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Property – treatment of initial contributions in four-year relationship…

…specific and generalised allegations of family violence had a significant, adverse effect upon contributions

In Ferman & Lapham [2022] FedCFamC2F 415 (5 April 2022), Judge Kearney considered property adjustment applications after a four-year de facto relationship, where each party had children of previous relationships.  

The de facto husband’s initial contribution was $895,000 and the de facto wife’s $21,000 (including superannuation) to an asset pool of $2,814,132, with all but $10,763 of the pool owned by the de facto husband.

Judge Kearney said (from [183]):

“The Court must treat the de facto husband’s superior initial contributions as one of those myriad of contributions to this relationship rather than weighing the myriad of contributions during the relationship against his initial contributions …

(…)

[189] … [C]ircumstances which weigh against the de facto husband’s contribution [to the de facto wife’s children of a previous relationship] are the short duration of the relationship and his large absences from the … home in the first half of the de facto relationship (due to his work commitments …) …

(…)

[236] There is no doubt that the de facto husband has engaged in serious family violence, including but not necessarily limited to, engaging in physical violence upon her and [her child] (for which he has been convicted), behaving in a threatening manner towards her, repeatedly making offensive, abusive and derogatory comments about her and [her child], damaging property in the presence of her and [her child] and breaching (on more than one occasion) an existing ADVO [apprehended domestic violence order].

(…)

[239] I conclude that the de facto wife’s many and varied contributions… took place in a context of fear and suffering caused by the de facto husband’s conduct. A qualitative assessment of those contributions leads inevitably to a conclusion that they were rendered significantly more arduous by circumstances of the de facto husband’s making and meaning that her contributions were adversely affected by her having to bear the burden. …”

After assessing contributions as 90:10 in favour of the de facto husband, the court made a s90SF(3) (Family Law Act 1975 (Cth)) adjustment of 5% in favour of the de facto wife ([272]), such that there was an 85:15 division overall.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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