How Domestic Violence Can Affect Family Law Property Cases

June 14, 2019

In a recent Family Court case a wife has received the entire $1.3 million worth of properties after the Court found that she had been subjected to violence and controlling behaviour by the husband.  The husband would have received 30% of the property pool but was ordered to transfer to the wife the three properties which were the only available assets, resulting in an adjustment of $390,000 in the wife’s favour, because he had assaulted her and their three oldest daughters and controlled the family’s finances.

He would scrutinise the wife’s spending and required her to produce receipts to substantiate what she spent.  She would even have to seek his permission to travel.

Husband Wanted Properties Sold

The husband had wanted the three properties to be sold and the proceeds divided between them whereas the wife sought to have two of them transferred to her with only one sold and those proceeds divided.  The end result was quite different.  Part of the reason for this is that the wife’s parenting and home-making contributions were made more arduous by the husband’s control of their finances and his violence toward her and the daughters.

The wife did not bring any significant assets into the marriage and an assessment of their respective contributions resulted in an entitlement to the husband of 30% of the assets.  This was largely due to the wife’s overwhelmingly greater nonfinancial contributions to the family, including to the eight children, throughout the marriage.  As the Court noted, “A large financial contribution by one party to existing property may be outflanked by contributions of a quite different type made by the other party, but all of their contributions need to be reflected in their eventual entitlements to the existing property.”

What then changed was how the history of domestic violence would adjust that outcome.

Domestic Violence

The husband had previously been charged with multiple counts of assaulting the wife and the children but those charges were dismissed when the wife declined to give evidence against him because she was afraid to do so.  After that, he was charged and convicted following a trial for assaulting the wife and one of their adolescent daughters.  An Apprehended Domestic Violence Order was issued against him for the protection of the mother and two of the daughters for two years.  The husband had appealed against that order but his appeal was dismissed.

In the property proceedings, the husband didn’t deny that there had been violence but argued that there wasn’t a sufficient connection between his ‘alleged family violence’ and the arduousness of the wife’s contributions.

In an earlier dispute over parenting orders the wife was given sole parental responsibility for the children who were to spend no time with the husband.  It was found that the husband had perpetrated family violence against the wife and children as well as ‘controlling behaviour’.  He had assaulted the mother and his three oldest daughters and so the risk that he would assault the three youngest daughters was ‘unacceptable’.

Financial Abuse

The husband was found to have been ‘financially controlling’ the wife as shown by the fact that the family of ten subsisted on only $940 a month.

When explaining where $53,641.22 had gone after a cheque was received from a real estate agent managing the rental of one of the properties, the husband said that he gave the money to the wife who spent it.  However the Judge did not accept the husband to be a witness whose evidence could be given any weight at all unless supported by other independent documents, and did not accept that the husband had made any attempts to give full and proper disclosure of his financial dealings during the marriage.

The Court found that the husband controlled the family’s finances, scrutinised the wife’s spending and required her to produce receipts to substantiate her spending.  She would even have to seek his permission to travel.

One adult daughter gave evidence of a childhood of deprivation where fresh food was not purchased and clothes were from charities.  The Court had found that the family subsisted on welfare payments throughout the marriage.

How Domestic Violence Affects Things

For the effect of family violence to be taken into account the circumstances must be ‘exceptional’.  In this case, as the husband has assaulted both the wife and each of his three eldest daughters, this was held to be the case.

The wife received the additional 30% for a number of reasons including the fact that she would continue to provide exclusive care for the three youngest children all of whom were minors, the unlikelihood that the husband would contribute anything by way of child support, her lack of capacity to earn an income, the husband’s failure to account for $116,000 received from the sale of some land after they separated along with diverting $183,000 from family funds to another party, and his ability to live in his late mother’s home.

The three properties were collectively worth no less than $1.3 million and so the 30 per cent adjustment in the wife’s favour amounted to $390,000.

The husband unsuccessfully appealed the decision and was then ordered to pay the wife’s legal costs of $15,000.00.

To find out more information about how domestic violence impacts on property proceedings see our page Domestic Violence as a Factor in Property Settlements.

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