The court determined the division of assets in a divorce proceeding where there were allegations of domestic violence. The wife received a total of 65% of the assets, including an 8% adjustment for the husband's premature spending of superannuation funds and a 7% adjustment for the impact of the husband's severe and prolonged physical and emotional violence against the wife and children over the 30-year marriage. The court accepted evidence that the violence had a significant negative impact on the wife's contributions to the marriage.

1. Rockman &
Rockman
[2014] FCCA
1966
By Corey Gauci

2. › In determining the parties’ assets and liabilities, expended superannuation that has
occurred post-separation cannot be considered as a ‘notional property’ in determining the
total matrimonial asset pool. This, however, does not prevent the Court from making an
adjustment in a party’s favour pursuant to section 75(2)(o) of the Family Law Act 1975
(the ‘Act’) in relation to the premature disposal of the other party’s superannuation post-
separation, if it deems such adjustment appropriate.
› Relying on Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757, if claims of
persistent domestic violence by one party against another are raised and proven on the
facts, the Court will consider the effect of one party’s persistent domestic violence on the
ability of the other party to make both non-financial and financial contributions, so long
as:
› the conduct occurred during the course of the marriage; and
› had a discernible impact upon the contributions of the other party.
In Brief

3. › Even if one party has the benefit of residing in the parties’ matrimonial home, requiring the other
party to pay for rental accommodation, the Court may off-set the expense associated with
renting temporary accommodation where the other party bears the responsibility for the
payment of all rates and insurances and for the maintenance and upkeep of the property.
› Relying on the Full Court in the matter of AJO & GRO [2005] FamCA 195, “add backs” are
defined accordingly:
“To date, three clear categories of cases have emerged where the court has determined that
it is appropriate to notionally add back to the pool of assets, that is, assets that no longer
exist. They are:
(a) Where the parties have expended money on legal fees…
(b) Where there has been a premature distribution of matrimonial assets.
(c) In the circumstances outlined in Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN
N13; (1981) FLC 91-092 at flc 76,644… (being those circumstances in which the Court
will take into account financial losses incurred by the parties or one of them in the
course of the marriage).
In Brief

4. › The dissipation of one party’s superannuation entitlements accumulated during the course
of the marriage is considered to be a premature distribution of what would otherwise have
been matrimonial property and is considered to be an “add-back” for the purpose of
arriving to a “just and equitable” decision.
› The husband and wife separated in 2002 after a 30 year marriage, during which, the wife
alleged that the husband was physically and emotionally violent to her and the parties’
three children over the course of the relationship including:
› daily arguments where the husband hit, punched, kicked and spit on the wife;
› the husband having complete control of the finances and the only money to which the
wife had access was that given to her by the husband;
› when one of the children was aged 15 years, she began to suffer depression and
would not go to school, and the husband removed her bedroom door;
Background

5. › the wife had a car accident and had to pay $400 in excess. As a result of having to pay the
excess, the husband refused to buy food for the wife and the children for a month
requiring the wife to go to the local church to ask for handouts;
› the husband put a steering lock on the car to prevent he wife from driving the family
vehicle.
› The husband was physically, emotionally and financially abusive towards the parties’ 3
children. For example:
› the parties’ eldest child suffered depression and was unable to attend school, the husband
locked the child in the backyard for the entire day and would not allow her into the house
to drink water or use the toilet;
› the husband locked one of the children out of the house all night;
› one incident where the husband burst into one of the daughters’ rooms while she was
changing her menstrual pad and dragged her half dressed out of her room and punched
her;
› the husband chose and bought all of the children’s clothing;
Background

6. › the husband hit the children including pinching, slapping or punching them if they did something
wrong;
› the husband did not refer to one of the children by name and instead called her selfish and stupid; and
› the husband was frequently violent towards all members of the family and when violent punched,
slapped, spat, kicked and dragged them by the hair and used implements such as the hard sole of his
shoes, his belts or anything else handy at the time to hit them.
› The husband denied the allegations of violence but conceded that:
› he did take the door off one of the children’s bedrooms;
› he did enforce limited access to the telephone in the home because of what he said were financial
difficulties;
› he did restrict the family’s access to television;
› there were some “regrettable incidents” in the husband’s words.
› The husband submitted that the wife failed to demonstrate a link between the alleged violence and her
claim that the violence made her contributions more arduous as the wife did not provide independent
medical or police evidence in support of her claim that the wife and the children had been subjected to
violence by the husband. The wife gave evidence that because of her fear of the husband and her shame
at being the victim of the husband’s violence, she did not disclose the violence to her family, to her treating
doctors or make any report to the police. The Court accepted the wife’s evidence in this regard.
Background

7. › The Wife achieved an 8% adjustment from the asset pool in relation to factors including
the expenditure of the superannuation (8% of the property was roughly equivalent to the
value of the superannuation) and 7% in relation to having endured severe incidents of
violence whilst contributing as a spouse within the marriage. This meant that she received
a total of 65% of the assets.
› Judge Bender accepted the evidence given by the wife and the parties’ 3 children in
relation to the violence suffered by them at the hands of the husband and commented at
paragraph 112 that:
“….The picture painted by all four members of the family was of them living in a
household where they were constantly on edge and in fear of the physical or
emotional violence that the husband would enact upon them without notice and
with a level of frequency that must have been horrific.”
Decision

8. › Judge Bender made a 7% adjustment for the wife’s non-financial contributions
because of the husband’s conduct. He said at paragraph 118 of his Judgment
that:
“Any violence perpetrated by one party against another is a very serious
matter, particularly when that violence takes place over a period of almost
thirty years. In the circumstances of this case I am satisfied that there
should be an adjustment in the wife’s favour as a result of her greater
non-financial contributions arising from the continuous violence to
which she and the children were subjected by the husband during the
course of the marriage [emphasis added]. That adjust in my view should
be 7%”
Decision

9. › The circumstances in which the Court will exercise its discretion to make adjustments
on contributions because of the conduct of one party impacting on the other party’s
contributions are rare and each case turns on its own facts.
› Where the court believe that one party’s asset (i.e. superannuation entitlements) have
been depleted post-separation, as a result of willful spending (i.e. gambling), the court
will have regard to the expenditure by one party of a joint asset of the parties when
determining the division of the parties’ assets.
› Domestic violence has an array of physical and psychological consequences, all of
which, the court should considered when ordering a division of property. 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 conduct related to the breakdown of the marriage, basically because it
would not have had a sufficient duration for this to be relevant to contributions.
Austlii case link: http://www.austlii.edu.au/au/cases/cth/FCCA/2014/1966.html
Implications