittle diabetic? It’s all your fault. See this reading, see my blood pressure (showing me the results of his blood pressure monitor).”

(As per the original)

51. The wife says that these incidents occurred about two hours after the husband consumed a lot of sugary food, noting that he is diabetic.
52. At paragraph 32 of her affidavit, the wife deposes that on at least 15 occasions, from early 2014, the husband said “I have a number of friends and associates who work in criminal activities, you don’t want to get on the wrong side of me.” She deposes that this made her feel scared and constantly anxious when the parties were together.
53. At paragraph 28 of her affidavit, the wife deposes that in or about mid-2014, the husband appeared agitated, and said to her “I have just had an argument with my former partner, if you ever go against me this is what will happen to you, you will be like the others.” The wife deposes that the husband then pulled a bloodied torn t-shirt from his rucksack, and then shoved the t-shirt into her face.
54. In his oral evidence, the husband conceded that he could have had an argument with C’s mother in mid-2014. He denied telling the wife “if you ever go against me this is what will happen to you, you will be like the others.” The husband said in his oral evidence that he would have told the wife that he had had an argument with C’s mother.
55. At paragraph 29 of her affidavit, the wife deposes that the husband texted her throughout the day while she was at work. She could not respond as she was working. She says that when she returned home, he would ask “Why didn’t you respond immediately to my call?” The wife deposes the husband also telephoned her multiple times during her workday. The wife deposes that if she was not home “within a reasonable time,” the husband would ring her and say in an angry voice “Where are you?” “What is for dinner?” “Have you done the shopping?” and “Why aren’t you home?” The texts would add numerous question marks or images of his glucometer or blood pressure monitor showing high results. The wife adhered to her evidence when challenged in cross-examination. She said that she had sent copies of the text messages to her lawyer and she still had them on her phone. Such answers were not further challenged by counsel for the husband.
56. There is no objective evidence to which I can refer in relation to the matters alleged by the wife at paragraphs 27, 28, 29 and 32 of her affidavit. The general nature of the evidence at paragraph 27 does not deprive it of probative value: Britt & Britt [2017] FamCAFC 27; (2017) FLC 93-764.
57. Having regard to my earlier findings at paragraphs 20 to 24 of these Reasons, bolstered by the wife’s reference to the existence of text messages, which was unchallenged by counsel for the husband, I prefer the wife’s account of the event of 2014 and find accordingly.

S Street, Suburb L

58. It is common ground that the husband purchased a property at S Street, Suburb L (“S Street”) for around $960,000 in late 2014, and that the parties began living there in late 2014.
59. The husband says that the move into S Street was the commencement of cohabitation. There is no evidence that the composition of each parties assets as at late 2014 was different from the composition as at late 2013, save for the acquisition of S Street.
60. The parties lived at S Street until early 2016.
61. The husband deposes that he paid $150,000 towards the purchase and borrowed $850,000 to complete the purchase. There is no dispute the husband paid its mortgage.
62. The wife deposes that she contributed household items and furniture, plants, and white goods to furnish S Street. The husband could not recall if the wife bought a fridge but conceded that she bought some chairs and a pot plant.
63. It is common ground that the wife paid the council rates, electricity and water at S Street.
64. The wife deposes that she also paid the gas bills and all of the groceries during that time. In his oral evidence, the husband conceded that the wife paid for the majority of groceries.

K Street, Suburb L

65. In about early 2015, the husband acquired a property at K Street, Suburb L (“K Street”) for $1,200,000.
66. The husband sold K Street in late 2015. The wife deposes that the property was sold for “more than $1,500,000” and asserts a “profit” of about $125,000, which was retained by the husband. I place little weight on these vague estimates.

T Street, Suburb G

67. In late 2015, the husband purchased a property at T Street, Suburb G (“T Street property”) for $1,250,000. He deposes that he funded this with $350,000 from his own resources and borrowed $950,000.
68. It is common ground the parties began living at the T Street property in early 2016. S Street property was leased and the rent paid to the husband.
69. The wife deposes that, at around the time the parties moved into the T Street property, the husband said to her “The property is run down and in need of major renovations, you will need to assist me in developing and undertaking the renovations.” The wife says she agreed to this.
70. Of the renovations, the wife deposes that the parties discussed the renovations, that she sketched proposed renovations to the kitchen, bathroom, lounge room, bedrooms, a second storey extension and the gardens. The wife deposes that she sourced fireplaces, paints and tiles. The wife concedes that she and the husband painted the fence. She further deposes that, over a period of two years, she designed and landscaped the front and rear gardens.

Sale of F Street

71. The wife deposes that, in 2016, the husband said that he intended to sell F Street and that he asked to her to clean the property to prepare it for sale, promising to “pay you for your assistance from the settlement money.” The wife deposes that she took three weeks of annual leave to assist with its cleaning without payment. This evidence was unchallenged in cross-examination for which reason it is accepted.

Wife’s employment

72. The wife deposes that, in 2016, the husband said to her “I am unhappy with your work hours as you do not return home until after 10.00 pm and are not home to cook meals or have meals with the family.” She deposes that she reduced her hours to four days. Her income reduced by about $15,000 per annum to $45,000. This evidence was unchallenged in cross-examination for which reason it is accepted.
73. The wife deposes that she did not work on Fridays and used that time to attend to domestic duties. She deposes that, if she tried to discuss money issues after the change to her employment because it was harder to meet expenses on a reduced salary, the husband became angry, would raise his voice to a scream. The wife deposes that the husband said to her:

…If you don’t like it, get out, there’s the door; I’m putting a roof over your head; I have clients to see; I’m a 1950’s [Country Q] man and that’s what you have to do don’t stress me out; Look at my high blood pressure (showing me the results from his monitor) “Now look at my blood sugar (show me his blood sugar results) it’s all your fault. You don’t want me to see me lose my temper. He would say more than twice per week: what are you, stupid? you really are dumb; you have no brains; You really have shit for brains, what do you think I’m doing…

(As per the original)

74. The wife deposes that this frightened her and adhered to her evidence when challenged in cross-examination. Having regard to my earlier findings at paragraphs 20 to 24 of these Reasons, I accept the wife’s account of matters connected to her change of employment and income in 2016 and find accordingly.

Compensation payment

75. In late 2016, the wife received a workers compensation payment of approximately $350,000 net relating to the 2011 injuries.

2017 taxable incomes

76. The wife’s taxable income in the financial year ending 30 June 2017 was about $187,000. This included back-payments to the wife pursuant to an income protection insurance policy relating to her 2011 injuries. The husband deposes that he had a taxable loss of $92,721 in the same financial year.
77. In late 2017, the wife began working full time for U Company as an allied health worker earning $65,000 per annum.

V Street, Suburb W

78. In 2017, the husband acquired a property at V Street, Suburb W (“V Street”). The wife says that she told the husband about the property as the vendor was her former employer. In his oral evidence, the husband denied that the wife located the property. He said he inspected the property with his late mother. The husband conceded that the wife attended the auction with him.
79. The wife deposes that she assisted the husband to fill the forms necessary to obtain finance for V Street and that her income and the parties’ de facto status was included in the finance application. This evidence was unchallenged by the husband for which reason it is accepted.
80. The husband deposes that he acquired V Street in late 2016. The purchase price was $1,380,000 with a further amount of $56,000 paid as stamp duty and other expenses. The husband deposes to contributing $156,000 by way of initial capital with the balance of about $1,280,000 paid by way of a secured loan. This evidence was unchallenged for which reason it is accepted.

Mrs Spina’s Estate including X Street, Suburb J

81. In 2018, the husband’s mother died. Probate was declared in 2018.
82. The husband inherited assets valued at about $4 million and comprising a 50 per cent interest in a retail property at X Street, half of the net sale proceeds from his mother’s home, being an amount of about $1.1 million, cash from bank accounts in the sum of about $220,000 and shares valued at about $868,000.
83. The husband deposes that he had a taxable loss of $15,082 in the financial year ending 30 June 2018, and a taxable loss of $27,401 in the financial year ending 30 June 2019.

Incident in late 2018

84. At paragraph 58 of her affidavit, the wife deposes that in late 2018,

[The husband] and I were at home together. [The husband] said to me “I want to have sex with you now”. I said “No”. Suddenly, [the husband] grabbed my leg and dragged me from the lounge. He caused me to fall on my fractured [bones], which were healing from a previous injury. After this incident, I recall that I could not walk properly for two weeks, without experiencing immense pain, even lying down was very painful. I was too frightened to report the incident to police. I did not consent to having sex with [the husband].

85. The wife adhered to her evidence about this incident. The husband denied the allegation. There is no objective evidence to which I can refer to assist me in determining what occurred in late 2018. Having regard to my earlier findings at paragraphs 20 to 24 of these Reasons, I prefer the wife’s account of the late 2018 incident and find accordingly.

Y Street, Suburb Z

86. In late 2018, the husband purchased a unit at Y Street, Suburb Z (“Y Street”) for about $1 million plus stamp duty and related expenses. The husband deposes to applying $445,000 to the purchase price using money that he had inherited from his mother’s estate to this purchase.
87. The wife deposes that she assisted the husband to locate Y Street, having seen the start of the building works. The husband deposes that he discovered the property on the internet. Neither party made a submission about who located Y Street. I give the evidence no weight.

Incident in early 2019

88. The wife deposes that in early 2019, after refusing the husband’s demands for sex:
    60. [The husband] said to me: “I will fucking kill you, if I hit you, you’ll never get up or be able to open your mouth again.” [The husband] then grabbed my hair and pulled my head back against the side armrest of the couch and seemed to try and suffocate me by holding a pillow over my face with one hand and with the other, grabbed my neck squeezing tight, whilst kneeling across my chest and my arm on which I had surgery. [The husband’s] actions caused me to experience excruciating pain and I felt unable to breath and was gasping for air. He finally released me, and I heard him leave the house. I went to the bedroom and shut the door, I was shaking, crying, and having difficulty controlling my breathing. I did not consent to having sex with [the husband].
    61. [The husband] returned to the house approximately an hour later. I was in bed at this time, I heard him enter the bedroom as I was pretending to be asleep, he stood over me and grabbed me by the hip and side and proceeded to drag me off the bed, yelling at me to: “get out, leave, this is my house, get out if you won’t do what I want.” I was extremely distressed and shaking. [The husband] left the room but sometime later, he tried to come into the bedroom and apologise. I then said to him: “No please stay away, go to the other room. You need to get some counselling and some medical help to manage your diabetes, which I think is the cause of your unpredictable violent behaviour towards me.” [The husband] left the room.
89. The wife deposes that she did not report the incident in early 2019 to police because she was afraid of further violence from the husband. The wife deposes that she had a cut on the side of her eye from the husband’s fingernail and red marks on her neck and chest where she had been strangled.
90. In her oral evidence, the wife agreed that there was no photographic evidence of the alleged injury to her face and neck and that she did not seek medical assistance. The wife said she raised issues of family violence with a doctor once. She said she hoped the violence would stop and attributed it to the husband’s diabetes and disharmony with the mother of his children. She said that she hoped the husband would seek counselling for his behaviour and his diabetes, she was very scared to report the incident and of the husband’s temper.
91. The wife adhered to her evidence when challenged in cross-examination. The husband denied the allegations.
92. There is no objective evidence to which I can refer to assist me in determining what occurred in early 2019. Having regard to my findings at paragraphs 20 to 24 of these Reasons, I prefer the wife’s account of the early 2019 incident and find accordingly.

Wife’s Illness

93. The wife deposes that, in mid-2019, she was diagnosed with a medical condition which required surgery. The wife deposes that after her surgery, the husband would taunt her about her weight. She deposes that the husband said to her “You are inadequate,” “You have not earned the food you are eating by exercising,” “I could do much better than you, lots of women want to be with me” and when clenching his fists “Look at this, no one could take this on. I’m fitter and stronger than an 18-year old.” The wife adhered to her evidence when challenged in cross-examination. The husband denied making these statements.
94. The wife deposes that, in early 2020, she was convalescing with her daughter after the surgery. She says that the husband visited and wanted to take her for a drive and then to dinner. The wife deposes that she felt too unwell to go out and wanted to rest. The wife deposes that the husband became angry and stormed out of the house and sat in his car. She went inside and locked the door. The wife says that the husband telephoned her repeatedly from his car. She did not respond and then heard him start his car and heard the noise of his car driving away. Later, the husband told her that he received a speeding fine and that she should give him her points for the fine. The wife refused. He then said “You should at least pay for the fine.” The wife refused. The wife adhered to her evidence when challenged in cross-examination.
95. The wife deposes that in early 2020, when she was recovering from surgery, she cared for Ms C without any physical support from the husband.
96. There is no objective evidence to assist me to determine the events of June 2019 and early 2020. Having regard to my findings at paragraphs 20 to 24 of these Reasons, I accept the wife’s account of these events and find accordingly.

Early 2020 incident

97. The wife deposes that, in early 2020, the husband entered her bedroom while she was asleep and took photos of her bottom and genitals without her permission. She deposes:

…At the time, I thought he was taking photos of my face, but he sent me a text showing a photo of my bottom and genitals. I said to him “please delete the photo, this is a phone I use for work.” I was also worried that my children or grandchildren might see the pictures on my phone. [The husband] said to me, “I am keeping them for future use”.

98. The wife adhered to her evidence when challenged in cross-examination. The husband conceded that he took a photograph of the wife’s naked bottom. He said that he took it as a sign that he was affectionate towards the wife and that “I did not take the photo to intimidate anyone.” At one stage of the husband’s evidence, he appeared to be saying he had the wife’s consent although that was less clear as the evidence progressed. The wife’s evidence was clearly to the effect that she did not consent to the photograph being taken and that the husband told her that he was keeping it “for future use.”
99. There is no objective evidence to which I can refer to assist me in determining whether the wife consented to the photograph being taken or whether the husband said he would keep it for future use. Having regard to my findings at paragraphs 20 to 24 of these Reasons, I prefer the wife’s account of this incident and find accordingly.

Separation in May 2020

100. The parties separated in May 2020.
101. The wife remained at the F Street property until June 2021. The husband moved to Y Street and then to S Street. There is no dispute that the wife paid the rates for the F Street property until November 2020. She says that she also did the gardening, mowed the lawns and “organised repairs where needed.” The wife’s assertions about “repairs where needed” lacks any specificity for which reason I give it no weight. The wife’s assertion that she mowed the lawns and tended the garden after May 2020 was unchallenged for which reason it is accepted.
102. The husband was liable to pay the mortgage for the F Street property.
103. The husband deposes that he had a taxable loss of $62,207 in the financial year ending 30 June 2020.

AA Street, City BB

104. In mid-2020, the wife purchased an investment property at AA Street, City BB (“City BB property”) for $305,000 subject to a mortgage of $225,000. The wife used about $80,000 of her workers’ compensation payment for this.

Late 2020

105. The wife deposes that, in late 2020, the husband entered the F Street property while she was home and sat in the second bedroom with his arms crossed, refusing to leave. Police escorted the husband from the property. After this, the wife changed the locks.
106. The husband deposes that he used the F Street property to hold conferences with clients and relied on the property to “entertain my children as my place of residence.”
107. In her oral evidence, the wife said she changed the locks on the recommendation of the police. She accepted that the husband had personal items in property. She agreed that it would have been very frustrating for the husband to be unable to access the property but maintained that he had been very angry and violent, and that she was quite frightened of him. The wife conceded that the husband did not force his way into the property on that day. She said she had the courage to call police because the parties had already separated and that she asked the police to issue an Apprehended Domestic Violence Order (“ADVO”).

Late 2020

108. The wife deposes that, in late 2020, she came home from work to find a heavy, wooden garden chair, pots, and various garden furniture, blocking the front door, and the side door open. The wife says that she was fearful. She believed that the husband was intending to break into the house and harm her. The wife called the police who assisted her to move the furniture away from front door. The wife enquired about an ADVO but the police did not act.
109. The wife deposes that, in late 2020, she returned home to find garden furniture blocking the entrance to the house, and there was mail addressed to the husband attached to the front door. The wife found this to be intimidating. In his oral evidence, in response to the proposition that the placement of these items in front of the door would be intimidating, the husband said “depending on the date” an exhibited photograph of the stacked furniture was taken.
110. The wife deposes that, a month later, the husband’s business cards were attached to the door and used blood sugar testing strips were on the front porch. Exhibit W-4 contains photographs of the front entrance to the F Street property with the husband’s business cards in the front door jamb, wedged into the front screen door under the corner of a sticker.
111. In his oral evidence, the husband said that the F Street property was where his office was located and so it was normal for him to have business cards at the front entrance of his home. When asked if the placement of business cards at the front door after separation would have been unnerving for the wife, the husband said “Yes, but it is my house. She was a squatter in my house. I said ‘This is my house, please leave.’ That is not intimidating. I said ‘Please leave.’”
112. The wife deposes that in late 2020, she found a metal object wedged in the front door. She says that this caused her to experience extreme fear. The wife called the police, who advised her that there was no evidence to enforce an ADVO against the husband. The police referred the wife to the Victims Services. Exhibit W-4 contains a photograph of a metal object. Using the door lock as a spatial reference, the object appears to be about 20 centimetres in length. The tip of the object is wedged into the door jamb. The diameter of the shaft appears to be between about three and five millimetres.
113. In his oral evidence, when asked if he put the object in the door, the husband initially said “I am not sure, but it’s possible that I did.” In re-examination, the husband said that the object belonged to a memento that he had bought during the relationship. The husband said that the object was made of plastic. He gave a tangential account about collecting the memento and the object falling off. It is clear enough that the husband inserted the object into the door jamb. Whether the object was made of metal or plastic, it does appear to be innately frightening. That said, I accept that the wife reacted strongly to it having regard to the events described since late 2020.
114. The wife deposes that, about a month later, the husband attended at the F Street property. She says she saw him standing outside the house, staring into the windows. The wife deposes that she saw the husband enter through the side gate. The wife says she felt scared and unsafe. This evidence was unchallenged.
115. The wife deposes that on least five occasions after separation, she saw the husband drive past the F Street property, slow down and then speed off, or get out of his car and put real estate agent cards in the letterbox. The wife adhered to this evidence in cross-examination.
116. The wife deposes that, in late 2020, she arrived home and I saw the husband’s business card with writing on it, which said “This house belongs to me and my children, please leave.” There was a brick placed at the front door of the property. The wife thought the husband was going to hurt her. The wife called the police who applied for a provisional ADVO for her.
117. The ADVO proceedings came before the Local Court in mid-2022. The husband represented himself in the proceedings and was permitted to cross-examine the wife in person. The ADVO was dismissed. It is not my place to comment on the procedures of another Court.
118. I accept the wife’s evidence about the events between September 2020 and December 2020. Exhibit W-4 corroborates aspects of that evidence. I otherwise repeat my findings at paragraphs 20 to 24 of these Reasons, accept the wife’s evidence is truthful, and find accordingly.

Sale of the F Street property and surrender to the mortgagee

119. The wife deposes that the husband appointed a real estate agent to sell the F Street property and issued contracts for sale and offers of settlement. Counsel for the husband asked the wife about this with such questions implying that the husband had arranged for potential purchasers to inspect the property in late 2020.
120. The last time the wife paid the rates for the F Street property in November 2020.
121. On 26 March 2021, the lawyers acting for DD Company wrote to the husband to confirm that they understood the husband wished to surrender the F Street property to the mortgagee. The letter noted that a notice of default must issue before DD Company could effect a sale. The letter sets out the steps for surrendering a property and the documents to be executed.

12 April 2021 and 7 May 2021 Court Orders

122. On 12 April 2021, the matter came before the Court for the first time. Orders were made inter alia for the husband to provide the wife with the following:

Financial Disclosure:

12. Within 7 days of the date of these orders, the Applicant provide a copy of her Individual Tax Return for financial year ended 30 June 2020 to the Respondent.
13. Within 7 days of the date of these orders, the Respondent to the provide copies of the following documents to the Applicant:

13.1 All documents relating to all foreign income, foreign investments, and foreign property that he has an interest in; and

13.2 BAS for his business [EE Company] for the past 4 years.

14. Within 7 days of the date of these orders, the Respondent provide a response to the Applicant’s letter of 4 February 2021, providing copies of all documents requested therein in his possession and/or control, or, if the Respondent asserts that he has previously provided a document requested, details of the date on which that document was disclosed.

[…]

Disclosure

3. Each party must (if they have not already done so) provide to the other party within 28 days (noting the obligation to disclose pursuant to Rule 24.03 of the Federal Circuit Court Rules 2001 (Cth) continues up to and including the final hearing) a copy of the following:
   1. The documents prescribed by Rule 24.04 of the Federal Circuit Court Rules 2001 (Cth) as set out hereunder:

(a) copies of the party’s 3 most recent taxation returns;

(b) copies of the party’s 3 most recent taxation assessments;

(c) if the party is a member of a superannuation plan:

(i) if not already filed or exchanged—the completed superannuation information form for any superannuation interest of the party; and(ii) for a self-managed superannuation fund—the trust deed and copies of the 3 most recent financial statements for the fund;

(d) if the party has an Australian Business Number, copies of the last 4 business activity statements lodged;(e) if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.

[…]

123. On 7 May 2021, the Court made orders for the husband to pay all mortgage arrears, for the F Street property to be sold, for the wife to have exclusive occupation pending the sale and to pay the water and council rates within seven days of receiving such notices. The Court also ordered the husband to withdraw his surrender application and his invitation to the mortgagee to issue a default notice in relation to the F Street property.

Sale of Y Street, Suburb Z

124. In mid-2021, Y Street was sold for $1,180,000. The wife deposes that the net sale proceeds were $565,000 whereas the husband deposes that they were $527,000. Nothing turns on this variance of evidence.

Sale of the F Street property

125. The wife vacated the F Street property in June 2021. In mid-2021, contracts were exchanged with a sale price of nearly $1,750,000. The wife deposes that the net proceeds were about $780,000. The husband deposes that they were $764,352. Nothing turns on the variance of evidence. The sale was completed in late 2021.
126. The husband deposes:
     65. At the time of the sale, I could not remove all my property from the [F Street] property at the date of settlement. I requested that I be given access beforehand so I could complete this. This was refused. On the Saturday prior to settlement, I attended the premises to remove all my furniture and that of the children. [The wife] had virtually nothing there …

[…]

164. In [late] 2021, I returned to the [F Street] property out of necessity to obtain some necessary medical items. As of that time, the locks had not been changed. I noticed that no one was home. I went to the second bedroom.

165. After one hour, [the wife] arrived. She ordered me to leave.

166. I said to her that this was my home, my children’s home and my office. All the furniture was mine. It is costing me money in loss of rent. I requested that she move back to her old [Suburb FF] home. She refused.

167. I suggested to her that she call the police which is what happened.

127. The husband deposes that, after speaking to the police, he decided that the peaceful course was to leave the property. The evidence of the husband at paragraph 164 to 167 of his affidavit appears to relate to the incident in late 2020, not 2021. Assuming that is so, it is unclear why the husband was at the property for an hour given his stated purpose for attending was to collect some discreet medical items.

Sale of H Street, Suburb J

128. On 16 August 2021, the Court made an order by consent for the sale of H Street. Those Orders provided for the wife to receive $100,000 “by way of partial property settlement” on completion of the sale. The husband was permitted to distribute sale proceeds to discharge outstanding child support, land tax, water rates, Australian Taxation Office (“ATO”) and/or State Revenue debts, and up to $25,000 to the tenant, with the balance to be retained by the him “by way of interim/partial property distribution to [the husband].”

Sale of V Street, Suburb W

129. On 31 October 2022, the Court made an order by consent permitting the husband to sell V Street, Suburb W. Order 7 of the Orders made on 31 October 2022 provided for the sale proceeds to be invested in a controlled monies account save for $50,000 to be paid to the wife and $15,567 to be paid to the husband.
130. The sale of V Street, Suburb W completed in early 2023. The settlement sheet records a sale price of approximately, $1,370,000. After the usual adjustments, the amount due on settlement was $1,228,842, not accounting for the deposit of $136,500. The cheque directions are stated as $3,965 to the local council and the balance of $1,224,877 “to be advised”.
131. There is no evidence as to the sum retained by the selling agent of their commission and other selling costs. There is no dispute that V Street was subject to a loan secured by a mortgage, nor that the mortgage was discharged on sale. The wife contends that the mortgage was $1,171,841 as at early 2023.
132. Having regard to the settlement sheet, the proceeds of sale after the deduction of rates and allowances was about $1,361,377. This comprises the deposit of $136,500 and the balance “to be advised.” From this, I infer that agent’s costs and the secured loan would have been paid.
133. The husband gave oral evidence that he disclosed the settlement sheet for V Street to the wife’s solicitor soon after settlement. Given the limitations of the settlement sheet, as demonstrated by the directions for the balance “to be advised” and absence of information as to the agent’s deductions, its provision does not reveal the net proceeds paid to the husband. The husband deposes to retaining $85,000. However, the difference between $1,361,377 and the mortgage as at early 2023 of $1,171,841 is $189,536.

Administrative work

134. The wife deposes that she assisted the husband with administrative work in his business, including typing, making appointments for him and phone calls. She deposes that she was “often called to assist him with clients,” for which she was not paid. The wife adhered to her evidence that she assisted with administrative duties in the husband’s business, which the husband denied. However, the wife’s evidence on this issue is vague such that I place no weight on it.

Holidays

135. The wife deposes that from 2014, she paid for the parties’ flights, accommodation, car hire, petrol when they went on holidays.
136. The husband deposes that he paid the majority of expenses for holidays citing examples of trips to City P in connection with a sporting event, when he paid for accommodation and food, Town HH when he paid for accommodation and food, the USA when he paid for food but airfares and accommodation were shared, and City KK when he paid for all expenses.
137. In his oral evidence, the husband said the parties holidayed at City KK not City LL. He said that he paid for the trips. He then said that the wife paid for “some” of the holidays before saying that she paid “half.” For the reason stated at paragraphs 20 to 24 of these Reasons, I accept the wife’s evidence that she paid for the parties’ flights, accommodation, car hire and petrol while on holidays. The wife does not claim to have paid for food. I accept that the husband paid for food.

Homemaking

138. The wife deposes that she was primarily responsible for the household chores, cooking, cleaning, and shopping. There is no dispute that the wife attended to the washing-up. In his oral evidence, the husband conceded that the wife undertook the cooking and cleaning.
139. The husband deposes that he cleaned and attended to the outside of the home, including lawn mowing, painting and gardening. The wife concedes the husband painted the fence at the F Street property.
140. I accept the wife made the majority of homemaker contributions including domestic chores, shopping, cooking and cleaning, and providing practical, emotional and moral support to the husband. I accept the husband mowed the lawns, tended to the garden and undertook external painting.

Sourcing of and improvements to investment properties

141. As to the investment properties, the wife deposes:

44.1 I sourced investment properties for [the husband] to consider and purchase, I attended open homes with [the husband] to assist him to determine the suitability of the property and went to all the auctions with him for the properties purchased but also to attend other auctions and open homes for the purpose of looking at the value of properties and the renovations to those properties.

44.2 I assisted [the husband] to design the renovations for the properties as I said I had access to suppliers and designers, having previously worked in the industry. I also told [the husband] that “I enjoyed decorating properties;”

44.3 I assisted [the husband] to design the renovations for the properties;

44.4 I assisted [the husband] in renovating, labouring, and cleaning the properties he purchased;

44.5 I sourced all the items for the renovations conducted on the various properties;

[…]

142. I understand the investment properties to be K Street, Y Street and V Street.
143. The wife adhered to her evidence in cross-examination. She referred to her study and past work in the construction industry in order to contextualise her assistance with developing designs and concepts for renovations.
144. The wife deposes to assisting the husband to locate K Street. She says that the parties “had extensive discussions …about potential renovations” and that she sketched proposed renovation options for the husband to consider. In her oral evidence, the wife agreed that the husband had extensive knowledge of Suburb J.
145. The husband denied that the wife assisted with discussions about renovations. He said that his mother accompanied him to inspect V Street but conceded the wife attended the auction with him.
146. I accept that the wife took a genuine interest in the properties that the husband acquired and offered ideas about them to him using her industry skills and that this represents a contribution by her.

Parenting contributions

147. The wife deposes that when C lived with the parties three days per week during school terms and about half of the school holiday periods, she assisted the husband with C’s care. She deposes that she attended to household chores including laundry and cleaning for C, purchased groceries and household supplies, prepared meals for C, and purchased clothes for her.
148. The husband said in his oral evidence that C lived with the parties three days per week from 2015. The husband conceded that the wife cooked for C and cared for C saying “Yes, she was very helpful. Yes, she helped me a great deal, she helped me and my daughter, in the beginning.”
149. The wife deposes that Ms B spent time with the parties on a weekly basis, except for a two and a half year period when she was living overseas. The wife deposes that when Ms B returned from her travels, she stayed with the parties at times and the wife cooked, cleaned, and laundered for her.

Wife’s health and employment

150. As to her health and capacity to work, the wife deposes:
     150. As a result of the injuries, I incurred in 2011 and 2013, I have permanent injuries and suffer from ongoing pain and disability to my [body]. I have a [partial] full body impairment and [partial] loss of feeling/mobility in [one limb]. I manage my permanent injuries by attending ongoing physiotherapy each week/month to remain mobile and take daily medication, for pain relief.
     151. I continue to have ongoing health issues and have regular medical appointments and ongoing testing following my diagnosis. I suffer the following [many] symptoms, headaches, insomnia, fatigue, nausea. I currently take the following medication as part of my ongoing treatment: [list of medications] together with daily injections. I am in a constant state of anxiety, and I fear for my well-being and personal safety. In 2021, I suffered from [a medical condition] on 2 occasions, which affected the nerves in my leg.
     152. I remain employed by [U Company] but my role […] was changed in 2022 to a [clerical role], due to the ongoing stress of these proceedings and medical appointments which require my time away from my employment. I earn approximately $1,273 net from my employer per week. I do not know how long I can remain in paid employment due to the combination of my medical conditions. My annual leave has been used up with legal proceedings and illness.

(As per the original)

151. Despite adopting these parts of her affidavit in chief, the wife said in her oral evidence that she ceased working for U Company in early 2023 and commenced employment as an allied health worker using her skills in allied health care. Her Financial Statement records she had been employed in this role for 17 days as at mid-2023.
152. The wife said in her oral evidence that she stopped working in early 2023 as she was stressed and unwell, and that there were “other opportunities.” She works full-time in the new role. The wife earns $1,444 per week in the new role compared to about $1,200 in the role at U Company. The wife agreed that the salary had increased since November 2022. The wife is also working as a casual health care worker.
153. The wife has not disclosed the identity of her new employer, explaining that she feared the husband. The wife disclosed her employer in her November 2022 Financial Statement. She said that the husband already knew where she worked, which I accept given she commenced working for U Company in 2017.
154. The wife relies on the expert report of Ms D (“Ms D”), a registered psychologist, upon whom the wife attended for 10 sessions between late 2020 and mid-2022.
155. As to the wife’s background, Ms D recorded, inter alia:

[The wife] gave an account of her adult life as involving repeated traumatic events. This included the divorce from her first husband ([Mr MM]) who is the father of her three children when he returned to [Country NN] due to difficulties assimilating in Australia, the sudden death of her second husband ([Mr OO]) when [the wife] was 32 years of age (in 1997), the subsequent loss of her baby following [Mr OO’s] death as the baby’s father, the death of her own father soon after and a serious work accident that occurred in 2011 where [the wife suffered severe injuries] and was supported by a workers comp claim from approximately 2011 to 2016. Of these five traumatic events, [the wife] attributed the most psychological trauma (prior to 2013) to losing [Mr OO], due to the compounding issues of becoming a single parent (once again), missing her loving husband whom she was deeply connected to, needing to move house and suppo1ting her young family at the time to understand and adjust to the loss. [The wife] saw a psychologist at this time ([Ms PP]) who treated her for grief. It is unclear if any formal diagnostic assessments were conducted at that time to confirm mental health diagnoses, however [the wife] described that she was left with flashbacks of the traumatic incident. [The wife] provided emergency ‘[assistance]’to [Mr OO] until paramedics arrived. He was later declared deceased.

Following the death of her husband, the workplace accident also had a profound impact on [the wife] in terms of her chronic pain and associated difficulties. A two year delay in approval for surgery with workers compensation meant her [body] was not working and she was limping around with a high degree of pain. [The wife] returned to work in 2011 on night duties however reported she was still ‘vulnerable’ with ‘low self esteem’ when she started a relationship with [the husband] in 2013. [The wife] reported being adequately financially compensated for this accident and felt this is what attracted [the husband] to her. [The wife] reported ‘he said all the right things’ in the first few months of their relationship. [The wife] advised loneliness as the reason she began dating [the husband]. [The wife] advised she knew of [the husband] as he [knew] an old friend […].

[The wife] advised she was raised in a good Christian family with two loving parents who ‘did not raise their voices’, even when her or her siblings needed disciplining. [The wife] referred to her parents as exemplary models for how to parent, and she chose to raise her children replicating their family values of love and fostering calm. Hard work was a second strong family value and many of [the wife’s] immediate and extended family held prestigious jobs. [The wife] described a close and loving relationship with her children, their children ([the wife’s] grandchildren) and her mother who lived nearby. Family was a strong value for [the wife] which appeared to be a maintaining factor for [the wife] to remain with [the husband], according to self-report. She saw herself as a carer to [C], [the husband’s] daughter, who was a toddler when they got together, and almost saw it her ‘duty’ to protect her from [the husband’s] alleged aggression. [The wife] reported feeling guilt at leaving her and worried for her future when in the care of [the husband]. Whilst [C] was not primarily residing with [the husband] and [the wife] during the course of their relationship, she was there often, almost for half the time, due to her mother being sick. A shared custody arrangement was in place with the mother.

156. As to the wife’s mental health issues, Ms D opined:

Given [the wife’s] level of psychological distress and expressed need for ·talking therapy·, assessment was never a focus of treatment. Rather, [the wife] received treatment to reduce her level of symptomatology and help her stabilise. Despite a full diagnostic assessment not being completed, using a combination of DSM-5 criteria and the PTSD Checklist for DSM-5, [the wife] meets DSM-5 diagnostic criteria for a provisional diagnosis of PTSD. This diagnosis is provisional as the PTSD Checklist is a quicker screening tool than more rigorous measures and was therefore sufficient for the purposes of providing some baseline data for PTSD treatment. It is to be noted that [the wife] could have previously had PTSD which would make the cumulative effects more pronounced.

Evidence based treatment for PTSD called Cognitive Processing Therapy was attempted in 2021 once [the wife] seemed more stable in her own residence. Cognitive Processing Therapy is a type of trauma focused Cognitive Behavioural Therapy (CBT) that teaches someone how to reframe negative thoughts about the trauma by talking about the thoughts, writing assignments and completing worksheets in between sessions. [The wife] was keen to start this type of treatment and was highly engaged in learning yet the focus soon returned to her fears of the impending court attendance which seemed to be its own trauma trigger. In my opinion, [the wife] was evidenced to need to talk (rather than listen and take on new strategies for change) at this time. In addition, [the wife] had significant time limitations and reported exhaustion after full-time work so the completion of ‘homework’ would have proven difficult. The optimal time to resume this trauma-focused work is once [the wife] feels more regulated and less overwhelmed which is expected to be more likely once cou1t proceedings have concluded.

157. As to the wife’s incapacity regarding her current employment, Ms D opined:

…[the wife’s] work has been significantly impacted by her alleged trauma. The reported sick days due to exhaustion, the use of recreational leave for court attendances, the guilt at not completing her work to a satisfactory standard due the complications in her life were all likely evidence of this. Furthermore, [the wife] expressed her decision to work full-time was based on necessity, not choice, which is likely to have further exacerbated her anxiety by her feeling stuck (or ‘trapped’) and overwhelmed. Burnout is an identified risk, particularly given [the wife] is a 58 year old with health complications, with her age providing another barrier to continuing her current work demands. It is my view that a thorough work capacity assessment is indicated due to these complexities.

158. As to other matters, Ms D opined:

A note on alternatives to treatment

Throughout treatment [ the wife] was constantly offered alternate treatment options to more thoroughly meet her complex needs. This included discussions of alternate psychologists to provide more intensive, regular out of hours sessions (to allow for [the wife’s] full-time work schedule), to seek treatment/possible diagnoses from a forensic psychologist and to seek treatment/possible diagnoses from a psychiatrist. [The wife] declined all these options citing she was in treatment to talk and process her trauma and wanted sessions to continue as is. Also, [the wife] noted her medical issues, time/ leave constraints and financial pressure all prevented treatment from a psychiatrist which could have included medication to enhance [the wife’s] coping capacities, particularly with ongoing unavoidable triggers such as court proceedings.

Recommendations

1. That [the wife] continue with psychological treatment with a view to resuming Cognitive Processing Therapy, following the conclusion of Court Proceedings. That these sessions be out of work hours, where possible.
2. That consideration is given for a comprehensive PTSD diagnosis including assessment for moral injury, if this is deemed helpful and important for [the wife].
3. That medical follow up occur including consideration for pain management treatment for [the wife’s] medical and pain related issues including treatment for muscle tightness.
4. That a workplace assessment be considered to assess [the wife’s] risk of burnout, impact of injuries and impact of PTSD on her capacity to work into the future.

159. In her oral evidence, Ms D said she did not know the number of sick days the wife had taken from work and that such information would have been of great assistance. Ms D confirmed that she has had no contact with the wife’s workplace nor had received any documents from her workplace. She agreed that this would have been helpful when assessing the wife’s future work capacity.
160. Ms D said that Cognitive Behavioural Therapy (“CBT”) would benefit the wife by reducing her PTSD symptoms. Ms D was not expecting the wife to begin CBT while the family law proceedings were extant because every Court appearance is a trigger for symptoms. While the proceedings are extant, the wife wanted to engage in talking therapy.
161. Ms D said that the wife’s anxiety could not be fully explained by financial stress. Ms D opined that the wife’s reports of flashbacks and nightmares, feeling that she is at risk of burn-out, feeling that she is letting her team down by taking days off for Court appearances, feeling that full-time work is difficult to manage and the pressure of litigation are relevant factors which have contributed to the wife’s anxiety.
162. On inquiry from the court as to the wife’s presentation, as set out in section 1.1 of her report, Ms D said the wife’s presentation was relatively calm when some aspects of past trauma were discussed, but emotionally dysregulated at other times. Ms D said that she had observed the wife to be in a state of emotional dysregulation, anxiety, hypervigilance, nightmares, flashbacks at times which correlated with impending Court appearances, and noted that the wife felt the need to discuss the trauma associated with the husband at every session. On the other hand, past traumas were noted in passing as and when they arose.
163. Ms D opined that the wife is more likely to be in an emotionally regulated state when she is in her own home with family around, feeing safe in that home, connecting with social groups, sleeping well, and having an absence of pain. Ms D opined “When we reduce the triggers associated with trauma, her prognosis is good.” A stated trigger was the current litigation.

Husband’s health and employment

164. The husband works as a self-employed professional. The husband relies on a report from his General Practitioner, Dr QQ, dated 7 January 2022 addressed “to whom it may concern” and which reads as follows:

I have been given permission by the patient to reveal to whom it may concern that I have been as patient for the past 21 years with the following conditions

[…]

Stress, Anxiety, Reactive Depression –due to marital conflicts at the present moment.

This is of particular concern ,because it is possibly having a direct detrimental effect on all the other systems and this can’t be controlled in the usual manner with medications.

All these are causing him and myself great concern about his future health.

These all need to be addressed as quickly as possible so that he can get on with his life in a car and productive manner.

(As per the original)

THE LAW

165. As this matter concerns property orders, Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) applies. Section 90SM of the Act relevantly provides:

(1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:

(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them–altering the interests of the parties to the de facto relationship in the property; or

[…]

(2) If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.(3) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:

(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or(ii) otherwise in relation to any of that last-mentioned property;

whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or(ii) otherwise in relation to any of that last-mentioned property;

whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and

(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and

[…]

166. These following propositions were determined in cases which considered a matrimonial financial cause pursuant to s 79 of the Act but apply to the equivalent de facto provisions in s 90SM of the Act.
167. Before an order is made adjusting the parties’ property, the Court must be satisfied that it is just and equitable to do so: Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [35]. The language of s 79(2) establishes a jurisdictional prohibition to the making of an order unless the Court is so satisfied. The proper exercise of the jurisdiction can be to decline to exercise the power pursuant to s 79 of the Act: Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 at [108].
168. When making a property adjustment order, a “broad brush,” as opposed to a mathematical, approach is well established: Dickons & Dickons (2012) 50 FamLR 244 at [25]. More recently, the Full Court of the Family Court of Australia (“the Full Court”) in Perrin & Perrin (No 2) [2018] FamCAFC 122 cited at [57]–[58] with approval, the decision in Babett & Falconer [2015] FamCAFC 124 at [44]:

…the nature of the s 79 inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a “broad-brush approach”.

169. The real impact or value of the adjustment in money terms is ultimately the critical issue, not its expression as a fraction or percentage of the overall assets: Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595 at 81,911; Adair & Adair [2019] FamCAFC 70 at [66]; Simons & Simons [2020] FamCAFC 128 at [18].
170. In Anson & Meek [2017] FamCAFC 257; (2017) FLC 93-816 at [181], the Full Court held:

If the point is that, where there is a short marriage, where there are no children and where the parties’ contributions to their assets and to the welfare of the family from the commencement of the relationship to the time of the hearing is equal, any disparity in initial financial contributions is of critical importance in determining the overall contributions of the parties, then such a position is easily arrived at by the application of principle alone.

171. In Pierce & Pierce (1998) FLC 92-844, the Full Court held at [28]:

In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J. at page 10).

172. It is plainly established that the Court is to have regard to the myriad of contributions in a marriage: Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898. The weight to be applied to such contributions depends on the facts of the case.
173. I will traverse the authorities concerning the principles in Kennon & Kennon as have been recently considered by the Full Court later in these Reasons.

“ONE POOL” OR “TWO POOL” APPROACH

174. It is legitimate for the Court to take an asset-by-asset approach or a global approach to the assets, and which one is more convenient will depend on the circumstances of each case: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 (“Norbis”). In that decision, Wilson and Deane JJ held at [831]:

…If the parties’ interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of property between them. In such cases, justice and equity may be best served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets…

175. The wife contends for a global approach using one pool of assets.
176. Although the husband’s Case Outline Document refers to an asset-by-asset approach, counsel for the husband clarified in closing submissions that he intended for a two-pool approach with the husband’s inheritance in one pool and the remaining assets and associated liabilities in the other.
177. The rationale was stated as being that the wife made no contribution to the inheritance and was not an intended recipient of the estate. The logic of the husband’s argument is flawed for two reasons:

(a) Firstly, the “remainder pool” would include the City BB property which was acquired by the wife using capital from her workers’ compensation payment relating to an injury sustained in 2011 and to which the husband made no contribution; and(b) The husband consented to an order for the wife to receive by way of interim distribution of $100,000 from the sale proceeds of Y Street, which he purchased using funds from his mother’s estate.

178. I will apply a one-pool, global approach.

COMMENCEMENT OF THE DE FACTO RELATIONSHIP

179. The wife contends the parties commenced a de facto relationship late 2013 whereas the husband contends the de facto relationship commenced when the parties commenced living together at the S Street property, that is, from late 2014.

Legal Framework

180. Section 4AA of the Act provides:

(1) A person is in a de facto relationship with another person if:

(a) the persons are not legally married to each other;

[…]

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

(2) Those circumstances may include any or all of the following

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

[…]

181. In Fairbairn v Radecki [2022] HCA 18, the High Court of Australia (“the High Court”) said:
     28. Section 4AA(1)(c) identifies the relationship which is the concern of the Act: “a relationship as a couple living together on a genuine domestic basis”. The existence of such a relationship is determined having regard to “all the circumstances” of a relationship; significantly, those “circumstances” include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.
     29. A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.

[…]

38. The presence of a mutually recognised de facto or marital relationship involving a shared life was critical in each of SZOXP, Crabtree and Stanford. In Stanford, the continued subsistence of such a relationship explained the making of the “necessary or desirable adjustments” to the property interests of the husband and wife. In contrast, where the “necessary or desirable adjustments” are not made, and one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased.
39. The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).

[…]

46. Whilst there had been a degree of mutual commitment to a shared life, that commitment ceased when the respondent refused to make the “necessary or desirable adjustments” in support of the appellant and, by his conduct, acted contrary to her needs. It may otherwise be accepted that the breakdown of the respondent’s relationship with the appellant’s children is not, in the circumstances of this case, a decisive consideration. In contrast, the “public aspects” of the relationship are important. This is a case where the respondent’s conduct in threatening the interests of the appellant justified the intervention of NCAT and the appointment of the Trustee to take responsibility for her. Thereafter, it has been the Trustee, and the not the respondent, that has made, and is trying to make, the “necessary or desirable adjustments”.

(Emphasis added)

182. The wife bears the onus of establishing that the parties were in a de facto relationship in the period September 2013 to December 2014.

Consideration of s 4AA(2) factors

183. As at September 2013, the parties had known each other for a month. The brevity of their relationship does not necessarily preclude the formation of a de facto relationship.
184. The parties spent about three nights per week together during the period late 2013 to late 2014.
185. The parties were in a sexual relationship in the period late 2013 to late 2014.
186. The husband paid the rent at the M Street unit and says that he paid all expenses. The wife deposes that she paid for utilities and groceries.
187. No property was acquired by either party in the period late 2013 to late 2014, at which time the husband purchased the S Street property.
188. Neither party gives direct evidence about the degree of commitment to a shared life. However, it is the wife’s case that the husband perpetrated violence against her from late 2013 and throughout 2014. I have accepted that evidence and have found accordingly. In my view, the perpetration of violence by one party is for that party to fundamentally act contrary to the interests of the other and is incompatible with a commitment to a shared life. The absence of a shared commitment to a shared life weighs heavily in the balance.
189. There is no evidence that the relationship was registered.
190. There are no children of the parties. The wife’s evidence was to the effect that one of the husband’s children would stay at the M Street unit. The husband conceded that the wife was very good to C and cared for her.
191. There is no evidence as to the public reputation of the relationship.
192. There are no other factors I consider relevant.

Conclusion

193. In aggregate, I am not satisfied that the parties were in a de facto relationship between late 2013 and late 2014. I find that the de facto relationship commenced in late 2014. There is no dispute that the relationship ended in May 2020.

Home improvements of S Street and the F Street property

194. The wife deposes that, for S Street and the F Street property, she purchased garden equipment, pots, plants, rolls of lawns, light fixtures and fittings, bathroom items, light shades, paint, paintings, pots, front door mats, door handles, front doors. This evidence was unchallenged for which reason it is accepted.
195. As to the F Street property, the wife deposes that she sketched proposed renovations to the kitchen, bathroom, lounge room, bedrooms, a second storey extension and the gardens; sourced fireplaces, paints, and tiles; designed and landscaped the gardens. The husband disputes that the wife undertook renovations to the F Street property. The wife adhered to her evidence when challenged in cross examination
196. The husband deposes that prior to the sale of the F Street property in 2021, he expended about $20,000 installing a basin in the bathroom, repairing plasterwork, installing new sliding doors to the bedrooms, painting the bedrooms, installing new lighting, repairing the kitchen stove, and re-wiring. This evidence was unchallenged for which reason it is accepted.

BALANCE SHEET

197. The Balance Sheet is set out below. Shaded items have a disputed value. By consent, Items 13, 14, 18 to 22, 34, 35, 48, 49, 53 and 57 (litigation funding) and all values after the decimal point have been deleted.

Items 4 and 38: V Street, Suburb W and related loan account

198. Items 4 describes V Street. That property has been sold and is no longer an asset of the husband. The item is removed from the Balance Sheet.
199. Item 38 describes the loan account secured by V Street. Counsel for the wife accepted that such a loan is discharged on settlement of the sale of the security and is no longer a liability of the husband. The item is removed from the Balance Sheet.
200. For the reasons set out at paragraphs 129 to 133 of these Reasons, I will address the net proceeds of the V Street property in the context of s 90SF(2)(r) below.

Item 10: Westpac Choice number …26

201. Item 10 is the husband’s Westpac bank account number …26. The wife says that the most recent disclosure was on 31 May 2021 at which time the account had a balance of $48,085. The husband says that the account was closed. Counsel for the husband submitted that the evidence of value is the husband’s Financial Statement. The wife does not accept the assertion in the husband’s Financial Statement without a source document. As I understand her, by asserting a value as at the last date of disclosure, she seeks a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (“Jones v Dunkel”) style inference be drawn against the husband.
202. According to Exhibit W-6 at Item 22 of the schedule, on 20 July 2023, the wife requested statements for this account from 31 May 2021. The husband’s response is described as “Email 4 (11.07 am) – 12. Provides statements of Westpac accounts” (“Email 4”). The wife does not specify in her schedule which Westpac account statements were included in Email 4, noting that disclosure for about 15 Westpac accounts were sought.
203. According to Exhibit W-6 at Item 24 of the schedule, the wife emailed the husband at 3.46 pm on 21 July 2023 requesting, inter alia, disclosure of the Westpac …26 account. The fact that the wife asked for it again on 21 July 2023 does not necessarily mean that it was not produced on 20 July 2023. It was open to the wife to particularise her schedule, as she has meticulously done elsewhere in it, to identify which of the Westpac accounts were produced in Email 4 and/or to adduce Email 4 to demonstrate that the Westpac …26 account was not produced.
204. In the circumstances, I decline to draw a Jones v Dunkel style inference against the husband. That said, the husband gives no evidence of how he has applied the monies in the Westpac …26 account, for which reason, I will revisit the issue in the context of s 90SM(2)(r) below.

Item 29: Vehicles

205. There is no evidence of the value of the husband’s vehicles. They are of de minimis value in the context of the case. The item will be removed.

Item 31: UU share portfolio

206. The wife asserts that the value of the husband’s UU share portfolio is $55,833, as disclosed by him on 9 January 2023.
207. The husband says that the value is nil. The husband does not disclose the disposal of the shares in Part M of his Financial Statement filed on 27 June 2023. Item 38 of the Financial Statement relates to “Investments.” The husband identifies “Shares derived from Mother’s Estate (see Annexure). 130,000” and, in the next pro forma field “(see Annexure) $ Nil.” In turning to the Annexure, the relevant portion of page 16 reads:

(As per the original)

208. I am unable to find any further information in the Annexure to describe shares other than the shares derived from the husband’s mother’s estate. There is no evidence in the husband’s affidavit filed on 2 June 2023 about the disposal of the UU Company shares since 9 January 2023.
209. In my view, the husband’s assertion that the UU Company shares are of nil value is tantamount to a concession that he has failed to disclose their disposal, in which case the matter can be addressed in the context of s 90SM(2)(r).

Item 44: UU Company margin loan

210. The wife asserts that the husband’s UU Company margin loan ending …23 is valued at $24,355 based on disclosure as at 11 November 2020. A reference to that disclosure is at page 5 of Exhibit W-6 (“Margin lending portfolio print out for account with UU Company dated 11/11/2020”).
211. The husband asserts a nil value for this account. The husband does not explain the discharge of the UU Company margin loan in his affidavit or Financial Statement.
212. I am aware that a margin loan is a type of loan product typically secured by shares. Given the liability at Item 44 is a margin loan, I expect to see a corresponding share portfolio. Item 31 of the Balance Sheet relates to the only UU Company share portfolio in the husband’s name. It is probable that Item 31 comprises the shares that secure the liability at Item 44.
213. For the reasons given at paragraphs 206 to 209 of these Reasons, I will address Item 31 in the context of s 90SF(2)(r) of the Act. I will approach what I take to be the corresponding liability in the same way.

Items 42 and 43: VV Company margin loan and Commonwealth Bank of Australia investment loan

214. The wife asserts a value of $32,630 to the husband’s VV Company margin loan. The husband says that this loan has been discharged and he now has an investment loan with the Commonwealth Bank of Australia (“CBA”). The symmetry of values of these two line items suggests such a relationship between them. However, the value of the VV Company margin loan is current as at 27 July 2023 rendering it more probable that it is the current loan and that the CBA investment loan has been discharged. Further, the husband’s Financial Statement does not describe any liability to CBA.
215. Exhibit W-6, at Item 26, records that on 24 July 2023, the husband provided a link to his VV Company Online account. The husband has a VV Company share portfolio with an agreed value of $44,831 (per Item 32 of the Balance Sheet). As already identified, a margin loan is a type of financial product secured by shares based on a loan value ratio against which lending is calculated. It is probable that Item 32 secures Item 42 on the Balance Sheet given they are within the same financial institution.
216. I find that the husband has a VV Company margin loan with the value of $32,630 and remove Item 43 for want of evidence.

Item 47: SS Bank credit card

217. The husband asserts a SS Bank credit card liability of $12,360. The wife says that she does not know the value of the liability. I infer that she complains about the adequacy of disclosure.
218. The Balance Sheet records that disclosure of this credit card was made on 27 June 2023. A credit card liability of $12,360 in the context of a multi-million dollar pool is de minimis. I accept the husband’s value and find that the liability is $12,360.

Item 57: Husband’s car loan

219. The husband asserts a vehicle loan of $24,222. The wife says that she does not know the value of the liability. I infer that she again complains about the adequacy of disclosure. In the context of this pool of assets, the loan is de minimis. I accept the husband’s value of $24,222.

Sum of the Balance Sheet

220. The sum of the assets, addbacks and superannuation is $9,736,969. The sum of the liabilities is $2,532,078. The net assets and superannuation are $7,204,881.

DIRECT AND INDIRECT FINANCIAL CONTRIBUTIONS

221. The wife introduced the N Street property subject to a mortgage and her superannuation. She had a motor vehicle in late 2013 and there is no evidence to suggest that she ceased to own a vehicle by December 2014. The husband owned H Street, K Street and F Street. He also owned shares, cash savings, and owned various motor vehicles. He operated his business.
222. The wife does not dispute that the husband made greater initial contributions.
223. The evidence establishes that during the relationship:

(a) Each party paid the mortgages for the properties in their own names. This included the husband paying the mortgage for the properties in which the parties cohabited, namely the properties at S Street and F Street;(b) The wife paid the rates at S Street from December 2014 to March 2016 and the rates at the F Street property from March 2016 to November 2020;

(c) The wife paid the electricity, gas and water at S Street December 2014 to March 2016 and at the F Street property from March 2016 to May 2020. Payments of these utilities after separation were to the wife’s sole benefit;

(d) The wife paid for the majority of groceries; and

(e) The wife paid for the parties’ flights, accommodation, car hire and petrol while on holidays. The husband paid for food.

224. Both parties supplied items to their home. The wife purchased garden equipment, pots, plants, rolls of lawns, light fixtures and fittings, bathroom items, light shades, paint, paintings, front door mats, door handles and front doors.
225. Using a broad-brush approach, I find that the payment by the husband of the loan relating to the parties’ residence from time to time approximates the wife’s payment of rates, utilities and groceries at such residences.
226. The wife’s payment of holiday related expenses is likely to exceed the husband’s payment of food.
227. The wife worked throughout the relationship and derived an income of between $45,000 and about $65,000 per annum. In 2017, the wife received a back payment of income protection insurance relating to her 2011 workplace injury. Her taxable income for that year was about $186,000. In late 2016, the wife received a lump sum of $330,000 from her 2011 workplace injury.
228. The husband worked as a self-employed professional with affiliated offices in two cities in Country Q, and one in the USA. He deposes to making consecutive taxable losses in the years 2017 onwards. He said in his oral evidence that he did not make much money from his business, and confirmed that his investments were negatively geared.
229. In 2018, the husband received an inheritance from his late mother’s estate of about $4 million.
230. I find that financial contributions favour the husband.

NON-FINANCIAL CONTRIBUTIONS

231. The wife participated in discussions and activities associated with the husband’s purchase of investment properties. This is plausible given her professional qualifications in addition to her prior work in the construction industry.
232. The wife sketched proposed renovations to the kitchen, bathroom, lounge room, bedrooms, a second-storey extension and the gardens, sourced fireplaces, paints, and tiles, designed and landscaped the gardens in relation to the F Street property.
233. Prior to the sale of the F Street property in 2021, the husband installed a basin in the bathroom, repaired plasterwork, installing new sliding doors to the bedrooms, painting the bedrooms, installing new lighting, repairing the kitchen stove and re-wiring. The husband also did exterior painting at the F Street property prior to separation.
234. I find that the parties’ non-financial contributions were equal.

FAMILY WELFARE, HOMEMAKER AND PARENTING CONTRIBUTIONS

235. The husband concedes that the wife made the majority of homemaker contributions, especially in the earlier years of the relationship.
236. The husband also concedes that the wife assisted with the care of C. C was born in 2011 and thus aged between three and about nine years during the relationship. She stayed with the parties about three nights per week and for half of the school holidays. I accept the wife purchased clothing for C. The wife cared for C in 2020 when the wife was recovering from surgery. These contributions attract the jurisprudence of In the Marriage of Robb [1994] FamCA 136; (1995) FLC 92-555.
237. With respect to contributions to welfare, the wife remained living in the F Street property from May 2020 to June 2021 without the cost of accommodation. Meanwhile, the husband lived in the other properties owned by him where such properties had been leased. Thus, the husband was liable to pay for two sets of accommodation. This was a contribution by the husband to the welfare of the wife. In my view, this is balanced by the wife’s contributions to the husband’s welfare during the relationship as evidenced by her reduction in working hours in 2016 to attend to his needs in the home with associated loss of pay.
238. I find that homemaker and parenting contributions favour the wife.

KENNON & KENNON

239. The wife contends that her contributions were made more arduous due to family violence. The husband resists the proposition.
240. The wife’s case is framed by reference to the jurisprudence developed in Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757 (“Kennon”). The substance of the proposition as framed by their Honours in Kennon, together with an analysis of the law and policy since that time, is conveniently captured by Aldridge J in Martell & Martell [2023] FedCFamC1A 71; (2023) 66 Fam LR 650 (“Martell”) delivered on 15 May 2023. It is useful to reproduce those passages:
     18. In Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 (“Kennon”), Fogarty and Lindenmayer JJ outlined principles to be taken into account when assessing findings of the occurrence of family violence in property settlement proceedings. As their Honours identified, they did so because the “pervasiveness and destructiveness of domestic violence” had in recent times become to be acknowledged and that there had “been a marked and long overdue change in those attitudes” so that ‘the law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences” (at 84, 290–84,291).
     19. It is safe to say that such awareness and disapproval has continued to increase since then. Importantly, this increase in understanding directly led to changes in the Act. A new definition of family violence, which is in probably broader terms than would have been envisaged in 1997, was inserted into the Act in 2011 in the form of s 4AB.
     20. Although widely quoted and followed, the principle stated in Kennon cannot be treated as if they were those of a statute – immutable and unvarying. At the least, those words must be read in the light of the Act as it speaks now.
     21. Justices Fogarty and Lindenmayer were concerned about the opening of “floodgates” saying at 84,294–84,295:

That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – a circumstance which proved so debilitating in the past. In addition there is the risk of substantial additional time and cost.

…

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 discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…

22. It has to be said, that their Honours terms “exceptional” and “narrow” lose much of their force if cases involving significant violence are to be the subject of the application of the principles. Such cases might have been regarded as exceptional at the time Kennon was decided but they cannot today be so regarded. Unfortunately the prevalence of family violence is wide and artificial barriers to its recognition, such as trying to limit its recognition in property cases to exceptional or narrow cases, has no basis in principle. As I shall endeavour to explain shortly, the focus of the majority’s reasoning was on the nature and quality of the contributions themselves which were not limited by such qualifying adjectives.

23. In Kennon, the principle was identified as follows:

Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous 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.

24. For the reasons given, the words “significantly” and “more arduous” are not to be read as coterminous with “exceptional”. Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person’s contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been “significantly impacted” or made “more arduous”. The focus is not on the conduct per se, but on its effects on contributions.
25. The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
26. That, in my view, should be the focus and terms such as “exceptional” or “narrow”, or indeed, “onerous” add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a “significant adverse impact” upon a party’s contributions. The word “significant” was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.
27. More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to “quantify” that effect (Maine & Maine [2016] FamCAFC 270; (2016) 56 Fam LR 500 at [47]–[52] (“Maine”); Britt & Britt [2017] FamCAFC 27; (2017) FLC 93-764 at [74]–[75]; Keating & Keating [2019] FamCAFC 46; (2019) FLC 93-894 at [27]–[43], [52]–[67]; Benson & Drury [2020] FamCAFC 303; (2020) FLC 93-998 (“Benson & Drury”) at [47]–[50]).
28. It seems to me that regarding Kennon claims as “special” or “exceptional” is apt to mislead. In reality, all the majority said in that case was that a person’s contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner (Dickons v Dickons (2012) 50 Fam LR 244; Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898).
29. The primary judge did not use those words. Rather, her Honour said “the wife’s non-financial contributions were impacted and made more difficult and distressing” (at [46]) and “more arduous” (at [126]). They were found to be of such a nature so as to require consideration.
30. I would not take that to be an incorrect application of the principles set out in Kennon.
31. The difficulty that arises in this matter is, however, that the primary judge did not explain how the acts of violence of the husband led to the non-financial contributions of the wife being made difficult, distressing and more arduous. The reasons are silent on the issue.
32. In Maine, the Court held that the application of the principle in Kennon “required of his Honour findings in respect of evidence that addressed specifically… the impact that the violence had upon the wife’s contributions” (at [52]).
33. The requisite finding could, as discussed, be inferred as explained in Benson & Drury at [50].
34. The husband submits that the absence of this discussion indicates that her Honour did not understand and did not correctly apply the principles set out in Kennon (Ground 2(a)). Alternatively, it is said that the failure itself is an error (Ground 1(c), Ground 2(b) and Ground 3).
35. I incline to the latter view, but either way, error has been demonstrated. Whilst the events described by the wife were no doubt distressing, the evidence and the findings did not deal with the magnitude and extent of its effect. Whilst matters can certainly be inferred, that inference must be properly based on the evidence before the court.

241. In Benson & Drury [2020] FamCAFC 303; (2020) FLC 93-998, the Full Court of the Family Court of Australia held at [50]:

Here, the primary judge found the appellant perpetrated family violence upon the respondent and drew an inference that such violence did have an effect upon the respondent’s contributions, making them “all the more arduous” (at [162]). An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H [1994] HCA 48; (1994) 181 CLR 387 at [4]). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275–278 per Spigelman CJ; Carr v Baker [1936] NSWStRp 20; (1936) 36 SR (NSW) 301 at 306–307 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]).

Is there an incidence of family violence?

242. In turning to the evidentiary requirements of a Kennon-style claim, it must first be determined whether there is an incidence of family violence. For the reasons already given, I am satisfied that the husband perpetrated intimate partner violence against the wife in the period 2013 to December 2014 and then family violence from December 2014 to about March 2021.
243. I accept the wife’s evidence as to intimate partner violence and family violence perpetrated by the husband. I incorporate without need of repetition the evidence and related findings concerning the take away food incident in late 2013; the sports incident a month later; the events in late 2013 and during 2014; attempts by the wife to discuss money with the husband in 2016; the incidents in late 2018, early 2019, early 2020, and in late 2020.
244. The answer to the first limb of the test is in the affirmative.

Should the conduct be recognised in determining contributions?

245. Having found that there was family violence, I turn to the question framed by Aldridge J at paragraph 25 of Martell being whether the “conduct [had] a discernible effect on the contributions of the wife such that it should be recognised in determining the respective contributions of the parties.”
246. Ms D’s evidence provides a comprehensive account of the anxiety, fear and hypervigilance the wife has experienced in connection with the violence perpetrated on her by the husband. Such emotional and psychological responses have been significantly burdensome for wife.
247. The wife gave steadfast evidence that she attributed the husband’s violent conduct to his unstable blood sugar levels due to diabetes and his difficult relationship with C’s mother. She felt frightened by his outbursts. I infer that such fear is likely to have had a debilitating and destabilising effect on the wife and made her wary of antagonising the husband as she entered the relationship in late 2014. There is no reason to think that such destabilisation and debilitation did not persist into the relationship as to make her contributions more arduous in the early “good woman” years.
248. It is self-evident the wife’s contributions were made more arduous as a result of the late 2018 incident, it in circumstances where she:

(a) Fell onto existing fracture sites while attempting to escape the husband who demanded sex;(b) Was unable to walk properly for two weeks without experiencing immense pain;

(c) Could not find respite from pain even when lying down; and

(d) Was so fearful of the husband as to choose not to report the matter to police.

249. The incident in early 2019 constituted a violent assault. This included the husband grabbing the wife’s arm, which had been injured in 2011, and caused the wife excruciating pain. He then grabbed her hip, which had also been injured in 2011. I accept the wife’s contributions were more arduous because of that incident, both by reference to physical pain and limitations and the effects of the fear she experienced vis-à-vis the husband.
250. The pain and infirmity arising from the wife’s physical injuries from 2011 at the time of the late 2018 and early 2019 incidents, being facts about which the husband was aware or ought to have been aware, amplifies the arduousness of the wife’s contributions at those times and weighs heavily in the balance.
251. I infer that the incident in early 2020 was humiliating for the wife and rendered her vulnerable and intimately exposed. That experience was, I infer, destabilising for her in the relationship and likely to have made her contributions more arduous.
252. The incidents in late 2020 and the surrendering of the property to the mortgagee forms a cluster of family violence. These events caused the wife to experience fear of the husband and to be hyper-vigilant. During this period, the wife was contributing to the F Street property through such activities as cleaning, gardening and lawn mowing. She also paid the rates until November 2020. I accept that these matters made the wife’s contributions more arduous.
253. For these reasons, I am satisfied that conduct had a discernible effect on the contributions of the wife such that it should be recognised in determining the respective contributions of the parties.

ASSESSMENT OF CONTRIBUTIONS PURSUANT TO S 90SM(3)(a), (b) AND (c)

254. Viewed in the round, I assess the wife’s contributions to be 14.5 per cent and the husband’s contributions as 85.5 per cent.

THE EFFECT OF ANY PROPOSED ORDER UPON THE EARNING CAPACITY OF EITHER PARTY TO THE DE FACTO RELATIONSHIP.

255. Neither party’s earning capacity will be effected by a proposed order.

RELEVANT SECTION S 90SF FACTORS

Age and health

256. The wife is 58 years of age. The husband is 69 years of age.
257. There is no probative evidence about the husband’s health.
258. The wife was injured at work in 2011 and, at that time, was assessed to have a partial whole body impairment and loss of feeling and immobility in one limb. I accept the wife experiences pain and impaired movement. There is no evidence that this will reduce her capacity to work until the age of retirement. The fact that the wife recently accepted a full-time position, which she described in her oral evidence as an “opportunity,” suggests that she is working to her potential.
259. The extent to which Ms D could opine on the impact of the wife’s health on her future working capacity was limited. Ms D:

(a) Did not have access to a specialist assessment;(b) Had not been told of the accurate number of days the wife had been absent from work due to illness, had she been in contact with the wife’s employer; and

(c) Had not received documents about the wife’s work from her employer.

260. The evidence of Ms D as to the wife’s mental health and functioning is that her prognosis is good after the litigation ceases. There are a number of therapeutic models available to the wife in this regard if she chooses to use them.

Children

261. The parties have no children together. C is 11 years of age and the husband has a duty to maintain her. All other children of each party are adults.

Duration of relationship

262. The relationship was about six and a half years in duration.

Employment, income and financial resources

263. The wife works full time as an allied health worker using her skills in health care and casually as a health care worker. Her weekly income from employment and investment sources is about $2,644.
264. Having regard to the Balance Sheet, the wife holds net assets and superannuation of $577,714 including an addback of $150,000. An addback is a notional asset, and so I will have regard to it when considering the effect of the orders: Atkins & Hunt and Ors [2017] FamCAFC 79; (2017) FLC 93-774.
265. The husband works as a self-employed professional. The husband’s Financial Statement asserts an income of $2,238 per week, comprising $389 from self-employment and $1,839 from rental income. The husband says he derives “Nil” benefits from employment/business and that he pays no income tax “due to incomes running at a loss.”
266. The husband says that his weekly personal expenditure is $4,240 producing a weekly personal deficit of $2,002. Part N of the husband’s Financial Statement asserts weekly living expenses of $328, that is, within the scope of his weekly salary. The reason for the weekly deficit of $2,002 appears to be related to exposure to investment loans, including margin loans, which the husband says in the Annexure to the Financial Statement attract 10 per cent interest, and private school expenses for C. The husband nevertheless holds substantial net assets.
267. At paragraph 181 of his affidavit, the husband deposes to annexing his annual tax returns for the financial years ending 2019 to 2022 inclusive. In fact, his affidavit annexes his personal income tax return and Company Return for Spina Pty Ltd for the financial year ending 30 June 2020 and no other years. There is no current evidence in the form of tax returns before the Court to establish the husband’s salary based income and any benefits he may derive through Spina Pty Ltd. The fact that the husband structures his financial affairs and selects certain asset classes and loan products is a matter for him and a reflection of his risk appetite. Having regard to the state of the evidence about Spina Pty Ltd it would be overly simplistic to conclude that the husband’s personal weekly deficit places him in a less advantageous position relative to the wife, who discloses a positive weekly income from PAYG and investment based income.
268. I accept that the husband will retain substantially greater assets than the wife. That said, the relationship of the parties was six and a half years in duration, the husband introduced substantially greater assets to the relationship and introduced an inheritance of about $4 million in late 2018 or early 2019.

Non-disclosure

269. The wife seeks an adjustment on the basis that the husband failed to provide adequate financial disclosure.
270. Where the evidence establishes that a party has failed to make adequate financial disclosure as to his or her financial position, the Court need not be unduly cautious about making findings in favour of the innocent party: In the Marriage of Weir [1992] FamCA 69; (1993) FLC 92-338 at [33].
271. At paragraph 94 of her affidavit, the wife deposes:

Requests for full and frank disclosure have been sent to [the husband] by my solicitors on 7 August 2020, 8 September 2020, 23 September 2020, 6 October 2020, 14 October 2020, 28 October 2020 25 November 2020, 2 February 2021, 15 February 2021, 19 February 2021, 9 April 2021, 11 June 2021, 9 September 2021, 13 October 2021, 2 March 2022,26 October 2022, and 27 October 2022. All of which were not fulfilled by [the husband].

(Emphasis added)

272. Exhibit W-6 is sixteen page landscape document setting out a table with “Request from Applicant” and date of such request for disclosure and “Response/Documents provided by [the husband]” and the date. The husband agreed that Exhibit W-6 was accurate. The Exhibit indicates that:

(a) There is no request dated 7 August 2020;(b) Of the 27 August 2020 request, which is not identified in the wife’s affidavit, the husband produced documents on 6 September 2020;

(c) Of the 8 September 2020 request, the husband produced documents on 9, 18 and 22 September 2020;

(d) Of the 23 September 2020 request, the husband produced documents on 23 and 28 September 2020;

(e) There was no response to the 6 October 2020 request;

(f) Of the 14 October 2020 request, the husband produced documents the same day;

(g) Of the 28 October 2020 request, the husband produced documents on 13 November 2020, 4 January 2021, 18 January 2021, 19 January 2021, 2 February 2021 and 8 March 2021;

(h) There is no request dated 25 November 2020 or 2 February 2021;

(i) Although not stated in the wife’s affidavit, there was a request on 4 February 2021 and the husband produced documents on 22 February 2021;

(j) There is no request dated 15 February 2021, 19 February 2021 or 9 April 2021;

(k) There was a request on 12 May 2021 to which the husband did not respond;

(l) Of the request dated 11 June 2021, the husband produced documents although not the documents requested;

(m) There was no request dated 9 September 2021;

(n) The husband did not respond to the request made on 2 March 2022;

(o) There was no request made on 26 October 2022; and

(p) Of the 27 October 2022 request, the husband responded on 9 January 2023.

273. The wife sworn her trial affidavit on 1 December 2022. Of the requests for disclosure prior to the time of her affidavit, it is demonstrably inaccurate for her to assert that “All of which were not fulfilled by [the husband].”
274. The table in Exhibit W-6 records that the husband made disclosure on 18 January 2023, 23 January 2023, 30 January 2023, 31 January 2023, 21 July 2023 and 24 July 2023.
275. The husband was not taken to any request and challenged on whether he fulfilled the terms of the request, nor was the Court provided with any context or assistance to understand whether the request was reasonable or whether it was answered. I do not accept the wife’s assertion that “all” of her requests for disclosure prior to 1 December 2023 were not fulfilled. That said:

(a) For the reasons identified at paragraphs 129 to 133 of these Reasons, the husband has not reliably disclosed the quantum and destination of net proceeds from the sale of V Street, Suburb W;(b) The Balance Sheet demonstrates disputes as to the value of the Westpac …26 account, the UU share portfolio and margin loan. I incorporate without need of repetition my earlier analysis and findings relating to Items 10, 31, and 44 of the Balance Sheet. Given the ease with which bank account balances can be established, the absence of up to date and accurate information about those items is unsatisfactory; and

(c) The husband’s Financial Statement describing his income is problematic for the reasons I have given at paragraphs 266 to 268 of these Reasons.

276. Counsel for the husband submitted that the failure by the wife to disclose the identity of her current employer is unfair to the husband, as he cannot interrogate her Financial Statement. The wife’s affidavit evidence, which she adopted on the first day of the trial, was incorrect so far as it identified her current employment with no updating evidence in chief sought to be adduced. The wife said that she did not wish to disclose her employer as she was fearful of the husband. I understand the sensitivities relating to family violence, but the wife could have provided redacted copies of her current contract of employment and pay advices to establish such matters as her usual hours of work, salary, allowances and other benefits.
277. On balance, there are deficiencies in each party’s disclosure. I cannot speculate on which parties’ deficiency is more serious than the other. I decline to make an adjustment pursuant to the principles in Black & Kellner [1992] FamCA 2; (1992) FLC 92-287 as sought by the wife.

Conclusion as to s 90SF of the Act

278. In all the circumstances, I decline to make any adjustment pursuant to s 90SF of the Act.

WHAT ORDER IS JUST AND EQUITABLE?

279. I have considered the effect of the orders.
280. The wife’s entitlement pursuant to s 90SM(3) is 14.5 per cent of the net pool, will result in her retaining $1,044,708 of value. She holds in her own name assets of $577,714 (including a notional asset of $150,000 and superannuation of $68,271) and thus requires a further sum from a controlled monies fund of $466,993.
281. The husband’s entitlement pursuant to s 90SM(3) is 85.5 per cent of the net pool. This results in him retaining $6,160,173 (including a notional asset of $604,789). He will retain the balance of the controlled monies funds after the wife has been paid her entitlement.
282. I must be satisfied that the Orders are just and equitable in all the circumstances. I am satisfied that the real effect of distributing 14.5 per cent of the assets to the wife and 85.5 per cent to the husband, accounting for the notional assets and superannuation which is not yet in a payment phase, is just and equitable.

CONCLUSION

283. For all the reasons given, I make the following Orders.