Supreme Court New South Wales Medium Neutral Citation: Norris (a pseudonym) v Brooks (a pseudonym) [2022] NSWSC 804 Hearing dates: [Hearing dates redacted] Date of orders: 29 September 2022 Decision date: 17 June 2022 Jurisdiction: Equity Before: Robb J Decision: See pars 532 to 539 below Catchwords: FAMILY LAW — property — marriage — adjustment of property interests — allegations of family violence against wife and parties' children by husband — Court satisfied that husband committed serious acts of family violence from time to time — allegations of sexual abuse of parties' children by husband — acquittal of husband on criminal charges in respect of alleged sexual abuse — Court not satisfied that husband committed sexual abuse of parties' children — effect of wife's belief in allegations of sexual abuse against parties' children on wife's post-traumatic stress disorder and chronic depression — parties' children are persons with disability — whether just and equitable to make order — adjustment ordered in proportions of 52.5% as to wife and 47.5% as to husband FAMILY LAW — property — marriage — contributions — extensive history of dealings in real property in parties' respective names — wife's father exerts pressure on husband to transfer 80 percent interest in parcel of land to discretionary trust for benefit of wife and parties' children — consideration of transfer in determining whether just and equitable to make order — consideration of transfer in determining contributions to children of the marriage — substantial contributions of parties' respective families — Kennon principle applicable to effect of family violence on wife's contributions EVIDENCE — standard of proof — civil cases — credit of both plaintiff and defendant in doubt — whether principles concerning proof of facts and credibility of evidence differ between New South Wales courts and Federal courts — whether correct to follow Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 in light of uniform Evidence Acts, s 140 Legislation Cited: Conveyancing Act 1919 (NSW), s 66G Crimes Act 1900 (NSW), ss 192G, 307A, 562ZY Evidence Act 1995 (Cth), s 140 Evidence Act 1995 (NSW), s 140 Family Law Act 1975 (Cth), ss 4, 4AB, 75, 79, 117 Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 Succession Act 2006 (NSW), ss 59, 60 Trustee Act 1925 (NSW), s 63 Cases Cited: Bainey & Bainey [2020] FCCA 1292 Benson v Drury (2020) 62 Fam LR 1; [2020] FamCAFC 303 Bevan v Bevan (2014) 51 Fam LR 363; [2014] FamCAFC 19 Boseman & Boseman [2020] FCCA 1470 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Drury & Benson (No 2) [2020] FCCA 250 Giunta & Giunta (No 3) [2021] FamCA 272 Halsey & Jacombs [2020] FCCA 136 In the Marriage of Ferraro (1992) 16 Fam LR 1 In the Marriage of Kennon (1997) 22 Fam LR 1 In the Marriage of Kessey (1994) 18 Fam LR 149 Johnson & Page [2007] FamCA 1235 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Keating v Keating (2019) 59 Fam LR 58; [2019] FamCAFC 46 Mabb v Mabb (2020) 60 Fam LR 299; [2020] FamCAFC 18 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Metzer & Metzer [2020] FCCA 119 Mynatt v Siddall [2020] FCCA 40 Nathan & Weston [2020] FamCA 541 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Norman & Norman [2010] FamCAFC 66 Palin & Palin [2020] FCCA 701 Palumbo & Mandel [2019] FamCAFC 228 Pavlis v Pavlis [2021] NSWSC 1117 Qantas Airways Ltd v Gama (2008) 167 FCR 537; [2008] FCAFC 69 Rowse & Gouker [2020] FCCA 3163 Roy & Yalden [2020] FamCA 1026 Norris v Norris (s 66G Proceedings) [2021] NSWSC 1676 Spagnardi v Spagnardi [2003] FamCA 905 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Trevi & Trevi [2018] FamCAFC 173 Wassell v Ken Carr Bobcat & Tipper Hire Pty Ltd [2021] NSWSC 1415 Warner & Pellin [2020] FCCA 1175 Category: Principal judgment Parties: [Max Norris] (Plaintiff) [Rachel Brooks] (Defendant) Representation: Counsel: J Bennett (Plaintiff) R Druitt (Defendant) Solicitors: Uther Webster Evans (Plaintiff) Frank Law (Defendant) File Number(s): 2020/065047 Judgment Introduction 1. 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. 2. 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. 3. [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.] 4. 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. 5. 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. 6. 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. 7. 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]. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. Legal principles in property settlement proceedings 1. 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. 2. 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). 3. 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." 4. 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). 5. 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). 6. 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: (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and (e) the matters referred to in subsection 75(2) so far as they are relevant; and … 1. 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. 2. On the one hand, as the plurality in Stanford said at [40] (citation omitted): [40] … The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. 1. On the other hand, as McClelland DCJ said in Roy & Yalden at [76]: [76] … The plurality in Bevan & Bevan (2013) FLC 93-545 (Bevan) rejected the notion that s 79(2) of the Act forms a threshold issue before undertaking an assessment of considerations in accordance with s 79(4): Hearne & Hearne (2015) 53 Fam LR 454 (Hearne) at 466 [72]. 1. 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. 2. As the plurality in Stanford said at [41]: [41] … The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage. 1. 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]: [42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, 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. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). 1. 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. 2. 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: [119] In our view, if the three "fundamental propositions" can truly accommodate any consideration the parties gave to how their property interests should be arranged during the continuance of their marriage, they must also accommodate express consideration given to how those interests should be arranged after separation. Indeed, the argument for doing so is stronger, given that any mutual understanding is less likely to have been affected by extraneous influences that would be at work while their relationship was intact. [120] This is not to suggest that any understanding between spouses would be conclusive of any later dispute, since an agreement can only be conclusive when the s 90G(1) formalities are satisfied or when a s 90G(1B) declaration is made … But the reasoning in Stanford makes clear that such an understanding would have to be a factor to be taken into account in deciding whether it would be just and equitable to make orders altering existing interests … 1. 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." 2. In Bevan, Bryant CJ and Thackray J concluded: [91] Having given most careful consideration to the factors on both sides of this argument, we have determined that the extent of the representations made by the husband, the circumstances in which they were made, and the husband's substantial delay in instituting proceedings are such that it would not be just and equitable to make any order interfering with existing interests in property. 1. 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): [77] Since the decision of the High Court in Stanford (supra), there has been some debate as to the approach that should be taken by the Court in the exercise of its discretion pursuant to s 79 of the Act. [78] Prior to Stanford (supra), the Family Court had established principles for determining what kind of order is just and equitable under s 79(2) of the Act. In the leading case of Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 ("Hickey") at 78,386 [39], it was held that the preferred approach was to adhere to the following four steps: a) identify and determine the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities); b) identify and determine each of the parties' financial and other contributions to the date of the hearing (this can include the financial contributions made before, during and after the marriage); c) assess how future and other events may have a financial impact on either of the parties, such as their age, state of health, income and property or financial resources (known as the s 75(2) factors); and d) step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result. [79] That approach had been endorsed many times however, as the High Court noted in Stanford (supra), s 79(2) of the Act provides that the Court shall not make an order altering the interests of the parties to the matrimonial property, unless it is satisfied that "in all the circumstances, it is just and equitable to make the order". Accordingly, since Stanford (supra), it has generally been the practice of the court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital property. [80] More generally, in Petruski & Balewa (2013) 49 Fam LR 116 ("Petruski & Balewa") at [49], the Full Court said: The task of assessing contributions under s 79 of the Act is an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship: Dickons v Dickons [2012] FamCAFC 154 (Dickons). As was also said by the Full Court in Lovine v Connor [2012] FamCAFC 168 at [40] and [41] (Lovine) such an evaluation "inevitably involves value judgments and matters of impression", and accordingly it cannot be treated as "a mathematical exercise." 1. However, the four-step approach is not prescriptive. In Norman & Norman [2010] FamCAFC 66 at [60], the Full Court held: [60] It is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result. For all its usefulness and merit as a "disciplined approach" or a "structured process of reasoning" (per Fogarty, Lindenmayer, McCall JJ, N and N, unreported, 10 June 1992), the "three-step" or "four-step" approach merely illuminates the path to the ultimate result. Factual outline 1. 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. 2. 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. 3. 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]. 4. 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. 5. 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. 6. 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. Principles concerning proof of facts and credibility of witnesses 1. 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. 2. 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. 3. 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. 4. 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: ... The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency ... 1. 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): The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …" There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case. 1. 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. 2. 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): (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account— (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 1. 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]: [110] The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities. The degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made. In our opinion, however, there was no indication in his Honour's reasons that the application of the Briginshaw test made any difference, adverse to Mr Gama, in his conclusions. We agree generally with what her Honour Branson J has to say about the Briginshaw test in her separate reasons for judgment. We would add that the observations of the New South Wales Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [54]-[61], concerning the application of s 140(2)(c) of the Evidence Act are consistent with her Honour's reasons. The first ground of cross-appeal therefore fails. 1. The passage in the separate judgment of Branson J with which their Honours agreed is: [126] More importantly for present purposes, Dixon J did not purport to identify any particular standard; rather his Honour made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted. As his Honour observed, the common law has not developed a third standard of persuasion; it acknowledges only the two standards — the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction. [127] Briginshaw 60 CLR 336, of course, long pre-dated the enactment of the Evidence Act 1995 (Cth) ("the Evidence Act") which now sets out the federal rules of evidence. The Evidence Act applies in all federal courts including the Federal Magistrates Court. Part 4.1 of the Evidence Act is concerned with standard of proof. It provides in s 140 as follows: … [128] In Employment Advocate v Williamson (2001) 111 FCR 20 at [65], in a section of my reasons for judgment with which Kenny J expressed her agreement (see [108]), I expressed the view that s 140(2) of the Evidence Act was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. I referred to the following passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171; 110 ALR 449 at 449-450 (Neat Holdings) per Mason CJ, Brennan, Deane and Gaudron JJ: … 1. 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. 2. 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. 3. [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. 4. 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. 5. 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. 6. 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: [158] In approaching the task of fact finding, particularly where credit is a significant issue, the Court has applied nine principles. [159] First, at the forefront of the Court's approach has been the oft cited statement of McClelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318–9: ... Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. … 1. 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. 2. Relevantly, Kunc J continued by observing: [162] Fourth, evidence is to be preferred which is inherently probable in the circumstances or is given by a witness against their interest. [163] Fifth, evidence of independent witnesses (i.e. persons who have no reason to be partisan) may be decisive in resolving the conflicting evidence of interested parties. 1. 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. 2. Kunc J then set out the following propositions: [164] Sixth, where a witness has been found to be lying about one thing that does not automatically mean that they are to be disbelieved about everything else. The Court is not bound to accept or reject a witness' evidence in its entirety. This approach was expressed by O'Loughlin J in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084: "118 Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. I mention some authorities that support those propositions. … 121 A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected." [165] Seventh, and closely related to the preceding point, in Sangha v Baxter [2009] NSWCA 78 Basten JA (with whom Handley AJA agreed) cautioned against global credibility findings: "155 There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. 156 Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]." [166] Eighth, disbelieving a witness that "X" was the case does not mean that "not X" has been proven. The Court respectfully adopts what fell from Gibbs J (as his Honour then was) in Steinberg v Federal Commissioner of Taxation (Cth) (1975) 134 CLR 640 at 694; [1975] HCA 63 (citations omitted): "The fact that a witness is disbelieved does not prove the opposite of what he asserted. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject, but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts." 1. 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. 2. 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. 3. Finally, his Honour said: [167] Ninth, the Court can only do the best it can on the evidence which it has. Some issues may need not be resolved or should not be resolved. It may be that they cannot be resolved given the nature of the evidence which the parties have adduced. This case has many similarities to the family dispute considered by Robb J in Ak-Tankiz v Ak [2014] NSWSC 1044. Of the evidence in that case, his Honour said at [187]: "The principal evidence relating to these issues consisted of the uncorroborated evidence of the witnesses, or alternatively the only corroboration available was the testimony of other witnesses. The evidence distilled into the word of one witness against the word of one or more other witnesses. Most of the events relevant to the issues occurred many years ago. The evidence relevant to the issues generally consisted of a series of assertions, and counter-assertions by various witnesses. Evidence of the objective context was generally not available, so it has not been feasible to test the versions of events that were in contest by reference to the objective probabilities, based upon uncontroversial contemporary circumstances. Though the issues are not entirely irrelevant, their significance is limited, and their resolution has not been necessary for the purpose of determining the real issues in the case. Any attempt to resolve the issues by making judgments about the relative credibility of the individual witnesses on an issue-by-issue basis was likely to be based on illusory foundations." 1. 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. Findings on credibility of witnesses 1. 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. The husband 1. 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. 2. 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. 3. 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. False tax returns 1. 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. Evidence of family violence given by [Lucas] 1. 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. Attempt to borrow $600,000 1. 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. 2. The court book included the following documents relevant to this issue: * A letter from [Dynasty Mortgage Corporation Pty Ltd] addressed to the husband at [Suburb D] congratulating him for the formal approval of a $600,000 loan. * A loan contract offer from [Dynasty Mortgage Corporation Pty Ltd] addressed to the husband at [Suburb D]. The credit provider is Perpetual Trustees Australia Ltd, and the borrower is the husband. The loan type is a line of credit. The acceptance note on page 8 appears to include the signature of the husband and what appears to be the signature of the solicitor, [Russell Nichols], as witness, and is dated 4 December 2003. Page 9 contains a certification of the giving of legal advice by [Russell Nichols] on 4 December 2003, and the certification appears to be signed by the husband. The final part of the loan contract offer is a statutory declaration apparently made by the husband and witnessed by [Russell Nichols] concerning the state of the [Suburb A] Property. It includes a statement: "The Property is normally subject to a residential tenancy agreement and market rent is normally paid by a tenant under that agreement. The property should be re-let soon at a rental of approximately $410 PW'. (The underlined words have been added to the document in handwriting). * An identification record for a signatory to an account dated 4 December 2003. This document identifies the husband as the signatory and appears to have been signed by him and by [Russell Nichols] as his referee. Mr [Nichols] states that he has known the signatory for a period of 10 years, and that he identified the signatory by a birth certificate issued on [XX September 20XX] with document number [XXXX/YYYY]. * An undated mortgage between the husband and Perpetual Trustees Australia Ltd that purports to have been signed by the husband as mortgagor with [Russell Nichols], solicitor, as witness. The mortgage contains a pro forma certification: "I certify that the mortgagor, with whom I am personally acquainted or as to whose identity I am otherwise satisfied, signed this mortgage in my presence." * An incomplete direction to pay addressed to Perpetual Trustees Australia Ltd and Gadens Lawyers in respect of an account limit of $600,000. The direction to pay is unsigned. It does not specify a payee, but it does include disbursements that were apparently required to be paid by the mortgagee. * An undated tax invoice addressed by Gadens Lawyers to the husband at the [Suburb A] Property for $465.50. 1. 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. 2. The husband's involvement in these events was put to him in cross-examination in the following terms [T 187.25-187.33]: Q. [Rachel] discovered this and confronted you. Do you recall a conversation at the [Suburb D] property about this issue? A. Not at all. Q. She says she said to you, "Have you attempted to borrow money against the [Suburb A] property?" and you replied, "Yes. I met with [Russell Nichols] and tried to access 600,000. My brother, [Steven], approached me and said he needs money urgently." A. Not true. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. Notes written by the husband 1. 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. 2. The terms of the first two hand-written notes are: I [MAX NORRIS] of [[Suburb D] address] I AM in sound mind, I am the owner of [ABC Home Renovations Pty Ltd]. Any money made by the company or Property Bought Belongs to [Rachel NORRIS]. She is my wife and everything I own Belongs to Her As of this Date (Signed) [M Norris] 17/9/04 and I [MAX NORRIS] of [[Suburb D] address] I AM in sound mind and this letter is to say that I Dont Want any part of my wife [RACHEL NORRIS] Property SHE OWNS [the [Suburb D] Property] It's her to do what she wishes with. ALSO Includes any property overseas and any property that her parents give her. (Signed) [M Norris] 17/9/04 1. The third note provided: I [MAX NORRIS] understand and give agreeance and concent with [illegible] and no objection for [the [Suburb D] Property] to be solely in the ownership of [Rachel NORRIS] (Signed) [M Norris] 14/11/04. 1. 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. 2. 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: I [MAX NORRIS] understand and give Agreeance and Concent with and no objection for [the [Suburb D] Property] to be solely in the [perhaps two or three words illegible and crossed out]. 1. 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. 2. 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. Lease of the [Suburb B] Property 1. 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. 2. 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. Conclusion concerning credibility of the husband's evidence 1. 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]: Q. Yeah, did they fund your trip? A. No, I paid for it myself. Then I came back, sick. Q. Hepatitis C. A. Yes. Q. Had you got that from a sex worker? A. From what, sorry? Q. Did you get hepatitis C from a sex worker in [Country L]? A. No, I did not. I got it from a bad oyster. 1. It is not clear that counsel had a basis for the imputation made. 2. 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. 3. 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's father, [Jeff] 1. 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. 2. [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. 3. [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]: Q. So, who do you say he gave the money to? A. To [Max] and then he gave it to grandfather and grandfather gave it to [Grant]. Q. What colour was the money? A. What colour? God, I thought I'd be good at these things. I can't remember that. Q. Do you have any idea when it was? A. Nuh. 1. 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. 2. 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] 1. 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. The wife 1. 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. 2. 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. 3. 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. 4. 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]: Q. But you say that you raised with one of the police officers there the allegation against [Max]? A. Yes, well we were just talking about it and I - I was reading the note and, yeah, I just - I was just so overwhelmed that night I was just, yeah. 1. 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]: A. I just didn't understand why we'd given notice and that happened and then [Max] started threatening [Jess], I - basically, I was just so overwhelmed, I had enough, I rang up the police, they didn't do anything, there was - to [Max], and then I found out later, cause the police weren't listening and on the 23rd, I found out - well, in a trance found out that [Max] had guns and they didn't do anything still, and still I was just so overwhelmed at that time, it was just too much and it was just all blowing up and that - that was actually the situation, it just - it just all went out of hand and he wouldn't leave [Jess] alone, she was in hospital. Consequently, I went to [Andrea]'s place, it all - it was a sequence of events before that, but I didn't really want [Gary] in there, because [Max] had - the kids wanted to move in there at the beginning, there was all a whole series of events that happened along the way. 1. 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. 2. Notwithstanding those reservations, the following parts of the evidence have cast doubt on the reliability of the evidence given by the wife. Forgery of the husband's signature 1. 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. 2. 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. 3. In cross-examination, the following exchange occurred concerning why the wife executed the sales agency agreement [T 490.10-490.26]: Q. In relation to the exhibit that is now with his Honour, can I suggest to you that when you signed that document, you did so with the intention of trying to start the process of selling the [Suburb B] property, is that correct? A. That wasn't my intention. Q. Can I suggest to you that it was your intention to start the process of selling the [Suburb B] property without having to involve [Max] in the execution of that document, is that correct? In fairness to you, the question that I've just asked is the same as the question that I asked previously with one additional bit, that is that you had said it was not your intention to sell the property, executing that document, my next question was a little bit more detailed, which was, "You wanted to sell that property, but you wanted to do so without involving [Max]." A. No, I didn't want to sell the property without - didn't want to sell - and not - not - never - never - not - sorry, never informing [Max], that it was-- Q. I just want to be clear about your evidence-- A. And never not informing [Max], I should say. 1. Further [T 500.34-501.5]: Q. You returned to [the agent] after having collected it with it in it's executed form that's now been tendered into evidence on the same day, that's correct, isn't it? A. Yes. Q. On 7 January 2014, it's correct that you contacted [the agent] again to ask how long it would be until marketing of the property would begin, is that correct? A. Yes. Q. Until marketing of the property would begin. A. When will the sign come up, I actually wanted a sign up. Q. Can I suggest that you wanted a sign up, because you wanted to take steps towards selling that property. A. No, actually I'm - I actually wanted to get [the lessee] out, that was my whole intention, which was a bit silly, yeah. Well, not silly, but I just - I just - it was all too much for me. [Jess] had just come out of hospital, [Max] was threatening her before that, I was so overwhelmed, I did ask the police officer, "Can I have that?", she'd made me go back to the station, I said, "Can I have that lease, you know?", and she said, "Go to the board", and it was a very difficult time, she wasn't - it was just very hard and-- 1. 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. Understatement of the husband's contribution to the properties 1. 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. 2. 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. 3. 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 wife's entitlement to property in [Country L] 1. 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. 2. 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]: Q. Is it correct that you own land in that area? A. Yes, sorry, but may I add that I haven't really followed it up, so I'm not sure if I still have it, so yeah, so-- 1. 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. Date of separation 1. 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. 2. 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. 3. 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. 4. 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. Conclusion concerning credibility of the wife's evidence 1. 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. 2. 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. 3. 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. The wife's brother, [Lucas] 1. [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. 2. [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. 3. 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. 4. 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. The parties' daughter, [Laura] 1. 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. 2. 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. 3. 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. 4. [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. 5. 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. 6. [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. Outline of the parties' cases 1. 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. 2. 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. 3. 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. 4. 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). 5. 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. 6. 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. History of the parties' dealings in real property 1. 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. First [Suburb O] Property 1. 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. 2. 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. 3. 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." 4. 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]: Q. Can I ask you to turn to page 12 of your statement, paragraph 41? You give evidence at paragraph 41, where you say, "I recall Mr [Brian Norris], the grandfather of [Max Norris], gave [Rachel] and [Max Norris] a large sum of money as a wedding present which was used towards the purchase of [the First [Suburb O] Property]? A. Yes, that's correct. 1. 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. 2. 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. 3. 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. 4. [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. 5. 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. [Suburb A] Property 1. 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. 2. 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. 3. 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. 4. 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. 5. 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". 6. 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". 7. [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. 8. 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. 9. 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. [Suburb Q] Property 1. 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. 2. 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. 3. 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. 4. 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. Second [Suburb O] Property 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. [Suburb D] Property 1. 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. 2. 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. 3. 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]. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. Dealings with the [Suburb A] Property 1. 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. Settlement of the Trust 1. 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]. 2. 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. 3. 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. 4. 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. Transfer of the [Suburb A] Property to the Trust 1. 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. 2. 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]: [Grant]: I have arranged for you to go and see a solicitor today. There will be documents that he will give you that you must sign. You will sign them [Max], or you will disappear. Husband: What do you mean? [Grant]: It is as I said, [Max]. You have to sign these documents or you will disappear. 1. 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. 2. 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. 3. The husband received no consideration for the transfer of the 80% interest in the [Suburb A] Property to the trustee. 4. 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]." 5. 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. 6. [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. 7. 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. 8. 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. 9. 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." 10. 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. 11. 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. 12. 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]. 13. 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. 14. 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. Sale of the [Suburb A] Property 1. 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. 2. 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. 3. [Laura] denied that she threatened the husband, and [Jess] did not give evidence. 4. 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. [Suburb B] Property 1. 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%. 2. 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. 3. 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. 4. 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". 5. 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." 6. 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: Wife: Now we have received the offer to sell [Suburb A] yesterday, we can buy in [Suburb B]. We had [Suburb A] listed for around two months. Husband: Selling [Suburb A] and buying in [Suburb B] is a great opportunity for the kids. Wife: I think [Suburb B] will go up in value because it has good development potential. Husband: You (sic) mother wanted to buy 20 acres there years ago, it was selling for around $2.5 million at the time, too bad she missed out on that one. Wife: Yes imagine having that land, she still looks for property now. 1. 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]. 2. 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]. 3. 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. 4. 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%. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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." 10. 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]: Q. And it's correct isn't it, that the loan that is in both your name and [Laura]'s name, you attempt to pay out with the proceeds from the sale of [Suburb B]? A. So, I'll get the load of the mortgage? Q. Yes. A. I'm not sure. Not sure. I would say that I'm really not sure I would say that that would be my responsibility. Q. Can I take it that you are not sure because you haven't thought about whether [Laura] will apply the proceeds of sale to pay out that loan? A. I'm not sure. 1. 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. 2. 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). 3. 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. 4. 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. 5. 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 parties' final property positions 1. 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. Pool 1 Assets Item Title Description Husband Wife 1 W [Suburb D] Property $3,800,000 $3,800,000 2 W 5% [Suburb B] Property E$630,000 $638,000 3 H 14% [Suburb B] Property E$1,764,000 $1,786,400 4 W Property in [Country L] Not known Nil 5 W Joint bank account with [LN] E$2,000 Total $6,194,000 $6,226,400 Pool 1 Liabilities Item Title Description Husband Wife 6 W Home loan [Suburb D] #0321 Nil $90,017 7 W Home loan [Suburb D] #0310 Nil $333,518 8 W Loan from [LN] Nil $249,261 9 H Loan from family members Nil Not known 10 W CGT liability on [Suburb B] E$127,767 TBA 11 H CGT liability on [Suburb B] E$357,747 TBA Total E$485,514 E$672,796 Superannuation Item Title Fund Husband Wife 12 W HESTA Super $61,432 $61,432 Total $61,432 $61,432 Pool 2 Assets Item Title Description Husband Wife 13 W FPA settlement net of costs E$1,100,000 E$1,100,000 14 W Bequest from father's estate $105,619 $105,619 E$1,205,619 E$1,205,619 1. The following matters should be noted at this stage about the parties' positions concerning the information in the table: * A joint expert valuation of the [Suburb D] Property dated 24 February 2021 and updated on 6 May 2021 valued the property at $3,800,000. The wife says that the Court should determine the application simply by accepting this valuation. It is the husband's position that, by reason of the general inflation of property prices that has recently occurred in the Sydney region, any property settlement order made in his favour should be on the basis of a percentage of the value of the [Suburb D] Property that should be determined by requiring that the property be put to auction. * The parties' interests in the [Suburb B] Property have been quantified on the basis that, on 14 May 2021, the trustees exchanged contracts for the sale of the [Suburb B] Property for $12,760,000. * The parties were unable to quantify their capital gains tax (CGT) liability arising on the sale of the [Suburb B] Property. The amounts will depend upon the sale price and each party's income at the time of the settlement of the contract. The husband inserted an estimate of the CGT liability in his final statement of matrimonial assets and liabilities based upon advice provided by his accountant. The wife's position is that the CGT liability should be treated as unknown until it can be calculated with some precision. * Even though the precise amount of the CGT liabilities cannot be known at this stage, the consideration in these reasons of the parties' financial positions will be more accurate if I assume that the estimates of CGT liability made by the husband are reasonably accurate. On that basis, I will treat the wife's interest in the net proceeds of sale of the [Suburb B] Property as being $500,000, and the husband's interest as being $1.4 million. * As has been stated, there was indefinite evidence that the wife has an interest in property in [Country L]. The wife did not provide any positive evidence of the nature of that property or its value. The wife asserts that this property has no real value. The husband's position is that this is property available to the wife for which full and frank disclosure has not been given to the Court. * The wife asserts that the two loans by the National Australia Bank Ltd (NAB) to the wife and [Laura] should be treated as liabilities of the wife, so that they should be deducted from the value of Pool 1. As will be seen, the debts to the NAB represent the amount outstanding of a joint borrowing by the wife and [Laura] to apply to the purchase price of the [Suburb B] Property. The debts are secured by a mortgage granted by the wife over the [Suburb D] Property. It is the husband's position that repayment of the debts is a liability of [Laura]'s rather than the wife. That is because, by agreement within the family, [Laura] was given a 39% interest in the [Suburb B] Property, rather than a 20% interest, because she agreed to be responsible for the payment of the debts. * The wife claims that a debt of $249,261 that she owes to [Laura] should be treated as a liability because the wife needed to borrow that money for the purpose of maintaining her ownership of the [Suburb D] Property and assisting the children with their needs. As I understand it, the final amount was determined by the wife by omitting an amount of about $90,000 which she had borrowed from [Laura] to pay some of her legal costs. The husband's position is that he had also incurred substantial family debt as a result of his circumstances following the parties' separation and his ejectment from the [Suburb D] Property, but the husband submitted that none of the parties' personal debts acquired after separation should be treated as matrimonial liabilities. That is the explanation for item 9 in the table above. In earlier versions of the husband's statement of matrimonial assets and liabilities, his personal debt to family members had been included. The husband reduced his claim for this item to nil in the final version of his statement. * The amount of the family provision settlement amount in Pool 2, to which the wife is entitled, is net of costs estimated at $590,000, in respect of which the wife's solicitors have a lien over the full settlement amount of $1,600,000 inclusive of costs. 1. 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). 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. Background to the parties' domestic life 1. 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. Parenting of children 1. 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. 2. 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. 3. 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." 4. 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". 5. 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. 6. 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. [Craig]'s disabilities 1. 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. 2. 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. [James]'s disabilities 1. 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]'s disabilities 1. [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. 2. 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. 3. The wife gave evidence that [Jess]'s health has deteriorated since 2018. [Jess] currently sees a clinical psychologist. [Laura]'s disabilities 1. [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. 2. [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. 3. 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. Husband's earnings 1. 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. 2. The evidence concerning the income earned by the husband and his financial contribution to the marriage is unclear and highly contested between the parties. 3. 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. Financial year Taxable income tax returns Rental income Total 1990 $16,560 $16,560 1992 $18,485 $18,485 1993 $12,197 $12,197 1994 $17,394 $17,394 1995 $24,445 $24,445 1996 $159 $159 1997 $7,783 $7,783 1998 $25,551 $7,808 $33,359 1999 $20,592 $6,097 $26,692 2000 $42,063 $12,782 $54,845 2001 $10,030 $12,794 $22,824 2002 $26,663 $11,516 $38,179 2003 $23,288 $12,116 $25,404 2004 $42,486 $8,266 $50,752 2005 $19,136 $11,052 $30,188 2006 $16,092 $11,572 $27,664 2007 $6,447 $6,447 2008 $2,914 $2,914 2009 $6,351 $6,351 2010 $3,275 $3,275 2011 $3,475 $3,475 2012 $3,575 $3,575 2013 $18,100 $18,100 2014 $18,032 $18,032 2015 $17,286 $17,286 2016 $17,300 $17,300 2017 $17,550 $17,550 2018 $15,597 $15,597 2019 $17,635 $17,635 2020 $17,355 $17,355 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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): * There appear to be 26 cheque butts over the period that record withdrawals for the husband or the wife. * I infer that the cheque butts in the evidence were selected because they record withdrawals for the husband or the wife, and that all the missing cheque butts related to irrelevant transactions of the business. * There are gaps between 7 July 2004 and 30 January 2005, and 29 June 2005 and 18 November 2005, when no withdrawals are recorded for the husband or the wife. These gaps are not explained in the evidence. * On my calculations, the average withdrawals for the husband or the wife in the period 26 March 2004 to 7 July 2004 was about $680 per week. Taking the cheque butts at face value, only three drawings of $1,400, $500, and $1,000 were made for the wife (which does not exclude drawings for the husband being paid to the wife). * In the period 30 January 2005 to 29 June 2005, the average withdrawals for the husband or the wife was about $440 per week (note that the calculation includes the cheque butts at court book page 1811 dated about 6 May 2005, which are out of order). All these drawings, except for the amount of $50, were recorded as being for the wife. 1. 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. 2. 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. 3. 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). 4. 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. Wife's earnings 1. 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. 2. 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: Financial year Taxable income Financial year Taxable income 2002 $18,765 2014 $50,051 2003 $50,992 2015 $39,215 2011 $49,861 2016 $49,554 2012 $43,428 2017 $49,277 2013 $44,489 2018 $29,249 Assistance from wife's parents 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. Allegations of family violence by the husband 1. 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. 2. 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. 3. 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. 4. 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: * 1997: The wife alleges she observed the husband increase his intake of alcohol from two drinks per night to five drinks per night. She said that the husband's behaviour became erratic and abusive. * October 1997: [Laura] gave evidence that the husband had taken her siblings and herself out to a Halloween party at night. The wife was not present. [Laura] said that the husband dangled [James] over a cliff in front of her. [Laura] said it was dark, there was no fence, and she could hear water crashing onto rocks beneath them. She recalled feeling terrified. She screamed and cried so much that she was gasping for air and pleaded with the husband to stop. [Laura] said that the husband laughed at her. [Jess] and [Craig] were present, but [Laura] does not recall their reaction. [Laura] was about 8 years old at the time. * 1997 to 30 June 1998: The wife gave evidence that she observed the husband to drink not less than approximately five drinks per night, usually beer and spirits such as scotch. She said that the husband often drank more than five standard drinks per night. * 1998: The wife said the husband broke a shower screen on the second level of the house while he yelled at her. * 1998: The wife also gave evidence that the husband threw an entire bottle of concentrated orange cordial over the carpet in the rumpus room near the kitchen during a fit of rage and said to the wife: "clean that up you slut". * 1998: The wife said that, while they were living at the Second [Suburb O] Property, the husband fired a "long barrelled pistol that was tan in colour" at close range in the house causing damage to a leather couch. [Lucas]'s now ex-wife and their son [Gregory] witnessed this incident. [Laura]'s evidence was that the husband was showing [Lucas]'s wife a long-barrelled pistol that he owned. [Gregory], who was a toddler at the time, was walking past the brown leather couch. According to [Laura], the husband was demonstrating how the gun was fired and then he fired the gun. [Laura] said that she was terrified from the loud gunshot. [Lucas]'s ex-wife was not called to give evidence to corroborate this claim, and her absence was not explained. * New Year's Eve 1998: The wife gave evidence that, while the family was living at the Second [Suburb O] Property, the husband hit the wife in the head repeatedly with the heel of her shoe. She had several lacerations to the right side of her skull requiring sutures. The wife attended [Suburb M] Medical Centre and was unable to attend work for some time. The wife did not recall giving an accurate explanation for her injuries at the time. The wife said that [Laura] and [Jess] began screaming and crying, and [Craig] and [James] waved their hands in the air and made sounds of distress without words. [Laura] gave evidence to confirm this incident, saying that she recalled that she was at home when the incident happened. [Laura] said that she witnessed the husband repeatedly hitting the wife with the shoe. [Laura] was 9 years old at the time. * Mid-1999: The wife said that, when the family was living at the Second [Suburb O] Property, the husband slapped the wife across her face with an open hand 2 to 3 times. The husband pushed the wife to the ground and dragged her across the floor by her hair. * Late 1999 or early 2000: At this time, the family was living at the Third [Suburb O] Property, which was a property that they briefly rented. The wife gave evidence that the husband dragged her by the hair out of the bath and across the bathroom floor. The wife said she blacked out from excruciating pain. After this incident, the wife said to her father, [Grant]: "[Max] is continuing to physically assault me, this is making my life more difficult". The wife said that her father replied: "We will give you money so you can support your children, to alleviate some of the stress for you". * 2000: The wife gave evidence that the husband hit her with his hands or his belt across the head, legs, arms, torso and back regularly. The husband broke glasses, cups and household items and threw them at the wife. The wife said that she regularly witnessed the children being hit and the children regularly witnessed the wife being hit. * Early 2000: The wife said that the husband and wife were in the kitchen at the Third [Suburb O] Property discussing the construction of the home at [Suburb D], when the discussion became heated, and the husband punched the side of the wife's head three times with a closed fist. The wife blacked out for five minutes. The wife said that she had pain in the head for 2 to 3 weeks afterwards. The wife took over-the-counter pain relief but did not seek medical attention out of fear of the husband. During this 2- to 3-week period, the wife found it difficult to concentrate on supervising and caring for the children. * Early 2000: According to the wife, the husband kicked the exterior of the wife's Mazda 929 motor vehicle. This took place at the [Suburb D] Property and caused dents to the body of the car on the bonnet and doors. The wife said that she did not get the car repaired as she could not afford it. The wife said that this incident reinforced that everything in her life was broken and damaged and lowered her self-esteem. * 2000: [Laura] gave evidence that the husband physically abused [Laura] at her cousin [Madeleine]'s christening. [Laura] said that the husband approached her, grabbed some of her hair in his hand and pulled it very hard. The husband then punched her in the stomach with full force. [Laura] recalled that, later on, the husband was asked to leave the christening by other adults as he was becoming ill from consuming so much alcohol and he was disturbing the occasion. [Laura] was 11 or 12 years old at the time. The wife did not refer to this incident in her affidavits. * 2001: The wife said that, after the family had moved to the [Suburb D] Property, while the husband lived there, he caused damage by throwing household items such as ornaments and vases, slamming doors, shattering the stained-glass window panels on the front door (which remains boarded-up as the wife said that she cannot afford to replace it), and causing several holes in the walls at [Suburb D] which remain to this day. [Laura] gave evidence about these incidents in largely similar terms to the relevant paragraph in the wife's primary affidavit. [Laura] did not say whether she witnessed any of these events occurring so as to support her statement: "[The husband] caused damage to the property in the following ways…" * November 2003: [Laura] gave evidence that, shortly after she turned 14 years and 9 months of age, she got a casual job at KFC in [Suburb D]. She had just finished a shift. For some reason that [Laura] could not recall, the wife was unable to drive her home, so it was arranged for the husband to do so. [Laura] said that she was scared of getting into the car with the husband alone as she did not feel safe in the car. She said the husband often drove recklessly, tailgated other drivers, and she could often smell beer on his breath after he had been driving. She said that she recalled when she got into the car, the husband began verbally abusing her and appeared angry that he had to pick her up late at night. [Laura] said they had a conversation to the following effect. The husband said: "Do not make a habit of this". [Laura] replied: "okay". The husband said: "You ungrateful bitch". [Laura] said that she recalled that the husband was driving along [named road] in [Suburb D] from KFC towards the house. She said the husband sped up and drove to the left of the road at high speed towards a telegraph pole. [Laura] said that she felt terrified that the husband was going to crash the passenger side of the car into the telegraph pole and that she would be crushed by the impact. [Laura] said that she began to grasp for air and cry while the husband laughed at her. [Laura]said that the husband veered away from the telegraph pole just before they were going to hit it. * 8 September 2004: The wife gave evidence that the husband arrived back from an overseas holiday to [Country L] with her parents. She said that, shortly after the husband returned home, it appeared that his condition was deteriorating and the wife suggested that he see [Lucas]'s then-wife, who was a general practitioner. The wife said that she recalled that the husband lunged toward her quickly, pushed her to the ground outside of [Jess]'s and [Craig]'s room and punched her three times in the middle of her back with a closed fist. She said that the husband screamed and yelled: "I will fucking kill you". The wife recalled that the husband then attempted to hit the children who witnessed the incident. The children were in [Craig]'s room and ran down the hallway and down the stairs to evade the husband's clutches. The wife said the husband then threw an aerosol can at [Laura]'s head. The can narrowly missed [Laura]'s head and put a hole in the wall above the opposite staircase. [Laura]'s evidence was that she recalled that, when the husband came home from the holiday, he was quite unwell. [Laura] was present one night when the wife suggested to the husband that he see [Lucas]'s wife. [Laura]'s evidence in par 47(c), corroborating the wife's evidence in par 231(e), is almost word for word identical. * 14 September 2004: The wife gave evidence that, following the previous incident on 8 September 2004, the wife attended [named medical practice] complaining of a left shoulder injury and bruising. She said that, when pressed by the doctor, she initially denied family violence as the cause of the injury. However, she returned later that day and informed the medical staff: "my husband hit me last night". The wife said that this was the first time she had disclosed to anyone outside the family that she was suffering from family violence. The wife said that she returned to the medical practice on 28 July 2005 and informed the doctor that she had been verbally abused and hit for several years. As will be seen when the evidence prepared by medical practitioners is considered, the wife's general practitioner confirmed the substance of what occurred in these consultations in a letter addressed to the wife dated 14 May 2014. * 2004 or 2005: The wife recalled an incident when the husband was violent while she was cooking dinner with the children. She recalled that the husband began yelling and screaming at her. Then the husband picked up a bottle of Morning Fresh dishwashing liquid, ran from the kitchen towards the fish tank in the corner of the lounge room and poured a significant amount of dishwashing liquid into the fish tank. All 20 fish died immediately. The wife recalled that [Laura] and [James] were present when the husband killed the fish. She said that [Laura] and [James] appeared shocked and screamed and cried when this occurred. The husband then picked up a knife and forcefully stabbed it into the kitchen sink. Then he picked up a potato and threw it violently against a wall near the kitchen. The wife said that, after this incident, [Laura] and [James] helped her remove the dead fish from the fish tank. The wife claimed that she was unable to fully focus on caring for the children and working as a massage therapist. [Laura] gave evidence to support this account, but [James] was not called. [Laura]'s evidence on this subject was generally similar to that used by the wife. Most of the subparagraphs of par 233 of the wife's affidavit and the subparagraphs of par 47 of [Laura]'s affidavit are almost word for word the same. * Early 2005: The wife gave evidence that the husband ran over a kitten with his ute in front of the wife. She said that there was a litter of kittens on the driveway in front of the garage at the [Suburb D] Property. She said that she saw a kitten resting on one of the wheels of the husband's vehicle. The wife said she saw that the husband was preparing to drive and yelled at him to "stop". The wife claimed that the husband saw the kitten and continued to drive and ran over the kitten. The wife added 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 on which the property was located. She said that the husband swerved to hit the animals and she and the children witnessed this on many occasions. * Mid-2005: The wife said that she was working outside on the front brick pier at the [Suburb D] Property when the husband threw a brick at her head. This caused her excruciating pain, and her head was bruised and swollen for some time. Due to financial pressure, the wife continued to attend work. She said that the pain and bruising made it very hard to concentrate at work and to look after the children. * July 2005: The wife gave evidence that, at the [Suburb D] Property, the husband lunged at her and whipped her with his black leather belt on her arms and legs. The wife said that she does not recall the circumstances surrounding this incident, but she recalled her arms and legs were cut up and bruised. Following this incident, she said she drove to the husband's parents' residence to show them the abuse that she was suffering at the hands of their son. The wife recalled that she stood at the front door. She said that she was hysterical and sobbing. The husband's mother, [Ella], opened the door and stared at her blankly. The wife said the mother waved a fly from her face and all she said was "oh". The wife said that she did not recall seeing the husband's father, [Jeff]. The wife said that her arms and legs were cut and bruised, which made it a lot harder to complete any homemakers' duties such as cooking and cleaning. The wife had to take some time off work as she was unable to complete her duties as a massage therapist. She recalled that she was embarrassed and ashamed and she tried to conceal the extensive bruising with makeup and by wearing long-sleeved shirts and pants to cover her body. * 28 July 2005: The wife said that she attended [named medical practice] again for medical treatment associated with injuries inflicted upon her by the husband when he whipped her with his belt. The wife recalled that she disclosed family violence and physical abuse she had suffered to the doctor. * 2005: The wife gave evidence that, one night at the [Suburb D] Property when the husband was being violent, yelling and hitting the children and the wife, the wife said to him: "[Max] leave the house, you can go to [Andrea Rhodes]'s place". (Ms [Rhodes] is a woman who the husband acknowledged was a friend, but the wife claimed was at some time having an affair with the husband.) She said the husband replied: "Fuck no". The wife said that the husband then began to hit the children and her with his open hand. He picked up a kitchen knife and moved towards them in an aggressive manner. The wife said that all the children were present for this incident and attempted to protect each other. The wife said that this appeared to further enrage the husband. [Craig], who was 13 or 14 years old at the time, rang the wife's father and said: "Please come and help us". The wife's father then arrived at the [Suburb D] Property. The wife said that her father came upstairs. The staircase at the [Suburb D] Property had three flights of stairs, with one flight from the ground floor up to a landing area, and then two separate flights of stairs leading to the second floor. The wife said that the husband pushed her father down from the top of the stairs. He fell down a flight of stairs and landed on the landing area. The wife said that her father was distressed. The husband then left the house. The wife said that the incident was psychologically distressing for her father, the children and herself. She said that she and the children were terrified that the husband would injure the wife's father and she recalls being present when [Laura] said words to her father: "I'm sorry you had to come over and get hit, you do not deserve this with all of the help and support you give us." [Laura]'s affidavit mirrored this evidence almost word for word, although [Laura] added a statement that: "I recall seeing saliva frothing on the corner of his mouth and his face was red with anger". * 2005: [Laura] gave evidence of an occasion in 2005 when she was studying for a chemistry exam and had a tutoring lesson with her chemistry tutor, [Frederick], in [Suburb C]. Neither the wife nor [Laura]'s grandparents were available to drive [Laura] to her tutoring lesson, so the husband reluctantly agreed to take her. [Laura] said that she recalled sitting in the front passenger seat with her notes on her lap. While they were on the road in [Suburb C], the husband grabbed the notes from her lap, stopped the car, got out and threw her notes down in the gutter on the side of the road. [Laura] said that she got out of the car and burst into tears while the husband started laughing. [Laura] said that the husband got back in the car and drove away, leaving her on the side of the road. [Laura] then rang her chemistry tutor and asked him to pick her up. [Frederick] drove [Laura] to his house at [Suburb C] for her lesson. [Laura] said that she was extremely upset and briefly explained the situation to [Frederick] with words to the following effect: "My father destroyed my notes, but I don't want to talk about it any further". [Frederick] said: "Okay, let's focus on your lesson". [Laura] recalled having difficulty concentrating on that lesson and the husband's actions caused significant issues in her study in preparation for her chemistry exam. * Early 2006: The wife gave evidence that the husband threw a broom head towards her face at the [Suburb D] Property. The broom head hit her on the forehead and her eye. She rang her mother for help and her mother came to the [Suburb D] Property and drove her to the [Suburb C] Medical Centre. The wife said that she had bruising around her eye and needed two stitches for a cut on her forehead. The wife wore extra make-up and sunglasses to conceal the bruising on her face as she did not want to upset the children. The wife does not recall whether she stopped working for a period after this incident. The wife said that she often tried to keep working while affected by violence as she did not want to raise suspicions by taking time off, and because she needed the income to support herself and the children. * Mid-October 2006: The wife said that [Andrea Rhodes] arrived at the [Suburb D] Property in the middle of the night unannounced and uninvited. The wife heard [Andrea] banging on the front door and screaming profanities around 1:00 am. The wife went to the front door and opened it. [Andrea] stood there and yelled at her: "Where the fuck is [Max]?" The wife said that the husband came out to see what was going on. [Andrea] was aggressive and appeared intoxicated as she stumbled in and was slurring her words swearing about the husband and hitting the husband. The wife said that she was taken aback at how violent [Andrea] and the husband were towards each other. The wife recalled that [Andrea] was specifically demanding answers from the husband regarding an insurance job on her roof that cost $90,000. The wife said that the children were still in their rooms at the time. The wife said to [Andrea]: "Leave now". The wife said that she wanted to call the police but did not do so due to her fear of retribution from [Andrea] and the husband. By this stage the children were watching what was happening. [Laura] pleaded with [Andrea] to leave as she had an HSC exam the next day. After some time, [Andrea] got in her car and drove off. The husband got into his car and drove off following her. [Laura] also gave evidence concerning this incident, saying that she recalled being woken in the middle of the night by banging and swearing outside the front door. [Laura] confirmed the substance of the evidence given by the wife. [Laura] said that she could not sleep properly after the incident, and it made it very difficult for her to concentrate in the HSC exam. [Laura]'s evidence was generally in parallel with that given by the wife, although [Laura] added that she could recall [Andrea] lunging at the wife and then punching the husband's torso. * Early 2007: The wife gave evidence that the husband killed animals and family pets in front of the children. She said that she had removed and relocated the family dog, [Tammy], in early 2007, because the dog would bark at the husband and the wife was concerned that the husband would harm her. [Laura] gave evidence that confirmed the evidence given by the wife concerning what happened to [Tammy]. * Mid-October 2011: The wife said that she was called by [Jess], who was housesitting the wife's parents' place in [Suburb D] and asked to come immediately as the husband was present. When the wife arrived, she found the husband screaming at [Jess]. The wife said to the husband: "You must leave now". The husband then left. * November or December 2011: The wife gave evidence that the husband arrived at the [Suburb D] Property to inform the wife and children of his grandmother's death. The wife said that the husband's behaviour was aggressive and intimidating and that [Jess] said to him: "I want to go to my great grandmother's funeral". The wife claimed that the husband replied to [Jess]: "If you try to go, I'll bury you on top of her". The husband then threw objects within his reach at "us" (presumably the wife and children) and pushed [Jess]. The wife said that she recalled that [Jess] was crying, shaking, and looking distressed. The wife said that she picked up the phone and called [Lucas] and asked him to come over to help. [Lucas] and the wife's mother then arrived and were very distressed. The wife said that her mother was crying, and as she was then suffering from Parkinson's disease, she began to shake markedly. By that point, [Jess] began to break down and appeared to be having a panic attack. The Police were called, who organised an ambulance to take [Jess] to [Suburb H] Hospital. The wife said that [Jess] was inconsolable and stayed in the mental health ward at [Suburb H] Hospital over Christmas in 2011. The wife alleged that [Jess] informed her that the husband had been calling her while she was in hospital and making death threats. * 21 December 2013: The wife said that she received several calls from the husband in which he said: "I know that [Jess] is in [Suburb H] Hospital, and she is scheduled to be discharged on 24 December. When she comes out, I'll fix her up for good." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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 6. 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. 7. 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. Information provided by the wife's general practitioner 1. 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: Upon your request I confirm that you visited our rooms on the 14-09-2004. You were complaining of left shoulder injury, bruising. On questioning you denied domestic violence and left the surgery, only to return later that day, and saying that your husband hit you for the first time. Your next visit was on the 28-07-2005 when you complained of being abused for years, physically and verbally. The reason for the visit was being hit by your husband with his belt. Offer of counselling was declined. Following this consultation there was no further visit related to this issue. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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]'s evidence of the husband's conduct 1. [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: 12. Around 1994 or 1995 I started to detect some trouble in [Max] and [Rachel]'s relationship. By trouble I mean they argued about money or lack of money and lack of work as well. I also noted that [Max] started to drink excessive amounts of alcohol. [Max] had always consumed alcohol but he tended to drink more after the birth of his two boys, [Craig] and [James]. I think that a contributing factor to [Max's] excessive drinking were that his two boys displayed autistic tendencies. 13. I started to notice a few cracks in the marriage over time and I would see [Rachel] in tears on regular occasions and she would complain that [Max] was not supportive enough of her and the boys and ongoing issues with [Max] not able to find regular work and lack of money coming into the household. 14. There was a few occasions when [Rachel] and I would talk and she would tell me about [Max] had been physically violent toward her and on occasions had pushed her up against walls and grabbed her by the throat and threatened her. May (sic) father and mother were also aware of these assault allegations and confronted [Max] about this. … 19. After [Max] and [Rachel] and the children moved to the [Suburb D] address, [Rachel] would talk to me about ongoing physical abuse that she had suffered at the hands of her husband [Max].... 1. [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. 2. [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. 3. 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. 4. 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. Conclusion on issue of family violence 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. Allegations of sexual abuse of the children by the husband 1. 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. 2. 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. Allegations of abuse of [Laura] 1. [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. 2. [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. 3. On two further occasions, [Laura] woke up when in bed to find the husband crouching over her bed tugging on her bedsheets. 4. 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. 5. 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. 6. 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. 7. 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. Events of 13 June 2007 1. [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. 2. 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. 3. 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." 4. 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. 5. 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'". 6. 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. 7. 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: Me: "Have you fucking sexually assaulted our daughter?" [Max]: "Yes". Me: "You bastard [Max], how dare you do that to our daughter." 1. The following cross examination of the wife took place on this issue [T 448.26-448.50] Q. If [Jess] had raised in this note that she had been sexually assaulted by [Max], given the gravity of that, it would be reasonable to expect you to raise that with the police officers, is that correct? A. Yes. Q. Do you say that you raised that with the police officers on that evening? A. Yes. Q. Is it possible that your recollection of the events of that evening is not perfect? A. I definitely remember asking [Max] around the staircase. That was very vivid in my mind, yes. Q. But you say you then raised the fact that [Jess] had made an allegation of sexual violence against [Max] effectively in this note with the police officers, is that correct? A. Can you repeat the question, sorry about that? Q. I'm sorry, that was a long question, I withdraw that. A. That's okay. Q. But you say that you raised with one of the police officers there the allegation against [Max]? A. Yes, well we were just talking about it and I - I was reading the note and, yeah, I just - I was just so overwhelmed that night I was just, yeah. 1. [Lucas] confirmed the substance of this exchange in par 23 of his statement to the police, which became Exhibit D3. Relevantly, [Lucas] said: 23. ... When I arrived I could see that [Rachel] and [Max] were sitting on the internal staircase. I was privy to a conversation between [Rachel] and [Max]. [Rachel] said, "[Max], have you sexually abused our daughter?" [Max] said, no." [Rachel] said, [Max] have you sexually abused our daughter?" [Max] said, no." [Rachel] said, "[Max], have you fucking sexually abused our daughter?" [Max] paused for a while and said, "yes." [Rachel] burst into tears and said, "You bastard." I broke down in tears because the letter that [Laura] had read to me had some truth to it. This conversation was made in front of police officers already at the house. 24. A female police officer questioned [Max] and said, "Where have you put the body?" [Max] responded by saying, "You will never find the body." Further police arrived at [Max] and [Rachel]'s house and a search of the backyard took place by police, myself and [Max] and [Rachel] and [Jess]'s siblings. 1. 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. 2. 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. 3. 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: 4 ... [Max] always denied abusing [Jess] until we tracked [Jess] down in a backpacker's hostel. [Max] eventually admitted to us that he had abused [Jess]... 1. 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. 2. The Police did not arrest the husband on the basis that they had heard him confess to sexually assaulting [Jess]. 3. 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. 4. 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]. Retrieval of [Jess] from Queensland 1. 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. 2. The wife was cross-examined as to why she permitted the husband to travel to Queensland, as follows [T 449.9-449.40]: Q. It's correct that yourself and [Laura] and [Max] flew to Queensland. Is that correct? A. That's right. Q. You say that you did not want [Max] to come this time however he insisted on coming? A. Yes-- Q. Is your evidence? A. --that's right. Q. Given the gravity of the allegations that [Jess] had raised and what had occurred, you could have told the police that you didn't want [Max] to come, couldn't you? A. Initially we wanted my brother and then we were just so overwhelmed, we were in a daze for a few days but we didn't tell the police. We were just wanting to get on the next flight so we - we just went and then [Max] wanted to come along. We didn't sort of argue the point, we just - our main thing was just to get to [Jess] - you know, find [Jess]. And get to Queensland. Q. You would have been concerned, wouldn't you, that by travelling with [Max], given the nature of the allegations, that might not have been particularly safe for [Jess]? A. Yes, we did. We were concerned. Q. You didn't raise this with the police at the time though? A. No. As I said, we were just so - after we got a call from the police we just went to the airport, caught a flight. Q. But [Jess] was suicidal at the time, you'd though [Max]'s presence would have been a real concern? A. Yes, it was. We actually did tell [Max] please don't come. And he insisted. 1. 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. 2. 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. Subsequent disclosure of sexual assaults 1. 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. 2. 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. 3. 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." Complaints to the Police of alleged sexual assaults in 2007 1. 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." 2. 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. 3. 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]." 4. 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. 5. 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. 6. 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. Issue of AVO against the husband 1. 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. 2. 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. 3. 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. 4. 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. Alleged admission by the husband at the hospital 1. 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. 2. 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." 3. 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. 4. 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]. 5. The wife's evidence was that the family did not hear from the husband for approximately 18 months after this incident. 6. 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." 7. 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]: Q. Your evidence is that in and around the time of that discharge you didn't know that she had been living with her father, [Max]? A. No, I was shocked. I didn't know. Q. At the time of the admission into hospital that she had been living with her father, [Max]? A. No. No, I was shocked. It actually - it actually happened - yeah, it just actually happened after 2011 and - and then - and I found out at that time and I was actually quite shocked. I was very - I was quite disturbed by that. Q. Where did you think she was living at the time? A. Sorry, no - sorry, I was - where was she living, sorry? Q. You were shocked at the fact that she had been living with her father-- A. No, I don't think she was living with her father, she must have - [Jess] told me later that she had - he took her out some times and I just thought well, that's not appropriate. And that was before that but she actually wasn't living with her father per se. You know, they went out a couple of days and she said it, yeah, and I just said, "That's just not on, [Jess]", you know. Q. I see. And so what's recorded in that document that you were just shown is incorrect insofar as it suggests that she was living with her father? A. Yes. Yes, she wasn't living with her father, no. Never. Not in that sense. But he - he - he must have taken her out a few times before 2011 and I was just - I was shocked. That's why we had the meeting with the four - four professional health workers and there was a different arrangement for her to have some - another place to live at and – 1. 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. [Jess]'s position in the proceedings 1. Although the wife alleges that the husband sexually abused [Laura], most of the allegations of sexual abuse have been made in relation to [Jess]. 2. 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. 3. 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]. 4. 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. 5. 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. 6. 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]. 7. 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." 8. 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. 9. [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. 10. 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. 11. 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. Statement made by [Craig] to the Police 1. [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: 19. Q: What can you tell me about [Max]? 20. A: He's my father. He's a carpenter. He often goes out at night and comes home early in the morning. He's always aggressive sometimes after a late night out. I am not sure how aggressive he can be. He's also sometimes works with his brother. 21. Q: Can you tell me why you are saying he's aggressive? 22. A: Because he's drunk and it's really bad. I saw him punching the walls or throwing things at the wall when he got angry. I also saw him slapping my mother and tackling her onto the ground but there was years ago. He belts us as well for no reason. He hits me, [James] and mostly my sisters with hands and sometimes he took off his belt and hit us with it. 23. Q: How did you feel when he hit you? 24. A: I feel bad, it hurts and I cry. 25. Q: What about your sisters? 26. A: I know my sisters were very scared of my father. I saw something happen to [Jess] but not sure what it was. Both [Laura] and [Jess] told me something [Max] did to them. But I can't remember what they told me and I don't know how to talk about this stuff. I don't know how to describe it. I remember at the [[Suburb D] Property], I saw [Max] went into [Jess]'s bedroom at late night and then I heard strange noise coming out of that room. The noise was the bed noise. I am not sure what happens inside that room because I couldn't see. 1. 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. Evidence of aggressive conduct by the wife 1. 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. 2. 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: (e) I recall that I was screaming at [the husband]. I was full of rage and anger that [the husband] would not listen to me and was continuing to threaten our family. (f) I then kicked the passenger door of [the husband's] car. I regret doing this, however at the time I was so angry and upset at [the husband's] actions. I was outraged that he continued to threaten the children and was lingering around the [Suburb D] property for no apparent reason. 1. 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. 2. 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. 3. 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. 4. The following cross-examination took place about this incident [T 438.39-442.46]: Q. And it's correct isn't it that there was another that related to one incident in around 2004, and there was another incident in around December 2013. Is that correct? Between you and [Andrea Rhodes]. … Q. Around December 2013. A. Yes, that's right. That's correct. Q. On 21 December. A. Yes, that's right. Q. It's correct isn't it that you attended [Andrea Rhodes]'s house on that date. A. Yes, I did. Q. And you walked into [Andrea]'s house demanding to speak with [the husband], is that correct? A. I tried to call [the husband] a few times, and then. Q. You tried to call [the husband] a few times, but at some point you attended [Andrea Rhodes]'s house. A. Yes, I did. I did. Q. And you walked into her house, is that correct? A. Yes. Q. And you demanded to speak to [the husband]. A. Yes. Well, I knocked on the front door and then I walked in then and went to the back. Q. And you effectively said words to [Andrea Rhodes] that you demanded to speak with [the husband]. Is that correct? A. I don't - I don't - I don't think I saw [Andrea]. I saw - I think I saw [the husband]. Don't recall seeing [Andrea]. From the back. … Q. On this occasion when you attended [Andrea]'s house, [the husband] was not there, was he? A. On the - sorry, on the 3rd of December? Q. On 21 December 2013? A. [The husband] wasn't - no, he was there, yes. Q. On the occasion that you attended it was correct that [Andrea]'s children were in the premises, is that correct? A. Yes, that's correct. Q. you weren't invited into the property were you? A. No. … Q. It's correct, isn't it Ms [Brooks], that you were uninvited into that property? A. Yes. Q. You were not invited into that property. And it's correct, isn't it - I'm sorry, your answer to that question was yes, is that correct? A. Yes. Q. It's correct, isn't it, that you did in fact walk in in any event? Is that correct? A. I knocked - knocked, I saw [the husband] through the glass where the kitchen is and I got him to come outside. Q. It's correct, isn't it, that you walked through the front door into the kitchen area of that house, isn't it? A. No. Q. It's correct, isn't it, that at one point you went to the rear of that property? A. Yes. Q. It's correct, isn't it, that you were not invited into the rear of that property? the backyard if I can call it that way. A. No. … Q. And I think as you've said you made your way around to the backyard anyway. That's correct, isn't it? A. That's right. Q. You see that document in front of you, it has four pages in total and you see the page number in the top right-hand corner? A. Yes. … Q. If I can ask you to turn to page 3, you'll see that that's a narration of events. Do you see that? A. Yes. Q. Can I ask you to read the highlighted passage on page 3? …. Q. ... For your benefit, Miss [Brooks], you'd understand that document that I've shown you to be a police record of an attendance at that property of [Andrea Rhodes]'s, do you understand that? A. Yes. Q. What you have just read is a narration of events according to the attending police officers on that evening, do you understand that? A. Yes. Q. You would dispute that narration of events set out in that document, is that correct? A. Yes, I didn't go inside, yeah. 1. 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. 2. 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. 3. 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: (c) At this point, I recall that Mr [Mack] became very loud and raised the volume of his voice. Mr [Mack] pushed me. I fell to the ground. I recall the grass was quite long and very slippery. (d) I recall that Mr [Mack] made threats at a heightened volume and intensity, saying, "You must leave. If you do not leave I will damage the house and burn it down." (e) I asked Mr [Mack], "Can I inspect the house? I am concerned there is no current smoke alarm." (f) I recall that Mr [Mack] got on his phone and said, "I am calling the police." (g) I moved my car up the driveway to the house and had a conversation with Mr [Mack] to the following effect: (i) Me: "Please leave the property." (ii) Mr [Mack]: "No. I have already called the police." (h) I recall that the police arrived and there were approximately three police officers in attendance. By this stage, I was feeling very unwell and I felt like I could vomit. I felt overwhelmed and fearful of the situation and was embarrassed that I would be sick in front of the others. I asked the police, "May I go to the bathroom?" (i) A male police officer sitting on the veranda said, "Sure, if you have to." (j) I recall that I walked into the house and a female police officer stepped in front of me to block the door. (k) Being overwhelmed by the situation, I fell to the ground and began to hyperventilate. I found it very difficult to catch my breath and get off the ground. I tried to say to the police officer, "The male police officer said it was okay for me to go to the bathroom." (l) I recall that another female police officer (sic) and produced a single piece of paper that neither [Jess] or I had seen before. The police officer said, "This is the lease". (m) I recall that I responded to the police officer saying, "There are multiple owners of this property. The majority of owners hold 86% of title combined and we have not signed this paper and I have not agreed to this lease." (n) By this stage I was feeling very unwell and light-headed. I recall that the police pushed me, and I attempted to get up off the ground. The police said, "If you don't get up, we will arrest you." (o) I recall that I felt so exhausted and [un]well that I responded by saying, "If you have to." (p) I recall that the police put me into their white paddy wagon… 1. 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. 2. 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]. 3. 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. 4. 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: Police prior to entering the property were waved down by [Walsh] who had parked outside to calm down. [Walsh] was visibly upset, crying and shaking and having trouble talking. … Police then entered the property and observed the two accused standing near the home's rear door. [Mack] was seated on the grass away from the accused's (sic). Accused 2, immediately started to yell that [Mack] had no right to be in the premises. That there was no current lease and that they had no idea who these people were. They had a right to be there. Police spoke to [Mack] who produced the rental agreement. Police were also shown signed receipts for the rental money which beared (sic) the accused signature. [Mack] also advised Police that he had been assaulted by accused 1. Police took the agreement out to where both accused's (sic) were standing. The accused was advised that there was a current lease between [the husband] and [Mack]. The accused started to shout and abuse Police demanding to see the lease. The accused persons were advised that if they had an issue with the lease then to speak to [the husband]. Accused 1 advised Police that she was not going to put up with this it was her house and she was going inside. She commenced to walk towards the rear door. The accused was advised by Senior Constable [Moss] not to enter the premises and if she did so she would be committing an offence. The accused continued to walk towards the home. Constable [Emory] was inside the premises and came to stand in the doorway. Senior Constable [Moss] continued to advise the accused not to enter the house. When at the door the accused attempted to get past Constable [Emory] by grabbing a hold of her arm. Senior Constable [Moss] was at this time attempting to prevent the accused from entering by taking hold of (sic) arm. Constable [Emory]'s (sic) pushed the accused away from the doorway and then assisted Constable [Moss] in restraining the accused. The accused right arm was taken by Senior Constable [Moss] and the left by Constable [Emory]. The accused started to resist by wriggling and thrusting her body about and kicking her feet. The accused was told to calm down and stop resisting, however the accused continued to struggle until she was finally placed onto the ground. The accused was then placed into a sitting position. She continued to try and stand against Police instructions to stay seated. The accused continued to yell and scream and stated she was going to be physically ill and needed some fresh air. She was advised she was already outside and to calm down. The accused was eventually allowed to stand up and told to leave the premises. The accused began to walk away screaming "I'm not going anywhere. You can arrest me. Go on arrest me, you better arrest me cause I'm not going anywhere" The accused kept on repeating this. The accused was told to calm down The accused was advised by Constable [Emory] that she would be under arrest for the offence of remain on enclosed lands and whatever she said or did would be recorded and may later be used as evidence. Accused continued to yell and scream and ignore all instructions given by Police. Due to the accused aggression, demeanour, offences already committed and refusing to leave, Police had reasonable grounds to then arrest the accused for breach of the peace. The accused was advised and Senior Constable [Moss] and Constable [Emory] approached accused 1. The accused started to throw her arms in an attempt to avoid being restrained screaming "Fuck off, leave me alone" Senior Constable [Moss] took hold of the right arm. Constable [Emory] the left. The accused started to resist by struggling and twisting her body. The accused then refused to walk and had to be lifted into the rear of the Police vehicle with the assistance then of Constable [Sebastian]. The accused continued to scream stating she was "Sorry and to let her go". 1. The following cross-examination of the wife took place concerning this incident [T 493.36-497.13]: Q. This ultimately - this interaction led to a charge, didn't it? A. Yes. … Q. Yes. A. Yeah, something trespassing and then resisting. Yep. Q. There was a charge relating to hindering an officer in the course of their duties? A. Yes. … Q. Do you recognise this to be a police record? A. Yes. … Q. I'm going to read through some facts and you tell me if you agree that these occurred. Do you understand? A. Yes. Q. So, on 4 January at around 9am, Mr [Mack]'s partner Ms [Walsh], was leaving the home. Do you recall her being in a car, getting ready to leave that home? A. Yes. Q. And she had her youngest daughter in the car. Is that correct? A. Yes. Q. You were, at that time, started walking up the driveway with your daughter. Is that correct? A. That's correct. Q. It's correct, isn't it, that you and [Jess] had to jump the front gate to get into the property? Is that correct? A. Yes. Q. Because the front gate was locked effectively. A. I can't remember, I think it was. Yes. I'm not sure about that one. Sorry about that. Yeah. Q. Ms [Walsh] then alerted Mr [Mack], her partner to your being there. Is that correct? A. She may have. I don't – I don't remember that. Q. Then she approached the front gate in her car. And it's correct, isn't it, that your car had been parked across the front entrance to that property? A. Yes. Q. The parking of your car across the front entrance to that property would have effectively prevented or hindered anyone trying to get out of the property? A. Yes. Though of course that wasn't that my intention. Yeah. … Q. Ms [Walsh] asked you to move the vehicle. Is that correct? A. I don't recall her asking that. Q. You then headed towards the house on that property? A. Yes. Q. And Ms [Walsh] turned the car around to drive closer to the house. Effectively reversing her direction towards the house. A. Yes. She may have. Yes. I don't recall that part, but she may have. Sorry about that. Q. Then you were standing – you headed towards Mr [Mack] who was also on the property. Is that correct? A. Yes. Q. And you yelled at Mr [Mack], "How dare you". Do you accept that? A. Yes. Q. At one point in your discussions with Mr [Mack], it's correct isn't it, that you yelled, "You're not supposed to be here. Fuck off, get out." A. No. I just said, like, "Why are you calling the police. Can we talk." … Q. Do you accept that [Jess] said she was going to enter the house and rip all of their – being Mr [Mack] and Ms [Walsh] – shit out of there? A. No. Q. It's correct, isn't it, that Mr [Mack] accused you of striking him in the back, on that occasion? A. I didn't hit Mr [Mack]. Q. You deny doing that? A. I deny doing it. That's right. … Q. When the police spoke to you do you recall saying words to the effect of you were not going to put up with this, it was your house and you were going inside? A. No. Q. Do you recall - I think you accept that you at one stage were walking towards the door and can I just confirm in your evidence when you say you were walking towards the door, was that the rear door of the property? The door in which you were stopped by another officer? A. Yes, I may have. Q. That was the rear door was it? A. Yes. I think I needed to go to the ladies or something - I can't remember, but it was a - just - toilet - I was getting - getting sick. Q. Is it correct that Senior Constable [Moss] on that occasion-- A. Yes. Q. --said that you were not to enter the premises and if you did you would be committing an offence? A. No, I don't recall that. Q. Don't recall that? A. No. Q. Then when you were at the door you attempted to get past Constable [Emory] by grabbing hold of her arm. Do you recall doing that? A. No. Q. Then on that occasion or at that moment Constable [Emory] pushed you away from the doorway and assisted Constable [Moss] in restraining you. Do you recall that? A. No, I don't. 1. After the Police COPS report was tendered, the cross-examination continued as follows [T497.24-498.26]: Q. I have one last question about the events on that day, Ms [Brooks]. Is it correct that instead of saying, "If you have to" to the police when they indicated that they might have to arrest you that instead you said words to the effect of, "I'm not going. Arrest me. Arrest me. I'm not going fucking anywhere"? A. No. Q. Do you recall saying that at any time on that day to a police officer? A. No. I've had a lot of issues with the police officer, Ms [Callie Moss]. Q. I see. A. Yes. Q. And so is it-- A. And she was dismissed from the force straight after. I'm just - I'm not sure. I had a lot - yeah, so. She had stuff from post-traumatic stress before that so I'm not sure. I just felt - anyhow, it's just something I - Q. I see. Thank you, Ms [Brooks]. Can I make one matter clear, the matters that I have just been putting to you now, I think you would understand and accept that I was reading from this exhibit-- A. Yes, of course. Q. --that's just been tendered? A. Yes. Q. Is it your suggestion that what is effectively recorded in this exhibit as I put to you-- A. Yes. Q. --is incorrect? In fairness to you, you don't have the exhibit in front of you but if you took it from me that-- A. Yes, some of it - I feel that some-- Q. --what I put to you-- A. --of it is a bit-- Q. --in the most recent set of questions-- A. Yes. Q. --including your interaction with two police officers and being restrained and words that you had said that you denied, that I was reading from this COPS entry? A. Yes, of course. [Callie Moss] - I understand-- Q. And therefore it's your position that what is recorded in here-- A. Yes, of course. Q. --is incorrect? At least to that extent? A. I didn't - I don't feel I said those things. I thought - I don't not feel I didn't say those things. I know I wasn't. Q. You specifically remember not saying those things? A. No, I wouldn't have said - yeah, I wouldn't have been that aggressive or - 1. 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. Complaints to the Police of sexual abuse in 2014 1. 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. 2. 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. 3. 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: … I recall my mother made a Police Statement. I mentioned to the Police that [Max] had sexually abused me as a child and the domestic violence my mother, my siblings and I had experienced up until 2007 to support the claims that [Max] was a dangerous threat to (sic) welfare of my mother, my siblings and me. 1. 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. 2. 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. 3. 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]. Conclusion on the issue of sexual assaults 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. There was no evidence that the husband sexually assaulted [Craig]. 9. 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. 10. 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. Evidence of the wife's mental health from medical practitioners 1. 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 wife] reported that from almost 17 years ago to the time of her separation she had been subject to physical violence and intimidation from her husband. She described him as an aggressive individual who suffered from mood swings made worse by a drinking problem. In 2000 [the wife] separated from [the husband]. He returned to the family home sporadically; however the couple are said to have lived in a non-conjugal arrangement as [the husband] had "girlfriends" during this period. [The wife] said that sometime in 2000, she could not recall the date or month, [the husband] assaulted her quite badly; she attended hospital for treatment and sustained bruising and stitches to a wound on her head. Although receiving medical treatment [the wife] said she didn't make a formal complaint against [the husband] as she was "afraid of him". In 2004 [the wife] said she was again assaulted by [the husband] and on this occasion she reported the domestic violence to her General Practitioner whilst being treated for her injuries. [The wife] said that in addition to the physical abuse meted out on her she later found out that [the husband] had been sexually abusing both of her daughters. [The wife] reported that in 2007 [Jess] was 18 years old at the time. A police search for [Jess] finally located her in Queensland; it was at this time, according to [the wife] that [Jess] disclosed the sexual abuse which she said had commenced when she was around 8 years of age and continued for many years. [The wife] said that after [Jess]'s disclosure her other daughter also made the disclosure that she had similarly been abused by her father, though apparently not as frequently as [Jess]. [The wife] said that following the disclosures she returned home and threw out [the husband's] clothes, her daughters took out an Apprehended Violence Order against [the husband]. [The wife] said that the matters of sexual abuse are now being investigated by Police. [The wife] became very distressed during this recount; she said she blamed herself for not protecting her children, because she was "weak and scared of [the husband]". In 2009 [Jess] is said to have been diagnosed with Bipolar Disorder and Post-traumatic stress Disorder, both conditions leading to several psychiatric admissions. [The wife] said that she blames herself for her daughter's psychiatric illness which she sees as being as a result of the abuse she suffered during her childhood and adolescence. [The wife] said she felt guilty for not knowing what was going on and for not protecting her children… 1. 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. 2. Ms [Watson] stated that she had been given the following mental health history by the wife: [The wife] provided a mental health history which appeared to indicate that prior to 2009 although she had struggled with depressed mood, which she attributed to living in a situation of the domestic violence, she had been reasonably functional. Up until this point it appears that she was able to work and take care of her children, three of whom have significant mental health and learning difficulties. From 2009 with the disclosure of intrafamilial Child sexual assault from her two daughters [the wife's] mental health is described as having deteriorated seriously. She said she was aware that she was "not coping" but felt that she could not seek treatment for increasing depression and anxiety because she feared there would be no-one to look after her children. [The wife] reported that from 2009 she felt depressed and desperate. She said she knew she was having difficulty thinking clearly, making decisions and planning. She reports that she felt 'exhausted' most of the time and would spend hours in her room crying. She said that she tried to hide her deteriorating mental state from her family as "I had already let them down by not protecting them from [the husband]; I needed to try to be there for them". [The wife] said on the rare occasions when she sought support from friends or associates, she felt "ashamed about her failure to protect her children and felt that people really didn't believe her" (in respect to [the husband's] alleged offences against member (sic) of the family). 1. Ms [Watson] added the following description of the history given to her by the wife: [The wife] described the development of symptoms aligned with psychological distress commencing as far back as 2009. It is noted that prior to that time she reports having experienced periods of emotional distress, loss of self-esteem and anxiety in relation to psychosocial stress or is she described as having been part of her marriage to [the husband] and coping as a single parent to children with special needs. However it appears that until around 2009 these symptoms were not present all the time and waxed and waned in response to taxing life circumstances. [The wife] reported that from the time of her daughter [Jess]'s suicide attempt and the disclosure of alleged child sexual assault in 2009 [the wife] described experiencing the following symptoms: Low mood most of the day most days with tearfulness beyond her ability to control Loss of pleasure in most activities Sleep disturbance Loss of appetite Impairment in her ability to think clearly or make decisions Worry about a number of identifiable issues which was intrusive and beyond her ability to control or dismiss Feelings of guilt (identified as being "not protecting her children from [the husband]" and "being useless and disappointing everyone") Having intrusiveness thoughts and nightmares about [Jess]'s disclosure of abuse her subsequent suicide attempt and incidents of domestic violence that she is said to have been victim to Experiencing feelings of panic (described in terms satisfying description of panic attack) Avoidance of thinking about or talking about incidents of domestic violence Fear of [the husband] and feeling that her future or that of her children's would be cut short because of him. Having difficulty concentrating Being vigilant, on guard and reacting strongly to perceived threat or loud noises (shouting) 1. 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: Overall [the wife's] results on the PAI suggested diagnoses including Major Depressive Disorder, Post-traumatic Stress Disorder and issues (provisional and requiring further investigation) associated with personality dysfunction (Personality Disorder – unconfirmed). 1. 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: * Prior to 2009, the wife was reasonably functional and was able to work and take care of her children, notwithstanding that three of them had significant mental health and learning difficulties, although she struggled with depressed mood. The wife experienced periods of emotional distress, loss of self-esteem and anxiety. Until 2009, these symptoms were not present all the time and waxed and waned in response to taxing life circumstances. * The wife's psychological health deteriorated seriously from 2009 following the disclosure of alleged sexual abuse of her children by the husband (which in fact occurred in 2007). From 2009 the wife has felt depressed and desperate and exhausted most of the time. The PTSD and Major Depressive Disorder from which the wife suffers had its onset in 2009. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. Dr [Boyd] formed the opinion that the wife was suffering from Chronic Depressive Disorder and severe PTSD. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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: [The wife] has suffered from chronic PTSD with depressive disorder contributed by chronic violence she had faced in her relationship with her ex-husband. Her conditions were essentially untreated for a long period of time and she had learnt to block and numb her emotions. The chronic abuse has impacted her self-esteem, induced excessive fears and arousal, lowered her confidence and ability to make informed decisions and care for her children. Her ability to function as caregiver and homemaker were significantly compromised by chronic psychological untreated conditions that impacted her ability to make the right decisions and put boundaries and seek help. She was unable to protect the children due to excessive irrational fears, social isolation, high avoidance and arousal and fears about her safety and children due to threats and fear of further violence as well as her emotional numbness and poor affective regulation. 1. [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. 2. In response to a separate question about the wife's capacity to gain meaningful employment, Dr [Boyd] said: She has chronic depression with PTSD resulting in social anxiety, fears and trust issues, active intrusive memories of violence, poor stress coping and memory impairments that affect her functional capacity. These are likely to be persistent and chronic despite treatment and pose a poor vocational prognosis. Her ability to work full time is severely compromised now and in future she has reduced work capacity and inability to financially sustain herself. 1. 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. 2. 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. Would making an order be just and equitable? 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. I will therefore proceed to consider the application of s 79(4) of the Family Law Act. What is the available asset pool? 1. 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. 2. The parties did not treat the wife's entitlement to superannuation of $61,432 as having any real significance. 3. 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. Are the debts to the NAB liabilities of Pool 1? 1. 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. 2. 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. Are the payments made by [Laura] liabilities of Pool 1? 1. 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. 2. 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: [120] It is also not uncommon, as in this case, for parties to disagree on whether an advance of funds from family or friends is to be considered a gift or a loan which must be repaid. The latter would have the effect of characterising that advance as a liability and, unless other discretionary considerations apply, the amount would usually be included on the balance sheet of the parties' assets and liabilities. [121] The burden of proving that those monies were advanced as a loan falls to those asserting that it was a loan: see Heydon v Perpetual Executors Trustees and Agency Co WA Ltd (1930) 45 CLR 111 at 113. This is to be determined by objective evidence not subjective perception. In Chaudhary v Chaudhary [2017] NSWCA 222 ("Chaudhary") at [100], the New South Wales Court of Appeal said: The question of whether or not the advances … are to be properly characterised as loans or gifts … is not to be determined by reference to any uncommunicated subjective state of mind about which inferences may or may not be drawn. The characterisation of the advance must depend upon the objective evidence as to what was said by [the lender/s] to [the recipient/s] and what [the lender/s] did, including, for example by way of documentation. (Emphasis added) [122] In Grefeld & Grefeld [2010] FamCA 504 at [95], Barry J described the usual characteristics of a loan as including: • The real lender to know about the borrowing. • Some definition of the period of the loan. Is it to be for five, ten or one hundred years, or when the borrower chooses to repay it? • Some definition of the interest payable with evidence supporting such agreement by regular deposits to bank accounts. • Some form of documentation to validate or authenticate a loan for such a significant sum of money. [123] However, the absence of one or more of those characteristics is not necessarily determinative of the issue. [124] It is frequently the case that financial arrangements between family members, including between parents and their children, are not expressed in formal terms: see Sackville AJA in Chaudhary (supra) at [7] and [8]. [125] Nevertheless, even in those circumstances where there are, commonly, less formal arrangements between parents and their children and also between siblings, those seeking to assert that the monetary advance was a loan must adduce sufficient evidence to satisfy the Court of an intention to create a legally enforceable relationship. In that respect, in Strand & Strand (No. 2) [2018] FamCAFC 247 at [24], the Full Court said: The characterisation of a particular advance of monies depends on whether the circumstances known to both parties to the transaction at the time demonstrate, objectively, that the payment was made by way of loan. If, for example, the money was paid upon the express condition that it should be repaid then, notwithstanding any absence of formal documentation, and regardless of the motivation for the payment, a contract of loan will exist: Berghan v Berghan (2017) 57 Fam LR 104 . (Emphasis added) 1. 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. 2. 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. 3. 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. 4. 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. Should the husband's legal costs of the s 66G proceedings be returned to Pool 1? 1. The third question is an issue that has arisen after the Court reserved judgment in the family law proceedings. 2. 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. 3. 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): Guidelines for adding back to the property available at trial (a) Dissipation of property and expenditure other than on legal fees [27] The Full Court held in Omacini and Omacini that addbacks fall into "three clear categories": where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and "waste" or wanton, negligent, or reckless dissipation of assets. [28] However, the Full Court also made it clear that an addback does not necessarily occur whenever "a party has expended money realised from the disposition of assets that existed as at the date of separation", the Full Court describing such a proposition as "unduly simplistic". An earlier Full Court made the same point, saying that adding back is "the exception rather than the rule". [29] The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, "the Family Court must take the property of a party to the marriage as it finds it" at trial. An important parallel proposition is that the parties do not "go into a state of suspended economic animation" after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback. [30] Two fundamental premises emerge from Omacini and the authorities preceding it. First, "adding back" is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not "exceptional" justice and equity can be achieved, not by adding back, but by the exercise of a different discretion — usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is "a course which is, perhaps, technically more correct" than adding back to the list of existing interests in property. 1. 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. What financial and other contributions have the parties made? 1. 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. Date of separation 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. Significance of donations by family members 1. 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: The authorities (including In the Marriage of Freeman (1979) 5 Fam LN 16; [1979] FLC 90-697; In the Marriage of Antmann (1980) 6 Fam LR 560; [1980] FLC 90-908, and In the Marriage of White (1982) 8 Fam LR 512; [1982] FLC 91-246) to which we were referred by counsel for the appellant husband) which are relevant to the question of how a gift or benefaction by a relative of one party to one or both of the parties should be treated in proceedings under s 79 of the Family Law Act were comprehensively reviewed by Fogarty J in In the Marriage of Gosper (1987) 11 Fam LR 601; [1987] FLC 91-818 at Fam LR 605-10; FLC 76,163-168. There is nothing we would want to add to his Honour's comprehensive review of the authorities, nor to his conclusions that (at Fam LR 611; FLC 76-168): The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to court in such a case to look at the actuality and treat that as a "financial contribution made directly... on behalf of" the spouse relative (see for example Rainbird, Matthews, W, Underwood, Abdullah, Freeman, cf Cleary, Hogan J in Freeman, and Antmann, supra). In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made "because she was a daughter of that family" as was said in W's case at 75,527. It is clearly a "financial contribution" and one "made directly" to the acquisition, conservation and improvement of property. In such cases it is open to the court to conclude, if the facts justify it, that it was made "on behalf of" one spouse. In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them. 1. In Mabb v Mabb (2020) 60 Fam LR 299; [2020] FamCAFC 18 the Full Court added: [33] Two important distinctions must be exposed. First, Kessey involved the gift of money which enabled renovations to be done to a property in the sole name of one of the parties. Secondly, there was no evidence of the intention of the donor, who in that case, was the wife's mother. [34] In Gosper at FLR 11; Fam LR 610; FLC 76,167–76,168, Fogarty J said: Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction. Confusion often arises at this point because, particularly with gifts of money or in kind, the evidence about it is confused and imprecise and the actual intention of the donor (the critical issue) may have been ill-defined. However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding. Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of the intention of the donor. (Emphasis added) (Citations omitted) [35] Thus, whether, as the husband contends, the gift of the land was to benefit him alone, depends on the intention of his parents at the time of its transfer. [36] It is the husband's position on appeal that it was for the wife to prove the intention of his parents. [37] We do not agree. Each party bore an evidentiary onus to establish the facts to support their respective contentions. While it is reasonable to assume, as the Full Court did in Kessey, that the presumed intention of the donor is to advantage the child in the marriage, it is no more than an evidentiary device. Clearly as Fogarty J said in Gosper, that presumption can be rebutted by evidence of the actual intention that accompanied the gift and in this case, the transfer of the land to the parties jointly is a "strong indicator" of intention. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. Significance of family violence by the husband 1. 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: (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. 1. 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: It is only in more recent times that the pervasiveness and destructiveness of domestic violence have been at least partly acknowledged in Australia. Whilst there is no reason to suggest that domestic violence is more prevalent in society now than it was in previous generations, until recently both the law and society generally cast a veil of silence over it, preferring to proceed on the basis that either it did not exist or that it was inappropriate for society or the law to intervene in disputes within the "private" sphere of the home. There has in more recent times been a marked and long overdue change in those attitudes and a greater social and legal awareness of and disapproval of domestic violence and past attitudes to it. The law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences. 1. After a review of the authorities, their Honours reached the following conclusions, at 24: Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion. … However, it is important to consider the "floodgates" argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this court to fault and misconduct in property matters — a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost. However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the court at an early stage when a case appears to raise those issues. It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). Similarly, in Killick v Killick (1997) 21 Fam LR 331 at 341, in proceedings under the De Facto Relationships Act 1984 (NSW), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent. 1. In Spagnardi v Spagnardi [2003] FamCA 905 (Spagnardi), the Full Court said: [40] There is no doubt that domestic violence may be a relevant factor in assessing contribution. The difficulty as presented in this case and many others is that inadequate evidence makes a proper assessment by the trial Judge either very difficult or impossible. This difficulty was referred to by the trial Judge in his ruling about this topic on 29 August 2002 (at paragraph 18). [41] The key passage in Kennon is contained at page 84,294: Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of 'negative contributions' which is sometimes referred to in this discussion." [our underlining] [42] The question is whether a trial judge may infer from the evidence that the result must be that a party's contributions have been affected. In essence that was the submission of counsel for the wife which was accepted by the trial Judge, both as the reasons for the ruling about the evidence and in the judgment. [43] At paragraph 54 of the judgment his Honour said: "It is true that there is no explicit evidence by the wife to the effect that the violence made her performance of her contributions more arduous. However I accept that on the evidence before me it is obvious that her contributions as a homemaker and parent must have been made significantly more arduous than they ought to have been because of the violence inflicted upon her by the husband. On the other hand, the lack of specific and detailed evidence about its effect on those contributions makes it inappropriate to make a substantial adjustment in her favour because of this factor." [44] Reference should be made to page 84,295 of Kennon where their Honours said: "To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions)." [45] We agree with his Honour the trial Judge's summary of the law as contained in his ruling. In particular his reference to Kennon (paragraph 13 and paragraph 18): "13. If one looks at that passage, it seems to me that the key words are that the violence is demonstrated to have 'a significant adverse impact' on the parties' contributions, or made them 'significantly' more arduous. ... 18. It seems to me that that question of interpretation of the judgment in Kennon is of great importance in resolving this matter. As has been apparent, I have found it a difficult one. It seems to me that the question of whether the evidence in this case is admissible or not, is one of some difficulty. It is partly one of difficulty because the wife's material, although it refers to some specific acts of violence, does not expressly refer to the impact of the violence on her contributions. It cannot, however, be the law that the failure to state such matters expressly is necessarily fatal to such evidence; there must be cases where it is obvious or a very likely inference from the facts, that certain kinds of violence must have adversely affected a person's contributions. The question in the present case is whether the material on behalf of the wife can be said to fall within that category." [46] In addition to that stated by the trial Judge we would not want the reference in Kennon to "exceptional" on page 84,294 to be understood to mean rare. We do not agree with this qualitative description and would be more inclined to the view expressed by the trial Judge at paragraph 17: "In his submissions, Mr Schonell, quite understandably and quite correctly, drew my attention to the strength of the language, referring to 'exceptional cases' and 'the relatively narrow band of cases'. However, it seems to me that, reading these passages as a whole, the references to 'exceptional cases' and 'narrow band of cases' occurs in the context of the principle of misconduct in general rather than the more narrow formulation about domestic violence. My reading of these passages, therefore, is that it is not necessarily correct that only cases of exceptional violence or a narrow band of domestic violence cases fall within the principles. It seems to me that reading these passages carefully, the key words in a case where there are allegations of domestic violence are 'significant adverse impact' and 'discernable impact'. That reading of the passage is, I think, given some additional force by the actual decision in the Doherty case and the judgments of Baker J in both Doherty and Kennon. [47] An insufficiency of evidence in the present case leaves the Court with a limited ability to deal with allegations in the context of section 79 proceedings. As Kennon has established, it is necessary to provide evidence to establish: • The incidence of domestic violence; • The effect of domestic violence; and • Evidence to enable the court to quantify the effect of that violence upon the parties' capacity to "contribute" as defined by section 79(4). 1. In Keating v Keating (2019) 59 Fam LR 158; [2019] FamCAFC 46 (Keating), Ainslie-Wallace and Ryan JJ said (footnotes omitted): [31] It should be understood that the husband gave evidence in chief that during an argument he pushed past the wife who fell over and fractured her wrist. This concession was made long before the husband was cross-examined. Relevant to the wife's claim for an adjustment as a consequence of the family violence she said she endured (pursuant to s 75(2) of the Act but seemingly accepted at trial as being a contribution issue), this meant that her evidence that the husband broke her nose in 2004/2005, that he beat her on an overseas trip till she passed out and suffered serious bruising, on another occasion suffered broken ribs, that the husband frequently directed abuse at her which undermined her sense of self-worth and her being confined to bed because of her injuries, was given no weight. [32] So too her evidence that the husband's abuse undermined her parenting, the effect his violence and abuse had on her mental health (see Appendix Three to the trial reasons) and that three domestic violence orders were made for her protection. The wife gave evidence of the husband beating her when he was drunk and of her having to clean him after he soiled himself. [33] The fact that the wife gave evidence of family violence during periods when the parties were separated and after they separated for the last time ought not to have minimised the significance of her evidence of that which occurred during the relationship. Nor should Kennon be interpreted (as his Honour seems to have done) as laying down a hard and fast rule that post separation family violence to a spouse who seeks to continue to contribute to the welfare of the family as a parent is irrelevant. As Kennon at Fam LR 24; FLC 84,295 makes clear, the question of the relevance of post separation violence is that it would not usually be of a sufficient duration for its impact to be relevant to the victim spouse's contributions. [34] It follows that the wife gave evidence about a course of significant family violence which was prolonged, had a significant adverse effect on her and undermined her parenting and her ability to contribute. … [37] In Spagnardi the Full Court referred to Kennon and the necessity to show that the conduct had a "discernible impact" on the party's contributions but noted that, there was an "insufficiency of evidence". Their Honours then continued: As Kennon has established, it is necessary to provide evidence to establish: • The incidence of domestic violence; • The effect of domestic violence; and • Evidence to enable the court to quantify the effect of that violence upon the parties [sic] capacity to "contribute" as defined by section 79(4). (Emphasis added) [38] Their Honours further noted at [48] that there was a "complete absence of evidence as to how the husband's conduct affected her ability to contribute". At first blush the reference in Spagnardi to "quantification" seems to elevate the need for an evidentiary nexus or "discernible impact" between the conduct complained of and its effect on the party's ability to make relevant contributions, requiring expert or actuarial evidence of the effect of the violence. That impression is reinforced by their Honour's reference to and comparison with the husband's failure to adduce evidence to demonstrate the impact on the value of the house by his renovations and improvements at [50] where their Honours said: An absence of quantification was also apparent in the appellant's case. While the husband went to great lengths to identify each of the tasks undertaken by him in connection with renovations and improvements to the matrimonial property, he failed to provide evidence of the direct effect of his endeavours upon the value of that property. [39] This uncomfortable analogy does not illuminate what "quantification" of the effect of violence on contributions might look like. It suggests something more than the evidence by the victim spouse. We struggle to understand what that "quantification" evidence might be beyond that given by the victim spouse as to the incidence and effect of the violence as identified in Spagnardi in the first two dot points at [47]. Furthermore, we fail to see how this third step accords with the decision in Kennon which the Full Court in Spagnardi said governed the situation. Perhaps the use of the word "quantification" is infelicitous and has unintentionally added a gloss to the ratio in Kennon when, in truth, the Court in Spagnardi was merely reinforcing the need for there to be an evidentiary nexus between the conduct complained of and the capacity (and or effort expended) to make relevant contributions. And, depending upon the nature of the violence established, in the absence of express evidence about the effect that violence had on the victim spouse's contributions, how difficult it might be for the Court to draw inferences which would establish the evidentiary nexus (see Spagnardi at [42]). But we did not have the benefit of argument on the point (nor it seems did the primary judge) and prefer to express no final view about it. [40] In any event, the primary judge gave no consideration to the inferences that might properly be drawn from the wife's albeit limited evidence as to the effect on her of the husband's violence taken in conjunction with her evidence of the severity of the violence. In this respect although there was evidence about violent behaviour by the wife, it was not the husband's case that this warranted an adjustment in his favour. Perhaps this is why there is no reference to this evidence in the trial reasons. [41] Turning then to the frequency and severity of the violence, we are troubled that the primary judge seems to have dismissed all incidents of violence towards the wife except that which resulted in the wife's wrist being broken by the husband, apparently because her evidence was uncorroborated. [42] It is well settled that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted. A decade ago the Full Court said in Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 at [79]: Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition. [43] The primary judge's approach to the wife's claim for an adjustment as a consequence of family violence was undoubtedly affected by the confused approach she adopted at trial and as reflected in her summary of argument filed in the appeal. Nonetheless it seems to us that his Honour's approach to the issue of family violence as demonstrated in his reasons is persuasive of the conclusion that he misdirected his attention from the "discernible impact" of the husband's violence on the wife's capacity to make contributions focussing instead on there being no evidence allowing "quantification" of that effect. However, for an abundance of caution given the absence of a transcript, we cannot conclusively say that his decision to make no "Kennon" type adjustment was wrong. That argument and its ultimate determination must await the remitted trial. 1. In Benson v Drury (2020) 62 Fam LR 1; [2020] FamCAFC 303, the Full Court, after discussing Kennon, Spagnardi and Keating, said: [49] Even though S v S might, in the past, have been interpreted as implying the need for something more, it should now be 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 (Maine; Britt v Britt (2017) 56 Fam LR 526; (2017) FLC 93-764; [2017] FamCAFC 27 at [74]–[75]; Keating at [27]–[43], [52]–[67]). [50] Here, the primary judge found the appellant perpetrated family violence upon the respondent and drew an inference that such violence did have an effect upon the respondent's contributions, making them "all the more arduous" (at [162]). An inference is an assent to the existence of a fact which is based on the proven existence of some other fact or facts, drawn as part of the fact finding process as an exercise of ordinary powers of deduction and reason in the light of human experience, unaffected by any rule of law (G v H (1994) 181 CLR 387 at 390; 124 ALR 353 at 355; 18 Fam LR 180 at 182). Obviously, the strength of the subject inference depends upon the quality of the underlying evidence. It must be reasonable to draw the inference from primary facts. Mere conjecture will not suffice (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [80]–[101] per Spigelman CJ; Carr v Baker (1936) 36 SR (NSW) 301 at 306–7 per Jordan CJ). Importantly, the evaluation of the evidence from which the subject inference is sought to be drawn should be thorough and balanced. In the context of a Kennon argument, any factual controversies over the alleged misconduct of one spouse and its alleged deleterious consequential effects upon the other spouse should be resolved by familiar forensic techniques. Disputed but untested allegations, are not facts (Keating at [55]–[66]). [51] As already chronicled, what the primary judge did do was firstly set out, in detail, the nature of the family violence perpetrated by the appellant "in all its forms" ([19] and [150]) and found that it had "a debilitating effect" upon the respondent [19(l)] and made the contributions of the respondent all the more arduous [162]. [52] This is a case where, given the nature of the violence described, the primary judge was entitled to draw inferences to establish the necessary evidentiary nexus. 1. 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: [35] The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under s 79(4)(a)–(c) or s 90SM(4)(a)–(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder (Jabour v Jabour (2019) 59 Fam LR 475; (2019) FLC 93-898; [2019] FamCAFC 78 at [73]–[87] (Jabour); Horrigan and Horrigan [2020] FamCAFC 25 at [42]–[48]). [36] That principle has its counterpart in the application of factors prescribed by s 75(2) or s 90SF(3) of the Act (In the Marriage of J D and S J Tomasetti (2000) 26 Fam LR 114; (2000) FLC 93-023; [2000] FamCA 314 at [107]–[114]). Any adjustment to the parties' contribution-based entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustments in respect of each relevant factor. [37] Although the use of the short-hand descriptor of a "Kennon claim" is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process (Paysen v Laukien (2020) 60 Fam LR 464; (2020) FLC 93-960; [2020] FamCAFC 101 at [48]–[50]). Nor is it helpful to refer to the issue as a "Kennon adjustment" because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property. 1. 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): [511] By way of summary, in applying Kennon and S & S, a victim of family violence, seeking to have their circumstances considered in a family law property matter, is required to establish that their situation gives rise to an "exceptional case" where: (1) they were subject to a course of violent conduct during the course of the marriage; (2) they demonstrate: (a) the violence had a significant adverse impact upon that party's contributions to the marriage, or (b) the violence made his or her contributions significantly more arduous than they ought to have been; (3) they quantify the effect of the violence on that party's ability to contribute in terms of section 79(4)(c); and (4) they demonstrate the above by direct evidence or "where it is an obvious or very likely inference" from the facts that the violence had the requisite effect on the party's ability to contribute to the marriage. [512] More recently, appropriately, in my view, the Full Court has taken a more expansive approach to the principles adumbrated in Kennon and S & S. In that respect, the Full Court, in S & S at [42], acknowledged that it may be possible for the Court to draw an inference that family violence perpetrated by one party to a marriage may impact upon the contributions that the other party was able to make to the property of the marriage. The Full Court held, at [45], that inference must be one that "it is obvious" or "very likely". [513] Significantly, more recently, in Britt & Britt (2017) FLC 93–764 ("Britt"), the Full Court did not add those words of limitation to the drawing of such an inference. In that respect, at [74], the Full Court said: The respondent submitted that the appellant's evidence was not relevant to an issue because even if it was evidence of family violence, the appellant had called no evidence to suggest that the violence had made her contributions more onerous. This submission overlooks the obvious point that the court can infer from appropriate evidence that there was a nexus between the conduct and the relevant contributions. [514] I respectfully agree with and apply the approach taken by the Full Court in Britt, which is to be preferred to the approach taken in the earlier authorities, for the following reasons. 1. I respectfully adopt his Honour's observations. Effect of family violence on the wife's contributions 1. 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. 2. [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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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: [515] First, in the year 2021, it is unacceptable that a party is shut out from obtaining redress in respect to the impact of family violence on the basis of the opening "the floodgates" argument applied in earlier authorities. Second, the requirement for a party, who has been the victim of family violence, to quantify the effect of that violence on that party's ability to contribute to the welfare of the family, is at odds with more recent authorities of this Court that have been applied when family violence is not an issue. In that respect, in Petruski & Balewa at [49], the Full Court said "[t]he task of assessing contributions under s 79 of the Act is an holistic one" and that "such an evaluation 'inevitably involves value judgments and matters of impression' and, further, the task should not be treated as 'a mathematical exercise'". [516] Third, there is no justification to require a victim of family violence to meet a higher evidentiary threshold than applies in other areas of civil law… … [518] In other words, the task of the Court is to identify the "more probable" inference, not one that is necessarily "obvious" or "very likely." [519] There are now a number of authorities where both the Federal Circuit Court of Australia and the Family Court of Australia has taken a practical approach when considering the impact of family violence upon a party's capacity to make contributions, in terms of s 79 of the Act. … [524] More recently, in Benson & Drury (2020) FLC 93-998 ("Benson") at [18], the Full Court stated that, provided a trial judge undertakes appropriate forensic analysis, the trial judge may reasonably infer that family violence perpetrated by one party against the other may be such that the violence "had a discernible impact upon the contributions of the other party." In identifying that as the correct test, the Full Court, in the context of referring to a number of authorities, then stated: We pause to note that although sometimes, in the context of the Kennon argument, words such as "adverse impact"; "more arduous" or "more onerous" are used, the guideline requires the conduct of one party to have had a significant adverse effect on the contributions of the other or to have had made that party's contributions significantly more arduous than they ought have been. The conduct has to have had a discernible impact upon the contributions of the other party (Kennon at 906). (Emphasis in original) [525] The Full Court, in Benson at [18], made it clear that the evidence of the nature of the violence perpetrated against the victim may be such that, even without expert evidence, a trial judge, undertaking appropriate forensic analysis, might nonetheless infer that the violence had a discernible impact on the victim, such that it made the victim's contributions "significantly more arduous"… 1. 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. 2. 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%. Assessment of the proportionate contributions of the parties 1. 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. 2. 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. 3. 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. 4. 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). 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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." 19. 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. 20. 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. 21. 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 Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. What the Act requires is that in considering an order that is just and equitable the court shall "take into account" any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application. 1. 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: There has been surprisingly little discussion in subsequent cases of the implication of this view. There has been little more than a repetition of the statement that the homemaker contribution "should be recognised not in a token way but in a substantial way". One of the few detailed discussions of the implications of that passage is in the judgment of Nygh J at first instance in the matter of Shewring (1987) 12 Fam LR 139 at 141, which is the report of the judgment of the Full Court (Evatt J, Ellis and Lambert JJ). Page 141 contains the following passage from the judgment of Nygh J at first instance where he discusses the implications of the formulation of Wilson J in Mallett's case in the following terms: "What was an issue in this case was the question of quality of contribution. I am aware very much of the remarks made by Wilson J in Mallett v Mallett (1984) 9 Fam LR 449 at 470, and, in fact, on the basis of that remark it has been suggested from time to time that the court must assess in some way or another the quality of contribution made by a party, for instance as breadwinner on the one hand and as homemaker on the other, on a scale which presumably ranks from the perfect to a total failure. I myself cannot accept that anything like that was ever in Sir Ronald's mind. It is not, I think, the function of this court. It has never done so and I trust will never do so in the future, to assess the quality of each party on a scoring board which, so far as breadwinners are concerned, would give top marks to the Holmes a Courts of this world and bottom mark to the unemployed roustabout and, I suppose, in the homemaker and parenting stakes would give top marks to those ladies who in the age of the great dictators would have received the glorious motherhood medal, and bottom marks to those ladies, who it is alleged spend most of their time in the tennis club and the coffee klatsch and waste their precious time in idle pleasure. I take the view based upon the traditional marriage vows that the parties take one another for better and for worse. "The assessment of the quality of the contribution should be based on the principle 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. "If one assesses the contribution of the parties in that light, that is to say, in other words one gets what one expects then what Mrs Shewring got upon her marriage was a person who certainly could not claim to be the world's perfect handyman, and no claim to be the potential prize winner of the Herald gardening competition. At the same time, Mrs Shewring herself admitted she was not a keen gardener either. In other words, the expectations of the parties were at a much lower level than that and having regard to the expectations of the parties it is my view that each of the parties contributed to the best of his and her ability and according to his and her expectation." The Full Court considered that the appeal in that case should succeed on other grounds and that it was "unnecessary to deal with that aspect". In that passage Nygh J makes, in our view, a valid criticism of any suggestion that in each case there must be a detailed analysis of the quality of performance of the roles of the parties. That passage suggests that for cases within what might be regarded as the norm or normal range of such roles, no detailed assessment is either called for or appropriate and that, we consider, accords with the daily practice in the court. The task of evaluating and comparing the parties' respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a "level playing field". Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party's employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and can not be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role. However, there are cases where the performance of those roles has what may be described as "special" features about it either adding to or detracting from what may be described as the norm. For example, in relation to the homemaker role the evidence may demonstrate the carrying out of responsibilities well beyond the norm as, for example, where the homemaker has the responsibility for the home and children entirely or almost entirely without assistance from the other party for long periods or cases such as the care of a handicapped or special needs child. On the other hand, in the breadwinner role the facts may demonstrate an outstanding application of time and energy to producing income and the application of what some of the cases have referred to as "special skills". Within either role there may be cases where the evidence demonstrates a neglect of those responsibilities or a wasting of income or assets. 1. 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". 2. 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. 3. 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. 4. 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. What is the effect of the s 75(2) factors? 1. 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: (2) The matters to be so taken into account are: (a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and … (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under: … (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and … (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and Age and state of health – s 75(2)(a) 1. 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]. 2. 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. 3. 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. 4. The wife's state of health is thus considerably more precarious than that of the husband. Financial resources – s 75(2)(b) 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. There was no evidence about the likelihood of the husband inheriting a substantial amount from his parents. 9. 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. Eligibility for pension, allowance or benefit – s 75(2)(f) 1. 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. Circumstances relevant to the justice of the case – s 75(2)(o) 1. 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. 2. In Palumbo & Mandel [2019] FamCAFC 228, the Full Court of the Family Court said: [56] There is no doubt that s 75(2)(c) directs attention to children of the marriage who have not attained the age of 18 years. However, s 75(2)(o) is expressed in the widest terms and enables the Court to take into account "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account". It is well settled that s 75(2)(o) enables the Court to take into account the financial consequences to a party arising from that party's care or support of an adult child. [57] In the primary judge made an adjustment in favour of a party by reason of that party's care of an adult child who had autism. The primary judge also took into account that party's expected "financial burdens" for a child who was then 17 years old that would arise once that child commenced tertiary studies. The Full Court in that case said at [183]: ...[T]he section 75(2) adjustment determined by the trial Judge included, as we have earlier indicated, a significant adjustment for the future care of the parties' children. Nothing to which we have been referred demonstrates that the trial Judge's discretion miscarried, or was based upon material errors of fact. Nothing to which we have been referred demonstrates that the section 75(2) adjustment determined by the trial Judge, which favoured the wife by approximately $1.4 million, was based upon inadequate recognition of the wife's future parenting of the children. [58] In Zaruba & Zaruba (2017) FLC 93-776, an adjustment was made in favour of a party by reason of that party's ongoing care of her adult daughter who had a significant disability, albeit, the adult daughter was not a child of the other party. In relation to this approach, the Full Court said at [130]: His Honour found that "[the wife's disabled daughter] is now 18 years old and whether the wife has a legal duty to maintain her remains an open question on the evidence" (at [156]). Given the combined effect of s 66C and s 66L of the Act in light of his Honour's findings that the adult child suffers from a "significant disability", it may be said that the wife does indeed have "a legal duty to maintain her". Be that as it may, past care of that child, now an adult; receipt of the carer's pension and the evidence of the modifications to the Mindarie property to which we have referred all point to the future care of the wife's daughter being a significant matter pursuant to s 75(2)(o) of the Act. [59] A similar approach was taken in D & D [2004] FMCAFam 154 by Bryant CFM (as she then was) who made an adjustment in favour of a party who had full time care of the parties' 26 year old child who had a significant disability. Bryant CFM determined that caring for the adult child was "a full time and unrelenting task which [the mother] will undoubtedly carry out for the rest of her life, at least until she becomes unable by virtue of her own health to do so" [31] and which justified a sizeable adjustment in the mother's favour. [60] From these cases, it can be seen that cogent reasons were given for the adjustment arising from the care and support of adult children and the evidence was much more than mere speculation about whether the adult child would remain in that party's care. 1. 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. 2. 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. 3. 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. Will the proposed orders yield a just and equitable result? 1. 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. 2. 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. 3. 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. Future progress 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2022