Case Note for Britt & Britt [2019] FamCA 982

The case of Britt & Britt [2019] FamCA 982 (19 December 2019) is a single Family Court Judge Decision of Cleary J.

It is another case where the Kennon and Kennon principles have been considered.

The wife is 53. The husband is 69.

The wife was 14 and in her second year of high school when the parties began to cohabit on the husband’s rural property. The husband was a divorced man of 31 and had two children from his first marriage.

The parties lived together for more than 30 years in total until final separation in November 2011. There are four adult children of the marriage.

The wife has re-partnered. Her new partner is 72 years of age.

The wife is in receipt of a disability support pension as a result of lower back issues.

The husband, at 69, has re-partnered with a woman aged 42 who has known the parties since she was a child of seven.

His new partner suffers from bipolar disorder and epilepsy. He and his new partner, Ms K, have two preschool aged children.

The wife seeks 65% of the property and 35% to the husband. The husband seeks dismissal of the wife’s application. 

The Trial Judge said: “Both positions are in my view unrealistic.”

There were proceedings in the Federal Magistrates Court. The wife appealed the outcome of the Federal Magistrates Court. The Full Court upheld the appeal and made orders remitting the matter for rehearing in the Federal Circuit Court.

The matter was transferred from the Federal Circuit Court to the Family Court for trial.

Meanwhile, the husband’s mother had died and in March 2018, probate was granted on her estate.

The parties had a seven-day trial in May 2019. 

At paragraph 46, the Trial Judge described the trial in this way:

“A good deal of the evidence was irrelevant to the issues to be determined. Cross-examination was driven by not just animosity between the parties but a desire by both to be vindicated. This intense focus on historical matters, which evidently involved great emotional pain and anger for the parties and the two adult sons who gave evidence, had the effect of obscuring relevant information.”

The Trial Judge went on to say:

“I came to the conclusion that both parties were untruthful on many points and simply did not care.”

During the course of the relationship, the wife’s social gambling moved “from a form of escape to being a habit”. The husband “concedes heavy drinking and going into town to drink”.

During 2006/2007, the parties paid $100,000 plus in fines to the ATO. The wife had overstated the GST in the 2006/2007 BAS statement. The wife “asserted that she did this under pressure from the husband, and he told her what figures to put on the form. She feared physical abuse if she did not”. The husband blamed the wife and “denied any prior knowledge of her actions”.

The court detailed various elements of the parties’ conduct and circumstance and then moved to consider the alteration of property interests. 

The court reviewed the balance sheet. The parties had property of $3,012,378 and including the inheritance of the husband, the wife, at the time of trial, held 30% of the net assets. Excluding the inheritance, the wife would hold 36% of the assets.

The wife had, including the costs of the trial, spent between $330,000 and $350,000 in legal fees. The husband had legal fees of approximately $310,000. The court excluded the amounts from consideration.

In considering the question of whether it would be just and equitable to make an adjustment to interests in property, the Trial Judge said at paragraph 176:

“The wife asserts that the length of the marriage, 30 years plus, and her contributions throughout, justify a further substantial cash sum by way of adjustment. She also submits for an additional payment to address the impact family violence had on her ability to make contributions to assets.”

At paragraph 177:

“The Full Court in its reasons for upholding the appeal of the wife directed a further consideration of that issue.”

The court then entered into an exercise of analysis of the initial contribution and at paragraph 186 said:

“The initial contribution of the husband must be given significant weight.”

The court then considered contributions during the marriage.

The court said at paragraph 198:

“The marital relationship was characterised by insult, threat and a dangerous mutual desire to provoke the other to anger.”

The court gave to the husband an acknowledgement of the enduring benefit of his initial contribution, a source of income and “a windfall sale price” and made a 15% differential in favour of the husband. That was 57.5% versus 42.5%.

Post-separation contributions produced an adjustment in favour of the husband of a 65/35 payment in favour of the husband by date of trial.

The court then considered s.75(2) factors.

The only evidence the court had about the husband’s health was referred to in paragraph 215 of the Judgment:

“I suffer physically from age related illness and I cannot work as hard as I once did. I need to take regular rest breaks whilst working on the farm.”

At paragraph 239, the court said:

“The fact of his age moderates the adjustment to the wife in respect of income disparity.”

At paragraphs 261, 262 and 263, the court said:

“261. This factor, the impact of the marriage on the earning capacity of the wife, is most significant. The endless incidents of cruelty, taunting, threat and physical violence throughout the marriage involving both parties as perpetrators and as victims and at least the two elder children as victims are a reflection of the frustration and powerlessness of the mother from the outset.

262. The husband denies violence. The wife describes being abused routinely and sometimes beaten …..

263. Even if such abuse occurred once only, and not “50 times a year” as the wife alleges, it reveals the powerlessness of the wife, of having nowhere better or safer to go. The wife accepted her life the way it was.”

The court looked at the impact of violence as a s.752(o) factor.

The parties gave two different versions of an incident. The court’s summary at 279 is as follows:

“The two versions although different in some factual respects, tell the same story. The wife was overburdened, unhappy and trapped. The husband showed no respect for her, provoked her deliberately, and assaulted her in certain moods.”

There are incidents involving guns.

At 291, the court concludes:

“I have come to the conclusion although family violence was a feature of daily life for most of the parties’ relationship, no such adjustment should be made. It is simply not just, to attempt to extract the truthful elements of so many allegations and to attempt to analyse the impact on the contributions made by the wife.”

At 292, the court continues:

“What is just is to recognise the losses suffered by the wife in entering into an adult relationship with the husband and becoming a mother when she was still a child. An adjustment to recognise the loss of opportunity for education, for satisfying work and to mature safely is the more appropriate course.”

The court determined to equalise the parties’ share in the current net assets.

This is an interesting and thoughtful analysis of the complexity of violent and long relationships.