Norris (a pseudonym) v Brooks (a pseudonym)

These are property settlement proceedings under s 79 of the Family Law Act 1975 (Cth) (the family law proceedings) instituted by Mr [Norris], the husband, against Ms [Brooks] (formerly [Norris]), the wife.

The family law proceedings were commenced by initiating application filed in the Family Court of Australia (Family Court) on 19 March 2015. The wife filed a response to the initiating application on 19 June 2015.

[The names of certain people, places and entities have been pseudonymised in these reasons in a manner proposed by the parties and amended slightly by the Court. These proceedings have involved allegations of grave misconduct, some of which have not been proved. Given the positions of the parties and their family, the Court has found it fit to modify these reasons accordingly to reasonably preserve the anonymity of the persons involved. Pseudonymised names (and this paragraph itself, which has been modified accordingly from the original provided to the parties) appear in square brackets. Any resemblance between pseudonyms used in these reasons and the names of any other person or thing is completely unintentional. Names left unmodified appear without square brackets.]

As they have either the husband’s or the wife’s surnames, I will, with no disrespect intended, refer to the members of both families by their [pseudonymised] first names.

On 21 January 2020, Foster J made an order by consent, pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), that the family law proceedings be transferred to the Supreme Court of New South Wales. On the same date, an order was made vacating trial dates commencing on 4 February 2020.

According to a formal note made by Foster J, the transfer order was made because of the pendency in this Court of Case No 2018/351804, which was commenced by the wife and concerned the estate of her late father, [Grant] (the family provision proceedings). The defendant in those proceedings was the wife's brother, the executor of [Grant]’s estate. The wife’s brother prefers to be called [Lucas], which is the name that I will use. Foster J noted that there would be significant commonality between the two proceedings relating to the financial history of the parties and the wife's financial dealings during cohabitation. Furthermore, his Honour observed that the determination of the family law proceedings was essential to a final determination of the family provision proceedings.

As well as the family provision proceedings, there have been two other related proceedings in the Equity Division of this Court. Case No 2020/72919 (the equity proceedings) was proceedings between the wife and [Lucas], in which the wife apparently claimed an entitlement to relief arising out of her involvement in the affairs of her family, which were principally conducted by her father and mother, [Grant] and [Peta], with the involvement of [Lucas].

The other proceedings in this Court were Case No 2019/365199, between the parties' eldest daughter, [Laura], and the husband and the other members of the parties’ family (the s 66G proceedings). In those proceedings, [Laura] sought an order under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of a property at [Suburb B] owned by [Laura], the husband, the wife and the other three children, being [Jess], [Craig] and [James], as tenants-in-common. The husband filed a cross claim in the s 66G proceedings in which he sought to establish that he was beneficially entitled to a greater share of the [Suburb B] because of circumstances that will be explained below.

Foster J may not have been aware of the existence of the s 66G proceedings, and it seems likely that the equity proceedings were commenced after the transfer order was made. Had it been necessary for this Court to determine all the proceedings at once, an array of contingent issues would have arisen that would have made it difficult for the parties and the Court to address all of the potential outcomes in the one hearing.

Mercifully, however, the risk of these difficulties abated because all the other proceedings in this Court were settled shortly before the hearing commenced. Consequently, this Court has been spared the need to resolve all the interconnected contingent issues that would have arisen. On the other hand, this Court has been left with the need to determine an extremely contentious family law property settlement proceeding.

The effect of the settlement of the family provision proceedings and the equity proceedings was that [Lucas], in his capacity as executor of his father's estate, agreed to make a payment to the wife which, when added to the legacy in her favour under her father's will, has created a fund in the wife's hands that the parties have called Pool 2. The family law proceedings have, in that respect, been simplified because the wife's various claims have now crystallised into a specific monetary entitlement.

The s 66G proceedings were settled by all parties thereto agreeing to the Court making an order for the appointment of trustees for the sale of the [Suburb B] Property. Furthermore, the husband abandoned his claim to have a beneficial interest in the [Suburb B] Property that was greater than the percentage interest he had on the title to the property. The family law proceedings were therefore simplified because the percentage interest of each co-tenant was established as being the share that was recorded on the title.

Additionally, serendipity intervened during the course of the hearing, as the trustees were approached by potential purchasers of the [Suburb B] Property, and, after a number of running hearings, and by consent of the co-owners and advice that the Court was able to give to the trustees, the trustees were able to enter into a contract for the sale of the [Suburb B] Property at a price that was substantially more than that suggested by the available valuation evidence. The family law proceedings have therefore been simplified to the extent that there is now evidence of the sale price in the contract, and the shares in the price to which the parties and their children are entitled are now known with relative certainty.

The proceedings were set down for hearing for 16 days commencing on 27 April 2021, on the basis that the Court was required to hear four separate proceedings. Notwithstanding the settlement of three of the proceedings, the parties ran the family law proceedings for 15 days and the hearing was recorded in 811 pages of transcript. The husband relied upon nine affidavits sworn by the husband, one affidavit sworn by his father, one sworn by his brother and two affidavits of his solicitors. The wife relied upon five affidavits sworn by the wife and five affidavits sworn by [Laura], as well as evidence from the wife's treating psychiatrist. The other children of the marriage did not give evidence. The parties eventually agreed to the removal of some of the documentary evidence from the 11 folders and one supplementary folder of the court book. The annexures and exhibits to the many affidavits were organised in meticulous chronological order in the court book, which in this case proved that chronological order may be functionally random. The parties presented the Court with numerous factual issues that they did not address in any detail in their submissions. As a practical matter, it has therefore been necessary for the Court to focus on the issues canvassed by the parties in their opening and closing written submissions and the oral submissions made by counsel.

The central legal question in this case is whether the Court should make an order altering the interests of the parties in their property, and if so, what that order should be.

These proceedings are property settlement proceedings within the meaning of that term in s 4 of the Family Law Act. Consequently, and subject to the requirements of s 79, s 79(1) empowers the Court to “make such orders as it considers appropriate … altering the interests of the parties to the marriage in the property”. “Property” is defined in s 4 as meaning “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion”. It is therefore necessary for the Court to start “by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”, as that must be done before a consideration of whether those interests should be altered can begin: Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 (Stanford) at [37] (French CJ, Hayne, Kiefel and Bell JJ).

As s 79(2) of the Family Law Act provides that the “court shall 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” (emphasis added), an overarching requirement is that the Court must be so satisfied. Inherent in the concept of whether it is just and equitable to make the order proposed is the consideration of whether it is just and equitable to make any order that disturbs the status quo in respect of the ownership of property by the parties to the marriage. “In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order”: Stanford at [35] (French CJ, Hayne, Kiefel and Bell JJ). This question “is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property…”: Stanford at [40] (French CJ, Hayne, Kiefel and Bell JJ). As was observed by McClelland DCJ in Roy & Yalden [2020] FamCA 1026 at [74]: “neither the fact of marriage nor the ending of a marriage creates an assumption that there should be an adjustment of the parties’ property interests: Fazarri & Hsiao (No 2) [2018] FamCA 447 at [75]-[76], citing Stanford v Stanford (2012) 247 CLR 108 (Stanford) at 121 [39] per French CJ, Hayne, Kiefel and Bell JJ.”

The use of the term “may” in s 79(1) of the Family Law Act has the effect that the Court exercises a discretion in determining whether an order adjusting the property rights of the parties to the marriage should be made, and, if so, what that order should be. The power should not “be exercised according to an unguided judicial discretion”: Stanford at [38] (French CJ, Hayne, Kiefel and Bell JJ).

The term “just and equitable” is “a qualitative description of a conclusion reached after examination of a range of potentially competing considerations” and “does not admit of exhaustive definition”: Stanford at [36] (French CJ, Hayne, Kiefel and Bell JJ) (citation omitted).

If the Court determines that it will be just and equitable to make an order adjusting the property of the parties to a marriage, s 79(4) of the Family Law Act sets out factors that “the court shall take into account” in “considering what order (if any) should be made under this section” (emphasis added). Subsection (4) relevantly provides:

As s 79(2) of the Family Law Act imposes on the Court a mandatory requirement that it be satisfied that it is just and equitable to make the order that is proposed, and the chapeau to s 79(4) requires the Court to take into account all of the listed matters in considering “what order (if any) should be made”, there is a necessary interplay between the overarching issue of whether any order should be made at all and the consideration of all of the factors relevant to the determination of what order would be appropriate, if any order should be made.

On the one hand, as the plurality in Stanford said at [40] (citation omitted):

On the other hand, as McClelland DCJ said in Roy & Yalden at [76]:

That means, as a practical matter, that there may be factors standing outside s 79(4) that have the result that it will not be just and equitable for the Court to make any order adjusting the property rights of the parties to a marriage, but also that the consideration of the factors listed in the subsection may lead to the conclusion that no order should be made.

As the plurality in Stanford said at [41]:

The consideration by the plurality in Stanford of the significance of the stated or unstated assumptions and agreements by the parties to the marriage about property interests concluded with the following observations about how those matters may be relevant to the determination of whether it is just and equitable to make any order under s 79(1) of the Family Law Act, at [42]:

In Bevan v Bevan (2014) 51 Fam LR 363; [2014] FamCAFC 19 (Bevan), Bryant CJ and Thackray J (Finn J generally agreeing) considered the position where the husband had elected to leave the relationship in 1994, at which time the parties had been married for about 22 years. The husband from time to time afterwards represented to the wife that she could retain their assets for herself and for their sons, on the basis that he would build his own life and acquire property elsewhere. Acting on the representations, and believing the assets were hers, the wife dealt with the property as if it were her own. This issue is material in the present case because the wife relies upon a number of notes that she claims were written by the husband in which he states that he will make no claim on the wife’s ownership of the [Suburb D] Property.

Their Honours referred at [40] to the reasons of the plurality in Stanford at [41], which is set out above, and then referred at [41] to reasons that they had given in an earlier judgment in the proceedings, where they had said:

Bryant CJ and Thackray J concluded this aspect of their reasons by repeating at [42] the view expressed in their earlier reasons: "that, in determining whether it would be just and equitable to make any order altering existing property interests, it would be necessary to have some regard to the matters mentioned in s 79(4), since it was accepted that it may not be considered just and equitable for the husband to be denied any entitlement in circumstances where it is accepted he made a significant contribution to property that may be seen as having provided the base from which the wife built the assets she now holds. However, such a contribution is but one matter to be considered in the exercise of the discretion conferred by s 79."

In Bevan, Bryant CJ and Thackray J concluded:

I respectfully adopt the following statement by McClelland DCJ in Roy & Yalden concerning the approach that the Court should adopt to the determination of property settlement proceedings (footnotes omitted):

However, the four-step approach is not prescriptive. In Norman & Norman [2010] FamCAFC 66 at [60], the Full Court held:

In a case as contentious as this one, the Court has had to make a wide range of factual findings. As will be seen, however, this case is a complex instance of the chicken-and-egg dilemma posed by cases in which the credit of the witnesses is highly contentious. The determination of the credit that should ultimately be given to the witnesses' evidence depends upon an examination of the evidence on a number of factual issues, some of which are only relevant to credit and others of which concern the parties' substantive cases. Because of the importance of the issue of credit in this case, I will deal with some of the substantive issues in the context of considering the credibility of the witnesses. That is because some findings on substantive issues are important to the determination of credit, and then the credit findings affect the determination of other substantive issues. It will therefore assist an understanding of the reasons that follow if I introduce briefly the relevant persons in the parties’ lives and the series of residential properties that the parties have owned or occupied.

The wife was born in 1960 and the husband was born in 1968. They commenced a relationship in mid-1986 and married in late 1987. An order was made for the dissolution of the parties’ marriage on 21 October 2015. The parties have four children born in the following years: [Laura] in 1989, [Jess] in 1990, [Craig] in 1991 and [James] in 1993. Of the children, only [Laura] was called to give evidence.

The relevant members of the husband’s family are his brother [Steven], his parents [Jeff] and [Ella], his grandfather [Brian] and his grandmother. Of the husband’s family members, only [Steven] and [Jeff] were called to give evidence. The relevant members of the wife’s family are her brother [Lucas], her ex-sister-in-law, and her parents [Grant] and [Peta]. Of the wife’s family members, only [Lucas] was called to give evidence. [Grant] and [Peta] died before the hearing. Also involved in the events of this case is the company [G & P Brooks Pty Ltd] ([G & P Brooks]), the building company operated at various times by [Grant], [Peta] and [Lucas].

As to the parties’ history of properties, the wife brought into the marriage a residential allotment in her name that the parties called the First [Suburb O] Property. The parties lived in a home that was subsequently built on that property. That property was sold, and another property called the Second [Suburb O] Property was purchased in the name of the wife. That property was purchased from [Lucas] and had a pre-existing home erected on it. At one point the parties lived in rented accommodation which they called the Third [Suburb O] Property. In due course, the Second [Suburb O] Property was sold, and the proceeds of sale were used to buy a property at [Suburb D] in the name of the wife, which is still retained.

The husband brought into the marriage a property at [Suburb A] that was given to him by his grandfather and put in the husband’s name. A house was subsequently built on the [Suburb A] Property and rented out. At a certain time, the husband signed a transfer, following which the husband retained a 20% interest and the balance was held by the trustee of a discretionary trust, the beneficiaries of which were the wife and the children. When the [Suburb A] Property was sold, the proceeds of sale were used, with other monies borrowed by the wife and [Laura], to acquire the [Suburb B] Property, to which reference has been made above, in the names of the parties and the children in certain percentages. That property has now been sold.

There was also a property at [Suburb Q] that the parties purchased as joint tenants which was later sold, the sale proceeds of which were used to fund the construction of the house on the [Suburb A] Property.

The credibility of the evidence given by the witnesses is a crucial issue in this case because the resolution of a great many issues of fact depends upon the testimony of the witnesses which is without objective corroboration.

In this case, not only is the oral evidence given by the parties' witnesses in conflict in respect of all manner of matters, large and small, but the wife has made the most serious allegations against the husband in respect of entrenched and repeated family violence against the wife and sexual abuse of his children. Even though the forensic effect of these allegations only goes to supporting a case that the division of the matrimonial property between the wife and the husband should be adjusted by an appropriate percentage to favour the wife, by reason of the consequences of the husband's conduct in making the wife's ability to contribute to the matrimonial property significantly more arduous, the allegations made by the wife are of the utmost gravity and damaging to the husband's character and reputation.

The inconsistency between much of the testimonial evidence given by the parties and their witnesses in this case is stark. The position adopted by the husband was one of total innocence in response to serious allegations made in the wife’s case and the position adopted by the wife was that the conduct of the husband was, in many respects, gravely delinquent. Although the evidence of the wife was relatively less absolute than that given by the husband, as will be seen, the wife point-blank denied many facts favourable to the husband's case.

Well-established authority provides guidance as to how the Court should go about determining the credibility of oral evidence given by witnesses, although a question arose as to whether the same principles are applied in this Court compared to the principles that are applicable in the Family Court or other federal courts. The classical statement of the proper approach to be adopted by the Court is that made by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) at CLR 361-2, as follows:

In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, Mason CJ, Brennan, Deane and Gaudron JJ said at ALJR 170-1 (footnotes omitted):

Thus, in a civil case the standard of proof does not change and requires only that matters to be proved be established on the balance of probabilities. The seriousness of the issue does not impose upon the party propounding it a need to establish the issue on a more onerous basis than that it is more probably than not true. However, it is necessary for the Court to have a positive belief that the issue has been proved to the requisite standard. The seriousness of the allegation will have a bearing on the attainment of this judicial satisfaction, as it is a matter of experience that people do not generally act in a delinquent manner and the likelihood of them doing so in a particular case is generally inversely proportional to the seriousness of the conduct. Furthermore, the need for actual persuasion means that the Court may not be persuaded that the burden of proof has been satisfied just because the evidence led by one party is slightly more persuasive than that led by the other. The evidence may simply be insufficient to persuade the Court to believe the fact alleged.

This principle is now inherent in s 140 of the Evidence Act 1995 (NSW) which provides (the equivalent provision of the Evidence Act 1995 (Cth) being in the same terms):

The wife sought to persuade the Court that, at least in federal courts, s 140 of the Evidence Act has supplanted the principle in Briginshaw. The wife relied upon the judgment of French and Jacobson JJ in Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69, where their Honours said at [110]:

The passage in the separate judgment of Branson J with which their Honours agreed is:

Thus, s 140 of the Evidence Act does not operate differently from the principles discussed in Briginshaw. There is, in reality, no ‘Briginshaw test’, if such a ‘test’ is seen as referring to a standard of proof higher than the universal civil standard. The Briginshaw principle is really a philosophy of judicial reasoning.

Consequently, the wife’s additional reliance on the observations made by the Full Court of the Family Court in Johnson & Page [2007] FamCA 1235 at [69], that it is now more appropriate to refer to s 140 of the Evidence Act rather than to “the Briginshaw test” does not mean that the principles discussed by Dixon J have ceased to be relevant to the present case.

[In] 2015, the husband was arrested and charged with [multiple] counts of sexual assault based on allegations made by [Jess] and [Laura]. The husband pleaded not guilty to all charges. The husband's criminal trial [took place] in the New South Wales District Court […]. The wife, [Laura], [Jess] and [Lucas] gave evidence for the prosecution and the husband gave evidence in his own defence. The jury returned a unanimous verdict of 'not guilty' to all […] counts […], and the husband was acquitted.

The fact of the husband's acquittal of all the criminal charges made against him does not prevent the wife proving in these proceedings, on the balance of probabilities, that the husband in fact was guilty of the conduct alleged by her. However, for the purpose of the application of the principle in Briginshaw, which is no less relevant than the application of s 140(2)(c) of the Evidence Act, I consider that the fact of the husband's acquittal justifies him in expecting that the Court will take care to properly apply that principle, where it is asked to make findings of fact that are inconsistent with his acquittal.

The injunction in Briginshaw that, in any case, the Court “must feel an actual persuasion of [the] occurrence or existence [of a fact] before it can be found” is applicable to a substantial number of the facts in issue in this case, where proof depends only upon assertion and counter-assertion of witnesses whose credibility is questionable.

In Pavlis v Pavlis [2021] NSWSC 1117, Kunc J collected a number of authorities and stated propositions that are generally relevant to the fact-finding exercise in which the Court must engage, where that is dependent upon the credibility of the testimonial evidence of witnesses. As well as referring to the Briginshaw principle and s 140 of the Evidence Act, his Honour said, relevantly:

This first proposition made by Kunc J applies to the present case, because a substantial proportion of the evidence consisted of assertions by interested parties and witnesses about conversations and events that occurred many years ago in the almost complete absence of objective, confirmatory evidence.

Relevantly, Kunc J continued by observing:

In cases such as the present, where much of the evidence given by the parties and their witnesses is diametrically inconsistent, it may not be possible for the Court to form the necessary degree of satisfaction that the case of one or other party is valid unless evidence is given by a party against interest, or evidence can be called from an independent witness who can give evidence that shatters the illusion of validity of the case made by one of the parties. In such a case, the calling of independent evidence may be a crucial forensic step where that is possible.

Kunc J then set out the following propositions:

These observations are important to this case as the parties raised many issues the proof of which depended upon assertion in the absence of any significant exploration of the context. The parties appear to have expected that the Court would accept the evidence called by one party as credible and disregard the evidence called by the other as being unreliable, and consequently accept the first party's case, notwithstanding the tenuous nature of many aspects of the evidence. Except where a party's evidence is shown to be wholly unreliable, however, it is necessary for the Court to resolve all the issues separately, having regard to the persuasiveness of all the evidence relevant to each issue. Global findings about the credibility of any witness are usually not warranted.

The eighth proposition stated by Kunc J is important in this case, in which so many issues depend upon whether the evidence called by one party's witnesses or the other party's witnesses is accepted. The success of a party in diminishing the credibility of the other party's witnesses may not establish the issue in contention, because of a dearth of adequate persuasive evidence. The possibility is thereby increased that the Court will ultimately be driven to conclude that many of the issues propounded by both parties simply have not been proved.

Finally, his Honour said:

It is relevant in considering the ninth proposition stated by his Honour that s 79(4) of the Family Law Act states that "the court shall take into account" the matters that follow in considering what order (if any) should be made under the section. This Court has more experience in determining applications for further family provision under s 59 of the Succession Act 2006 (NSW), in respect of which s 60 lists matters that the Court "may have regard to" (emphasis added) for the purpose of determining the application. It may be that parties to property settlement proceedings under s 79 of the Family Law Act will respond to the mandatory terminology in s 79(4) by attempting to prove in a comprehensive way all of the matters that the Court "shall" take into account, even though, by reason of the passage of time, the complexity of the issues, and the paucity of available evidence, it is not realistic to expect the Court to make the findings sought, having regard to the matters considered by Kunc J in Pavlis v Pavlis, and other relevant evidentiary considerations.

What follows are my findings on the credibility of each witness. These findings draw on my impressions of the witnesses based upon my observation of the way they gave their oral evidence and upon an exploration of historical matters impugning or bolstering their credit.

To all outwards appearances, the husband was a credible and satisfactory witness. The husband's demeanour was mild, attentive, responsive, immediate, and he appeared to be ready to accept minor corrections. The husband was not obliged to concede any major error in his evidence because of being confronted with objective, inconsistent evidence for which there was a sound evidentiary foundation.

The husband's evidence substantially involved the complete denial of the allegations of wrongdoing made against him by the wife in relation to family violence directed at the wife and the sexual abuse of their children. The husband did not make concessions involving a limited acknowledgement of the allegations made by the wife, with the apparent objective of minimising the significance of the allegations. As a forensic matter, that course carries with it the risk that any significant inconsistency with objective and credible independent evidence will cast a serious doubt over all the evidence given. A party who concedes some wrongdoing that is less than the total alleged is likely to find it easier to explain limited inconsistencies between the objective evidence and the matters conceded, than a party who has insisted upon absolute innocence.

The wife's principal submission against the credibility of the husband's evidence was that the husband made no admissions and remained baldly in denial in nearly every aspect of his alleged conduct. That will be so, if the Court starts from the assumption that all the wife's allegations are true; however, the submission begs the question. Plainly, the Court cannot conclude from a blanket claim of innocence that any or all charges are true. The Court is required to carefully review all the evidence to determine whether it should accept that any of the husband's denials are inconsistent, in a significant way, with what the evidence objectively establishes. If the Court makes such a finding, that will throw doubt over all of the husband's denials and may make it easier for the Court to accept the evidence that tends to establish other aspects of wrongdoing on the husband's part.

The husband’s credibility was damaged substantially by the evidence that he gave about his income tax returns. The husband said that all his income tax returns, during at least the period leading up to the time when he left the [Suburb D] Property in 2007, substantially understated his income. The husband’s position was that his understatement of his income was a matter between him and the Commissioner of Taxation, and that the Court should simply accept his testimony concerning the amount of the income that he actually earned and the amount of the cash that he gave to the wife weekly for the maintenance of the family. However, the persistent understatement by the husband of his income in his tax returns, which must have been accompanied by knowingly false declarations concerning the accuracy of the returns, demonstrates a serious propensity on the part of the husband to engage in deceit for financial benefit.

The husband’s credibility was further undermined by evidence given by [Lucas], which will be considered below in the context of the allegations of family violence, that, contrary to the husband’s denials, he sometimes drank alcohol to excess, and that [Lucas] witnessed the wife’s injuries on a number of occasions that she attributed to the husband’s family violence.

The husband was cross-examined by counsel for the wife about a proposed borrowing of $600,000 from Perpetual Trustees Australia Ltd on the security of the [Suburb A] Property, which was in the sole name of the husband.

The court book included the following documents relevant to this issue:

There is no evidence that the $600,000 loan was actually made to the husband, and, as I understand it, it is accepted by the wife that, even if the documents evidenced an intended transaction by the husband, it was not completed.

The husband's involvement in these events was put to him in cross-examination in the following terms [T 187.25-187.33]:

The documents that I have referred to above were put to the husband and, in outline, the husband said that he had no intention to borrow money, he did not sign the documents, he had not met [Russell Nichols] until 2004, the signatures were not his, and he did not know about the documents until he learned of them in the course of these proceedings.

The husband's limited annual income that will be discussed below raises a question of how the husband could have procured a $600,000 loan. The average of the husband’s taxable income for the years 2001 to 2003 was about $28,800 per annum. Given that any lender should have allowed for the fact that the husband had to maintain a family of six, it is difficult to accept that this average income would have been considered sufficient to service a $600,000 loan.

The provenance of the documents for the purpose of their tender into evidence does not appear to have been established. [Russell Nichols] was not called to give evidence, even though the wife said in cross-examination that she was not aware of him having died, although she did not know his whereabouts.

The wife denied in cross-examination that it was she who attempted to borrow the $600,000, and she said that she did not sign the documents pretending to be the husband. The suggestion in cross-examination that it was the wife who signed the documents might have been unwarranted were it not for the fact that the evidence establishes that, at a later time, the wife did in fact forge the husband's signature on a significant commercial document. I will deal with that issue below when I address the credibility of the wife’s evidence.

When the husband’s brother [Steven] was called to give evidence, no question was put to him directed at establishing the foundation for the proposed $600,000 borrowing, by obtaining evidence of a request by [Steven] that he could borrow that amount from the husband.

The documents comprise a very curious feature of the proceedings because, as there was no borrowing of $600,000, it would have been immaterial if the husband had admitted making the application and signing the documents, and then saying that he had changed his mind. There was no exploration of why the husband may have applied for a loan of $600,000 and then abandoned the application after it had been approved, save for the suggestion that he intended to lend the money to his brother.

As it is, the only real significance of the documents is the husband's complete denial of any involvement, insofar as that may be relevant to his credit if the Court does not accept his denial. The wife’s position was effectively that the documents described above should be taken to speak for themselves. I accept that they should be taken at face value insofar as the Court should assume that [Russell Nichols] acted honestly and professionally. Consequently, the wife submitted, the husband’s denial of any knowledge of the documents and any involvement in a proposed $600,000 borrowing was a blatant lie.

However, the failure of the wife to call [Russell Nichols] or to explain his inability to give evidence, the failure to demonstrate the provenance of the documents, the failure to put any relevant question to [Steven], the appearance that the husband’s limited income would not have permitted him to service a $600,000 loan, and the fact that the wife has admitted to forging the husband’s signature on a commercial document, create a serious barrier to the Court accepting the wife’s submission. The Court is entitled to be suspicious about the husband’s denial of any knowledge or involvement in the proposed $600,000 borrowing, but the evidence does not provide a proper basis for a finding that the husband’s denial was dishonest.

This conclusion is reinforced by my determination of recent proceedings in which a solicitor was obliged to admit that, as a result of the duplicity of a fraudster, all of the steps she took and certifications that she made that named mortgagors had duly executed a mortgage were entirely fictitious, notwithstanding the elaborate regulations that are now in place to validate electronic conveyancing: see Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415. There was simply insufficient evidence to establish the husband’s involvement in the proposed $600,000 loan.

The next curious feature of the evidence upon which the wife relied to discredit the husband consisted of three notes that were said by the wife to have been written by the husband shortly after the wife visited her general practitioner for relief from an injury that she said resulted from family violence committed by the husband. The notes were written at a time when the parties were living at the [Suburb D] Property, and their import was to state that the husband made no claim to any interest in that property. Although the wife tendered the notes into evidence through one of her affidavits, she did not explain the full context in which the notes were allegedly written by the husband.

The terms of the first two hand-written notes are:

The third note provided:

It was put to the husband in cross-examination that these statements had caused the wife to understand that the husband did not propose to make a claim on [Suburb D]. The husband’s response was [T 304.47]: “That’s not my writing. I did not write these things.” Asked the question again, the husband responded that he did not write the letters. Counsel for the wife left the matter there and went on to another subject.

The evidence included a costs agreement between the wife and [XYZ & Associates], solicitors, on the subject “re family law matter”. The document is signed by the wife and dated 14 November 2004. That is the date of the third of the notes that are extracted above. One copy of the costs agreement appears to have been countersigned by the husband and dated “14/11/04”. There is a second copy of the costs agreement, that is not signed by the wife, which is subscribed with the following handwritten note:

It is difficult to assess the significance of this evidence concerning the credibility of the husband. However, I consider the husband's blanket denial that he wrote these notes much less persuasive than the evidence that he gave concerning the proposed $600,000 borrowing. The wife's case on this issue is not weakened by a failure to call a witness, such as [Russell Nichols]. The costs agreement between the wife and the solicitors provides a context in which it is likely that the parties discussed their entitlement to the matrimonial property. If the husband did not write the notes, then the only realistic alternative is that the wife did so. Nothing was done with the notes, and they did not lead to any resolution of the matrimonial dispute. The notes appear to have been written in a somewhat chaotic and ill-considered way. They do not appear to record the result of a sober consideration and a true intention to record an agreement between the parties. It is likely that if the husband wrote the notes he did so in an emotional state, given their appearance.

The problem for the husband's case is that his response to the notes was simply to deny having anything to do with their preparation. That is not a persuasive response. The result is to diminish the credibility of the husband's evidence generally.

In 2013, the husband signed a lease over the [Suburb B] Property in favour of an acquaintance. At the time, the husband only had a 14% interest in that property as a tenant in common with the wife and the children. The husband did not have authority to grant the lease by himself. He claimed in cross-examination that the other owners had agreed to the lease but provided no evidence of their agreement. It was explicitly put to the husband in cross-examination that his signing the lease by himself was no different or more serious than the wife forging his signature on a document, as will be considered below.

I do not accept that the act of the husband signing a lease in circumstances where he did not have the authority of the other co-owners equates in its level of dishonesty to the wife’s fraudulently forging of the husband’s signature on a commercial document. I do not accept that this evidence seriously impugns the husband’s credibility.

Something of the spirit in which this case has been conducted by the wife is reflected in the following exchange between the husband and counsel for the wife in cross-examination, concerning an illness from which he suffered after returning from a trip to [Country L] with the wife’s parents in 2004 [T 226.22-226.32]:

It is not clear that counsel had a basis for the imputation made.

I have found the task of making a judgment concerning the weight to be given to the husband’s evidence a difficult one. That is because the husband uniformly denied all accusations that could establish some form of culpability on his part. The wife did not show that the husband’s denials were unequivocally inconsistent with any independent objective evidence. The wife substantially relied upon the inconsistent testimony of herself and her own witnesses. However, for the reasons given above, I am satisfied that the Court cannot always accept the husband's denials, and his evidence cannot be accepted as being uniformly reliable. Once that position is reached, the logical outcome is that the Court can never be sure when the husband's evidence is reliable.

I have not concluded, however, that the husband's evidence should only be accepted where it is supported by reliable testimony or the objective evidence. That is in part because much of the husband's evidence was reasonably persuasive and consistent with the other evidence. It is also because I have been forced to conclude that the wife was also an unreliable witness. As the Court cannot reasonably accept the evidence given by the husband on the basis that he was an entirely reliable witness, it will be necessary for the Court to do the best it can, in deciding each issue, to weigh all of the evidence, and to decide whether the evidence is sufficient to establish the necessary level of actual persuasion in the mind of the Court.

The husband called his father, [Jeff], to give evidence. To my observation, the husband's father found giving evidence challenging in various respects. In large part that appeared to be because [Jeff] had not mastered spoken English. He said that he could not write although he could read.

[Jeff] did not know all the children's full names and dates of birth, and he could not give a good explanation of how he was able to recite the names of the children and their dates of birth in his affidavit. The answer must be that a lawyer assisted [Jeff] to compile the relevant information. Nonetheless, [Jeff] appeared to be ready to answer the questions that were put to him in cross-examination in a genuine way to the best of his limited ability.

[Jeff] gave evidence primarily in respect of two subjects. The first concerned whether the husband's side of the family gave to the wife's father an amount of $50,000 in cash after the parties were married as a contribution from the husband's side to the property of the marriage. Something of the flavour of [Jeff]’s evidence will be found in the following exchange in which counsel for the wife apparently sought evidence that might discredit [Jeff]’s claim that he witnessed $50,000 in cash being given by his own father to the father of the wife [T 339.20-339.29]:

The second important aspect of the evidence given by [Jeff] concerned the issue of whether the husband possessed or had ever used a gun, or whether the only guns in the husband's family were owned by [Jeff] and kept in a safe, to which the husband did not have access. This evidence related to a claim by the wife that, in 1998, the husband had produced a gun in the family home and discharged it in the presence of the wife, the children and other family members.

I will deal with these two aspects of [Jeff]’s evidence below when I consider the issues to which the evidence relates. For the present, and accepting that, from [Jeff]’s demeanour and apparent recollection, he is not a completely reliable witness, I am prepared to accept that his evidence in relation to the straightforward facts of whether a $50,000 gift was made from the husband's side of the family to the wife's side, and as to who owned guns as between the husband and the father, should be given substantial weight.

The husband's brother, [Steven], was also called to give evidence. His evidence was brief and given in a matter of fact and evidently credible way. [Steven] gave evidence about the $50,000 gift, although he acknowledged that he was only 12 years old at the time. The acceptance of [Steven]'s evidence on this subject is made easier by the fact that it was corroborated by the evidence given by [Lucas]. [Steven] also gave limited evidence concerning his experience of the husband ever having a gun. [Steven]'s evidence is of limited significance, but it deserves some due weight in view of the way in which it was given.

Before the trial commenced, on the application of the wife's counsel, a special arrangement was made concerning the conduct of the hearing because of the expressed fear of the wife about having to be in the presence of the husband. The result was that, when the husband was giving his evidence in the witness box, the wife participated remotely by listening to the evidence by telephone from her home. When the wife was giving her evidence in the witness box, the husband was also required to participate remotely. Arrangements were made to ensure that the parties would not cross paths outside the times when one or the other was giving evidence.

To my observation, the wife's presentation of her evidence in respect of her demeanour, self-possession, and clarity of expression was significantly less impressive than that of the husband. I am prepared to accept, based upon the evidence and my own experience, that the limitations that I observed in the way in which the wife gave her evidence are consistent with her diagnoses as suffering from post-traumatic stress disorder (PTSD) and depression. The evidence did not disclose whether the wife was taking medication that affected her physical capacity to give evidence fluently.

On a number of occasions, the wife appeared to be distressed, but she chose to continue her evidence when given the opportunity to compose herself during a short adjournment. The wife appeared to become distracted at times, and apparently found it difficult on occasion to respond to questions in a manner that was clear and focused. There is no need for the Court to provide more than a couple of examples.

As will be explained in detail later, [Jess] went missing on 13 June 2007 and left a note that the wife claims contained a statement that the husband had sexually abused her. The police were called, and there is an issue in this case about whether the husband made an admission in the presence of the wife, [Laura], [Lucas] and the Police that he had sexually abused [Jess]. Cross-examination occurred as to whether the wife told the Police that the husband had made the admission, in the context of the husband shortly afterwards travelling with the wife and [Laura] to recover [Jess], when she was found by the Police to be in Queensland. The transcript records [T 448.47-448.50]:

The wife was asked in cross-examination whether, on 5 January 2014, she had sent a voice message to the husband saying "You left me no choice. Bye". She first answered "No". The wife then said [T 499.50-500.13]:

I am satisfied that the wife's PTSD and depression have diminished her capacity to give evidence with the same level of apparent credibility as a witness without those disabilities might be able to do. Consequently, the Court must guard against discounting the credibility of the wife's evidence, where the Court should be satisfied that deficiencies in the evidence may be the result of the disabilities rather than a true lack of candour or recollection on the part of the wife. On the other hand, the unfortunate consequence of the presence of the disabilities may be to mask real inadequacies in the evidence given by the wife. I consider that, particularly as the issue is whether the husband's conduct has been the cause of the wife's disabilities, the Court should treat the apparent effect of the disabilities on the manner in which the wife has given her evidence as being as neutral a factor as is reasonably possible. However, the apparent consequences of the disabilities do not provide a ground for proving the allegations made against the husband. The Court cannot reason from the presence of the deficiencies in the way the wife gave her evidence that are apparently caused by her disabilities to positive conclusions on questions of fact that are supportive of the wife's claim.

Notwithstanding those reservations, the following parts of the evidence have cast doubt on the reliability of the evidence given by the wife.

The wife admitted that, on 6 January 2014, she forged the husband's signature on an exclusive agency agreement addressed to [DEF Real Estate Pty Ltd] in respect of the sale of the [Suburb B] Property by private treaty (Exhibit P9). The wife arranged for the children to sign the document but did not inform the husband of the proposal. Instead, she wrote the husband's signature on the document, taking care to make it look like his own genuine signature by consciously copying the signature from another document. To procure the draft exclusive agency agreement, the wife attended at the real estate agency to collect the document and returned it when it had been executed. It appears that the wife arranged for a contract for sale to be prepared.

The wife was charged under s 192G(b) of the Crimes Act 1900 (NSW) (dishonestly making any statement that is false or misleading in a material particular with the intention of obtaining a financial advantage) and s 307A(1) (making a statement knowing that it is false or misleading in connection with an application for a benefit). Although the evidence is not complete, it appears that a conviction was not entered against the wife, and she was dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Mental Health Act). Although the charges were apparently dealt with on the basis that the wife was mentally impaired in the manner described in the section, that does not exonerate the wife completely.

In cross-examination, the following exchange occurred concerning why the wife executed the sales agency agreement [T 490.10-490.26]:

Further [T 500.34-501.5]:

The wife's explanation of her conduct is unpersuasive. It is improbable that a person in the wife's position would go to the trouble of appointing an exclusive agent and taking the risk involved in forging the husband's signature if she did not actually want to sell the property. It is improbable that the wife would take the steps that she did just to cause a 'for sale' sign to be put up on the property as a step in causing the lessee to vacate.

As I will explain below when considering the evidence of the properties purchased and improved by the parties, the wife firmly denied the substantial work done by the husband in building homes on the [Suburb Q] and [Suburb A] Properties. The wife also understated the work done by the husband in the construction of the homes on the First [Suburb O] Property and the [Suburb D] Property. The wife was not prepared to openly concede the contributions made by the husband. I will also explain that the wife was not prepared to admit that the husband's family contributed $50,000 towards the cost of building the home on the First [Suburb O] Property.

A less significant matter, which nonetheless underscores the refusal of the wife to give due credit to the effort of the husband, was that the wife refused to accept that the husband mowed her parents’ lawns, did landscaping, and painted fences. [Lucas] in cross-examination agreed that, from time to time, the husband undertook work of this type for his parents.

Either the wife consciously understated the contributions made by the husband, or, because of her self-interest, she has convinced herself of the truth of an alternative and incorrect reality. These are significant deficiencies in the evidence given by the wife, as they go to a primary issue in these proceedings, being the contributions of the parties to the acquisition and improvement of the matrimonial property.

The parties accepted that it is a cardinal requirement in proceedings under s 79 of the Family Law Act that the parties make full and frank disclosure of the information about the property that is owned by them that is necessary to enable the Court to properly perform its function.

The wife did not properly disclose that she had an interest in property situated in [Country L]. [Lucas] confirmed in evidence that he had been told by [Jess] that the wife had some interest in such property. The evidence given by the wife on the subject in cross-examination was [T 389.45-389.47]:

That was a casual and unsatisfactory response, as it involved an acknowledgement that the wife was once entitled to property in northern [Country L], but that she had not bothered to determine what the current position was.

The parties treated the date when the parties separated as being an important issue in the proceedings. As I will explain, it is not as important an issue as the parties considered it to be.

The wife was adamant in her evidence that the parties separated in 1998, notwithstanding that they continued to live under the same roof until 2007. Yet, the wife conceded in cross-examination that, in her statement to the Police made on 3 July 2014, she said that her separation from the husband occurred in around 2004. Later, in her statement to the Police of 17 July 2014 she said that she had been married to the husband for 27 years and separated since mid-2007.

Before the giving of those statements, the wife had instructed a solicitor to write a letter to the husband on 20 December 2011 to propose a property settlement between the parties. The letter contained the statement: "I am instructed that you married in 1987 and had been separated since 2007." The wife conceded in cross-examination that this statement was consistent with her instructions to the solicitor.

Even accepting that a party in the wife's position could conceive of the word 'separation' as having a different meaning for different purposes, the seriousness of the circumstances in which the wife has stated, on a number of occasions, that the separation occurred long after 1998 casts doubt on the validity of her evidence. At the least, the evidence suggests that the wife's firm belief that the separation occurred in 1998 is firmer now than it was at times closer to the event.

The wife's evidence was not always satisfactory, and I do not consider all of the evidence to be credible, in the sense that I would be prepared to accept the truth of the evidence solely on the basis of the wife's testimony.

As I have explained, the wife did not always give her evidence in a persuasive manner and, because of the effect of the PTSD and depression from which she suffers, the Court was sometimes left in doubt about whether unsatisfactory aspects of the wife's evidence were real or should be attributed to the disabilities from which she suffers.

I propose to treat the evidence given by the wife in essentially the same way as I will the husband's evidence, as I do not perceive any rational basis for distinguishing between the weight to be given to each party's evidence.

[Lucas] was a defendant to the equity proceedings and the family provision application commenced by the wife, which were settled before the commencement of the hearing. [Lucas] was a defendant in his capacity as executor of his father's estate. Although [Lucas] is the brother of the wife and the uncle of [Laura], he presented as a relatively independent witness, having been the defendant to the proceedings prosecuted by the wife and, as he said in evidence, having fallen out with [Laura] in 2013.

[Lucas] gave evidence for the prosecution in the criminal proceedings against the husband. For that purpose, he made a statement dated 16 April 2014 that became Exhibit D3. Pages 449 to 467 of the transcript of the evidence given by [Lucas] in the District Court became Exhibit D4. [Lucas] also made an affidavit dated 28 February 2019 in the proceedings that were settled. That affidavit was not read in these proceedings, although [Lucas] was asked some questions about its contents in cross-examination by counsel for the husband.

The wife submitted in par 94 of her final written submissions that [Lucas]'s evidence should be preferred over the evidence given by the husband. [Lucas] was a straightforward and satisfactory witness, and I will give his evidence considerable weight in relation to the evidence that he gave of what he observed and heard. [Lucas]'s evidence is particularly valuable in respect of the contested issue of the amount of building work done by [G & P Brooks] and the husband in respect of the various properties owned by the parties from time to time. [Lucas] was a director of that company from 1990 and was intimately concerned in its affairs.

However, as will be seen, the credibility of [Lucas]'s evidence is diminished to an extent by difficulties with the evidence that he gave concerning the events of the evening on which [Jess]'s disappearance was discovered.

I am satisfied that [Laura] gave her evidence in cross-examination in a reasonably straightforward and satisfactory manner. Counsel for the husband attempted in cross-examination to get the wife and [Laura] to admit that they were in a co-dependent relationship. Neither witness really made the admission, although there is an extremely close bond between the wife and [Laura]. It would be natural to expect [Laura] to be somewhat partisan in support of the wife's case, which is consistent with the evidence that [Laura] gave.

The greatest concern that I have on the issue of the credibility of [Laura]'s evidence is the frequency with which her affidavit evidence mirrored that given by the wife on almost a word for word basis. It is not feasible to set out in these reasons all the occasions when this happened. The evidence given by [Laura] was sometimes in words so similar to the wife's evidence that it appeared that it was the same but only with words changed to reflect the different perspectives of the two witnesses. That may have been because [Laura] and the wife discussed the issues so frequently that their recollections grew to match each other precisely. It may be because the same lawyers drafted the two affidavits. The Court cannot tell. This is a factor which diminishes the weight of the evidence given by [Laura], particularly when the subject events occurred many years before the dates of [Laura]'s affidavits.

There is another source of concern that arose out of the evidence given by [Lucas], which was not answered, but which also was not fully explored.

[Lucas] gave evidence that, in August 2017, [Laura] and the wife entered [Lucas]'s home where [Lucas]'s father was living, and said they were taking the father away, and accused [Lucas] of having abused his health by not looking after him properly. [Lucas] said that the wife and [Laura] became aggressive by grabbing the father by the arm and tugging him, causing him to become confused and agitated. After [Lucas]'s third warning that he would call the Police, the wife and [Laura] left his home without taking the father.

More significantly, [Lucas] gave evidence that a power of attorney granted to [Lucas] by his father was revoked in favour of [Laura] only 17 days before the father passed away, and that [Laura] was made a director of [G & P Brooks] only 11 days before the father's death. The father was taking medication and did not have a real involvement with the business at the time. [Lucas] expressed the view that [Laura]'s conduct was inappropriate insofar as it exercised control over his father at a time when he was infirm. The ASIC Current & Historical Organisation Extract for [G & P Brooks] shows that [Laura] was appointed as a director of the company on 6 November 2017, which is 12 days before [Grant] ceased to be a director. [Laura] ceased to be a director on 9 August 2018. The wife did not respond to this evidence in her case. All that can be said is that there is an appearance that [Laura] may have taken steps in her own interest to try to secure an element of control over the company after her grandfather's death.

[Lucas] also gave evidence in cross-examination that [Laura] had approached him to discuss him doing a joint development of the [Suburb B] Property with her [T 570.14]. [Lucas] appeared to me to be quite confident of that answer. When [Laura] was asked in cross-examination if she had proposed to [Lucas] that he assist her with the development of the property, [Laura] said: “No, that’s not happened…but I have not spoken to my uncle about developing this property” [T 611.18-611.20]. When asked again immediately afterwards, [Laura] said [T 611.24]: “I have never spoken to my uncle about developing this property.” I prefer the disinterested evidence of [Lucas]. I consider that [Laura]’s responses damaged her credibility, as it is relatively obvious that it would have occurred to [Laura] to use the expertise of [G & P Brooks] to develop the [Suburb B] Property so that the whole development profit could be earned by the owners.

As will be seen, the parties during the period of their marriage, including after the time of separation, purchased and sold a number of properties, the remainder of which now constitute the major part of the parties' assets. I will consider the history of the parties' dealings in real property below, but it is sufficient for the moment to note that the wife is the owner of the residential property at [Suburb D] that was the matrimonial home until the husband finally left in 2007. The parties and their four children also had interests in the [Suburb B] Property which has recently been sold.

For the purpose of the hearing, the parties divided the property into two pools. As the parties ultimately agreed upon this approach, it has not been necessary for the Court to consider whether it should deal with the parties’ property globally or on an asset-by-asset basis. I am satisfied that the approach agreed to by the parties was a proper and sensible one.

Pool 1 consists of the parties’ interest in the [Suburb D] Property and the proceeds of sale of the [Suburb B] Property, as well as sundry other assets, subject to various liabilities. As explained above, Pool 2 consists of the wife's entitlement under the settlement agreement in respect of the equity and the family provision proceedings and her legacy under the will of her father. The assets in the two pools are explored in detail below.

The husband changed his position during the course of the hearing, but in the end accepted that the property in Pool 2 was not available to be subject to an order in his favour under s 79 of the Family Law Act, and its relevance to his case is as a financial resource of the wife for the purposes of the application of s 75(2)(b).

The parties' positions concerning the orders that should be made by the Court in these proceedings have been somewhat fluid. As I understand their final positions, the husband sought an order that he be paid 60% of the net assets in Pool 1, as finally determined by the Court, on the basis that the value of the [Suburb B] Property is determined by the contract for sale, and the value of the [Suburb D] Property will be determined when it is put to auction.

The wife's final position was that it is not just and equitable that any order be made that changes the ownership of any of the property in Pool 1. Alternatively, the wife submitted that her contribution to the property in Pool 1 should be assessed at 65%, and that her contribution should be increased by 10-15% to allow for the consequences of the family violence committed against her by the husband and the sexual abuse of the children, leading to the wife receiving a 75-80% share of the net amount of Pool 1 as well as the whole of Pool 2.

I will now consider the evidence concerning the purchase, improvement, and sale of residential properties by one or other of the parties to the marriage. It will be convenient to deal with a number of related issues in the context of considering individual properties.

On about 23 July 1987, prior to the parties' cohabitation and marriage, the wife purchased a property at [Suburb O] that the parties have called the First [Suburb O] Property. The price was $81,150. The wife said in evidence that she purchased the First [Suburb O] Property using savings that she had accumulated.

A four-bedroom house was constructed on the First [Suburb O] Property. The wife said that the cost of construction was approximately $120,000, which was made up of $30,000 from her savings, $74,000 worth of services and materials provided by [G & P Brooks] and $16,000 in wedding gifts. The wife said that [G & P Brooks] constructed the house and provided engineers, bricklayers and building and landscaping materials. She said that the husband did not contribute financially towards the acquisition of the property or physically to the construction of the house.

The husband gave evidence that in around early 1988, after the parties had decided to build a home on the First [Suburb O] Property, his grandfather, his father and his brother visited the property, and on that occasion the grandfather handed to the wife's father, [Grant], a brown paper bag, saying: "I have a gift for you [Max]. Here is $50,000 to help you with the costs of building your home." [Grant] opened the bag and pulled out a wad of cash, saying: "Thank you, this will go a long way to building the house."

The wife denied in cross-examination that the husband's grandfather contributed $50,000 to the cost of construction of the home on the First [Suburb O] Property. The husband's father, [Jeff], and the husband’s brother, [Steven], however, gave evidence that corroborated the husband's claim. [Lucas] confirmed in cross-examination a statement apparently contained in his evidence in the other equity proceedings that were settled [T 555.31-555.36]:

The evidence, particularly that given by [Lucas], satisfies me on the balance of probabilities that the husband's side of the family contributed $50,000 to the cost of building the home on the First [Suburb O] Property. The husband gave evidence of a conversation with [Grant], before the commencement of the building work, in which [Grant] told him that he would use the $50,000 in cash towards acquiring a holiday house in [Country L] for the family, and he would pay $50,000 out of the company to replace the cash. I infer that the intention was that the replacement $50,000 would be applied by [G & P Brooks] to the building costs.

The husband said that in early 1988, he withdrew the balance of his savings from various accounts and applied the money to the construction of the home on the First [Suburb O] Property. Although the husband tendered a number of deposit slips, he was unable to provide verification or establish the amount of any payment made by him. The husband stated that the home was funded by his savings of $25,208.41, the funds provided by his grandfather, and an amount of approximately $13,600 from the parties' joint savings between 1987 and 1990.

The husband said that he worked on site with a subcontracted carpenter who supervised and assisted him. He acknowledged that the plumbing and electrical work, roof tiling, bricklaying and plastering were undertaken by various contractors employed by [G & P Brooks]. He said, however, that he undertook the following work: assembly of house framing, insertion of eaves, insertion of windows, painting all internal walls and ceilings, completing the fit out (i.e. hanging of all the doors, installing the skirting boards, architraves and cupboards), installing a brick fence, and landscaping (the last-mentioned being completed by him and the wife after [Laura] was born). The husband said that, to the best of his recollection, he worked on average 20 hours per week (being weekends and on weekdays following his full-time paid employment) for a period of around 18 months. The husband said that he did not receive any remuneration for the work completed by him on the home on the First [Suburb O] Property.

[Lucas]'s evidence was that the husband assisted with the construction of the home on the First [Suburb O] Property. He assembled the house-frame, inserted the eaves and windows, painted the internal walls and ceilings, completed the fit out and did the landscaping. [Lucas] could not remember whether the husband built a brick wall.

The wife's evidence was that the First [Suburb O] Property was sold on 14 December 1995 for $540,000, and the proceeds of sale were used to purchase the Second [Suburb O] Property.

On 31 August 1988, the husband was gifted 5 acres of land located at [Suburb A] by his grandfather. The husband gave evidence that he was required to obtain a valuation for stamp duty purposes because the [Suburb A] Property was given to him for no consideration. The husband does not have a copy of the valuation, but he proved that the amount of stamp duty paid by his father was $9,891.50, and that that was the amount of stamp duty payable on a property valued at $320,000 as of 1 June 1988.

The husband gave evidence that, between late 1994 and early 1996, he constructed a home on the [Suburb A] Property. He did not have a builder's licence at the time and relied upon the licence in the name of [G & P Brooks]. The husband set out in his principal affidavit in the Family Court a list of all the work that he performed. He said that he ceased paid employment in late 1995 to complete most of the work. He worked on the [Suburb A] home on a full-time basis, an average of 10 hours per day, 6 days per week, for a period of 7 months. The husband did not receive any compensation for the works completed by him on the [Suburb A] Property. This evidence is consistent with the husband’s taxable income having fallen to $159 in the year to 30 June 1996 and only $7,783 in the following year. The husband said that for about two months in mid-1995, in addition to working on the [Suburb A] Property, he attended various auctions to purchase materials at a cost that was less than retail cost. The husband also set out a list of the work done by his father and brother to assist in the construction of the home on the [Suburb A] Property.

The husband also said that, by 1996, he had been the sole income earner of the household for 8 years, and by mid-1995 he had saved approximately $100,000. He said that to the best of his recollection, he applied $68,000 to the cost of materials and a total of about $32,000 was paid to tradesmen. There was no objective evidence to support the husband's claim that he could have saved $100,000 from his income over the 8-year period, given the evidence in his tax returns and his claims to have provided money to the wife each week to maintain the family.

By reference to what he said was his experience in the building industry, the husband claimed that his forgone income for working on the home on the [Suburb A] Property was about $50,400, and that his brother had done work worth about $4,000.

The wife gave evidence in her principal affidavit in the Family Court that the house on the [Suburb A] Property cost approximately $70,000 to build, and that a portion of the proceeds of sale of the [Suburb Q] Property, considered below, was used to pay the cost. She said that the balance of the construction costs was paid from the parties' joint account "and contributions for building materials from my parents".

In cross-examination [T 394.17-395.49], the wife conceded that the husband did some of the work on the home on the [Suburb A] Property that he claimed to have done, but denied that he had done other work, and was generally resistant to giving the husband credit for building the home. She said that she could not recall the husband's brother doing much, and that the father did not work on the property. In response to the suggestion that the husband "did the vast majority of the work on the [Suburb A] Property", the wife responded [T 393.42-393.44]: "There was other tradespeople".

[Lucas]'s evidence on the subject was categorical. He confirmed his evidence in par 48 of his affidavit in the other equity proceedings: "that [G & P Brooks Pty Ltd] played no part with the construction of [the [Suburb A] Property]. I know this because I was a director of [G & P Brooks Pty Ltd] at the time". [Lucas] said that the husband built the house of the [Suburb A] Property, which he knew from speaking with both the husband and the wife and visiting the property.

The husband gave evidence that from 1996 to 30 August 2003, the [Suburb A] Property was rented to a Mr [Barton] and his family for $350 per week. That rental income was paid by way of cash and the husband collected the money. He said that he provided all the cash to the wife, and the income was declared in his income tax returns for the financial years ended 30 June 1997 to 30 June 2004. He also said that from around May 2004 to June 2013, the wife received the rental income for the [Suburb A] Property, and that the husband did not receive any of that income. The wife's personal bank statements for the period 22 December 2012 to 21 June 2013 show monthly receipts of rent which apparently relate to the [Suburb A] Property. The husband claimed that he continued to pay the rates for the [Suburb A] Property from 2004 to 2013.

Owing to the central importance to this case of a transfer and the later sale of the [Suburb A] Property, and in the interests of maintaining the general chronology of the parties’ dealings in real property, it will be convenient to consider that transfer and sale in greater detail below.

On 5 January 1993, the parties purchased a property at [Suburb Q] as joint tenants for $80,000. The wife gave evidence that, to the best of her recollection, the [Suburb Q] Property was purchased using savings accrued during the early stages of the marriage, when the couple lived rent-free with her parents and were both working.

The wife said that, as the property was land only, she immediately arranged for a house to be built on the property, and her parents, through [G & P Brooks], oversaw and provided financial assistance for the construction of the house. The wife cannot remember precisely how much her parents contributed to the construction of the house. She said that she assisted in the project by painting the house and landscaping the garden. Her parents also employed the husband to construct the roof frame on the property. The parties borrowed $70,000 from the wife’s parents to assist in the construction of the house on the [Suburb Q] Property.

The husband does not appear to have given detailed evidence of his involvement in the construction of the house on the [Suburb Q] Property. [Lucas] said in cross-examination, however, that [G & P Brooks] did not construct the house and did not make any payments towards the project. [Lucas] said that he was a director of the company at that time.

The wife gave evidence that the [Suburb Q] Property was sold on 6 October 1993, following the completion of the construction of the house, for a price of $181,000. The wife simply said that "the net proceeds of the [Suburb Q] property were dispersed (sic)". A substantial part of the sale proceeds of the [Suburb Q] Property was used to fund the construction of the house on the [Suburb A] Property, as has been explained. The wife’s parents were repaid the $70,000 loan out of the proceeds of sale.

The Second [Suburb O] Property was purchased on 29 January 1996 from [Lucas] for a price of $550,000. Although this property was in the name of [Lucas], it had been the home of the wife’s parents for some time. Apparently, it was a more commodious property for the purpose of housing the family than the home on the First [Suburb O] Property. From December 1995 to late 1998, the wife’s parents lived in the Second [Suburb O] Property with the parties.

The husband gave evidence that the Second [Suburb O] Property was put in the wife’s name on the recommendation of [Grant], who advised the husband that that was the safer course so that no creditors could come after the husband if he got into any trouble in his business.

The wife's evidence was that her parents paid the additional $10,000 over and above the sale price of the First [Suburb O] Property. The husband said that the additional $10,000 of the purchase price above the proceeds of sale of the First [Suburb O] Property was funded by the parties’ savings and not by the wife’s parents.

Although it was not necessary to build a house on the Second [Suburb O] Property, the husband gave evidence of work that he did on the property including: repainting the whole of the exterior of the house, painting half of the interior, painting the fence, mowing the lawns, and fixing washers. He also said that he re-landscaped the whole front yard, built a retaining wall, installed a new letterbox, sanded down the kitchen bench top, dug up and re-landscaped the backyard, cut down and removed a large fig tree from the yard, and built and installed a pergola in the backyard.

In cross-examination, the wife denied that the husband had done any of the work on the Second [Suburb O] Property that he claimed to have done. [Lucas] acknowledged that the husband did some work on the property, including painting the exterior, painting the interior, re-landscaping the front yard and building a pergola in the backyard. [Lucas] was unsure whether the husband painted the fence or built a retaining wall, whether he installed a new letterbox or sanded down the kitchen bench top.

The Second [Suburb O] Property was sold by the wife on 23 November 1999 for $850,000. The sale proceeds were used, according to the wife, to purchase the [Suburb D] Property, to pay for stamp duty of $27,000, and to contribute to the cost of construction of a home on that land.

The [Suburb D] Property was purchased in the name of the wife on 21 January 2000 for a price of $700,000. The property was 5 acres of land.

The wife gave evidence that she told [Grant] that she would use the leftover money from the sale of the Second [Suburb O] Property to start building the house and would also get a loan from the NAB. [Grant] said that he would help absorb the costs to build the house as he was a builder. The husband claimed that the house on the [Suburb D] Property was funded with approximately $90,000, being the balance of the proceeds of sale of the Second [Suburb O] Property, and approximately $70,000 from the parties’ joint savings.

The husband acknowledged that on around 19 June 2001, the parties borrowed approximately $40,000 from the NAB to complete the construction of the [Suburb D] home. In due course, the wife’s parents paid out the NAB loan. The husband gave evidence of an oral agreement that he made in November 2001 with [Grant], in which the husband agreed to do considerable work on two houses owned by the wife’s parents and a house owned by [Lucas]. The husband listed the work that he did, which he said was completed on weekends and in between his full-time employment. The husband claimed that when [Grant] paid the sum of $39,813.43 to the NAB on around 2 February 2014, this was in performance of the agreement that the husband had made with [Grant].

The husband claimed that he played a highly active role in the construction of the house. He coordinated the construction and was assisted by various tradesmen. He installed the flooring, inserted the eaves, inserted the windows, inserted all internal doors and framing, painted all internal walls and ceilings, built a retaining wall on one side of the house, completed the fit-out and paved the driveway and entrance to the house. The evidence was that, during the building of the house between 2000 and 2001, he was working on a full-time basis, and the work was completed by him between contracting jobs, on weekdays after hours and on weekends. He said that he spent an average of 20 hours per week for a period of 12 months completing these works. The construction of the [Suburb D] home was completed by late 2001.

The husband said that his father assisted with the building work at no cost to the parties. The father spent five weeks during 2000 driving a bulldozer to clear the whole property, to fill a dam and to clear the debris that he had bulldozed. The father levelled the land to prepare the block for the foundations and levelled the land to create a 160-metre driveway.

According to a calculation done by the husband, the work that he did was valued at $29,432, and the work done by his father had a value of approximately $36,000. In addition, the husband claimed that he paid in total the sum of $111,000 for the hiring of contractors. The husband said that, to the best of his knowledge, the costs were mostly paid from the joint account into which his income had been deposited.

In cross-examination, the wife denied that the husband was responsible for coordinating the building of the house on the [Suburb D] Property. She denied that the husband installed the floorboards and inserted the eaves, that he installed the windows and the internal doors and framing, that he painted the internal walls and ceiling, and that he paved the driveway and the entrance with the wife’s help. The wife also denied that the husband’s father cleared the [Suburb D] Property for construction by driving a bulldozer.

On the other hand, [Lucas] accepted that the husband had assisted in the construction of the house on the [Suburb D] Property, by installing the flooring, inserting the eaves, inserting the windows, inserting internal doors and framing, painting internal walls and ceilings and building a retaining wall, completing the fit out, and paving the driveway and entrance to the property.

A significant dealing with the [Suburb A] Property occurred in 2004 whereby 80% of the interest in the [Suburb A] Property was made the property of a trust named the [Noriss Trust] (the Trust). The [Suburb A] Property was then later sold, the sale proceeds of which trace into the [Suburb B] Property. The circumstances of these dealings are critical in the determination of the question before the Court.

By deed made on 1 April 2004, the Trust was created with [G & P Brooks] as the trustee and [Lucas] as the appointor. [Lucas], as the appointor, was given the power to replace the trustee. As I understand the evidence, at this time [Lucas] had practical control of [G & P Brooks] as its active director. It may also be that [Grant] retained an influence, and it is probable that any exercise of the trustee's powers would have been discussed between [Lucas] and [Grant].

The circumstances in which the Trust was created are unclear, but it is probable that it was created at the initiative of [Grant] and possibly also [Lucas]. I am satisfied that the husband was not involved. The settled sum was $100. [Grant] made a statutory declaration on 2 April 2004 in which he confirmed that the assets of the Trust were the sum of $100.

By clause 3, the trustee was required each financial year to distribute the whole of the income of the trust fund to the income beneficiaries in such portion as the trustee in its absolute discretion determined. The trustee also had a power of accumulation. The income beneficiaries were identified in schedule 2 as being the wife and the four children or entities associated with them. The husband was also nominally a beneficiary as the spouse of the wife.

Clause 4 provided that the trustee shall distribute the whole of the corpus of the Trust to the corpus beneficiaries on the vesting date or the earlier date of termination of the trust in such portion as the trustee in its absolute discretion shall determine. The vesting date was defined in schedule 4 as one of a number of dates far in the future or "such earlier date as the Trustee may revocably or irrevocably appoint". The corpus beneficiaries were the same as the income beneficiaries.

The wife gave evidence that, in late-2003 and early-2004, she engaged a solicitor called [Alexander Neal], at [TUV & Co], to commence the property settlement process with the husband. She said that she had a conversation with the husband in which she told him that she had seen [Alexander Neal] because she wanted a property settlement and that she asked him: "How can I ensure the children are financially secure?" She said that the husband responded by saying the [Suburb D] Property was the wife's and he would not see a solicitor. The wife said that she feared that if she pressed the issue, it would result in more harm to her and the children, and that she ceased pursuing a property settlement.

The husband's evidence was that on about 13 May 2004, he was at [Grant]'s property and could tell that [Grant] was angry. The husband deposed to the following conversation with [Grant]:

The husband said that approximately 5 minutes after this conversation, [Lucas] arrived and drove [Grant] and the husband to [Suburb N] where they met a solicitor, Mr [Russell Nichols]. The husband said that he had not met Mr [Nichols] before and that he was terrified. Mr [Nichols] showed him some documents. The husband said that he signed the documents that day and did not obtain independent legal advice. He said that he did not read the documents and that he was too scared to do so.

On 13 May 2004, the husband and [G & P Brooks] (by its directors [Grant] and his wife, [Peta]) executed a transfer whereby the husband transferred the whole of the title to the [Suburb A] Property to himself as to 20/100 shares and to [G & P Brooks] as to 80/100 shares as tenants-in-common. The words "as Trustee for the [NORISS TRUST]" were originally typed on the transfer but they were crossed out.

The husband received no consideration for the transfer of the 80% interest in the [Suburb A] Property to the trustee.

On 24 May 2004, [Russell Nichols & Associates] wrote a letter addressed to the husband at the [Suburb D] Property and to [G & P Brooks] with which it enclosed a copy of the newly issued certificate of title for the [Suburb A] Property. The letter was addressed: "Dear [Max], [Grant] and [Lucas]."

The husband's evidence was that he only discovered the effect of the transfer in the latter half of 2004, when he received a quarterly rate notice for the [Suburb A] Property that was addressed to himself and [G & P Brooks]. The husband said he raised the issue with [Grant], who claimed that the husband was aware of the effect of the transfer when they went to see Mr [Nichols]. [Grant] said that he wanted the property to be in the company name for the children and the wife. This explanation of how the husband discovered the effect of the transfer is only sound if, for some reason, the husband did not receive the solicitor's 24 May 2004 letter.

[Lucas] said in cross-examination that he did not attend with the husband and [Grant] upon Mr [Nichols] for the purpose of the [Suburb A] Property being transferred. The salutation in the solicitor's letter suggests that Mr [Nichols] understood that [Lucas] was involved in giving him instructions. [Lucas]'s denial of involvement is significant, as it excluded the possibility that the husband's counsel could explore with [Lucas] the circumstances in which the [Suburb A] Property was transferred. It must be noted, however, that it was the husband’s evidence that he saw Mr [Nichols] with [Grant] and that [Lucas] waited outside.

The wife said in her principal Family Court affidavit that her understanding was that the share in the title to the [Suburb A] Property owned by [G & P Brooks] was held for the benefit of each of the children only, and that the children each had a 20% beneficial interest in the property. If that was the wife's understanding, it was incorrect. The trust was a discretionary trust, and no beneficiary had a fixed beneficial interest in the trust property. The wife was as much a beneficiary as were the children. The trustee could have exercised its discretion by transferring the whole of the trust property to the wife. If the wife had a factual basis for her understanding, it could only be as a result of discussions with the directors of [G & P Brooks], whereby she was told that it was the intention of the directors to cause the trustee to hold the trust property in equal shares for the children.

As I have recorded above, the husband, in his cross claim in the s 66G proceedings, apparently claimed that the transfer of the [Suburb A] Property to [G & P Brooks] should in part be set aside on the basis of duress or unconscionable conduct in equity. The result of the husband having abandoned that claim, without the claim being determined on the merits, is that the transfer remains valid, as do all subsequent transactions that were predicated on the validity of the transfer. In practical terms, that means that the proportionate ownership of the [Suburb B] Property, into which the proceeds of the [Suburb A] Property trace, remains as stated on the title to that property.

The wife made a submission that the husband is now estopped from raising any issue or claim in relation to the "matters" relevant to the husband's cross claim. This submission was made upon the apparent understanding that the husband in these proceedings was maintaining an outstanding equitable claim. The wife referred in her submission specifically to par 96 of the husband's written submissions. In that paragraph, the husband submitted that the proportion of the matrimonial assets that he claimed as being attributable to him was just and fair "given the significant contributions he will have made in relieving (sic) the [Suburb A] Property under duress, and ultimately putting the value of that property mostly in the hands of the children: the only people over whom it can be reasonably said that either party has moral obligations to support."

With respect, I think that the wife has misunderstood the need to rely upon any estoppel argument. The family law proceedings must be decided upon the basis of all existing proprietary rights in the [Suburb D] and [Suburb B] Properties. That is the effect of the dismissal of the husband's cross claim. As the cross claim was not determined on its merits, the dismissal does not give rise to any issue estoppel binding the husband that is unrelated to the title to the [Suburb A] Property. The husband remains free to prove in these proceedings any fact that is relevant to the outcome that arose in the context of the transfer of the [Suburb A] Property. If it is relevant, the husband is entitled to prove that he executed the transfer under duress.

It does not appear to me that, in reality, the husband has submitted that the family law proceedings should be determined on the basis that any proprietary rights differ from what is disclosed on the title to any property. Rather, he submits that he did transfer the [Suburb A] Property under duress, and that this has relevantly led to the children each having valuable shares in the [Suburb B] Property that are all attributable to the husband's contribution to the matrimonial property. The husband submits that that contribution must be recognised when the Court determines how the matrimonial property that remains in the names of the parties should be divided between them. As a matter of principle that submission is valid.

I do not think it is necessary for the Court to make a precise finding as to the reason why the husband transferred the [Suburb A] Property as to 80% to the Trust. As I will explain below, the only real significance of the transfer is that property that otherwise would have been treated as the husband's contribution to the asset pool can be traced into the [Suburb B] Property in a way that has conferred a substantial benefit on the children, particularly [Laura].

I should record, however, my view that it is most unlikely that the husband executed the transfer of the [Suburb A] Property freely and of his own volition without some measure of duress. At the time, the husband was a builder with uncertain future financial prospects, whose only property of any substantial value was the [Suburb A] Property. Apart from his own work in constructing the house on the property, it was a gift to him from his family. At the time, the wife had raised her desire to have a matrimonial property settlement. On his own evidence, the earliest time that the parties separated may have been about 2004. The other valuable property within the marriage was the [Suburb D] Property that was in the wife's name. The wife claimed in her evidence that the husband refused to negotiate a property settlement and that he wrote notes that contained concessions that the wife was solely entitled to the [Suburb D] Property. No explanation was proffered by the wife as to why the husband would have voluntarily transferred 80% of the [Suburb A] Property to the Trust. It would have been irrational for him to do so because it only left him with 20% of the title, he no longer controlled the fate of the [Suburb A] Property, and he did not even control the trustee in respect of the exercise of its discretionary powers under the trust deed.

The only rational explanation for the transfer of the [Suburb A] Property is that [Grant], and most likely also [Lucas], decided to execute a 'self-help' regime to achieve what they considered to be an appropriate matrimonial property settlement, in view of the husband's refusal to negotiate one, in circumstances where the trustee gained the power of disposition of the 80% of the value of the [Suburb A] Property that became a trust asset. It is not necessary for the Court to make any finding concerning the form of the pressure that must have been placed on the husband, or whether the circumstances would justify an order in equity setting aside the transfer. Many issues would arise in the determination of that question that have not been addressed in the family law proceedings. The evidence does not establish that the wife was directly party to any conduct that imposed upon the husband in a way that caused him to execute the transfer.

The [Suburb A] Property was sold on 20 August 2013 for $1,250,000. The sale proceeds were not distributed in cash to the husband or [G & P Brooks] but were applied to the purchase of the [Suburb B] Property, which was acquired one day after the settlement of the sale of the [Suburb A] Property.

The husband's evidence concerning the circumstances that led to the sale of the [Suburb A] Property was that, between April and June 2013, he received telephone calls from the wife, [Laura], and [Jess] in relation to the sale. In around April 2013, the wife told him that she and the children wanted to sell the [Suburb A] Property, and that they had found a block of land at [Suburb B] that they wanted to buy. The husband responded that he had no intention of selling the [Suburb A] Property. He claimed that both [Jess] and [Laura] subsequently telephoned him and threatened that they would go to the police station and allege that he had sexually abused them if he did not agree to sell the [Suburb A] Property and buy the [Suburb B] Property.

[Laura] denied that she threatened the husband, and [Jess] did not give evidence.

For whatever reason, the husband must have agreed to sell the [Suburb A] Property and, for that purpose, to sign the contract for sale and the transfer.

On 21 August 2013, the parties and the children purchased the [Suburb B] Property for $1,650,000. The property was purchased by the family as tenants-in-common in the following proportions: [Laura] 39%, the husband, [Jess], [James], and [Craig] 14% each, and the wife 5%.

The purchase price and stamp duty of $76,240 was made up of the net proceeds of sale of the [Suburb A] Property, being $1,224,958.06 (including the husband's 20% interest of about $245,000), a $40,000 contribution from [Laura], and $470,000 borrowed jointly by the wife and [Laura] secured by a mortgage granted by the wife over the [Suburb D] Property.

The husband's evidence in his principal Family Court affidavit concerning the circumstances in which the [Suburb B] Property was acquired was that in early August 2013, he attended the [Suburb D] Property for about 20 minutes before attending [CLB Solicitors]' office at [Suburb D] to execute the documents relevant to the purchase. The wife and the four children were present. The husband said that an argument occurred concerning the division of the interests in the property. [Laura] said that she wanted 40% and everyone except the wife could have 15%, but that the wife had to go on title because a loan was needed to fund the purchase and for other fees like stamp duty. [Laura] was going to be the one paying off the mortgage, so she wanted 40%. According to the husband, the wife said that everyone would have to lose one percent so that the wife could be registered on the title, otherwise the money could not be borrowed.

The wife's evidence in her principal affidavit in the Family Court was that the husband insisted that he be put on the title to the [Suburb B] Property, by threatening the wife and saying words to the effect of, "I will put you six feet under the ground if I am not included in the [Suburb B] Property. My guns are in my ute".

The wife also gave evidence on this subject in her 2 July 2020 affidavit, in that, in about May 2013, [Laura] had a conversation with the husband in the presence of the other children and the wife in which [Laura] said that the bank had advised that [Laura] needed a bigger percentage of the ownership of [Suburb B] to take out the loan. The percentage needed to match the money that [Laura] and the wife were borrowing. The wife needed to be on the title too because she was securing the [Suburb D] Property. The wife said that [Laura] then asked: "Do you want to go on the loan with Mum and I?" According to the wife, the husband responded: "No, I do not want to go on the loan. That's fair you own more of [Suburb B] because you're taking out the loan."

It will be convenient to interpose a consideration of certain evidence concerning the circumstances in which the [Suburb B] Property was acquired that is relevant to the determination of the wife’s claims that the husband sexually abused his children. In par 36 of one of the wife's 19 March 2021 affidavits, she gave further evidence concerning the circumstances in which the [Suburb B] Property was purchased. She said that, on 25 May 2013, she together with the husband, [Laura] and [Jess] attended the wedding of her niece. The four of them travelled by car from the [Suburb D] Property to the wedding reception. The wife said that, during that drive, a conversation to the following effect took place:

This is very strange evidence! It is to the effect that the wife, [Laura] and [Jess] were travelling together in the same car to a wedding apparently happily discussing the sale of the [Suburb A] Property and the purchase of the [Suburb B] Property, less than 12 months before the wife attended the [Suburb E] Police Station with [Laura] and [Jess] to make a complaint against the husband of serious historical sexual abuse of [Laura] and [Jess] that, as will be seen below, had been disclosed to the wife in June 2007. The wife also claimed that the husband had admitted at a meeting with doctors in January 2012 to having sexually assaulted [Jess].

It is perplexing that the wife has given evidence of reasonable conversations having taken place within the family concerning the husband's involvement in the purchase of the [Suburb B] Property, while at the same time also claiming that, on other occasions within generally the same period of time, the husband threatened to kill the wife if he did not become a part owner of the property and also threatened [Jess].

As [Laura] and the wife were required to borrow the substantial sum of $470,000 to be able to complete the purchase of the property, it could not have been acquired if the husband's $245,000 share in the net proceeds of sale of the [Suburb A] Property was not paid towards the price. It would be natural for the husband to expect to receive a proportionate share in the ownership of the [Suburb B] Property.

The wife explained the proportionate share of the co-owners of the [Suburb B] Property on the basis that the husband and the four children would have been entitled to 20% each, but for two things. The first was that [Laura] proposed to pay off the joint $470,000 loan, as well as to contribute the extra $40,000. However, the loan was secured on the [Suburb D] Property which was solely in the name of the wife. The wife also said that she and [Laura] received advice that it would be necessary for her to have a 5% interest in the [Suburb B] Property, because she was going to be one of the joint borrowers. It may be that the wife was given that advice, but it is not clear why the lender would require her to have a 5% interest in the [Suburb B] Property when it was the [Suburb D] Property being encumbered. The result of the wife acquiring a 5% interest was that the shares of the other co-owners had to be reduced by 1%.

The legal position was, at the time the [Suburb B] Property was acquired, that the wife and the four children were equal discretionary beneficiaries of the [Noriss Trust]. The shares in the corpus that they received depended upon the exercise of its discretion by [G & P Brooks]. There is no reason why that discretion could not have been exercised equally in favour of the wife as of the four children. The wife gave no evidence of any discussions with the directors of that company as to whether she should be excluded from a share of the corpus. Furthermore, in order to enable the whole of the net proceeds of sale of the [Suburb A] Property to be paid towards the purchase price of the [Suburb B] Property, [G & P Brooks] must have agreed to exercise its power under the trust deed to accelerate the vesting date of the Trust. No evidence was given by the wife as to the circumstances in which that transaction occurred.

For completeness, and as has already been stated, the husband was also nominally a beneficiary of the Trust by virtue of his marriage to the wife, such that he can be said to have had the same interest in the Trust’s 80% share of the [Suburb A] Property as the wife and children. However, it would be unreal for the Court to find, in circumstances as have already been found that the wife’s father and brother carried out their self-help regime against the husband, that [G & P Brooks] would ever exercise its discretion to benefit the husband. Unlike in the case of the wife, the very fact of the pressure exerted on the husband to relinquish the lion’s share in the [Suburb A] Property is reason why the trustee would not have exercised its discretion in the husband’s favour.

In these circumstances, I must conclude, on the balance of probabilities, that the wife was content with being excluded from an equal share with the husband and her children, other than [Laura], in the ownership of the [Suburb B] Property, save for the 5% that she acquired for reasons associated with the joint loan.

This is an important consideration because, as I have explained above, the [Suburb A] Property was matrimonial property contributed almost entirely by the husband. Eighty percent of the interest in that property was transferred to the Trust for the benefit of the wife and the children. Ultimately, the husband's contribution was channelled to the children with the agreement or acquiescence of the wife.

In [Laura]'s 2 July 2020 affidavit, she said that she had a number of discussions with the husband between May and August 2013, in which they discussed the percentage of property ownership the various family members would take in the [Suburb B] Property. She gave evidence of a conversation in May 2013, which included her saying to the husband: "I would need a bigger percentage of the property in order to secure the loan." She records that the husband replied: "I am agreeable to you taking out the mortgage, and it is fair you receive a larger percentage of the property."

On a final note, although the question of who is obliged to repay the debt is not an issue to be determined in these proceedings as between the wife and [Laura], it is nonetheless an important issue. If [Laura] is obliged to repay the debt, then the portion of the [Suburb D] Property that is encumbered by the mortgage will remain matrimonial property. In the cross-examination of the wife, the following exchange took place as to how the mortgage over the [Suburb D] Property will be repaid [T 434.13-434.23]:

The wife seems to suggest that because she is the mortgagor, she will be required to pay the mortgage debt. The wife should have brought to court in these proceedings a considered position on this issue, rather than to simply say that she was not sure whether she had thought about whether [Laura] will apply her share of the proceeds of sale of the [Suburb B] Property to pay out the joint debt.

The evidence given by the husband, the wife and [Laura] proves that, by agreement within the family, [Laura] was given a 39% interest in the [Suburb B] Property because she agreed to contribute an additional $40,000 and to be responsible for repayment of the $470,000 loan. As a result of this agreement, the interests of 20% each that the husband and the other children would have received were reduced by 5% (and then an additional 1% to allow for the wife's 5% interest). Based on the sale price of the [Suburb B] Property, the value of the additional 19% that [Laura] received is $2,424,400 (subject to CGT and expenses).

It is probable that the husband could obtain an order requiring [Laura] to repay the loans that are secured by the mortgage on the [Suburb D] Property. The position may be less clear in relation to whether the wife is also able to force [Laura] to repay the loans secured on the [Suburb D] Property. The wife was also party to the agreement and contributed as consideration her joint liability on the loans and the mortgage over the [Suburb D] Property.

As the wife and [Laura] are joint debtors at law in respect of the outstanding loans from the NAB that are secured on the [Suburb D] Property, at the least, the wife could require [Laura] to contribute 50% of the amount required to repay the loans on the basis of the general equitable principle of contribution between parties having a coordinate liability. On the balance of probabilities, however, [Laura] could be required by the parties to these proceedings to repay the whole of the outstanding debt based on the agreement that was made when the [Suburb B] Property was acquired.

It is unsatisfactory that the Court is required to determine the family law proceedings in circumstances where steps have not been taken to make clear how the mortgage debts will in fact be repaid. That is not a matter that should prejudice the husband in these proceedings

The following table has been taken from Exhibits P17 and D8, both trial balance sheets that state the parties’ final positions concerning the matrimonial assets and liabilities. The table has been slightly edited in form for the purposes of these reasons. The parties also provided inconsistent statements of each other’s positions, so I have adopted the husband’s position from his trial balance sheet and the wife’s position from her trial balance sheet where there is divergence.

The following matters should be noted at this stage about the parties' positions concerning the information in the table:

The wife calculated the parties’ interests in the proceeds of sale of the [Suburb B] Property based on the parties’ individual shares in the full purchase price under the contract for sale. The husband adopted slightly smaller values. On 11 February 2022, after I reserved judgment in these proceedings, the trustees for sale who were appointed by the Court delivered to my Associate a notice of motion by which they applied for judicial advice under s 63 of the Trustee Act 1925 (NSW).

The affidavit in support of the application that was sworn by one of the trustees stated that the contract for sale of the [Suburb B] Property was completed on 14 December 2021.

The affidavit also stated that the trustees had retained in trust out of the proceeds of sale a total of $588,000. Of that amount, $188,000 relates to the legal costs of the s 66G proceedings. On 20 December 2021, I published a judgment that dealt with the costs of those proceedings: Norris v Norris (s 66G Proceedings) [2021] NSWSC 1676. I ordered that the parties’ costs of the s 66G proceedings be paid out of the net proceeds of sale of the [Suburb B] Property, and that the husband pay [Laura]’s costs of the cross claim filed by him on the ordinary basis. The first of those costs orders concerned the costs of the s 66G application that would have been incurred in the absence of the husband’s cross claim.

The trustee stated that the trustees had retained the $188,000 at the request of [Laura] “being the amount of her legal costs payable pursuant to the orders made” by me on 20 December 2021. I assume that the amount is intended to cover the husband’s obligation under the second order that I made. I have not made any order authorising this retention. I do not know what the final amount payable by the husband under the costs order will be.

The trustees have retained $400,000 to provide a fund to cover a claim made against the trustees by a real estate agent for commission in respect of the sale of the [Suburb B] Property and legal costs. The subject of the application for judicial advice was the question whether the trustees should be authorised to defend the claim for commission. I have subsequently made an order authorising the trustees to attempt to negotiate a compromise of the agent’s claim.

The trustee’s affidavit contains a schedule of the distributions made by the trustees out of the balance of sale funds in trust of $12,010,603.26 held by the trustees. After payment of some small amounts of costs and retention of the $588,000, the trustees made distributions as follows: [Laura] ($4,239,152.89), the husband ($1,521,747.19), the wife ($543,481.15) and to each of the other children ($177,216.60 and $1,521,747.19). The payments to [Jess], [Craig] and [James] were made on their account to the NSW Trustee and Guardian.

These circumstances introduce an element of uncertainty concerning the amount of the proceeds of sale of the [Suburb B] Property that will ultimately be paid to the husband and the wife.

I will now set out the Court's findings concerning the personal aspects of the relationship between the parties and their children and their circumstances generally.

It is obvious from the closely spaced birth dates of the children that nurturing them in their early years must have been a challenging task. Almost all the burden of caring for the children has fallen on the wife. The husband did not really dispute that the wife was the major homemaker and carer for the children, although he did say that he and the wife rarely cooked because they lived in close proximity to members of their extended families who usually provided food for the parties and the children.

There was a dispute between the parties on the evidence as to whether, as claimed by the husband, he provided real assistance in bringing up the children so far as his full-time workload allowed, or whether, as the wife claimed, the husband had a minimal involvement in the care and upbringing of the children. The husband listed the parenting contributions that he made in pars 131 to 140 of his principal Family Court affidavit. Those contributions were moderate but consistent with the time available to a father who was employed full-time.

The wife said in par 26 of her principal Family Court affidavit that from 30 June 1998, which was the date that she claimed the separation of the parties occurred, the husband made very few homemaker contributions, and, in par 123, she said: "After separation, on 30 June 1998, I was the sole homemaker and carer for the children."

In cross examination, the wife was asked whether the husband made parenting contributions, with her responses in parentheses [T 403.43-404.19]: he assisted in caring for the children when they were young (I think he was more absent, I did a lot of it); he changed nappies (not really); he fed the children from time to time (not really); he bathed the children from time to time (no); he changed nappies (no, didn’t change a nappy); and he helped out with homework for the children (not really). The wife accepted that the husband would occasionally look after the children “but I was sort of the main homemaker, yeah”.

I am not sufficiently confident of the credibility of the evidence given by any of the witnesses to make any precise findings concerning the level of care that the husband provided for the children.

The evidence establishes that, from relatively early in life, [Craig], and to a lesser extent, [James], suffered from disabilities that clearly will have made the wife's care for those children more arduous than it would have been if they had not suffered from those disabilities. Later, [Jess] suffered from serious psychological and behavioural problems which have placed, and will continue into the indefinite future to place, a serious burden on the wife in respect of her care for [Jess]. I will also consider the position of [Laura], who has also developed health problems.

The wife obtained an occupational therapy report in relation to [Craig] in 1995 when he was almost 4 years old. She sought an assessment of his fine motor and self-care skills. It was reported that [Craig] had poor receptive language skills and his attention was very spasmodic and it was difficult for him to sustain an activity that required concentration for more than a few minutes. An early intervention teacher's report prepared in late 1995, on behalf of the Autistic Association of New South Wales, said that [Craig] was displaying several obsessive behaviours with toys and belongings. [Craig] had some unusual mannerisms when relating to objects.

At the beginning of 1996, [Craig] commenced early intervention education with low to mild developmental delay in which the Autistic Association was involved. [Craig] had significant language delay and behavioural problems. He had minimal tolerance for frustration and became physically aggressive when his needs were not met. The wife said in her principal Family Court affidavit that [Craig] was assessed as fulfilling the diagnostic criteria for Autism Spectrum Disorder in 1996. This is consistent with the report of a consultant developmental paediatrician prepared in May 1996 which stated that “[Craig] certainly has a marked impairment in the use of non-verbal behaviours and a failure to develop peer relationships”. The doctor concluded: “I have no difficulty in saying that he fulfils the diagnostic requirements for autistic disorder and that a placement for schooling through the Autistic Association would be appropriate.” [Craig] received an offer of a special education placement for high school in 2004. In August 2014, [Craig] became a client of the Early Psychosis Intervention Service.

The wife deposed that [James] was assessed as having developmental delay and learning difficulties. A speech pathology assessment report for [James] in mid-1997 stated that he had severe receptive and expressive language delays and a moderate articulation delay. In mid-1998, a psychometric assessment report for [James] by a clinical psychologist concluded that [James] was showing significantly inferior verbal intelligence compared with his non-verbal intelligence. There were, however, no strong indications of an autistic disorder. A recommendation was made that he be placed in a support class where his language difficulties could be taken into account. A further speech pathology review report in September 1999 stated that [James] had a severe impairment of receptive and expressive language skills that would have a profound impact on his school life and learning.

[Jess] has Bipolar Affective Disorder and Borderline Personality Disorder that were apparently diagnosed in late 2011. Between November 2011 and 2014, [Jess] was a client of the Early Psychosis Intervention Service and has received psychiatric and psychological help, psycho-education and medication management. The wife gave evidence of [Jess] being admitted to the Acute Adult Mental Health Inpatient Unit at [Suburb H] Hospital on seven occasions between November 2011 and October 2014.

In June 2018, [Jess] had surgery to correct a rectal prolapse, and in October 2018 she had further surgery to her anterior vaginal wall because of rectal and vaginal prolapse.

The wife gave evidence that [Jess]’s health has deteriorated since 2018. [Jess] currently sees a clinical psychologist.

[Laura] gave evidence that she experiences a considerable amount of stress because of what she says was the abuse that she has suffered in the past. She tendered the report of a psychologist who opined that she suffers from complex PTSD. [Laura] continues to see a clinical psychologist.

[Laura] was diagnosed with scoliosis when she was 14 years old, and she continues to suffer back pain. [Laura] has been advised to have corrective eye surgery. [Laura] suffers from ulcerative colitis, a chronic inflammatory bowel disease. Consequently, she suffers from heavy bleeding and other serious consequences of her colitis. She has a complex medication regimen aimed at suppressing her immune system. [Laura] suffers from an ongoing Bartholin’s cyst and remains under the care of a gynaecologist. She is also under the care of an endocrinologist for the treatment of hypothyroidism.

The evidence shows that [Laura] will on a regular ongoing basis require the care of the wife, which will involve physical assistance for the administration of intimate self-treatments that need not be explained in these reasons.

At the start of the relationship between the parties, the husband was earning, according to his evidence, $240 per week. The husband had trained as a nurseryman through TAFE. According to the wife, the husband commenced a carpentry apprenticeship with the wife's parents' building company, [G & P Brooks], in January 1989. He completed a TAFE course in carpentry and joinery at the end of 1990 and obtained a carpenter's licence in February 1992. The husband said that he commenced the course in 1988 and completed it in 1992. Later, in June 2004, the husband obtained a building contractor's licence.

The evidence concerning the income earned by the husband and his financial contribution to the marriage is unclear and highly contested between the parties.

The taxation returns for the husband appear to disclose that the husband claimed to have earned the taxable income that is set out in the following table.

The husband claimed in his evidence to have earned $1,500 gross per week from August 1988 to 1992, $1,800 gross per week from 1992 to 2000, and $1,700 gross per week from 2001 to around April 2003. Those amounts represent $78,000, $93,600 and $88,400 respectively. Even allowing for the fact that the figures in the table are for taxable income after allowing for tax deductions, it is plain that the husband’s income tax returns are uniformly inconsistent with the husband earning the income that he claimed.

The husband’s evidence was that he would hand $1,000 per week to the wife for the household on the understanding it was used to pay for expenses and would otherwise be deposited into a joint bank account. The husband also said that the wife collected the rent from the tenant of the [Suburb A] Property and the [Suburb B] Property when it was rented. According to the husband, the reason why rent does not appear in his taxation returns after the year ending 30 June 2006 is that the wife collected all rent paid by tenants of the [Suburb A] and [Suburb B] Properties after the husband left the [Suburb D] Property in 2007. In cross-examination, the wife denied that the husband put around $1,000 per week cash in her hand, or that he earned the gross income that he claimed.

The issue of the income earned by the husband and the amount that he contributed to the family finances is a vexed one that is not capable of clear resolution on the evidence. As I have explained above, when considering the question of the credibility of the husband’s evidence, he claimed that he had earned a greater income than was disclosed in his income tax returns, but the only evidence that he was able to provide of his real income was his own testimony. In the circumstances, that testimony cannot be given significant weight.

The husband’s evidence was that, between around August 1988 and 1992, he worked as a contractor for [G & P Brooks] and other building businesses such as [Leland Homes], [Castro Homes], [Herman Homes], and some private homeowners. He said that he worked six days a week and earned approximately $1,500 per week gross. That income was deposited into the parties’ joint account. During the four-year period he assisted in the building of five houses for [G & P Brooks], each of which took on average six months to build. He said that, to the best of his recollection, the income that he received was paid by way of cheque to the wife. The husband said that, from February 1992 to around early 2000, he continued working as a carpenter contractor with [G & P Brooks] and various other building businesses. During that seven-year period, he worked for [G & P Brooks] in the building of not less than 11 houses. The husband said that, to the best of his recollection, the income that he received was paid by way of cheque and the wife deposited the cheques into the joint account. The husband said that he ceased working as a contractor for [G & P Brooks] in around 2001. From then until around April 2003, the husband worked as a carpenter contractor and worked on residential homes on a full-time basis. The husband said that he worked on the wife’s family’s houses personally. The husband said that he established a business through [ABC Home Renovations Pty Ltd] ([ABC]) on 8 April 2003. Thereafter, the husband said that he worked primarily on residential homes. His income was paid into the company’s bank account. He said that he drew a wage on an ad hoc basis from the account and that the wife “also withdrew various sums from the [ABC] account.” The husband did not give evidence of the average amount that he claimed to have provided to the wife during the period that he operated the [ABC] business.

It is telling that [Lucas] agreed that, when the husband worked for [G & P Brooks] “sometimes the arrangements for his engagement were fairly informal” [T 568.23-568.25] and that “sometimes work might be done without being attributed to any payment whatsoever” [T 568.38-568.40]. Although that evidence was very general, it supports my suspicion that the husband was not always paid a formal wage for all the work that he did, and [G & P Brooks] may have paid the wife directly. There is no way that that suspicion can be confirmed or that the true income earned by the husband can now be determined.

The husband tendered copies of cheque butts for the [ABC] account in the period March 2004 to November 2006. The figures for taxable income in the above table for the years ended 30 June 2005 and 30 June 2006 are $19,136 and $16,092 respectively.

An analysis of these cheque butts reveals the following (there is scope for misinterpretation of the information on the cheque butts because of its brevity):

The husband’s evidence was that the wife also collected the rent from the [Suburb A] Property. The husband said that the rent was $350 per week from 1996 to 30 August 2003.

Although the wife’s case was that the husband’s income earning capacity for the period before the husband moved out of the [Suburb D] Property in 2007 on a final basis was inadequate for the purposes of the family, the wife did not prove that the husband did not work hard and for long hours when he could.

The parties’ joint bank account was closed on 1 December 2005. It is not clear when the husband ceased providing money to the wife for the purpose of providing for the wife and the children. The latest payment for which there is evidence appears to be a payment of $400 to the wife on 17 November 2006 (assuming the information on the cheque butt to be accurate).

The wife has therefore been responsible for maintaining herself and the children since no later than the end of 2006, subject to rent received and the income that the children have earned since they became old enough to work. The evidence justifies a finding that, before that time, the money provided by the husband to the wife for the purposes of the family was not always sufficient to sustain it.

Turning now to the employment history and income earned by the wife, the wife’s evidence was that she began work as a graphic artist in 1979. She ceased paid employment in 1990 to care for the children. In mid-2003, the wife completed a Diploma of Remedial Massage, and commenced paid work as a remedial massage therapist in June 2003. In 2006, the wife completed a pathology collection course, and, from the end of 2007, the wife worked full-time for a pathology service and from the beginning of 2011 for a hospital.

According to her taxation records that are in evidence, the wife’s taxable income for the years during which she was employed was as follows:

The parties received various forms of assistance from the wife’s parents. The parents made several loans to the parties, some of which were repaid. There were periods when the parties and their children lived rent-free with the wife’s parents. Apparently, the wife’s mother, [Peta], regularly provided food for the family.

A curious aspect of the evidence involved the wife, as the sole proprietor of the [Suburb D] Property, granting a mortgage to her parents on 25 February 2005 to secure repayment of the amount of $1,800,000. In par 67 of her principal affidavit in the Family Court, the wife gave evidence of a conversation with her father in which her father said: “We want to quantify the money we have contributed to you. We will execute a mortgage to quantify all of the financial contributions we have made over the years.” The wife agreed.

The mortgage was registered on 9 January 2009. It was discharged on 27 January 2011. The wife said that her parents discharged the mortgage to enable the children to have the ability to develop their own investment portfolios, and that the debt was forgiven in her father’s will.

The wife did not challenge the husband’s evidence that he was unaware of the existence of the mortgage until he learned of it during these proceedings.

This mortgage became an important plank in the wife’s case, as she submitted in par 47 of her final written submissions that the “Court would find that the contributions [of the wife’s parents] (summarised at $1.8 million per mortgage plus $50,000 shortly after) built up the [wife’s] contributions to 70% including considerable non-financial contributions…” This submission was based upon the premise that the figure of $1,800,000 is the amount that the wife’s parents contributed to the matrimonial property and the parties’ family’s needs generally.

There was no evidence at all as to how the amount of $1,800,000 was calculated. The mortgage instrument itself simply contained an acknowledgement by the wife of “receipt of the principal sum of $1,800,000.00”. The evidence does not support a finding that the parents contributed that sum or any comparable amount. As has been recorded, the Court has some evidence of loans made by the parents, but the evidence does not justify a finding that the assistance provided by the wife’s parents was in an amount remotely approaching the principal stated in the mortgage.

I will now deal with the factual issues concerning the allegations made by the wife that the husband engaged in family violence towards her. I will deal separately below with the allegations that the husband sexually abused three of the children.

The wife gave evidence that the husband regularly threatened and belittled her by calling her names and that he was constantly abusive to her. It is not surprising that the wife has not been able to give specific or comprehensive evidence of all this family violence. In considering the allegations made by the wife, I do not leave out of account this general evidence of family violence.

The wife and [Laura] gave the following evidence of specific acts of family violence that they allege were committed by the husband, and the conduct of the husband relevant to the likelihood that he committed those acts. The husband made a broad denial that he had committed any of the acts alleged. He otherwise did not give evidence separately in relation to any of the incidents that was directed at explaining his conduct or exculpating him on an incident-by-incident basis.

I will set out below the substance of the evidence given by the wife (sometimes confirmed by [Laura]) concerning the specific family violence incidents that the wife and [Laura] claim to have experienced. I have omitted a small number of incidents where the husband’s alleged conduct concerned [Jess], as [Jess] has not given evidence. I will deal with the evidence relevant to the apprehended violence orders that have been issued separately. The alleged incidents were:

The wife tendered a number of photographs of parts of the house on the [Suburb D] Property that the wife and [Laura] said depicted damage done by the husband in a fit of rage. The husband denied that he was responsible for the damage. I have placed little weight on this evidence, given the established fact that [Jess] had caused property damage that I will consider below. The evidence by witnesses of the damage being caused is more significant than the equivocal photographs. Curiously, the most significant incident of damage appears to be a hole that was smashed through a door: see CB vol tab 557. By comparison with other undamaged doors in the photograph, it is clear that the damaged door is upside down. The wife agreed in cross-examination that the door was upside down. The wife said [T 421.9-421.11]: “I think with that particular door it was on the other side, right, but I actually moved that. I actually moved that door. It was my bit of handiwork but that was for another – another door, yeah”. The wife confirmed that the door functioned. It sometimes happens that the Court is given evidence that does not make sense. Any handyman will know that hanging doors is usually a difficult exercise. The Court was left puzzled as to what was going on.

The wife gave evidence to explain the fact that she did not complain about the family violence that she alleges was perpetrated by the husband outside the family, or seek protection from the Police or the courts until an apprehended violence order was obtained in 2007, following allegations that the husband had sexually abused [Jess] and [Laura], on the basis that she was afraid of the husband and, at the request of her father, and for cultural and religious reasons, the wife did not consider that divorce was an available course.

The forensic significance of a failure by a party who claims, long after the event, to have suffered family violence to complain publicly or to seek protection from authority is a contentious question. On the one hand, allegations of family violence made long after the event may involve invention or embellishment by the alleged victim for personal advantage. On the other hand, psychological, cultural and religious inhibitions may deter revelation of the family violence and, depending upon the personality of the victim and the severity of the violence, the natural consequence of the violence in a particular case may be to suppress the capacity of the victim to seek protection.

Each case will depend upon its own circumstances and the Court will be required to make a judgment concerning the forensic significance of complaints of family violence being made late in a context that leaves open the possibility that the claims of violence have been manufactured or distorted in order to gain advantage in proceedings between the parties to the family arrangement. The Court will have to make a judgment based on the complainant’s evidence in the context of the whole of the evidence. If complex collateral issues going to the psychological state of the complainant are to be avoided, it will be necessary for the Court to make a holistic judgment about the character of the complainant and the likelihood of deception having regard to the evidence before the Court.

The wife and [Laura] gave evidence of suffering or witnessing family violence perpetrated by the husband, but the wife did not call [Jess], [Craig] or [James], even though she claimed that those three children suffered from and witnessed the husband’s family violence. I understand that the wife did not call evidence from [Jess], [Craig], and [James] because of the disabilities from which they suffer. There was no medical evidence to show that these witnesses were unable to give evidence or that it would cause them unwarranted psychological harm. The Court would, of course, have taken any course reasonably available to enable the three children to give evidence in a safe way

The affidavit evidence given by the wife and [Laura] was much less persuasive than it otherwise might have been because it appeared to be highly curated by lawyers. Generally, the wife’s affidavits were much more detailed, consistent, and articulate than the wife’s performance as a witness in the witness box suggested was within her natural capacities. The wife and [Laura] have always been very close, and [Laura] has a clear interest in facilitating the success of the wife’s claim. It is therefore most unfortunate that [Laura]’s evidence concerning the alleged acts of family violence by the husband so closely mirrored the evidence of the wife, even to the extent of using almost identical language in many instances. That was so in relation to incidents when [Laura] may have been expected to see things differently from her mother because of [Laura]’s young age. It is often unclear from the language used by [Laura] whether she has recounted events that she actually witnessed.

The evidence called in support of the wife’s claims that the husband perpetrated family violence against her, and the children would have been much more persuasive if the four witnesses had provided uncurated affidavit evidence in their own words. As it is, a consequence of the wife relying only on her and [Laura]’s unnaturally consistent evidence is that the Court has been denied the evidence of the other three children, and the husband has been denied the opportunity to cross-examine all five witnesses on the basis of their own separate recollections of events.

In a letter to the wife dated 14 May 2014, Dr [Irene Carlson], who I understand is a general practitioner of whom the wife was a patient, said:

Although evidence of a complaint of injury as a result of family violence is not direct evidence that the violence occurred, the fact of the complaint is relevant to the determination of whether or not the violence actually occurred, given that, in the ordinary course of human affairs, it is as a matter of experience rare for persons to make unfounded allegations of violence. The weight to be given to evidence of a complaint will depend upon the circumstances.

The wife agreed in cross-examination that her complaint to Dr [Carlson] was the first time that she recounted any family violence to someone outside the family. The wife also agreed that, in late 2003, she had visited a solicitor for the purpose of discussing prospects of a family law proceedings. Later, in November 2004, she spoke to another solicitor to obtain advice on the same subject.

In the same part of the cross-examination of the wife, counsel for the husband raised the hand-written notes that have been referred to above, which the wife claims were written by the husband, and which contained declarations that the wife was solely entitled to the [Suburb D] Property. Two of the notes bore the date 17 September 2004, which was three days after the wife visited the doctor.

There was a faint implication in these questions that the wife may have returned to the doctor on 14 September 2004 in order to create evidence to bolster her position in possible future family law proceedings. The proposition was not squarely put to the wife, and, in any event, I do not accept that there is a basis for doubting the circumstances in which the wife made her visit to the doctor.

Although Dr [Carlson] couched her letter in terms of a complaint of the wife suffering a left shoulder injury and bruising, I interpret the letter as intending to convey that the doctor confirmed that those injuries were present.

The information provided by Dr [Carlson] concerning her consultation with the wife on 28 July 2005, as to the wife having been hit by the husband with his belt, is relatively specific and unusual and tends to confirm the allegation made by the wife about that incident.

[Lucas] made a statement to the Police, dated 16 April 2014, which became Exhibit D3. The statement was admitted, subject to a number of objections, to stand as [Lucas]'s evidence in chief. The statement included the following:

[Lucas] said in his oral evidence that, in 2006, he saw bruising on the wife's face and that she had a cut lip. [Lucas] did not see the injury occur. He said the wife informed him that the injury was caused by the husband.

[Lucas]’s evidence concerning family violence committed by the husband against the wife was therefore limited to the assertion that on a few undated occasions the wife told him that the husband had been physically violent towards her, and that in 2006 he saw that the wife’s face was bruised and that she had a cut lip. [Lucas] relied upon the wife’s assertion that the injuries had been caused by the husband.

It is not straightforward to assess the significance of [Lucas]'s evidence in respect of the timing and seriousness of the incidents. However, the evidence is inconsistent with the husband's insistence that there were no such incidents at all. Counsel for the husband may have made the forensic decision to leave well enough alone with [Lucas]’s evidence concerning family violence by the husband, as [Lucas] was not asked any questions on the subject in cross-examination. [Lucas]’s evidence is therefore uncontradicted save for the general denial made by the husband.

However, neither party asked questions of [Lucas] that would put his evidence in proper context to enable the Court to assess its significance. If [Lucas] only saw the wife rarely, then [Lucas]’s evidence of occasionally becoming aware of circumstances consistent with the wife suffering family violence at the hands of the husband would not be inconsistent with family violence occurring frequently. On the other hand, if [Lucas] was in regular contact with the wife, [Lucas]’s evidence of a limited number of possible family violence events over a period of two decades would tend to establish that although family violence occurred, it was relatively rare. The fact that neither party explored this issue with [Lucas] has the result that the significance of [Lucas]’s evidence has been left uncertain.

I have considered the evidence on the issue of the family violence that the wife alleges was committed by the husband most carefully, and reached the view that, on the balance of probabilities, the evidence requires the Court to be satisfied that the husband did commit family violence at regular intervals against the wife and the children. That conduct was most likely connected with excessive alcohol use by the husband and an inability on his part on occasions to control aggressive impulses.

The evidence does not sustain the blanket denial made by the husband and his failure to provide any evidence concerning the individual acts of family violence the subject of the evidence given by the wife and her witnesses. Acceptance of the husband’s position that he engaged in no family violence at all towards the wife and the children would require a finding that the wife and [Laura] totally concocted the evidence that they gave on this subject. To begin with, that is an extremely improbable circumstance. The husband’s position involves an assertion that the wife’s claim is a recent invention. However, the complaints made by the wife to [Lucas] and Dr [Carlson] are inconsistent with the claim having recently been invented. The wife made complaints to others no later than 2004. I accept her denial that she returned to the doctor to disclose that she had suffered from family violence “with the intention of creating a record of domestic violence having occurred” [T 424.38-424.45]. It is improbable that the wife would have deceitfully created a false record of family violence and then not done anything about it until complaints were made of the husband’s conduct to the Police in early 2014.

I am satisfied that some of the evidence in the wife’s case is unreliable and the description of some of the acts alleged to have been committed by the husband has been embellished as a result of the psychological reaction of the witnesses and the passage of time, as well as the fact that the wife and [Laura] have plainly coordinated their evidence by frequently discussing the husband’s conduct over a period of years.

I do not think that the Court is forced to make specific findings concerning the occurrence of all of the alleged acts of family violence, in circumstances where the Court is not satisfied that the evidence is sufficiently compelling to enable reliable findings to be made in each case. I do not, however, find that all the claims made by the wife have been sustained, or that the conduct of the husband on each occasion was as extreme as depicted by the evidence in the wife’s case. It will be sufficient if I identify a number of the specific allegations of family violence and explain why I am unwilling to accept the allegations as made.

I do not think that [Laura]’s present recollection of what happened when she was eight years old at the Halloween party in October 1997 should be treated as sufficiently reliable for the Court to accept it as accurately describing the real nature of the husband’s conduct on that occasion. [Laura]’s fear may have been real, but it may not truly have been justified by the husband’s conduct.

The allegation by the wife that the husband discharged a gun inside the parties’ home in 1998 became a significant issue at the hearing. The wife did not call her ex-sister-in-law, who she claimed had witnessed the event, to give evidence. The Court was therefore deprived of an independent witness to this alleged, extraordinary event. No evidence was given as to what the long-barrelled tan pistol may have been. There was no evidence that the husband was ever issued with a gun licence, or any evidence as to why the husband may have illegally possessed any guns. The balance of the evidence as given by the husband and his father justifies a finding that only the father possessed guns and he did not make them available to the husband. Even though the wife claimed that, when she discussed who would be the purchasers of the [Suburb B] Property with the husband, he insisted on being put on the title to the property by threatening he would put the wife 6 feet under and that his guns were in his utility vehicle, there was no evidence that the Police attempted to remove any such guns after the formal complaint of sexual assault against [Laura] and [Jess] was made in 2014. There was evidence that the Police removed the husband’s father’s guns. That the police did that but did not attempt to do the same with the husband suggests that they had no reason to believe that the husband also had guns.

As to the alleged incident in early 2005, when it is said that the husband was preparing to drive away from the [Suburb D] Property, and he ran over a kitten notwithstanding that he had been told by the wife to stop, it is not clear how the husband could have seen a kitten resting on one of the wheels of his vehicle if he was preparing to start it. This evidence was completely inadequate to justify a finding that the wife’s claim is true. The same may be said about the wife’s claim that the husband regularly ran over wild rabbits in the area and hit any animals that were in his way on the driveway or the road. The wife’s claims that the husband killed animals and family pets in front of the children were also devoid of any specific evidentiary content.

The most that I am able to find with the necessary level of belief is that the husband did regularly act aggressively towards the wife and his children and committed from time-to-time serious acts of family violence. That conduct would naturally have instilled a high level of fear in the wife and her children.

The wife did not give any evidence that explained how her contributions to the marriage, and in particular her care for the children, were made significantly more arduous by the husband’s family violence. As will be seen below, that does not, as a matter of law, prevent the Court from making its own assessment as to the likely effect of the husband’s conduct. It is the case, however, that all the wife’s evidence was directed towards establishing that the family violence occurred, and not at explaining its consequences.

The wife has made extremely serious allegations of long-term repetitive sexual abuse of [Jess], [Laura], and [Craig] by the husband. The possibility that the husband sexually abused his children first came to the wife's attention on 13 June 2007, when [Laura] discovered a note written by [Jess] that caused [Laura] to believe that [Jess] might have committed suicide.

As I have already noted above, the husband was acquitted, following a unanimous verdict by the jury, of 12 charges of sexual assault against [Jess] and [Laura] that were tried in the District Court.

[Laura] gave evidence that the husband's sexual abuse of her commenced when she was approximately 8 years old, when the family was living at the Second [Suburb O] Property. [Laura] said that she was asleep in her bed and woke up to the noise of heavy breathing. She asked what was going on, and in response a voice that she recognised as the husband's said: "I'm just fixing your bedsheets". [Laura] said that, a few days later, the husband sexually abused her when she was asleep in her bed, when she woke up in the middle of the night and felt a hand on her vagina. [Laura] said that, when he noticed she was awake, the husband got up and left the room immediately. She said that she did not tell her mother or anyone else due to her fear of what the husband would do to her or her mother if he found out that [Laura] had told her mother.

[Laura] said that a couple of weeks after the family moved to the Third [Suburb O] Property, in late 1999, she woke up with the husband crouching over her bed. She could smell beer on the husband's breath and heard a metallic sound like a belt buckle being done up.

On two further occasions, [Laura] woke up when in bed to find the husband crouching over her bed tugging on her bedsheets.

In around early 2001, after the family moved to the [Suburb D] Property, [Laura] said that she awoke to find the husband hovering near her bed. She could hear deep, heavy breathing. The husband said: "You were talking in your sleep", and [Laura] ordered him out of her room.

In around mid-2001, when [Laura] was approximately 12 years old, she was again woken by the husband being in her room. She awoke to find the husband hovering over her bed, and she heard the metallic sound like a belt buckle being undone or done up. [Laura] ordered the husband out of her room.

The next morning [Laura] had a conversation with her mother and father in which she said that she did not want the husband in her room as he was disturbing her sleep. The husband said: "I was checking up on her.". The wife said that it was probably better if the husband did not go into [Laura]'s room as she was a light sleeper.

The only direct evidence of sexual assault of [Laura] in this affidavit was the incident when [Laura] was 8 years old, when she says the husband inappropriately touched her body. The other incidents were few in number, were inherently equivocal, and involved brief encounters after [Laura] had awoken from her sleep. The last of the incidents had occurred about 17 years before the date of [Laura]'s affidavit.

[Laura] said, in her 13 December 2018 affidavit in the Family Court that, on 13 June 2007, she was at home with the husband and her brothers, when she discovered a note on [Jess]'s bedside table. According to [Laura] the note said: "I can't take it anymore. [Max] has been sexually abusing me. I've killed myself." [Jess] had not in fact killed herself.

As [Laura] could not contact the wife, she called [Lucas] and informed him that she had found a note from [Jess] saying that she had killed herself because the husband had been sexually abusing her. [Lucas] stopped what he was doing and went to [Suburb D], where he arrived at about the same time as the wife. [Laura] was about 18 years of age at the time.

The wife said in her principal Family Court affidavit that, when she arrived home on 13 June 2007, she read [Jess]'s suicide note "and recall that it disclosed that [Jess] had regularly been sexually abused by [Max] from the age of 8, which was approximately 1998, until the date the letter was written."

The wife said that the note was retained by the Police as evidence. The Police officers gave evidence in the criminal proceedings against the husband that the note was kept in the case file held by the Police, which was destroyed after 2 years as part of the Police's usual procedure in missing persons cases.

In his evidence in chief, [Lucas] confirmed that, in his 16 April 2014 statement to the Police, he said: "And the letter said, 'I want to end it now. I don't want to be living in a life that I am sexually abused by dad and the world anymore'".

It is striking that, if the note written by [Jess] had accused the husband of sexually abusing [Jess] from the age of 8, the Police treated the note as being merely part of a missing persons file that could be routinely destroyed after 2 years. It could be assumed that the Police would have read the note and treated it as being evidence of a sexual crime, if indeed the note contained an accusation against the husband.

The wife gave evidence of a conversation that she had with the husband in the presence of [Lucas] and Constable [Tracy Page] and Constable [Lee]. [Lucas] said in evidence that the Police officers were within 2 to 3 metres of the husband when the conversation occurred, which is the same distance as was [Lucas]. After the husband denied sexually assaulting [Jess] in response to three questions asked by the wife, according to the wife the following exchange occurred:

The following cross examination of the wife took place on this issue [T 448.26-448.50]

[Lucas] confirmed the substance of this exchange in par 23 of his statement to the police, which became Exhibit D3. Relevantly, [Lucas] said:

The husband has consistently denied that he made the admission alleged by the wife and [Lucas]. It is not inherently probable that the husband would have made this admission, having covered up the alleged sexual assaults for a long time, in front of the Police and without any qualification.

I found the question attributed by [Lucas] to the female police officer and the husband's supposed response curious. The husband's response appeared to be an implicit confession to murder even though, in fact, [Jess] was alive. At the end of his cross-examination, I asked [Lucas] whether he understood that the husband's response implied that he was a party to the disposition of the body and that he was confident that it would never be found. [Lucas] responded by suggesting that the statement that he made to the Police was not complete and that something else had been said. As this response was elicited by the Court after [Lucas] had given his evidence, I did not permit [Lucas] to elaborate in re-examination.

The wife tendered a statement dated 5 August 2008 that she gave to the Police concerning the contravention by the husband of an AVO, to which reference will be made below. The statement included the following:

This statement appears to be inconsistent with the wife having a recollection that the husband admitted to sexually assaulting [Jess] on the night of 13 June 2007, rather than, as will be explained, after [Jess] was retrieved from the Gold Coast.

The Police did not arrest the husband on the basis that they had heard him confess to sexually assaulting [Jess].

The wife acknowledged in cross-examination that there was evidence in the criminal proceedings by the Police officers that they did not record any admission by the husband, even though they had police notebooks at the time. Constable [Page] gave evidence in the criminal proceedings that she had no recollection of an admission being made.

The Police officers permitted the husband to participate in the search of the [Suburb D] Property to find [Jess]. [Jess] was not found, but the Police discovered, on 15 June 2007, that [Jess] was in Queensland, by tracing bank transactions undertaken by [Jess].

The wife, [Laura] and the husband then flew to the Gold Coast to find [Jess] and bring her home. This raises the question of why the wife permitted the husband to travel with the party to Queensland to find [Jess], given that [Jess] had apparently disclosed a long history of sexual abuse by the husband that had caused [Jess] to contemplate suicide. It seems to be obvious that it would be a dereliction of maternal duty for a mother in the wife's position to permit that to happen.

The wife was cross-examined as to why she permitted the husband to travel to Queensland, as follows [T 449.9-449.40]:

At the time these events occurred, the Police were involved and conducting a missing person search for [Jess]. According to the wife, the Police were aware of the husband's confession of having sexually abused [Jess]. It must have occurred to the wife, if she believed that the husband was a threat to her suicidal daughter, that all she had to do was inform the Police and they would instruct the husband not to go to Queensland.

On the Gold Coast, the family stayed in an apartment overnight after [Jess] had been found, with the husband staying in a separate room. The wife gave evidence in her affidavit that, in a conversation at a round table at the Gold Coast airport terminal between herself, [Jess] and [Laura], the husband again confessed to having sexually abused [Jess]. In her principal affidavit, [Laura] confirmed the conversation as deposed to by the wife verbatim. It is at least strange to think that the husband would have made such a confession in front of [Jess] and the other family members in an open airport terminal.

The wife gave evidence that, on 16 and 17 June 2007, she had conversations with [Laura] and [Jess] in which they informed her of the sexual abuse allegedly perpetrated on them by the husband. The substance of [Laura]'s disclosure was that the father had touched her on the vagina on a number of separate occasions. [Laura] confirmed this conversation with her mother in her own affidavit, again verbatim, save for the draftsperson's having carefully reversed the perspective of the speakers.

The wife's affidavit evidence of the disclosure made to her by [Jess] was admitted into evidence on the limited basis that it was not evidence of the facts stated. [Jess] is asserted to have said: "There was a lot of oral sex and it happened many, many times over the years. He also raped me a lot." [Jess] said this all happened at night in her bedroom at the house in [Suburb D], which was on the same level as the bedrooms of the other family members.

The wife accepted in cross-examination that, during [Jess]'s evidence in the criminal proceedings, it was put to [Jess] that she had claimed that the assaults had occurred 3,500 times, and [Jess] had responded that: "Over that many years it was a lot of times. I said it too many. There was probably too many times. A lot of times. It was a lot of times."

The wife gave evidence that, at approximately 7:30 pm on 16 June 2007, after arriving back in Sydney, she took [Jess] to the [Suburb E] Police Station so that [Jess] could be sighted by the Police and make a statement regarding the incident. The wife said: "I recall that on this occasion, we reported sexual abuse to the police."

The Police did not respond to this information by arresting and charging the husband. There is no objective evidence of the report that the wife says was made to the Police. Although the evidence of what happened during the criminal proceedings is limited, there does not appear to be any evidence that the prosecution led evidence that [Jess] had first complained of the sexual assaults in 2007.

The wife gave the following explanation as to why the police did not take any action against the husband: "At the time, we advised the police that we wanted to seek counselling before prosecuting [Max] for sexual assault as we needed to care for our own mental health before going through the ordeal of a criminal case against [Max]."

The Court is not able to draw any sound inferences as to the significance of the Police having taken no action following the report that the wife said was made by [Jess]. The allegations that the wife claims were made by [Jess] are so inherently serious that it is hard to believe that the Police would simply have let the matter lie. In any event, I would think that the Police would have felt obliged to take a full statement from [Jess], so that it could be used in any subsequent criminal proceedings against the husband, at least to guard against a claim of recent invention, if [Jess]'s mental condition did not permit her to press charges against the husband for some years. Unfortunately, the Court's response to this incident must be based upon anecdotal evidence. It would be expected that the Police would have seen it as their duty to charge the husband and to provide as much assistance to [Jess] as was available in respect of the possible ordeal of giving evidence against the husband. Furthermore, while evidence has subsequently come to light of [Jess]'s serious psychological condition, it is not clear that in 2007 [Jess]'s psychological condition was so unstable as to persuade the Police to ignore serious charges of incest.

The wife said, in her principal affidavit, that [Jess]'s claim of repeated sexual assaults by the husband "was reported to police via the Department of Family and Community Services". If there was such a report, it is not in evidence. The evidence does, however, include a letter dated 28 June 2007 from the Joint Investigation Response Team to [Jess]'s school, that states that, on 17 June 2007, the Department of Community Services received a child at risk report for [Jess] that "alleges serious abuse perpetrated against [Jess] by her father [the husband]." The letter said that the Department supported [Jess]'s application for special consideration in respect of any impact on her academic performance during the completion of her Higher School Certificate.

The chronology of events in the wife’s final written submissions contains an entry that the Department of Community Services made a risk of harm report in respect of [Jess] on 4 June 2007. The wife submitted that this report predated the note made by [Jess] that was found on 13 June 2007. It may indeed have been significant if there was evidence of [Jess] having disclosed alleged sexual abuse by the husband before 13 June 2007. However, the evidence of this event referred to in the wife’s chronology was a psychological report concerning [Jess] that is dated 17 September 2016. The sources of information listed by the psychologist included: “Risk of harm reports DOCS 4.6.2007”. No report of that date was included in the evidence, and it is probable that the psychologist misstated the date of the report. There was no evidence that [Jess] reported the alleged sexual assaults to anyone before 13 June 2007.

On 27 July 2007, little more than one month after the events of 13 to 16 June 2007, the Local Court of New South Wales at [Suburb R] issued a final AVO against the husband for a period of 12 months. The protected persons were the wife, [Laura], [Jess], [Craig], and [James]. The husband was described as being of unknown address, and the order notes that the husband was not present in court when the order was made.

The wife did not tender evidence of the application that led to the AVO being made. The Court cannot know what grounds were put to the Local Court. Section 562ZY in Part 15A of the Crimes Act 1900 (NSW), as then in force, provided that an AVO (other than an interim order) remained in force for such period as is specified in the order of the court. The period was to be as long as necessary, in the opinion of the court, to ensure the safety and protection of the protected person. The period of 12 months was the default period for the order to remain in force if the Court failed to specify a period in the order. It seems that, in the case of this AVO, the Local Court determined to specify a period of 12 months, as it has expressly done so in the order. In the absence of further evidence, the reason why the Local Court took this course cannot be determined, although it is strange to think that a 12-month period was thought to be sufficient if the Court was fully informed of [Jess]'s allegations of sexual abuse against the husband.

On 12 June 2008, the wife made an application for an extension of the AVO for a period of 2 years. The application is signed by the wife and is in evidence. The principal ground relied upon was that the husband had tried to contact the wife on a few occasions on her mobile phone, that he had approached other protected persons, and that he had said: "he would sought (sic) me out when the avo is finished." There was no mention of the allegations of sexual assault of [Jess] and [Laura]. The wife gave evidence that, on 11 July 2008, the Local Court granted an interim order extending the enforceability of the AVO until 2 October 2008. That order is not in evidence.

In the statement dated 5 August 2008 given by the wife to the Police, she complained that the husband had breached the AVO by sending her several SMS messages and calling her mobile phone. Relevantly, the wife said that a text message read: "I need to get something that belongs to someone". The wife said in her affidavit that the husband presented himself at the [Suburb E] Police Station, and that he admitted to calling and texting the wife stating: "A friend of mine wants some stuff that belongs to him". The wife also said that she understood from material produced on subpoena by the Police that the husband attended [Suburb R] Local Court and was granted a s 10 good behaviour bond for a duration of 12 months. The wife said that, on 2 October 2008, an order was made extending the operation of the AVO. The order is not in evidence and the period of the extension is not known. The Court must infer that, after the extension, the period of the AVO was allowed to lapse. The wife said that she and the children did not have contact with the husband for approximately three years after the incident when the husband tried to contact her.

As has been stated, the wife gave evidence of an incident in November or December 2011, when the husband arrived at the [Suburb D] Property to inform the wife and the children of his grandmother's death. The wife said that the husband behaved very aggressively, and [Jess] began to break down and appeared to be having a panic attack. [Jess] was taken by ambulance to [Suburb H] Hospital. She stayed in the mental health ward at the hospital during the Christmas period in 2011.

The wife then said that, on 10 January 2012, she and the husband attended a family meeting with [Jess] and the healthcare team at the hospital, which included Dr [Kendrick Palmer], a psychiatrist, who gave evidence at the husband's criminal trial. The wife said that she could not recall why the husband attended the meeting and offered her belief that "the medical professionals wanted to keep him informed as to her mental state and the plan for her once she was discharged and released back into the community."

The wife said that [Jess] told the doctors that she was sexually abused by the husband for eight years, and when Dr [Palmer] asked the husband whether he sexually abused his daughter, the husband confirmed that he had done so. The wife said that one of the representatives of the hospital said to her: "This should be followed up definitely, when [Jess] is ready." The wife said that she did not think [Jess] was ready to pursue the matter, and that she determined to focus on [Jess]'s mental health and looking after her before reopening the matter.

The evidence in these proceedings does not disclose whether Dr [Palmer] gave evidence during the criminal trial that the husband had admitted to sexually assaulting [Jess].

The wife's evidence was that the family did not hear from the husband for approximately 18 months after this incident.

Exhibit P4 is a discharge summary in respect of the discharge of [Jess] from [Suburb H] Hospital on 18 January 2012. [Jess] was admitted to the hospital under the Mental Health Act. The discharge summary refers to [Jess]'s claims to have been sexually assaulted by the husband, but there is no indication as to how the hospital was given that information. There is a statement: "[Jess] has a complex family background. She has a significant history of sexual abuse from her father from the age 8-17 years old." However, the discharge summary also states: "Parents are separated but mother does not want [Jess] to live with her anymore so [Jess] was staying with her father."

The wife said in cross examination that she was unaware that [Jess] was living with the husband in around December 2011. The following cross examination occurred [T 413.30-414.6]:

The evidence that [Jess] was apparently voluntarily living with the husband notwithstanding the claim that he had sexually abused her causes the Court some disquiet. It suggests the Court has not been given the whole story.

Although the wife alleges that the husband sexually abused [Laura], most of the allegations of sexual abuse have been made in relation to [Jess].

There is no direct evidence in these proceedings that the husband sexually abused [Jess]. Only [Jess] could give that evidence. [Jess] was called as a witness in the criminal prosecution, following which the husband was acquitted of all charges.

The evidence establishes that for many years [Jess] has suffered from bipolar affective disorder, and there has been a suggestion, which does not amount to persuasive evidence, that [Jess] may also suffer from schizophrenia. The wife’s counsel implicitly confirmed in oral submissions that [Jess] was not called to give evidence because she suffers from an active mental health disorder [T 745.9-745.16].

It may be accepted that [Jess] would experience emotional and psychological difficulty, and perhaps even some trauma, in giving evidence in these proceedings. The Court would, however, have made whatever arrangements were possible to have alleviated any difficulty that [Jess] experienced. It did so in respect of the wife's participation in the hearing. It should also be said that counsel for the husband was meticulously gentle and respectful in cross-examining the wife. The wife did not call any medical evidence to establish that it would be so potentially harmful to [Jess] for her to be required to give evidence as to justify her absence as a witness.

I agree with the submission by the wife’s counsel that the wife cannot be criticised for not calling [Jess] in these circumstances, and that this is not a case where the Court would apply the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 and draw the conclusion that [Jess] would not be able to give evidence in support of the wife's case. The Court knows from the fact of the complaints made by [Jess] against the husband and her participation in the criminal proceedings, as well as the indirect evidence of what [Jess] has said in a number of hospital admissions, that [Jess] would be able to give evidence in support of the wife's case. The real difficulty caused by her absence as a witness is that, not only is there no direct evidence supporting this aspect of the wife's case, but it would be unfair for the Court to draw indirect inferences from the collateral evidence on the subject that is available, because the husband has been denied the possibility of testing [Jess]'s evidence in cross examination.

The Court should also record the effect of other evidence that would have been relevant to [Jess]'s credibility, if she had given evidence, and that is also relevant to the significance of the evidence of complaints of sexual assault by the husband made by [Jess].

The wife accepted in cross examination that [Jess] had sometimes experienced fantasies in her thinking process that were untrue. She also accepted that she had sometimes experienced moments when [Jess] had been prone to lying and dramatising events. The wife accepted that [Jess]'s evidence at the husband's criminal trial that the sexual assaults of which she had complained had occurred over 3,500 times was "definitely an exaggeration on her behalf."

There was evidence in hospital discharge summaries of erratic behaviour on [Jess]'s behalf. Exhibit P4, concerning a discharge from [Suburb H] Hospital on 18 January 2012, refers to [Jess] as having engaged in physical fights and erratic behaviour. She demanded money from the wife and a car from the husband (it being recorded in the latter case, as payment for his abuse). On admission, [Jess] had no insight and was very impulsive. Exhibit P11, concerning a discharge from the same hospital on 29 May 2012, referred to [Jess] having threatened to commit suicide by ingesting bleach and having "punched a hole in the wall at home in the context of an argument." [Jess] had experienced long-standing issues of emotional dysregulation, impulsivity, and recurring suicidal ideation. Exhibit P5 concerned a discharge from the same hospital on 1 January 2014. [Jess] was dishevelled, disorganised, and lethargic on admission and had paid minimal attention to her self-care. [Jess] felt low in mood, amotivation, anergia, poor concentration, increased isolation, and social withdrawal. She tested positive for amphetamine and opioids, which caused the hospital concern that she was misusing other patients’ medications. She started teasing and bullying other patients, lying, and she became fixated on another female patient.

[Lucas] gave evidence that, in October 2011, [Jess] smashed all but one of the windows in her maternal grandparents' home and smashed the walls. The wife admitted this incident occurred but denied that [Jess] may have caused similar damage to the [Suburb D] Property that the wife has accused the husband of causing. The wife did accept that there were incidents of [Jess] having been violent in the past.

The Police criminal history report for [Jess] (Exhibit P7) recorded a number of charges and sentences against [Jess] beginning on 13 October 2011, including affray, breaching bail conditions, resisting or hindering a police officer in the execution of their duty, possessing a prohibited drug, driving a vehicle while an illicit drug was present in her blood, and negligent driving.

It is obvious from this summary of the evidence that the credibility of any claims made by [Jess] is doubtful. It does not necessarily follow that she has made false claims, but the apparent exaggeration of the claims and her history of unreliability require the Court to act with extreme caution in accepting that the claims that she has made are valid.

[Craig] did not make an affidavit and was not called to give evidence. He gave a statement to the Police on 6 February 2016 (Exhibit D1). The statement was admitted into evidence without objection. It was not signed by [Craig]. This statement included the following:

Although this evidence provides support for the wife’s claim that the husband engaged over the years in family violence against her and the children, it is notable that [Craig] did not refer to the husband as having sexually assaulted him.

It is necessary to consider the evidence of aggressive behaviour by the wife, and in particular the wife’s behaviour leading up to [Jess] making a report to the Police on 7 January 2014 of historical sexual assaults against her by the husband.

The wife gave evidence, in par 293 of her principal Family Court affidavit, that on 13 January 2004 she saw the husband in [Suburb D] and followed him to Bunnings Warehouse. She got out of the car and confronted the husband by demanding that he stay away from her and the children. The wife said the husband went to leave and would not listen to her. He rang the Police, went to his car, opened the door, and locked himself inside. The husband sat in the car waiting for the Police to come. The wife then said:

The wife accepted in cross-examination that, in 2004, an interim AVO was issued against her for the protection of [Andrea Rhodes]. On 19 May 2004, the wife gave an undertaking at [Suburb H] Local Court, without admissions, that she would not engage in conduct that intimidated [Andrea Rhodes] or her children.

Exhibit P6 is a Police COPS report in respect of an incident that occurred on 20 December 2013 at the residence of Ms [Rhodes]. At the time, Ms [Rhodes] was home with her four children. Two police officers attended at 11:00 am on Saturday, 21 December 2013. Ms [Rhodes] informed the Police that, at about 11:00 pm on 20 December 2013, the wife entered through the front door of the home and walked into the kitchen area uninvited without any notice. The wife then began to verbally abuse Ms [Rhodes], demanding that she could speak to the husband. Ms [Rhodes] reported that the wife became hysterical and was asked several times to leave the location. The wife searched for the husband within the house and then went outside near the back door and sat down on the step demanding to speak with the husband. Ms [Rhodes] told the wife that the husband was not there, and that the wife needed to leave. The wife said she was not leaving, and she remained at the location for about 15 minutes.

On 21 December 2013, the Police contacted the wife and advised her that, if she was to attend the residence of Ms [Rhodes] at any time uninvited, she would be arrested and charged with trespass.

The following cross-examination took place about this incident [T 438.39-442.46]:

The wife started this series of questions by readily admitting that she entered Ms [Rhodes]’s home uninvited but at the end she said she did not go inside.

Another instance of violent conduct by the wife concerned an altercation with Mr [Gary Mack]. The evidence established that, on 21 December 2013, the wife went to the [Suburb B] Property with [Laura] to speak with Mr [Mack], who had been let into possession on the basis that he would pay rent for the occupation of the property. The wife gave evidence of this incident in par 72 of her principal Family Court affidavit. The essence of the wife’s evidence was that Mr [Mack] was occupying sheds on the property, and [Laura] advised Mr [Mack] that she would like to move to the property and put some furniture into the house. Mr [Mack] responded by saying that he would organise to move his belongings off the property. The wife asked whether they could inspect the house, but Mr [Mack] declined, and said he would move out and advise the wife about the progress of the move.

The wife said that she did not hear from Mr [Mack] over the Christmas and New Year period. The wife said that, on 4 January 2014, she went to the [Suburb B] Property with [Jess] to speak with Mr [Mack] regarding the progress of him moving things out from the shed. The wife’s evidence was that she parked outside the front gate and walked up the driveway to the house. She asked Mr [Mack] when he expected to leave the property. The wife’s evidence then continued:

In fact, the Police allowed the wife and [Jess] to go home. The wife said in her affidavit that these events led to her later receiving a section 32 order under the Mental Health Act and that the charges were dismissed.

The New South Wales Police Force COPS report concerning this incident is exhibit P10. The report was admitted into evidence without objection. In the report the wife was described as accused 1 and [Jess] as accused 2. A decision must have been taken by the Police not to prosecute [Jess].

The report contained a record of information that must have been given by Mr [Mack] to the effect that it was the wife who put Mr [Mack] into possession of the [Suburb B] Property and collected rent from him, before the husband provided a written lease to Mr [Mack] on 2 January 2014. This assertion is quite inconsistent with the wife’s case that the husband signed the lease without the authority of the other co-owners and without her knowledge. As the information is clearly hearsay and Mr [Mack] was not called to give evidence, I will give it no weight.

During the cross-examination of the wife that is set out below, she was shown part of the COPS report. Much of the report was evidently provided to the Police by Mr [Mack] and Ms [Walsh]. I will only set out the part of the report that was prepared by the Police from their own observations:

The following cross-examination of the wife took place concerning this incident [T 493.36-497.13]:

After the Police COPS report was tendered, the cross-examination continued as follows [T497.24-498.26]:

There is more objective evidence of the wife engaging in violent conduct than there is of the husband having done so. However, the husband has not made a claim in these proceedings that the wife also engaged in family violence. The husband’s case has been limited to his denial that his conduct ever involved family violence towards the wife for the children.

An extraordinary aspect of this case is that, according to the wife, [Jess] and [Laura] disclosed serious historical sexual abuse of them by their father in mid-2007. Yet the formal complaints that led to the husband being charged with the 12 charges of sexual assault were not made until 7 January 2014, almost 7 years later. The wife has provided no adequate explanation for this delay, other than the suggestion that, although complaints were made to the Police soon after the disclosures, the wife, [Laura] and [Jess] decided that they should not prosecute the complaints formally with the Police until the children, particularly [Jess], were emotionally and psychologically more capable of participating in the proceedings than they were in 2007.

The strange thing about this approach is that formal complaints were only made by [Jess] on 7 January 2014, shortly after [Jess] had been discharged from hospital after suffering a serious psychological episode. In the circumstances, it is difficult to see why this was considered to be a propitious time for making formal complaints against the husband, given that the only reason put forward for delaying the making of the complaints was to enable the children to recover sufficient psychological strength to endure the criminal proceedings.

In relation to the timing of the complaint of sexual abuse to the Police, the wife included an entry in her chronology in her final written submissions that she and [Laura] attended [Suburb E] Police Station on 22 December 2013 for [Laura] to report domestic violence by the husband and sexual abuse of her as a child. The evidence relied upon was par 32 of [Laura]’s 2 July 2020 affidavit. In that paragraph, [Laura] said that she and the wife made a complaint against the husband about threats made by him and his action in leasing the [Suburb B] Property to Mr [Mack]. [Laura] added:

The statement to the Police by the wife was not tendered in evidence. [Laura] specifically said that she “mentioned” the sexual abuse of herself by the husband. Apparently, the Police did nothing about the subject. I do not accept that any real complaint of sexual abuse of the children was made to the Police before 7 January 2014.

The date of [Jess]’s complaint was just three days after the incident with Mr [Mack] and Ms [Walsh] at the [Suburb B] Property. It would be naïve for the Court not to see a connection between the wife’s attempts to gain possession of the [Suburb B] Property, consisting as it did of her dispute with Mr [Mack] and Ms [Walsh], and the forgery of the husband’s signature on the exclusive agency agreement on 6 January 2014 and the laying of complaints of sexual assault against the husband. The evidence is not clear as to whether [Jess] unilaterally decided to make the complaint to the Police or whether the wife was involved in the decision to do so.

The objective fact is that the complaint was not made to the Police until 7 January 2014 in the context of the wife’s reaction to possession of the [Suburb B] Property having been given to Mr [Mack]. The evidence does not support a finding that the husband was solely responsible for that fact. It is open to conclude that the wife also agreed to give possession to Mr [Mack].

The wife has failed in these proceedings to prove on the balance of probabilities to the requisite degree of the satisfaction of the Court that the husband committed the sexual assaults against the children that have been alleged.

The failure of [Jess] to give evidence in the proceedings makes it impossible for the Court to find that the claims of sexual assault made by [Jess] against the husband have been proved on the basis of direct evidence, given the level of persuasion that is required.

The wife’s counsel responded to this difficulty in oral submissions by submitting that it is more probable than not that the husband did admit to the sexual abuse of [Jess] to the wife, [Laura] and [Lucas] on the evening of 13 June 2014, when [Jess] left what has been described as a suicide note and was found to be missing [T 745.21-745.32]. The issue of whether the Court should find the sexual assault allegations against [Jess] proved therefore depends upon whether it accepts that the husband admitted the allegations.

The wife submitted, in par 11 of her final written submissions, that the Court should accept, based on the evidence that the husband admitted sexually assaulting [Jess], that he did so “on at least one occasion”. Insofar as the wife relied upon the alleged admissions by the husband, she was constrained to accept that the Court could only find that he had admitted to one sexual assault. That is because, in the context in which the alleged admissions occurred, no detail was asserted concerning the nature, number and timing of the alleged assaults. Consequently, the husband cannot be taken to have admitted any particular allegations that [Jess] may subsequently have formulated.

As to the admission that the husband is alleged to have made on 10 January 2012 in front of medical staff at the [Suburb H] Hospital, in addition to the evidence of the wife, the wife initially relied in par 11 of her final written submissions on evidence given by the witnesses [Dominic] and [Maxwell] at the husband’s criminal trial, by reference only to identified pages of the transcript of that hearing, being T 315 and T 363. I am not aware that the wife provided proper notice to the husband that she would rely upon this evidence. The witnesses were not called to give evidence at the hearing, and, at the end of the hearing, counsel for the wife withdrew the tender of this part of the transcript of the criminal trial, and it was removed from the court book.

I find that the wife has not proved on the balance of probabilities that the husband admitted on 13 June 2007 to have committed sexual assaults against [Jess]. The wife’s counsel strongly submitted in her final oral submissions that it would be a very serious matter for the Court not to accept the evidence given by the wife, [Laura], and [Lucas] that the admission was made. However, in the face of the husband’s denial and the apparent failure by the members of the Police who were present to hear or record the admission, the evidence is insufficient to find that the admission was made. The circumstances were fraught with the possibility that [Jess] had committed suicide, and in any event, she was missing. It must have been a very intense emotional time for the witnesses. The true significance of what a witness may understand to be an oral admission by another person is very dependent on context and the tone in which statements may have been made. If the Court accepted the evidence of the witnesses that the husband made the alleged admission, it would in effect be allowing the witnesses to be the real judge of the meaning of whatever was said. Neither of the wife nor [Laura] acted consistently after 13 June 2007 with the belief that the husband had admitted to sexually assaulting [Jess]. I do not accept the wife’s explanation for allowing the husband to travel to the Gold Coast to retrieve [Jess], if she believed that [Jess] had threatened suicide as a result of sexual assault by the husband, and that the husband had admitted [Jess]’s claim.

Although [Laura] gave evidence, I am not satisfied, on the basis of the limited evidence put before the Court, that the incident related by [Laura] when she was eight years old that the husband touched her vagina occurred in circumstances that constituted a sexual assault. The other incidents related by [Laura] did not even involve prima facie acts of sexual assault.

There was no evidence that the husband sexually assaulted [Craig].

I should record, for completeness, that I have not ignored the evidence that the wife and children appear to have received various forms of victim’s support in respect of domestic violence or sexual assaults suffered by them. Those circumstances do not provide evidence that domestic violence or sexual assaults actually occurred.

As the wife has succeeded in persuading the Court that she suffered from a significant amount of family violence in the period up to 2007, when the husband left the [Suburb D] Property, but has failed in her case that she has suffered adverse emotional and psychological consequences of the husband having perpetrated sexual assaults against her children, it will be necessary to consider the medical evidence to determine how, if at all, the husband’s conduct is relevant to the application of s 79 of the Family Law Act.

On 23 October 2014, [Ashley Watson], a consultant forensic psychologist, provided a psychological assessment report of the wife to the then solicitor for the wife in connection with the wife’s criminal charges. The report was addressed to the Presiding Magistrate of [Suburb P] Local Court. Ms [Watson] provided the following record in her report of the history given to her by the wife during a consultation on 13 October 2014 (emphasis in original):

The history of family violence recorded by Ms [Watson] is generally consistent with the findings that I have made above, although the wife appears to have related fewer individual incidents than she gave evidence of in these proceedings.

Ms [Watson] stated that she had been given the following mental health history by the wife:

Ms [Watson] added the following description of the history given to her by the wife:

After describing the psychometric tests that Ms [Watson] gave to the wife, Ms [Watson] expressed the following conclusion concerning the wife’s psychological state at the time of the consultation:

The record in Ms [Watson]’s report of the history given to her by the wife and Ms [Watson]’s own opinions support the following conclusions:

Dr [Rosanna Boyd], a consultant psychiatrist, provided an expert witness report to the wife’s solicitors dated 28 November 2018. Dr [Boyd] also saw the wife on two occasions on 25 October 2018 and 22 November 2018 for the purpose of providing her with ongoing treatment.

Dr [Boyd] was provided with a report dated 8 September 2018 by a clinical psychologist, which was not included in the evidence. She was also provided with the 23 October 2014 report of Ms [Watson]. Dr [Boyd] reported being provided by the wife with a history that is generally consistent with the evidence given by the wife in these proceedings in relation to her marital history, allegations of family violence and the sexual abuse of her children.

Dr [Boyd] also reported being informed by the wife that, following family violence incidents that caused her to attend her general practitioner (which the evidence shows occurred on 14 September 2004), the wife lost interest in anything and her self-esteem was poor. Her sleep patterns were poor, and she was terrified to sleep when the husband was at home. The wife said that her concentration was poor, and she was extremely forgetful and had poor decision-making capacity.

It is notable that Dr [Boyd] also reported, in par 19, that the wife informed her that she was also facing complex legal difficulties dealing with settlement of her parent’s estate and was being misled by her brother and sister-in-law. The wife said that she was feeling extremely vulnerable, betrayed, and exploited by her family. This suggests that the dispute between the wife and [Lucas] that led to the other equity proceedings that were settled before the beginning of the hearing has compounded the wife’s psychological condition.

Dr [Boyd] also referred to the wife’s emotional condition being compounded by the death of her parents in the last few years and the continuation of the wife’s unresolved grief over that loss.

Dr [Boyd] formed the opinion that the wife was suffering from Chronic Depressive Disorder and severe PTSD.

It is conventional for parties who rely upon expert witness evidence to tender the letter of instructions to the expert, so that the Court can be sure of the basis upon which the expert formed the expert’s opinion. That did not happen in this case. It is not clear whether the background history set out in Dr [Boyd]’s report was given to her orally by the wife or whether it has been taken from the documents referred to in par 6 of Dr [Boyd]’s report.

It is concerning that, even though the wife consulted Dr [Boyd] in 2018, there is no mention in the report that the husband was acquitted on 6 September 2016 of all charges of sexually assaulting his daughters. Dr [Boyd]’s evidence therefore provides no insight into the question of whether the wife’s psychological condition may have been affected by her belief in the truth of the claims made by her daughters, the probable trauma of having to participate in the criminal hearing, and what may have been the extreme disappointment of the outcome of the husband’s acquittal.

In fact, the history that the wife gave to Dr [Boyd] is very strongly slanted towards the evidence that the wife has given in these proceedings concerning family violence as the cause of her psychiatric condition. There is a reference in par 14 to [Jess] having claimed in 2007 that she had been sexually abused by the husband for years. Paragraph 15 refers to disclosures by [Laura] and [Craig] that they had been sexually abused by the husband over the years. There is no mention at all of the criminal trial and its outcome.

Although Dr [Boyd] expressed the opinion, in par 33, that the wife was subjected to protracted verbal and physical abuse in her relationship with the husband over the years, that is clearly an acceptance by the doctor of the history given to her by the wife and does not constitute affirmative evidence of the wife’s allegations.

Dr [Boyd] expressed the following opinion in response to a question about the wife’s mental state and ability to fulfil her roles as homemaker and primary carer whilst her children were under the age of 18 years:

[James] attained the age of 18 years in 2011. As noted above, Ms [Watson] concluded that the wife developed PTSD sometime after 2009. Dr [Boyd] does not appear to have clearly distinguished between the two distinct phases in the wife’s emotional and psychological condition identified by Ms [Watson]. That may be related to the relatively limited attention Dr [Boyd] gave to the allegations of sexual abuse by the husband.

In response to a separate question about the wife’s capacity to gain meaningful employment, Dr [Boyd] said:

The evidence justifies a conclusion that the wife’s emotional and psychological condition deteriorated substantially after the allegations of sexual assault of her children were made in 2007. Even as a layperson, I would readily accept that consequence.

As the wife has not succeeded in proving in these proceedings that the husband was in fact guilty of sexually assaulting her children, the consequence of the medical evidence is that the wife’s emotional and psychological condition has deteriorated because of her belief that the husband had sexually assaulted her children. It is unsurprising that this belief, together with the emotional dynamics of her family and her participation in the unsuccessful criminal prosecution of the husband, may have contributed to the onset of her PTSD and chronic depression.

Subject to the determination of the parties’ liabilities, which will be undertaken below, the position is that the wife is the owner of the [Suburb D] Property valued at $3.8 million and is entitled to 5% of the proceeds of sale of the [Suburb B] Property, which may have a value of up to $500,000. The wife is also separately entitled to the net Pool 2 assets which have a value of about $1.2 million. Although the husband agrees that the Pool 2 assets are not available as the subject of an order varying the wife’s title to property, they remain assets that she can call on. The wife has also had the benefit of living in the [Suburb D] Property since the husband left that property.

On the other hand, the husband only has the remnant of his original ownership of the [Suburb A] Property, represented by his 14% interest in the proceeds of sale of the [Suburb B] Property, which may be worth up to $1.4 million. The husband has no home of his own.

To the extent that the proportionate contribution of the parties to the acquisition, conservation or improvement of the property owned by them may be relevant to the s 79(2) question, it will be seen from the consideration of the application of s 79(4) below that the proportions in which the parties have ended up owning the totality of the property owned by them does not match what the Court has determined is their respective contributions. The wife has a substantially higher proportion than what she contributed and the husband correspondingly less.

I accept the husband’s submission that this is a case where, from the time the husband left the [Suburb D] Property, there has not been and will not be the common use of property by the husband and wife that was an expression of the assumptions that underpinned the parties’ property arrangements during the period in which they cohabited. That use of property involved the parties and their children living in the residential property owned by the wife, and the property owned by the husband being treated as an investment and a source of rental income for the family. Consequently, the principle expounded by the plurality in Stanford at [42] would support a conclusion that it is just and equitable in this case to make an appropriate order under s 79(1) of the Family Law Act to alter the interests of the parties in the available property.

There is also the separate factor that the [Suburb A] Property that was originally owned solely by the husband was transferred to the Trust as to 80% on 13 May 2004 and was sold on 20 August 2013 for the purpose of permitting the purchase of the [Suburb B] Property. Whatever may have been the true reasons for those transactions, they had the result that the parties’ children became entitled to 81% of the value of the [Suburb B] Property, which meant that an amount of up to $10,335,600 (less GST liability), which may be traced to the husband’s contributions, has been vested in the children. Both parties consented to that arrangement. The change is such a substantial disadvantage to the husband’s position in respect of the ownership of property that it justifies the Court in determining whether an alteration to the ownership of the property that remains in the names of the parties will be just and equitable.

I do not accept that the mere passage of time since the husband left the [Suburb D] Property is sufficient to require that the Court not make any order that would disturb the existing property rights of the parties. The [Suburb D] Property was acquired on 21 January 2000 by agreement between the parties. Nothing has happened in the interim that would make it unfair for the Court now to make an order altering the entitlement to that property. In fact, although the result has been fortuitous, the delay on both parties’ parts in making their applications has created the opportunity for the windfall represented by the unexpectedly high sale price of the [Suburb B] Property.

If my understanding is correct that one reason why the wife opposes any order being made is that the existing distribution of ownership of property between the parties reflects the $1.8 million contribution made by the wife’s parents, I reject that argument because, as explained above, I do not accept that it has been proved that the parents made a contribution that large, although I accept that they made a significant unquantified contribution.

Finally, to the extent the wife relies upon the three notes that she says the husband made in August and November 2004, whereby he disavowed any claim to the [Suburb D] Property, I do not accept that the wife has established on the evidence that those notes were given to her in circumstances where she was entitled to act upon them, or that the wife has conducted her affairs since that time on the basis that the husband had bound himself never to make a claim to the [Suburb D] Property. The present case is distinguishable from Bevan, considered above.

I will therefore proceed to consider the application of s 79(4) of the Family Law Act.

The parties have agreed that the only property that is available for the purpose of making an order altering the property rights of the parties is the net assets in Pool 1. I have referred to those assets in a number of places above, including in the context of the consideration of the s 79(2) question, and will not repeat myself.

The parties did not treat the wife’s entitlement to superannuation of $61,432 as having any real significance.

As there was no evidence about the value or saleability of the wife’s property in [Country L], the Court cannot treat it as a valuable property for the purposes of the present exercise. The wife’s ownership of the property must be treated as a factor of general relevance to the determination of the orders that should be made.

That leaves three questions, the first being the validity of the wife’s claims that the amount of the two debts owed to the NAB that are secured by mortgage over the [Suburb D] Property, with a total of $423,535, should be treated as a liability in Pool 1. That claim is opposed by the husband.

As I have noted above, it is unsatisfactory that the wife did not address this issue more precisely in her evidence and did not even have a fixed position in her own mind as to who had the responsibility to repay this debt. However, as I have explained above when considering the consequences of the agreement reached within the family concerning the proportionate interests of the owners of the [Suburb B] Property, within the family there was an agreement that [Laura] would receive a higher proportionate ownership than the others in return for her contributing an additional $40,000 and being responsible for the mortgage. [Laura] has done very well out of that agreement. The Court is not called upon to decide who must pay the mortgage as between the wife and [Laura]. However, I am satisfied on the evidence that the mortgage debt should not be treated as a liability of Pool 1 in a way that disadvantages the husband.

The second outstanding question is whether the loan made by [Laura] to the wife of $249,261 should be treated as a liability of Pool 1. This amount is the balance of the wife’s original claim after she reduced it by an amount of about $90,000 that she obtained from [Laura] to pay her legal fees.

In Roy & Yalden, McClelland DCJ made the following observations on when the Court should accept that a party to the marriage is indebted to a member of that party’s family. His Honour said:

The wife did not give any evidence herself, or lead any evidence from [Laura], of the objective terms upon which [Laura] contributed the money the aggregate of which is the subject of this claim by the wife for the existence of a liability. That is, the wife has not given evidence of communications that would permit the Court to find that as a matter of law the payments made by [Laura] gave rise to enforceable debts. Not only is there inadequate evidence on that issue, but the uncertainty is compounded by the fact that [Laura] has apparently lived with the wife at the [Suburb D] Property for significant periods, and it may have been necessary for [Laura] to assist the wife to maintain her ownership of the [Suburb D] Property, as the mortgage over that property to the NAB was necessary to secure the joint loan that funded [Laura]’s disproportionate interest in the [Suburb B] Property.

I have not found it easy to identify the make-up of the payments made by [Laura] in the cascading affidavits and given that the exhibits to the affidavits were broken up and either included or not, as the case may be, in the chronological court book. [Laura] said at par 115 of her 13 December 2018 affidavit that the payments that she made into the joint offset account with her mother had both contributed to mortgage repayments and minimised the interest payable on the loans. [Laura] repeated that statement in part 48 of her 2 July 2020 affidavit. At least broadly speaking, while [Laura] may have made some payments to the wife for the wife’s personal benefit, it seems that most of the payments went into the offset account. [Laura] also referred to a land tax debt in respect of the [Suburb B] Property of $45,018.24. [Laura] said in par 69 of her 22 May 2020 affidavit that she has been solely responsible for the land tax debt.

Finally, [Laura] said in par 121 of her 13 December 2018 affidavit in respect of her payments to that date “that my financial contributions have been for the benefit of my mother and my siblings, I seek that these contributions be recognised as if they were contributions made by my mother herself.” That is not consistent with the claim that the wife is indebted to [Laura] in respect of the payments.

While it is apparently true that [Laura] has made disproportionate payments to maintain the [Suburb D] and the [Suburb B] Properties, she has also – legitimately – enjoyed a disproportionate return. I am not satisfied that this alleged liability of the wife to [Laura] should be treated as a liability of Pool 1.

The third question is an issue that has arisen after the Court reserved judgment in the family law proceedings.

The parties prepared their statements of assets and liabilities on the basis that they would be responsible for their own legal fees. However, as I have explained above, the trustees for sale of the [Suburb B] Property have retained an amount of $188,000 out of the proceeds of sale of the property to cover an obligation of the husband to pay to [Laura] her costs of the cross claim in the s 66G proceedings. As these fees were not incurred in prosecuting the family law proceedings, they are not fees to which s 117 of the Family Law Act would have applied. The fees should therefore be characterised as a general debt that may be paid out of an asset that would otherwise have been subject to an order under s 79 of the Family Law Act.

In Trevi & Trevi [2018] FamCAFC 173, Murphy J, with the agreement of Alstergren DCJ (as his Honour then was) and Kent J, said (footnotes omitted):

It seems to be clear that Pool 1 will have to be adjusted to ensure that, if it has been reduced to cover legal costs that the Court has ordered the husband personally to pay to [Laura], then the husband must personally pay whatever the amount of the costs is ultimately found to be payable. The husband has not yet had an opportunity to state his position on this issue.

The issue of financial and other contributions made by the parties is raised by s 79(4)(a)-(c) of the Family Law Act. The parties disputed a number of matters that conveniently should be addressed before the evidence that is relevant to the determination of this issue is considered.

The date of marital separation is likely to be the effective time when “the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship”, as explained by the plurality in Stanford at [42]. As I have explained above, in the context of considering the credibility of the wife's evidence, the parties contended for fundamentally different findings as to the date of their marital separation.

Notwithstanding the attention given to this question at the hearing, I do not understand the parties in their final submissions to have suggested that the answer has any significance. It seems that the issue descended simply to a question that the parties could fight about.

The wife's case was that separation occurred in 1998, notwithstanding that cohabitation continued until the latter half of 2007. The wife's evidence was that she and the husband slept in separate bedrooms from 1998, did not have sexual relations, and that the husband in practical terms lived as a lodger in the matrimonial home. The husband's case was that separation did not occur until he permanently left the matrimonial home in 2007.

It would be difficult for the Court to resolve this difference if it were necessary to do so by determining a relatively precise date of separation. That is because the Court does not have great faith in the credibility of the evidence given by either party, so that when their evidence clashes on a matter known only to them, there is no solid ground available to the Court to prefer the claims made by either party.

I do not think that it is necessary in these reasons for the Court to explore the legal significance of the date of marital separation to the application of s 79 of the Family Law Act. In many and various ways, the significance of circumstances relevant to the application of s 79(4) may depend upon whether they occurred before or after the date of separation. But it will not always be so.

In the present case, Pool 1 is comprised primarily of the [Suburb D] Property and the parties’ interest in the proceeds of sale of the [Suburb B] Property. The first property was acquired in the wife’s name on 21 January 2000, which was shortly after the 1998 date of separation claimed by the wife. The [Suburb A] Property was acquired on 31 August 1988, and all of the steps that led to the purchase and ultimate sale of the [Suburb B] Property took place after 1998. The transfer of an 80% interest in the [Suburb A] Property to the Trust occurred on 13 May 2004, at which time the marriage was under substantial strain, even on the husband’s case. The sale of the [Suburb A] Property and the purchase of the [Suburb B] Property occurred at times after the final separation of the parties, even on the husband’s case.

This is not a case where the parties conducted their property affairs differently before and after the date of separation on either party’s case. This is a case where the parties’ mutual dealings with properties continued after both alleged dates of separation in materially the same way as they would probably have occurred if the separation had not happened. The true date of separation appears to have no significance to the issue of how the parties conducted their property affairs.

That is true even of the issue raised by s 79(4)(c) of the Family Law Act, as the wife was by far the greater contributor to the welfare of the family before either claimed date of separation, and the only real change occurred after 2007, when the husband’s contribution ceased almost entirely.

As the parties’ families have made substantial donations to the property accumulated by them, it is necessary to address the way that contributions by the families of the parties should be dealt with. The Full Court said in In the Marriage of Kessey (1994) 18 Fam LR 149 at 159-60:

In Mabb v Mabb (2020) 60 Fam LR 299; [2020] FamCAFC 18 the Full Court added:

I am satisfied that the intention of family donors in the present case was uniformly to confer a benefit on the party to the marriage who was a member of that family.

That conclusion seems to be relatively clear in relation to the gift of the [Suburb A] Property by the husband’s grandfather that was placed solely in the husband’s name.

The conclusion might be slightly less clear in relation to the gift by the husband’s grandfather of the $50,000 to assist in the construction of the home on the First [Suburb O] Property, as that property was in the name of the wife. However, such evidence as there is of what was said when the gift was made supports the conclusion that it was a gift to the husband.

That the work done and materials provided by [G & P Brooks] in building homes on the First [Suburb O] Property and the [Suburb D] Property was intended to benefit the wife is supported by the fact that the company only conferred this benefit where the property was in the name of the wife, and it did not do so in the case of the [Suburb Q] Property and the [Suburb A] Property. The wife’s parents helped with a $70,000 loan to build the house on the [Suburb Q] property, which was jointly owned by the parties, but that loan was required to be repaid on the sale of the property.

I think that even the sundry work carried out by the husband’s father and brother on the various properties was intended to be a contribution for the benefit of the husband, even in the case of the [Suburb D] Property which was in the name of the wife.

I have recorded above that the husband gave evidence of an oral agreement with [Grant] that he would carry out work on property owned by the wife’s parents and [Lucas] for no payment in return for the parents repaying the NAB loan that the parties borrowed in order to complete the construction of the house on the [Suburb D] Property. I am not satisfied solely based on the uncorroborated testimony of the husband that the alleged agreement between the husband and [Grant] has been satisfactorily proved. I am not sufficiently confident of the husband’s credit to accept his evidence on this issue when it is no more than bare assertion.

Having made the primary submission that the Court should make no adjustment at all to the property entitlements of the parties, the wife submitted in the alternative that the Court should make an adjustment in the division of the matrimonial property in her favour because of the consequences of family violence that she alleges was committed by the husband. Family violence is defined in s 4AB(1) of the Family Law Act:

The leading case on the issue of the significance of proved family violence to the outcome of proceedings under s 79 of the Family Law Act is In the Marriage of Kennon (1997) 22 Fam LR 1 (Kennon), where Fogarty and Lindenmayer JJ said, at 19:

After a review of the authorities, their Honours reached the following conclusions, at 24:

In Spagnardi v Spagnardi [2003] FamCA 905 (Spagnardi), the Full Court said:

In Keating v Keating (2019) 59 Fam LR 158; [2019] FamCAFC 46 (Keating), Ainslie-Wallace and Ryan JJ said (footnotes omitted):

In Benson v Drury (2020) 62 Fam LR 1; [2020] FamCAFC 303, the Full Court, after discussing Kennon, Spagnardi and Keating, said:

Their Honours also gave the following guidance as to the proper manner in which a trial judge should deal with the presence of family violence in an application under s 79 of the Family Law Act:

The approach that the Court should take to identifying an “exceptional case” has recently been explained by McClelland DCJ in Giunta v Giunta (No 3) [2021] FamCA 272 at [511]-[514], where his Honour said (emphasis in original):

I respectfully adopt his Honour’s observations.

An analysis of the complaints of family violence by the husband made by the wife that is set out above shows that the wife claimed that she observed the husband to drink more alcohol regularly during 1997 and 1998. Apart from the allegation that the husband fired a pistol inside the home at some time in 1998, which I am not convinced was satisfactorily proved, the first serious instance of violence causing injury is said to have occurred on New Year's Eve in 1998. Thereafter, some level of general abuse and intimidation occurred, interspersed with occasional but serious physical violence, sometimes causing real physical injury to the wife. As I have said above, I accept that these claims have been proved, on the balance of probabilities, although there may well be some embellishment in relation to individual instances, and there are some claims that relate to conduct that is so improbable that it has not been satisfactorily proved. I add that, from the perspective of the victim, it is not unnatural that the recollection of violent incidents may grow in intensity over the years.

[Laura], [Jess], [Craig], and [James] were respectively about 9, 8, 7, and 5 years old when the physical family violence started. As the husband left the [Suburb D] Property permanently in mid-2006, the wife had to endure the serious family violence for about 8 and a half years.

As the wife said that she did not work, in order to care for the children, between 1990 and mid-2003, for most of this period her contribution to the marriage was as the primary carer for the children and homemaker. The wife worked as a remedial massage therapist from June 2003.

The main issue, therefore, is whether the evidence establishes that the violence had a significant adverse impact on the wife's contributions to the marriage. It is necessary that it be established that this is an exceptional case as required by Kennon at [24] and explained in the authorities that I have considered above.

As I have explained above, when considering the evidence of family violence in detail, there was much evidence to establish the fact of the violence, but very little to explain how the violence had a significant adverse impact on the wife's activities as carer for the children and homemaker, and on her ability to undertake her employment during the period when she worked.

The husband in his submissions referred the Court to five cases decided in 2020 in which an adjustment had been made in favour of a party to a marriage on the Kennon principle. Those cases were Mynatt & Siddall [2020] FamCA 40, Palin & Palin [2020] FCCA 701, Drury & Benson (No 2) [2020] FCCA 250, Warner & Pellin [2020] FCCA 1175, and Rowse & Gouker [2020] FCCA 3163. The husband also referred the Court to five cases in the same year in which the Court had rejected a Kennon claim. Those cases were Metzer & Metzer [2020] FCCA 119, Halsey & Jacombs [2020] FCA 136, Bainey & Bainey [2020] FCCA 1292, Nathan & Weston [2020] FamCA 541, and Boseman & Boseman [2020] FCCA 1470. The object of this submission was to assist the Court to understand how the issue had been treated in other recent cases, and to observe the relationship between the findings of family violence in particular cases and the reasoning of the courts leading to particular adjustments in favour of the victim.

The wife countered this submission by arguing that the Court must not treat the results of other cases as if they were presented in tabular form and simply look at the ranges of the adjustments made in other cases. I agree with that submission, as it is obvious that each case will depend upon its own facts, and a superficial comparison of cases is likely to lead the Court into error. Consequently, I have read the full reasons in each of the judgments to which I was referred.

I note that in the cases in which the Kennon principle was applied, there were findings of family violence of a seriousness generally in line with what I have accepted the wife suffered in the present case. That said, it is not necessarily reliable to compare levels of family violence, even by reference to relatively detailed lists of the violent acts that are found to have been committed.

In order of the cases listed above, in which the principle was applied, the adjustment was 5%, 7%, 5%, 5%, and in the last-mentioned case the adjustment appears to be subsumed in a larger adjustment made by the Court for a number of reasons.

In none of the cases did the Court attempt to articulate in any detailed way how the particular adjustment was chosen. That may be because, if the Court is required by law to determine a factor as subjective as an increase in the arduousness of carrying out a particular task, compared with objective matters such as the acquisition and maintenance of property, an intuitive assessment is unavoidable as any complex explanation is likely to be illusory.

The judgments in which an adjustment was made in favour of the victim for family violence do not explain in detail the evidence that was sufficient to persuade the Court that the violence had had a significant adverse impact on that party's contributions to the marriage.

In each of the cases where the Court declined to apply the Kennon principle, other than Bainey & Bainey where the party claiming the adjustment was found to have misunderstood the Kennon principle, the claim was rejected because there was insufficient evidence of a significant adverse impact on the claimant's contribution.

It is difficult to be sure of the significance of these findings because each of the cases was decided before the Full Court handed down its decision in Benson v Drury on 7 December 2020. That decision, at [49], made clear that "the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties". That is a fact that can be inferred from the evidence of the contributions made by the victim and the family violence that the Court finds on the evidence was committed. I take this to mean that it is not essential that the Court have before it evidence from the victim in which the victim attempts to explain in some detail how it was that the consequences of the family violence made the contributions significantly more arduous.

A judge hearing a case like these family law proceedings should have the emotional empathy necessary to make a reasonable assessment of the subjective effect of family violence, where the effect of that violence is not as obvious as, say, the result of debilitating physical injury. The work of caring for and nurturing the physical and emotional needs of children and the general maintenance of a household may be made significantly more adverse if it has to be undertaken in a state of fear, depression, uncertainty or self-doubt. So much is a matter of general human understanding.

I am fortified in this view by the decision of McClelland DCJ in Giunta & Giunta (No 3), where his Honour continued after the extract from the decision that I have set out above:

As the parties were married in 1987 and the more serious family violence began about New Year's Eve in 1998, the wife suffered from its effect for about half of the period during which the parties cohabited. It is immaterial, in my view, if the parties technically separated in 1998 as the wife claimed.

I note the direction in Benson v Drury, at [35], that a judge must take a holistic approach in weighing the contributions of a party which had been made significantly more arduous by the family violence of the other party along with all other contributions by each of the parties. Mindful of that injunction, I will say no more than that, in performing the holistic exercise, I am satisfied that the consequence of the family violence that I have found on the probabilities took place would lead to a just result if, at the end of the process, the fact of the violence was treated as increasing the wife's contributions by 10%.

I will now turn to a consideration of the contributions, financial or otherwise, made by the parties or on their behalf to the acquisition, conservation or improvement of any of the property of the parties, as required by s 79(4)(a), (b) and (c) of the Family Law Act.

In this case the whole of the matrimonial property consists of real property in the form of the [Suburb D] Property and the proceeds of sale of the [Suburb B] Property, being a total of 19% of the net sale price after payment of the CGT on the parties’ shares of the price in their hands.

Were it not for the transactions that led to 80% of the value of the [Suburb A] Property being transferred to the Trust, and the purchase of the [Suburb B] Property on a basis where 81% of that property was in the names of the parties' children, the matrimonial property would be substantially greater than it in fact is.

The Court only has power to make an order under s 79(1) of the Family Law Act in respect of the remnant of the matrimonial property that is owned by the parties. The share in the proceeds of sale of the [Suburb B] Property now owned by the children is now relevant in the sense that each child has a substantial fund out of which provision can be made for their future maintenance in life. That will be an issue relevant to the s 75(2) question made relevant by s 79(4)(e).

As both parties were involved in, and must be taken to have consented to, the placement of such a large proportion of the title to the [Suburb B] Property into the names of the children, and as the parties had some duty in the circumstances of this case to make long-term provision for their children, it is legitimate to take into account the husband's contribution to the acquisition of the [Suburb B] Property in determining the shares in the remaining matrimonial property that each of the parties should be given.

The assessment of the contributions made by each of the parties in the present case is significantly affected by the limitations in the evidence. There is some precise evidence relevant to the contributions made by the parties or on their behalf. It is not possible even to give a broad value to much of the other contributions that have been made. This deficiency has not been remedied by the testimonial evidence of the witnesses, as the Court is generally unwilling to act upon the bare assertion of the witnesses unless their evidence is inherently plausible.

The most significant aspect of the evidence of the contributions made by the parties is that they both brought property into the marriage either at or shortly after the date of their wedding. The initial properties in the individual names of the parties may, in broad terms, be traced in direct lines into either the [Suburb D] Property in the case of the wife, or the [Suburb B] Property in the case of the husband. The [Suburb Q] Property that was acquired jointly and held for a short period is an exception.

The wife's property strand consists of the First [Suburb O] Property, the Second [Suburb O] Property and then the [Suburb D] Property. The evidence shows that the first of these properties was purchased with the wife's funds for $81,150 and sold for $540,000. The price of the second property was $550,000 and it was sold for $850,000. That financed the purchase of the [Suburb D] Property for $700,000. That property is now said to have a value of $3.8 million. To a large extent that represents the contribution of the wife.

However, the evidence shows that there were substantial additional contributions, by or on behalf of the husband. The husband's family contributed $50,000 to the cost of the house that was built on the First [Suburb O] Property, and even though [G & P Brooks] contributed a substantial amount in kind to the construction of the house, the evidence shows that the husband did a substantial amount of the work for which, I accept, he was not paid in money. As such, a substantial but unquantifiable portion of the $540,000 price of the First [Suburb O] Property, when it was sold, was contributed by the husband. The husband also did some significant work in improving the Second [Suburb O] Property, although I would expect that to have represented a relatively small part of the value at sale of $850,000. Consequently, when the [Suburb D] Property was purchased for $700,000, a substantial but minor part of the value represented a contribution by or on behalf of the husband.

When the [Suburb A] Property was brought into the marriage in the name of the husband, it is said to have had a value of about $320,000, although the evidence of the value is not strong. That may be consistent with the fact that the [Suburb B] Property, which is at the end of the strand of property contributed by the husband, turned out to be worth substantially more than the [Suburb D] Property. The husband built the home on the [Suburb A] Property without any significant help from [G & P Brooks] and had to take significant time off work for that purpose.

However, the husband was not the sole contributor to the [Suburb A] Property, as, after the jointly held [Suburb Q] Property was sold for $181,000, and the $70,000 debt was repaid to the wife's parents, an amount in the order of $110,000 was available to go towards the construction of the house on the [Suburb A] Property. Consequently, a significant contribution to that property was made by the wife.

There is no proper basis for the Court to assess in approximate percentage terms the value of the contributions made by the husband and the wife to any of the properties. That is because there is insufficient evidence of the cost of labour, contractors, and materials. Further, the Court is not prepared to accept the uncorroborated assertions of the parties as to what was paid out of savings or by [G & P Brooks]. As to the latter, the wife relied upon scattered pieces of evidence that were consistent with [G & P Brooks] having contributed services or materials to the construction of houses on one or other property. However, incomplete and unexplained evidence of that nature carries little weight.

In objective, even if only general, terms, the husband contributed a substantially higher proportion of the total family property (including the children's shares in the proceeds of sale of the [Suburb B] Property) than did the wife, but the wife has contributed a substantially higher proportion of the property that remains in the name of the parties than has the husband.

I do not accept, however, the husband’s submission that this circumstance justifies an order that the husband receive 60% of the remaining matrimonial property. The fact that the husband’s contributions have led to the substantial provisions for the future of the children is a factor that should be taken into account in the husband’s favour. However, the focus must be on what is a fair and equitable distribution of the remaining property. Even if he did so under some form of pressure, it was the husband’s act that transferred 80% of the value of the [Suburb A] Property to the Trust and thus ultimately to the children. I do not say this critically of the husband, but the fact is that he did not take any steps to reverse the transaction at an earlier time when he may have been able to do so. The husband may well have had good reason for accepting the result of the transfer, but that result was in part to put 80% of the value of the [Suburb A] Property out of the reach of the parties.

I have explained above why I do not accept the wife’s submission that an order should be made that she receives 65% of the remaining matrimonial property on the basis of her contributions before the application of the Kennon principle. Further, while I have accepted that the wife’s parents made a substantial unqualified contribution to the matrimonial property, it has not been proven that the contribution had a value of $1.8 million.

In this case, both parties made significant non-financial contributions to the acquisition, conservation or improvement of the matrimonial property. On the husband’s part, those contributions consisted of the work that he did in building houses on the [Suburb A] Property and the [Suburb Q] Property for which he received no remuneration. The same is true for the improvements that he made to the two [Suburb O] Properties and the [Suburb D] Property. Even the voluntary work that he did for the wife’s parents may have been related, although only in part, to the contributions made by the wife’s parents.

Although much of the evidence concerning the contributions made by the parties and their families was vague, the evidence strongly suggested that the families did not look at the world in a transactional way and sought to improve the parties’ material wealth by cooperative arrangements that cannot afterwards be dissected with any real accuracy.

The wife has separately made very substantial contributions to the welfare of the family in the capacity of homemaker and parent. As Mason J said in Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 (Mallet) at CLR 623: "the Act intends that the wife's contribution as homemaker should be recognised in a substantial and not merely in a token way."

In the present case, I have found that the wife contributed almost all of the care and welfare of the family in the capacity of homemaker and parent. That contribution must have been more onerous than usual because of the number of children, the close spacing of their births, and the disabilities manifested by most of the children as I have explained above.

The wife's contribution in this respect must have been made all the more arduous as a consequence of the limited income earned by the husband, especially in the periods during which he was working without pay, constructing or improving houses on the parties' properties, which must have imposed significant financial deprivation on the wife and family. There is a real sense in which the wife contributed to the improvement in the value of the matrimonial property as a result of the building work done by the husband because that was reflected in financial stringency that the wife had to endure.

A well-known observation by Wilson J in Mallet, at 636, appeared to suggest that it may be necessary for the Court to undertake a detailed evaluation of the worth of the contributions of the husband and wife where one was the principal breadwinner and the other the principal homemaker. His Honour said, among other relevant remarks:

The Full Court of the Family Court responded to this observation in In the Marriage of Ferraro (1992) 16 Fam LR 1 at 37-9:

The aspect of these reasons that I have found to be of most assistance is the observation by Nygh J that, in the circumstances that he was considering, the contributions of each party should be assessed having regard to the proposition that “each party should make such contribution as can be reasonably expected having regard to the nature of the parties’ capacity, the ability of each of the parties and expectations of the spouses”.

It is necessary for the Court to make a judgment as to the proportions in which the parties should be taken to have contributed to the current matrimonial property. That exercise cannot be carried out with any real semblance of mathematical precision. Except for the prices at which the various properties were bought and sold, it is not possible to value any of the contributions made by or on behalf of the parties. The separation between the two strands of property ownership in the names of the two parties has become entirely blurred by contributions made on behalf of one party to property in the name of the other, the effect of the joint acquisition of the [Suburb Q] Property, and the transfer of the 80% interest in the [Suburb A] Property under the influence of [Grant], which ultimately led, with the apparent concurrence of both parties, to the children having the shares in the [Suburb B] Property that have been discussed above. In my view, the fact that the more valuable [Suburb B] Property can be traced, save for [Laura]’s contributions, substantially to the contributions made by the husband is balanced out by the especially onerous contributions by the wife as a homemaker and parent.

In hindsight, the contributions of the parties in this case have been approached in their submissions in a way that in my view does not give due recognition to the success that they achieved in their joint efforts to acquire their matrimonial property. When the parties met in 1986 the husband was an 18-year-old nurseryman. The wife was a 26-year-old graphic artist. Albeit that the parties received considerable assistance from their respective families, they managed to apply enough funds to the improvement of the properties so that, were it not for the transfer of 80% of the ownership of the [Suburb A] Property to the Trust, the matrimonial property would have had a much higher value than it presently has. From an outsider’s perspective, it is not surprising that the parties suffered significant financial stringency for the whole of the period after their marriage. This process has continued since 1987 and has done so irrespective of the true date of separation of the parties.

I consider that this is a case that the period in which the parties have pursued their property-owning aspirations has been so long that in all of the circumstances it would be artificial for the Court to attribute responsibility for the contributions other than on a basis of equality, save for the judgment that I have made that it is proper to conclude that the wife’s contributions should be weighed on the basis of an additional 5% because they were made significantly more arduous by the husband’s family violence. The 5% is derived on the basis that the wife’s 50% contribution to the matrimonial property was made 10% more arduous by the husband’s conduct.

Section 79(4)(e) makes it necessary to set out the relevant terms of s 75(2) of the Family Law Act. I have not set out paragraphs of this subsection that are either plainly irrelevant or were not the subject of evidence or submissions by the parties. The subsection provides:

The wife is about 61 years old. She gave evidence in par 32 of her 19 March 2021 affidavit that her medical needs are generally outlined at par 145 of her November 2018 affidavit, pars 27 to 31 of her affidavit filed on 8 February 2019, and par 139 of her affidavit filed on 2 July 2020. After an inordinate waste of judicial time and having consulted MFI 2 which contains the husband's objections to the wife's affidavits, and the list of affidavits relied upon by the wife set out in par 27 of her final written submissions, I understand the position to be as follows. The wife's affidavit sworn on 15 November 2018 and filed in the family law proceedings was not read by the wife at the hearing. I have not been able to identify an affidavit of the wife filed on 8 February 2019. An affidavit filed on that date is not listed in the wife's final written submissions as an affidavit relied upon by her. I have not been able to find in any other affidavit relied upon by the wife evidence in pars 27 to 31 relevant to her health. Paragraph 139 of the affidavit filed on 2 July 2020 contains little material evidence as it only contains a list of dates on which the wife has seen Dr [Boyd].

There was evidence elsewhere in the wife's affidavits that she suffers from sleep apnoea, that she requires dental work, that her renal function is compromised, that she has eye floaters, arthritic knees and feet, that she suffers from tinnitus, and that she requires hearing aids. The wife continues to suffer from major depression and PTSD as explained above.

The husband is about 53 years of age. The husband's evidence was that he is generally of good health, but he has a degenerative disc in his back that causes him low level chronic pain with intermittent episodes of more severe pain. As of 14 December 2018, the husband had been consulting a psychologist once a fortnight for three months and he was taking medication daily to assist him with sleeping.

The wife’s state of health is thus considerably more precarious than that of the husband.

As of 19 March 2021, the wife worked as a pathology collector about 20.5 hours per week. She earned $2,350 a month gross. She said that because of the condition of her health she was unlikely to be able to continue to work for a longer period than about 1 and a half years.

However, as a result of the settlement of the family provision proceedings and the legacy in her father's will, the wife is now entitled to the assets in Pool 2 that are valued at $1,205,619.

It is unlikely that the wife, from her own resources, will be able to retain the [Suburb D] Property as her home if the Court makes an order that entitles the husband to a significantly greater share of the matrimonial property than he has at present.

Although the Court cannot treat the children's shares in the net proceeds of sale of the [Suburb B] Property as being available to the wife for her own purposes, I am satisfied that at least [Laura]'s share will probably provide a backstop to the wife for needs that she might not be able to afford herself.

The husband's evidence in his financial statement filed on 9 March 2021 was that his average weekly income from his employment as a builder was $333 and that he received assistance from his appearance of $350 for housing and food expenses and $150 for fuel and car maintenance. His total personal expenditure was $392 per week.

I accept that the husband's earning capacity has been reduced as a result of the psychological strain of the criminal proceedings, which are also likely to have damaged his reputation. There was evidence that the husband had an earning capacity of $40 per hour, and I accept the force of the wife's submission that the husband should be able to earn $800 per week if he only worked 20 hours. On the evidence, I consider that the wife's submission that the husband has a realistic prospect of earning about $80,000 per annum is fanciful.

The husband does not have a home of his own. He lives with his parents and his father gave evidence that the husband will be welcome to stay in the parent's home indefinitely. I reject the wife's submission that this arrangement should be treated as adequate and that the husband is not reasonably entitled to expect to own his own home.

There was no evidence about the likelihood of the husband inheriting a substantial amount from his parents.

Neither party has good employment prospects or a reasonable expectation that they will be able to support themselves to a satisfactory standard of living from their earnings.

The wife is entitled to a small amount of superannuation of $61,432. The husband did not make any submissions concerning the significance of this asset.

The wife submitted that the Court should make an adjustment in the division of the matrimonial property in her favour because she alone of the parties will have to provide continuing support and assistance to each of the four children of the marriage into the indefinite future.

In Palumbo & Mandel [2019] FamCAFC 228, the Full Court of the Family Court said:

I accept the wife's submission that she will have to provide a substantial amount of ongoing assistance to each of the children indefinitely. The wife will have to continue to act as a nurse for [Laura] and to assist in the administration of the lives of the other children.

However, flowing from his original ownership of the [Suburb A] Property through the transfer of an 80% interest in that property to the Trust, and the purchase of the [Suburb B] Property in which the children received a total share of 81%, the husband has already provided a substantial fund for the future maintenance and advancement of the children. It would be unfair and inequitable for the Court to ignore this provision and to weight the division of the remaining matrimonial property in favour of the wife because of her need to provide ongoing care for the children.

The size of the provision made for the children out of the contributions of the husband is in my view so large as to justify the husband receiving a greater proportion of the existing matrimonial property than he now holds in his own name, and also to match the additional burden that the wife will carry into the future in providing assistance to the children.

In the somewhat extraordinary circumstances of this case, I have come to the view that an order should be made under s 79 of the Family Law Act that has the effect that the existing matrimonial property of the parties is divided between them in the proportion 52.5% in favour of the wife and 47.5% in favour of the husband. That is prima facie a just and equitable result for the reasons that I have given above.

The greater future needs of the wife will be accommodated within her sole entitlement to the assets in Pool 2. Because the husband also has significant needs, it would not be just and equitable to reduce his share in the matrimonial property to further benefit the wife.

The most significant factor in the history of the matrimonial property of the parties is plainly the intervention of [Grant] in causing the husband to transfer 80% of his interest in the [Suburb A] Property to the Trust. That has imposed upon the parties a stringency that they would not have had to deal with if [Grant] had not intervened. All that can be said is that it led to a corresponding benefit for the children that has alleviated the burden on the parties to care for the children in the future.

I will invite the parties to propose orders to give effect to these reasons by providing draft short minutes of order to my Associate, subject to the following observations.

I appreciate that I have not resolved the issue of whether the value of the [Suburb D] Property should be determined by requiring that the property be put to auction. Whether that should happen depends in part on whether, following the publication of these reasons, the wife wishes to retain ownership of the [Suburb D] Property and whether she will have the financial resources to do so.

As some time has passed since the Court reserved judgment, there is a question whether the Court should put the parties to the inconvenience of an auction of the [Suburb D] Property without evidence that the sale price is likely to be considerably more than the value that has already been determined by the parties’ expert valuer.

As the contract for the sale of the [Suburb B] Property was entered into during the course of the hearing, and the contract was completed after judgment was reserved, additional issues may have arisen that are material to the orders that the Court should make.

The parties should confer and provide proposed short minutes of order to my Associate within 21 days. As it is probable that a further hearing will be required to consider the orders that should be made, the parties have leave to approach my Associate for the purpose of fixing an appropriate hearing date after the 21-day period has elapsed.

I record that these reasons for judgment were substantially completed by 23 March 2022 but on 31 March 2022 the husband foreshadowed making an application to reopen his case. The steps necessary to determine whether the application should be made were not resolved until 31 May 2022. On 3 June 2022 my Associate was advised on behalf of the husband that the application to reopen would not proceed.