Jackson v Jackson [1999] NSWSC 229 | Case summary

1 MASTER MACREADY: This is an application under the Defacto Relationships Act for the adjustment of the parties' property interests. There is also in a cross claim filed by the defendant a claim for damages for assault in respect of several instances of violence, alleged by the defendant against the plaintiff during the period of the parties' cohabitation. The parties are agreed that they lived together in a defacto relationship between December 1986 and 18 June 1997. On one occasion during that period the defendant left the home in which the parties resided but returned about ten days later. 2 The plaintiff was born on 5 February 1941 and is now aged 58 years of age. The defendant was born on 4 November 1951 and is now aged 47 years. She is of Fijian descendent but is now an Australian citizen. The parties met in June 1983 and at that stage the plaintiff was living on a ship anchored in Suva harbour. There is some difference between them as to whether or not they lived together on the ship or in separate residences. That ship was sold in January 1984 and thereafter the plaintiff lived on another ship the, "North Sky" also anchored in the Bay of Islands, Suva harbour. In March 1984 the association between them changed to the extent that the defendant moved to her sister's property at 14 Foster Street, Suva. 3 On 29 July 1984 a child, Damian, Francis, Valentine, Jackson, was born as result of the relationship between the parties. At that stage the plaintiff also moved to the unit at 14 Foster Street, Suva and lived with the defendant and their son. Later in the year the plaintiff travelled to North Korea on a venture concerning the sale of a ship and returned some time later. At the end of 1984 the plaintiff returned to Australia in order to endeavour to purchase HMAS Melbourne and from that period until October 1985 the plaintiff was in Australia and the defendant in Fiji. The plaintiff returned to Fiji for a week and arrangements were made for the defendant and her son to apply for settlement in Australia. In mid 1986 the defendant and her son came to Sydney and lived with the plaintiff for several weeks before returning to Fiji. The defendant and the parties' son, Damian, were given approval to migrate to Australia in December 1986 and they came to Australia on 22 December 1986. The parties lived together thereafter in rented accommodation at Bondi. In early 1987 the plaintiff, who had skills as a mechanical engineer, commenced work with Australian Skilled Engineering and in the early part of the year the defendant commenced employment with the National Australia Bank as a bank officer at the Double Bay branch. 4 In 1990 the plaintiff changed his position of employment and on 17 October 1991 the parties purchased in joint names the unit at 3/38 Mitchell Street, North Bondi. The purchase price was $165,000 and a bank loan was taken out for $120,000. This was at a discount rate due to the defendant's employment. There were expenses comprising stamp duty of $4,265, legal costs of $1,500 and loan fees of $630. The equity supplied by the parties at that stage was $51,395. I will return in due course to the contributions to this equity. This is a matter of some dispute on the evidence. After the purchase the whole of the defendant's salary from the National Bank was deposited to pay off the mortgage. The plaintiff, from his income, met the parties' other expenditure. 5 In 1992 there was an incident when Damian who was in the care of the plaintiff received a gash under one of his eyes. I will return to the details of this later when considering the parenting contributions. 6 Towards the end of 1992 a company, Austhold Pty Ltd was incorporated and this was used as a company for the purposes of the plaintiff making available his services to various employers. He then was employed by the company as was the defendant for the purposes of doing its book work. On 18 June 1997 the defendant alleges that the plaintiff assaulted her and, as a result, she left the parties' residence with the child, Damian. They moved to the defendant's sister's home and subsequently to a friend's residence. She has, since that time, remained living in rented accommodation and the plaintiff has remained in the unit meeting all the outgoings including repayment of the mortgage. 7 On 9 July 1997 the defendant cashed a term deposit which she had some time previously placed in their joint names and retained these funds for her own use. She used the funds to discharge credit card and other debts. On 21 August 1997 the plaintiff withdrew the sum of $4,198.57 from a passbook account in the name of the defendant in trust for the child, Damian, in order, so he says, to reimburse himself for expenditure relating to the child, Damian. The withdrawal was signed by the defendant. 8 At the commencement of the relationship the plaintiff had assets which consisted of savings of approximately $50,000 and plant and machinery which he estimated had a value of $35,000. That plant and machinery was later assigned to the company Austhold Pty Ltd when that company took over the business of providing the plaintiff's services on a contract basis. The plaintiff also had a Valiant motor vehicle the value of which does not appear in the evidence. 9 The only asset of the defendant of any substance at the commencement of the relationship was the defendant's entitlement to be paid a sum from a provident fund in Fiji. Apparently this entitlement arises from her employment in Fiji as employers contribute to the fund on a statutory basis for all their employees. She had been working since she was 21 years of age in other words for some 13 years by the time the relationship commenced in 1986. She alleges that her entitlement at this stage was some $15,000. Although conceding that she did have some entitlement the plaintiff denies that it was anything like $15,000 or that it was used as the defendant suggests for the purchase of the unit which occurred in 1991. 10 At the conclusion of the relationship the plaintiff had his joint interest in the unit, 3/38 Mitchell Street, Bondi. The parties are agreed that that unit has a present value of $310,000. They are also agreed that as at the date of the conclusion of the relationship the amount owing to the bank was $65,573.55. The amount owing to bank on the loan at the time of the hearing is agreed by the parties at $55,583 leaving an equity in the property at the present time of $254,417. 11 The plaintiff also held one of the two shares of $1.00 each in the company, Austhold Pty Ltd. A question regarding the value of that was raised and evidence was given by Mr Holebrook in which he made a valuation based upon future maintainable earnings. The company had made a loss in 1996 and 1995 and according to Mr Holebrook it made a profit in the year ended 30 June 1997 of some $9,000. Applying his capitalisation basis he came up with a value of the total company of $9,383. However, it turns out that the income for 1997 was artificially increased because some $15,000 of long service leave and redundancy entitlements to which the plaintiff was entitled were paid into the company's account and treated as gross income for the year ended 30 June 1997. This was an incorrect treatment of it and, accordingly, there is no basis for Mr Holebrook's valuation. 12 Mr Bentwich gave evidence of the net assets of the company at 30 June showing that there was a net deficit of $8,161. Accordingly he valued each share at $1.00. In these circumstances this would appear to be the correct value of the share. Ultimately the company, which is purely a medium for providing the plaintiff's services is of no value to the defendant but the plaintiff asks that in due course the remaining share which is held by the defendant be transferred to him. The plaintiff also had at the date of separation the use of the Toyota Hiace utility which was valued in the company's accounts at some $7,000. 13 The defendant, at the conclusion of the relationship, had her interest in the jointly owned property which I have referred to above, one share in the company Austhold Pty Ltd and a Ford Falcon sedan. There is no evidence of the value of the Ford Falcon sedan. However it was one which was purchased during the relationship using as a trade a Toyota Corono. The Toyota Corona had also been purchased during the relationship. 14 As I have recounted in the chronology, shortly after the conclusion of the relationship, the defendant transferred a deposit of $15,000 in the joint names of the parties to herself. The defendant says that the $15,000 which she did appropriate to herself was used to pay off various credit cards and other debts which she had at that stage. 15 I turn to the question of financial contributions to the property of the parties. The major property is the unit which was purchased in October 1991. The plaintiff has produced documentary evidence showing that he was the holder of 40,000 units in what became Canberra Consolidated Investments Pty Ltd on 30 November 1984. He has also produced documentary evidence showing that this increased by 3,612 units in June 1985 and that those units were redeemed on 31 January 1987 for a total sum of $56,696. Thereafter there are a number of term deposits made by the parties with the National Australia Bank both individually and in their joint names. This documentary evidence certainly gives substance to the plaintiff's claim that he had funds which he said he brought to the relationship. 16 The defendant, as I have indicated, maintained that she had an entitlement to some $15,000 which, once she came to Australia, she withdrew from her Provident Fund and used for the purposes of increasing the parties' savings and ultimately the purchase of the unit. The defendant has produced no records to substantiate the amount of her entitlement. Letters were written late last year to the various Fijian authorities in order to obtain details but those authorities have not responded. So far as statements from her bank are concerned, she did enquire from her employer about past statements and found that the banking records had been destroyed. However, she was aware that the bank maintained Microfish copies of destroyed documents and she has not sought to obtain those documents. 17 When the defendant made application for entry for settlement in Australia she completed an application form. This form had a provision for her to insert details of her capital and assets. However, nothing was inserted in the space in that form. The defendant says she just overlooked the matter. 18 There are a number of term deposit records which were tendered in evidence which were produced from the records of the plaintiff. These deposit slips commenced in 1988 and there were two deposits in the name of Grace M. Jackson, one for $8,000 and one for $2,000 each for 90 days commencing 15 July 1988. The $2,000 was rolled over on 13 October for a further 90 days and on 11 January for a further 90 days and on 11 April for six months. There are no documents for a rollover of the $8,000. On 26 November 1988 there was a term deposit for $10,000 in both names which seems to have been rolled over for 89 days on 24 February and 79 days on 6 March. 19 In August 1989, there is a term deposit for $3,000 in the names of both parties, one in October for some $2,358 for 46 days in the name of the defendant. On 24 May 1990 there was a deposit for 90 days in the sum of $40,000 in both joint names. This was rolled over in August 1990 for 90 days, on 20 November for 90 days on 18 February for 90 days and on 19 May for 90 days. By this time it had grown into $44,986.30. Thereafter in June 1991 there is a deposit in the defendant's name of $2,000 on term deposit until 17 August 1991. In August a deposit in the defendant's name in the sum of $29,231 and another deposit in her name in the sum of $50,000. There also was another deposit of $33,500 in her name. How these last three deposits are explained is unknown. They certainly exceed any of the parties' estimate of what was then held on deposit. 20 If one reviews this evidence one finds that there is no contemporaneous document produced by the defendant to support her version of the amount that she had in the Provident Fund. It is surprising that she did not refer to it in her application for entry as no doubt that would have enhanced her chances of entry. It may have been something that did not occur to her as being an asset at that time. On the other hand the plaintiff certainly had sufficient assets in 1987 to indicate that he was the source of the funds of the various monies on deposit which were ultimately used for the purpose of purchasing the unit. There is, however, the unexplained evidence about how the funds were placed on deposit initially in 1988 in the name of the defendant in amounts of $8,000 and $2,000 and maintained in her name for some time. The plaintiff has not given a full account in his evidence of how or why the funds were placed in the defendant's name. The parties' savings were also used to purchase a Toyota Corolla for $4,000 which was traded in as a Ford Falcon shortly thereafter which purchase required the use of a further $2,000 from savings. The parties are at issue on whose savings were used to make these payments. The defendant maintained it was her savings. 21 In the circumstances I am prepared to accept that $15,000 was provided by the defendant from her Provident Fund. In coming to this conclusion I have regard to not only the documentary evidence but the reliability of the two parties. The defendant endeavoured to give her evidence carefully and there is nothing which suggested to me that she was not giving it truthfully. The plaintiff in the witness box was not always satisfactory. Important matters in this regard were:- 22 1. He refused to accept an error in his affidavit where he stated his income as approximately $1,500 per week. Although this was wrong it was certainly not done, I would have thought, with the intention of deceiving the Court because in the affidavit he had clearly set out what were both parties' taxable income. However it did indicate a stubborn inability to accept that what he had put was inaccurate. 23 2. I found him unsatisfactory in his answers to questions about household duties. 24 3. He was prepared to make allegations against the defendant about matters concerning the parties' son without a proper basis. 25 On this basis the initial contributions to the unit by each of the parties in cash I would put as to the plaintiff $42,395 and as to the defendant $9,000. I accept that the defendant supplied $6,000 for the two cars. There is evidence given by the plaintiff of the parties' taxable income. For the plaintiff his taxable income over the period was some $345,000 and the defendant's $212,000 making a total of $552,000. Apart from one matter these funds were employed by the parties in the repayment of the mortgage and also for the other joint purposes of the relationship. The only area where they were not so employed concerns the education of the daughter of the plaintiff by his marriage which predates the matters with which I am concerned. The defendant alleges that between 1993 and mid 1995 the plaintiff paid for his child Zoe's education with the Church of England Ladies' College, Canberra $2,500 per term amounting to some $25,000. This is denied by the plaintiff. There is no other evidence on the matter and, accordingly, I propose to accept the defendant on this matter. One should then deduct from the available income of the defendant this sum. 26 The proportion of the incomes of the contribution of each of the parties to their joint purposes is as to the plaintiff, 60.2 percent and the defendant 39.8 percent. 27 It would be inappropriate to credit the defendant with all the repayments on the mortgage just because her salary was used for this purpose. Applying the ratios I have referred to above to the amount by which the principal was reduced from $120,000 down to $65,573 at separation one finds a contribution by way of principal to the mortgage for each of the parties as follows:- Plaintiff $32,765 Defendant $21,662 28 Thus the contributions to the unit overall are:- Plaintiff $75,160 i.e. 71% Defendant $30,662 i.e. 29% 29 Each party had a financial resource which was their superannuation entitlement. The plaintiff's at the time of the hearing was approximately $18,000 and the defendant's $14,123. These resulted from employers' contributions only. 30 In Green v Robinson , (1995) 36 NSWLR 96 the Court, inter alia, dealt with the way superannuation should be dealt with. His Honour, the President, at p 103 of the judgment had the following to say in relation to superannuation: "It is as erroneous to ascribe the superannuation payments to the separate and differentiated income of the parties as it is to ignore superannuation altogether. Despite equal pay legislation, and industrial decisions to the same end, it is well known that in Australia, female earnings are typically lower than male earnings. Inherent in the notion that each 'owns' the superannuation entitlements accumulated from his or her income, in an inescapable bias against vulnerable (usually female) members of a marriage or marriage-like relationship. This is a bias which the Act, far from condoning, forbids. By section 3(1), the Act requires, in relation to 'de facto partners or either of them', that the financial resources, which must be taken into account under section 20(1) of the Act, are to include entitlements under a superannuation scheme. This is therefore something which, in the exercise of the section 20(1) discretion, the Court must view as belonging not to Mr Robinson separately however he actually banks or notionally receives the contingent benefit, but to the financial resources of the parties which need to be adjusted, having regard to the contributions 'made directly or indirectly' by them. Conformably with the language of the Act and applicable jurisprudence which has developed in the Family Court on analogous problems, it is my view that Ms Green made an indirect contribution to Mr Robinson's superannuation entitlements. Just as he did to hers. The only difference is that his entitlement was more substantial. This was because of its longer duration and because of his higher base income. I shall assume that the contributions to superannuation made before the relationship commenced to be disregarded. See Lipman v Lipman (1989) 13 FAM LR 1; DFC 95-068 (SCNSW). Both parties argued the case on this basis, although it is not without controversy and contrary opinions exist. See e.g. In The Marriage of Gill (1984) 9 FAM LR 969. The funds must therefore be reduced pro rata for the contributions made before 1974. I agree generally in the approach of Cole JA to this adjustment. But, with respect, the error in his Honour's approach, is to require, in effect, proof by evidence of the direct or indirect contributions made by Ms Green to Mr Robinson's accumulating superannuation entitlements during the relationship. Such proof is not required in cases under the Family Law Act. In my view, the express mention of superannuation entitlements in section 3(1) of the De Facto Relationships Act, makes it plain that Parliament accepted that ordinarily, partners to such relationships would be making at least indirect, if not direct, contribution to the accumulation of the form of savings which superannuation constitutes. That, in my view, gave Ms Green, for the period of the relationship at least, such a stake in that aspect of the 'financial resources' of Mr Robinson, as must be reflected in a 'just and equitable order', designed to adjust the interests of the partners, as section 20(1) of the Act requires." 31 Powell J at p 110 of his judgment referred to the need to establish that one of the parties had in some way contributed to the other's superannuation entitlements and that by reason of that contribution, it was "just and equitable" that some order based upon, or derived from, those entitlements should be made. Cole JA dealt with the matter at p 118 of his judgment and inclined to the view that there was no evidence in the case to suggest that the appellant had made any contribution, direct or indirect, to the respondent's present superannuation entitlement, it being a deduction from his service pay. He held that a similar situation pertained to the appellant's superannuation. 32 It is not easy to reconcile the different views but it would appear from the comments of Powell J and Cole JA that there must be some factual matter which enables one to form the view that there had been a contribution to a spouse's superannuation entitlements. A common example of this would be a partner who stays at home to look after children thus enabling the other partner to go to work and earn a superannuation entitlement. 33 In this case we are considering a situation where both the parties were working and there is no evidence which would allow one to come to a conclusion that one party contributed to the other party's superannuation. The plaintiff had his superannuation with a National Australia Bank scheme as did the defendant. There is no evidence of contributions to those schemes by Austhold Pty Ltd but I assume that this occurred. The majority of the defendant's superannuation would have come from her employer the National Bank. To the extent that Austhold Pty Ltd made some contributions based upon her salary of $80 per week this was in respect of services which she performed for the company. In the present circumstances, therefore, it is inappropriate to make any adjustment by having regard to the superannuation entitlements. 34 I turn to the non-financial contributions which are at the heart of one of the major disputes in this case. I will first deal with the contribution as a homemaker. It seems fairly clear on the evidence that the greater burden of time with the child, Damian, fell upon the defendant. The plaintiff seems to have worked during the week and also invariably worked on Saturdays. He commenced work early in the morning when he usually took the child, Damian, to his swimming training about 5 a.m. The defendant would pick up the child from training and take him to school until such time during his upbringing when his school and training venues coincided. He would then go straight to school. The defendant would tend to pick up the child, Damian, after school. 35 The questions concerning the plaintiff's conduct towards the defendant and the child, Damian, have to be considered. The first of these, which is not said to be the subject of a claim for damages for assault, was the use of offensive language by the plaintiff throughout the period of the relationship. According to the defendant the plaintiff used abusive and racist language towards her from February or March 1987 until separation in June 1997. The details of that language which can only be described as appalling, is set out in paragraph 26 of the defendant's affidavit and I do not intend to reproduce it in this judgment. The plaintiff denied it except for occasions when he was prepared to concede that he often said to the defendant, "Get off your lazy black arse". Apparently to him there was nothing untoward in this statement. 36 The specific assaults alleged are as follows:- 37 In 1987 the parties returned home from the Bondi Diggers Club where they had had dinner with friends when the plaintiff, according to the defendant, dragged her out of the taxi by her hair and pulled her up the stairs to the unit. Once inside he smashed her on the right hand side of her mouth which led to blood coming from her mouth. 38 In 1993 the defendant alleges that at their home the plaintiff grabbed her from behind, put both hands around her neck, tightened his grip and shook her violently. Apparently, according to the defendant, the plaintiff held her throat from some five minutes until she fell to the floor and blacked out. She went to work but did not stay there but went first to a friend's place and ultimately to a Lodge at Marrickville which was a women's refuge. 39 On 10 September 1996 the defendant was asleep in the unit in Damian's room when the plaintiff entered and, according to her, "stomped on her chest". 40 On 18 June 1997 during an argument the defendant alleges that the plaintiff swore at her and wrenched her handbag off her right shoulder. He then struck her with the handbag and knocked her off balance. This was the incident which led to her leaving the relationship. 41 There was evidence from a number of independent persons who were called on the defendant's behalf about some of these incidents and the language used by the plaintiff. The plaintiff for his part denied the language to the extent I have indicated and the assaults, except that he concedes that in 1997 he grabbed her handbag from the defendant. He says he went through it to find out what she had been spending her money on when she said she had been shopping. 42 There is abundant evidence from independent persons, mainly employees of the National Bank, which attest to the severe bruising which the defendant suffered in the 1993 incident. It was so bad that she could not stay at work and she was so upset that, in any event, she could not do so. The bruising was clearly apparent on her dark skin. I am satisfied that this event, which the plaintiff in substance denies, happened as described by the defendant. I have no doubt that the defendant was terrified by what happened. In coming to this conclusion I also note that the plaintiff in the witness box appeared to be a person who could very easily be angered. He was very angry about these proceedings although this may have been linked to the custody difficulties the parties were having in respect of their son, Damian. 43 In respect of the incident in 1987 there is evidence from a couple who lived in the same building and had been with the parties to dinner. Kerin Pell gave evidence of conversations which supports the defendant's version of the story, namely, that she was pulled from the taxi by her hair, dragged upstairs and taken into the unit. Mrs Pell who did not witness the incident, but heard of the incident from her husband, went in next door to comfort the defendant and found her in a terrified condition lying on a mattress on the floor. 44 I am also satisfied that this incident occurred as the defendant describes it. Generally, given the independent evidence and the plaintiff's obvious denial of the matters which may appear clear on other evidence, I would have great difficulty in accepting the plaintiff's evidence over that of the defendant's. Accordingly I accept the defendant's evidence in respect of the other incidents including an incident which occurred when Damian suffered an injury in 1992. According to the plaintiff that was simply because he and Damian, who had learnt Karate, were sparring. The plaintiff, I might add, had been a boxer and was quite used to fighting or sparing. According to the defendant the incident occurred when Damian came home, apparently having been to a swimming meeting at which he recorded a bad time. According to her the plaintiff became very angry when he heard this news because he was obviously closely involved in Damian's swimming and wanted him to do well. The plaintiff apparently hit Damian. A social worker was called and in the presence of the social worker the plaintiff admitted hitting Damian and said he would not do it again. 45 The defendant tendered a number of medical reports from a psychiatrist which dealt with the injuries that she had suffered. In those reports Dr Christopher Canaris concluded in a report made on 6 May 1998 that the symptoms which she then described to him were consistent with the diagnosis of post traumatic stress disorder which had receded somewhat but was far from completely resolved following her departure from her husband. In a report in March 1999 he concluded that she had made a stable recovery as a consequence of getting away from the man who she alleges persecuted and undermined her for many years. He saw no need for any specific treatment at that stage. 46 Unfortunately the matters relied upon by the psychiatrist in coming to his conclusion included a matter quite unrelated to the particular assaults and bad language with which I am concerned. This wan an allegation of sexual abuse and no evidence of this was given before me. In the circumstances I would not be comfortable in finding that such post traumatic stress syndrome as she may have suffered for a short period was attributable to the assaults or language on their own. 47 It should be noted that a defence of Statute of Limitations has been pleaded in respect of these assaults. In respect of one of them, namely, the 1987 incident, that clearly is statute barred. 48 The question arises as to how these matters should be treated. The defendant's submissions on this aspect were less than clear and it is perhaps best that I deal with some matters of principle in relation to how they should be viewed in the context of the adjustment to be performed under the Act before finally deciding the matter. It is important, of course, that double counting not occur as it would be inappropriate for the matters to be taken into account on the property adjustment and also to give a verdict against the plaintiff for damages in respect of these assaults. Perhaps before leaving the actual incidents themselves I should record that the defendant did not seek any treatment for her injuries. The other matter to note is the nature of the injuries. These have been described, to the extent to which there is evidence, in the recounting above and certainly in respect of the 1993 incident the defendant suffered extensive bruising to her neck. There has been no claim for special damages such as economic loss. 49 I turn to the question of what effect the assaults may have in the adjustment process. The defendant relied on two cases under the Family Law Act, Doherty v Doherty (1996) FLC 92-652 and Marando v Marando (1997) FLC 92-754. In the first of these cases the Full Court said at page 82,683:- "On page 26 the trial Judge made reference to the appellant's drinking habits and to domestic violence and aggression, which he exhibited towards the respondent and the children, particularly to S. Although the trial Judge did no more than record these events, it is clear from his findings that the wife's contribution as homemaker and parent may have been increased as a result thereof. Although the domestic violence complained of related to a relatively small period of time at the end of the marriage, nevertheless, his Honour would, in my opinion, have been entitled to have found that because of the appellant's conduct, the respondent's contribution diminished as a consequence, leading to the overall weighting based upon contribution in favour of the wife being increased, albeit only slightly, having regard to the facts of this case." 50 Of interest is the reference to such conduct either increasing one party's contribution or diminishing the other party's contribution. 51 In Marando v Marando at 84,168-9 Gee J had the following to say about the issue of domestic violence. In my opinion however, the wife over the very long period of cohabitation made a much greater contribution than the husband to the welfare of the family, particularly as homemaker and parent. I am satisfied on the evidence that in her homemaker and parenting role the wife in that role and by way of general contribution to the family's welfare carried out responsibilities well beyond the norm. She had the responsibility of the home and the children almost entirely without the husband's assistance for a very long period of time. Amongst other things, she thereby enabled him to work and earn income over and above his full time work as well as his full time work. In this family she was the uniting force and the one who provided the support, love and affection necessary to maintain this particular family unit over a long time. This was made especially hard by the husband's abuse and denigration of her and the children in the ways described by them in their evidence, which I largely accept on this issue, as well as by his attitude to `women's work' and by his drinking which necessitated the wife working especially hard and harder than would be usual in normal situations as homemaker, parent and as the prime navigator of the welfare of this family through the many seas of problems and difficulties which confronted them over the years. These are special factors of the kind to which the Full Court drew attention in Ferraro v Ferraro 16 Fam LR 1, especially at pages 38, 39 and 47, that being a decision affirmed in McLay v McLay 20 Fam LR 239 at pages 248 to 249, and is no doubt what Baker J had in mind when speaking for the Full Court in Doherty v Doherty 20 Fam LR 137 at page 141. His Honour's remarks, although, in my respectful opinion, obiter and given in an extempore judgment, are entitled to great respect. They do not represent new law. It has been suggested in some quarters since that judgment was delivered that they have, but I disagree with that suggestion. The remarks of Baker J in Doherty's case were simply an expression, in the context of domestic violence, of the passages in Ferraro's case cited above. Neither Ferraro's case nor Doherty's case purported to overrule Soblusky (1976) 2 Fam LR 1, nor Ferguson (1978) 4 Fam LR 312, where investigation of fault or misconduct per se was deprecated. Any intention to overrule Ferguson was deprecated in Ferraro's case at page 39, and I am, with respect, unable to accept that either Fogarty J or Baker J, who were members of the Full Court in both Ferraro and Doherty, would have intended such decisions to be overruled without expressly saying so. 52 In Green v Robinson (1995) 36 NSWLR 96 Cole J at 119 after discussing the dictionary definitions of "homemaker" adopted the definition as "one who creates and maintains a comfortable and welcoming ambience for the members of their household". He went on to say at page 119:- "However, even such a second meaning is inadequate if it is intended to convey that only one person in a household may be responsible for the creation or maintenance of such a welcoming ambience for it is clear, in my view, that each party to a relationship, be it of marriage or of a de facto relationship, may contribute to the homemaking in which that relationship subsists. Parties to the relationship may, depending upon their various capacities, skills, inclinations, interests, available time and other factors, contribute significantly to the making of a home. The concept of "homemaker" or "making of a home" has a different and wider connotation than housekeeping or maintaining a house. It involves the creation of an emotional ambience of stability. To take but three examples. A person, not infrequently the male in the relationship, may have skills related to home improvements which are exercised for the mutual advantage of the parties in the relationship. That is an aspect of homemaking for it permits the more pleasant enjoyment of the domestic relationship. To similar effect, a person, most frequently the female in the relationship, may practice cooking and decorating skills which also are aspects of homemaking for they similarly lead to a comfortable and welcoming ambience in the home in which the parties in the relationship live. And each, both the male and female partners, may bring to the relationship aspects of stability, and attitudes of tolerance and understanding critical to the creation of a home. It is important to recognise that contributions as a homemaker may be qualitative as well as quantitative, and that a lesser quantitative but higher qualitative contribution may be of equal or even greater importance and value to the relationship and the partners and children than a seemingly greater quantitative contribution. The width of aspects of contribution, and in some instances the amorphous qualities which a party may bring as his or her contribution as a homemaker to a relationship, highlights the difficulty of trying to quantify in precise money terms the contribution of each party. It lends emphasis to the need for the Court in most instances to exercise a significant element of judicial assessment in determining whether it is just and equitable that a property adjustment be made. 53 Clearly his Honour includes the qualitative aspects as well as the quantitative. Accordingly in the adjustment process it is possible to take account of these actions of the plaintiff in assessing his homemaker contributions. Whether it is appropriate to do so rather than give a judgment for assault is the next question. 54 The language used by the plaintiff was not said to cause an apprehension of physical contact and thus would not amount to an assault. The defendant's evidence did not indicate how such statements increased the difficulty of the work she did in her capacity as a parent and homemaker. No doubt it caused her distress and hurt. In contrast in the case of assaults the time spent recovering would have an obvious impact on her capacity. 55 The homemaker contributions put forward by the plaintiff are the execution of minor maintenance and repairs to the unit, managing finances and assistance with household chores. The defendant gave more detail in relation to household matters and it would seem that her input was far greater in this area. To the extent that he puts forward a claim for homemaker contributions the quality of that contribution should be judged bearing in mind his language. This should not be seen as a matter of penalising the plaintiff for his denigration of the defendant but more an assessment of the quality of the plaintiff's contribution. 56 In respect of the four assaults it seems to me that to the extent that the performance of the defendant's homemaker contributions was affected by the assaults, that fact ought to be taken into account in her favour in assessing them. The time, a period of some weeks, is of minor significance in the overall time frame of the relationship. 57 The apprehension, contact and the injuries arising from the assault and battery is another matter. These are serious matters and are no less reprehensible because they occur within a domestic arrangement. They should be separately treated to show the Court's disapproval of such matters. This course is adopted from time to time in the Family Court. See In the Marriage of Kennon 22 Fam LR 289 at 296 where Coleman J, who was there concerned with exemplary damages said:- "This is a case where the message must be spelled out to persons such as the respondent that they cannot assault and beat wives or de facto wives and escape civil liability simply on the basis that it was 'a domestic'. I know of no principle which renders an assault and battery in a domestic context less reprehensible than that in any other context." 58 These reasons, in my view, are also applicable where the claim is merely for compensatory damages for assault and battery without any claim for aggravated or exemplary damages. 59 Earlier I have described the injuries, time to recover and apprehension of the defendant. She was forced to a women's refuge because of that apprehension. There was no claim for exemplary or aggravated damages. I fix the damages for the assaults as follows:- (a) 1993 $10,000 (b) 10 September 1996 $2,000 (c) 18 June 1997 $3,000 60 Other areas which have to be considered are the parenting contributions. As I have already indicated the defendant indicated and the plaintiff concedes that more often the parenting fell upon the defendant. However, it is clear that the plaintiff became intensely involved in Damian's swimming activities. Before the parties split up Damian had reached a level where, as a junior swimmer, he was one of the top three for his age in Australia. He was doing very well. Unfortunately his swimming career seems to have come to a halt as a result of some accidents which Damian has had since the conclusion of the relationship. I have no doubt there was extensive input by the plaintiff but whether or not it may ultimately be of great benefit is called into question by the violence he has demonstrated to Damian on one occasion as a result of him having bad results at a swimming carnival. As I have found before, this certainly occurred and one would have to conclude that overall the defendant's contribution to the parenting was greater than that of the plaintiff for the period during which the parties were living together in a defacto relationship. This was a period of eleven years. 61 Another matter which should be addressed in this final adjustment process is the submissions which were made about the significance of initial contributions to the property. The defendant's submission compared s 79 of the Family Law Act and s 20 of the Defacto Relationships Act and noted the similarity of the two sections. Reliance was then placed on a principle said to have been adopted in the Family Law cases that the initial contribution of a party to an asset is usually eroded by the passage of time. Reference was made to Way v Way (1996) FLC 92.702. Particular reference was made to the adoption by the Full Court of comments made by Fogerty J in Marriage of Money (1994) FLC 92.485. His Honour said:- "An initial substantial contribution by one party maybe eroded to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party." 62 There has been criticism of this approach in an article by Anthony Dickie in 71 ALJ 423. Recently the Full Court in Pearce v Pearce unreported 10 June 1998 seems to be retreating from the principle. In paragraphs 24 to 28 the Full Court dealt with the matter. The Court concluded the discussion in paragraph 28 in these terms:- In our opinion it is not such much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weight the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home. See also Campo and Campo (unreported, Full Court (Ellis, Lindenmayer and FinnJJ)), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J at page 10)." 63 In my view the principle is no more than a recognition of the fact that as time passes later contributions whether they be of a homemaker, parenting nature or other financial contributions may well be of more significance than the initial capital contributions. In this case the period of the relationship is eleven years and the increase in the value of the unit is from $165,000 to $310,000 over 8 years. This is consistent with inflationary trends. In my view the shortness of the periods means that substantial weight has to be given to the fact of the initial contributions. 64 The present net equity in the unit is $254,417 and is the only substantial asset requiring an adjustment. The defendant has retained the Falcon car. The unit was purchased in 1991 and over the six years the equity (based on present value) increased from $51,395 to $254,417. Using the percentage contribution to the capital would see the present equity shared as to $180,636 to the plaintiff and $73,781 to the defendant. 65 The parenting and homemaking contributions have been discussed earlier and strongly favour the defendant. The plaintiff has had the benefit of the property but met the outgoings including mortgage repayments up until recently. The plaintiff wants a transfer of the unit and the share in Austhold Pty Ltd in return for a payment to the defendant of slightly in excess of $50,000. The defendant seeks an order for payment to her of 70 percent of the joint assets. Presumably the plaintiff is to retain the Hiace truck owned by the company and the defendant is to retain the Falcon car. 66 In order to allow the plaintiff to retain the property and have the benefit of his post separation payments, I think that the appropriate adjustment is that the defendant receive $140,000 by way of adjustment. The defendant is to have a verdict for the assaults in the sum of $15,000. The parties can bring in short minutes and argue costs. **********

Jackson v Jackson

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Judgment (7 paragraphs)

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