“Kennon” submission not accepted

Wessell & Wessell and Anor [2016] FamCA 46 (8 February 2016)

“Kennon” submission not accepted in this case.

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/46.html

5. The husband failed to file and serve a Response or Financial Statement and did not attend the Conciliation Conference. The Registrar made further procedural orders and the matter was listed for possible undefended hearing on 26 October 2015. On 14 August 2015 the wife’s solicitors wrote to the husband, giving notice of her intention to proceed to an undefended hearing on 26 October 2015 in the event that he failed to comply with existing directions and appear on that date.
6. The husband responded to the letter from the wife’s solicitors by way of two emails sent on 14 August 2015. The first email contained the words:

No cares
Give the grubby bitch whatever she wants
Woth [sic] the money to be rid of her.
The second email contained the words:
Greedy, middle aged, unattractive
Best of luck to her, and her unearned wealth
She should buy a jetski
(As per original)

7. On approximately 13 October 2015 the husband caused the proceedings to be listed before the Docket Registrar on 15 October 2015. The husband indicated that he wished to participate in the proceedings, whereupon the Registrar made procedural directions and vacated the listing of 26 October 2015. Within approximately thirty minutes of the mention before the Registrar on 15 October 2015, the husband sent two emails to the Case Co-ordinator and the Registrar. The first email contained the words:

Dear Registrar Ryan,
I cannot go on with this Family Court process.
I am suffering from anxiety and depression largely triggered by this process.
These are the darkest days of my life.
I am very sorry but I can’t do this anymore.
[Mr Wessell].
The second of the husband’s emails of 15 October 2015 contained the words:
Please go ahead with the undefended hearing on October 26^th.
It is all too hard.

8. At a later time on 15 October 2015 the husband sent a third email to court staff, which contained the words:

I am unwilling / unable to participate in any of this
My focus is on my health and hopefully when well enough looking for a job so that I can keep my home
Please go ahead with the undefended hearing if that is what it is called
I have various graduate degrees, however, this is all too hard for me
Please pass on best regards to [Ms Wessell]. She is not all that bad
Never in my life have I been treated this way
This is about money – just send me the bill, if I am still on this earth when it comes
I never want to hear from anyone involved again
Don’t contact me.
(Original emphasis)

9. The proceedings were listed before a Registrar on 3 November 2015, when there was no appearance of or on behalf of the husband or B. The Registrar listed the wife’s application for undefended hearing in a Duty List on 25 January 2016.
10. In November 2015 the husband retained a solicitor, Mr Richard Kouchoo. On 12 November 2015 Mr Kouchoo wrote to the wife’s solicitors and referred, inter alia, to the listing of the proceedings on 25 January 2016. Mr Kouchoo indicated that the wife’s application would be defended but he did not file a Response or any supporting material.
11. On 14 January 2016 the wife’s solicitors emailed and posted to the husband her affidavit sworn on the same date. On 15 January 2016 the wife’s solicitors emailed and posted to the husband her Amended Initiating Application filed on the same date, together with a final balance sheet and an exhibit book (Exhibit 1). These pieces of correspondence again advised the husband of the listing on 25 January 2016 and put him on notice that the matter may well proceed in his absence.
12. On 24 January 2016 the husband sent a text message to the wife, which read:

Good luck tomorrow
Angry [Ms Wessell]
You know not, what you do.
At 1.05 pm on 25 January 2016 the husband texted the wife “Are you winning” (Exhibit 2).

13. On 18 January 2016 the husband filed a Response to Initiating Application, an affidavit sworn on 8 January 2016 and a Financial Statement of 4 December 2015. He did not appear, either in person or with legal representation, on 25 January 2016.

CONTRIBUTIONS

30. On behalf of the wife, it was submitted that her contributions were rendered more onerous by the conduct of the husband in the sense to which reference was made in the authorities ofKennon & Kennon [1997] FamCA 27; (1997) 22 Fam LR 1 and Doherty & Doherty (1995) 20 Fam LR 137. In Kennon, the Full Court (Fogarty and Lindenmayer JJ) said 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 the trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79 …
Their Honours said further:
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 …

31. The wife deposed to several examples of the husband’s behaviour, upon which she relied for the purposes of this submission, which she set out in some length in her affidavit. I cite the following paragraphs by way of example only:

75.1 [Mr Wessell] insisted that I use my employment income to pay a higher contribution to our total home unit rent in accordance with the proportion of physical space that [Mr Wessell] felt each of us was actually taking up within our home. For example, [Mr Wessell] required and demanded that I pay extra rent because I kept pot plants on our balcony. [Mr Wessell] regarded my pot plants as me taking up extra space which should cost me more in rent. From time to time, [Mr Wessell] also got out a tape measure and he measured the exact space that my furniture, chattels, plants and possessions took up within our home. After taking these measurements [Mr Wessell] calculated and informed me of how much rent I needed to pay, and how much he had to pay. I did not feel I could object to [Mr Wessell’s] demands, and I feared arguments from [Mr Wessell] if I did not comply. I therefore usually paid more in weekly rent for our accommodation than [Mr Wessell] (excluding the car parking space referred to below).
75.2 In regards to rent for the car space beneath our home unit, [Mr Wessell] undertook calculations based on whose car (his or mine) that was parked in the car space from time to time. The financial contribution then I made to rent was increased for our personal use of the car space. To avoid arguments, and to minimise the cost [Mr Wessell] required me to pay, I seldom parked my car in the car space we rented even though it would have been more convenient to do so.
75.3 In regard to the apportionment of the cost of food and groceries, this was entirely based upon what [Mr Wessell] dictated was a reasonable split. Usually, [Mr Wessell] demanded how much he required to pay me for food and groceries based on what each of us consumed. When I purchased fruit (other than apples) that was outside of [Mr Wessell’s] diet, [Mr Wessell] insisted that I pay for that fruit myself without any financial contribution from him. [Mr Wessell] would not pay for, or financially contribute to, any food or grocery items I purchased from certain shops or stores of which he did not approve.

32. The wife deposed further that the husband “slammed the door” on her head and put his hands around her neck in February 2008. She attended upon her general practitioner and was prescribed anti-depressant medication following these incidents.
33. The wife alleged that the husband “insisted that for 20 consecutive hours from 7.00 pm each Friday until 3.00 pm the following Saturday (every week) that D and I were restricted from leaving the master bedroom.” According to the wife, the husband had free use of the remainder of the premises during these periods.
34. Certainly, the wife painted a picture of a difficult life with a very controlling and insensitive person during the parties’ cohabitation. I am not persuaded, however, that these proceedings fall within “the relatively narrow band of cases to which these considerations apply”, adopting the words of the Full Court in Kennon.
35. On behalf of the wife, it was submitted that the contributions of the parties should be found to be 55 per cent to herself and 45 per cent to the husband as at the date of trial. In her Outline of Case document counsel for the wife summarised the basis of this submission as follows:
    9. The wife [sic] initial contributions of the parties were approximately equivalent but favour the wife.
    10. The wife undertook paid employment. In addition from late 2012 she also made the majority of all non-financial contributions.
    11. The wife’s contributions were made more onerous by the circumstances in which they were made.
    12. Post-separation the wife has made the sole parenting contribution.

36. As noted, I do not accept the wife’s Kennon submission. I agree with the remainder of the wife’s submissions as to contribution. I accept that she made “the majority of all non-financial contributions” during the parties’ cohabitation, in addition to her undertaking gainful employment. I accept that she has been almost solely responsible for the physical care and financial support of the parties’ child since separation. I am satisfied, and I find, that the contributions of the parties as at the date of trial should be assessed at 55 per cent to the wife and 45 per cent to the husband.