Adaline & Tatton [2023] FedCFamC2F 1557

Adaline & Tatton [2023] FedCFamC2F 1557

Background Details

• Court: Federal Circuit and Family Court of Australia (Division 2), Melbourne, Judge Glass, 6 December 2023
• Applicant: The applicant (female partner)
• Respondent: The respondent (female partner)
• Relationship: De facto
• Duration: Disputed. The parties cohabited in two homes for approximately nine years, from 2009 until September 2018.
• Ages at Judgment: The applicant is 47 years old, and the respondent is 56 years old.

Children

• No children from the relationship were noted in the case.

Initial Financial Positions

• The applicant:

  • Savings at the start of the relationship: Approximately $8,000.
  • A motor vehicle worth about $21,000, subject to finance. Her evidence about which vehicle she then owned, and her claim to have had superannuation of $190,000 to $200,000, were shown to be false.
  • Superannuation balance in 2011: $81,463.

• The respondent:

  • Owned a real property at G Street, Suburb H with nominal equity and a mortgage balance of about $113,000.
  • Owned a vehicle valued at $25,000.

Contributions During the Relationship

• Financial Contributions:

  • The parties bought the Town C property in 2011 for $325,000. The respondent paid the deposit of $32,500.
  • By agreement, the applicant alone paid the Town C home loan from 2011 until 2016; from 2016 both contributed equally.
  • The respondent sold the Suburb H property in 2016, receiving about $396,000 in 2017. She did not account for most of the proceeds, but it was not suggested she still held any of them.

• Non-financial Contributions:

  • The respondent performed the majority of renovations on the Suburb H property.
  • The applicant contributed through physical work, such as painting, landscaping and building decking, and both parties worked on building the home at Town C.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The applicant continued making mortgage payments until about September 2019. Since approximately 2020, the respondent has been solely responsible for the Town C mortgage.

• Non-financial Contributions:

  • The respondent has had exclusive occupation of the Town C property since late 2018.

Current Financial Position & Property Pool

• The applicant:

  • Income: Approximately $105,000 per annum.
  • Superannuation value: $381,324.
  • Assets include a motor vehicle valued at $13,950 (matched by a loan of the same amount) and shares worth $3,472.

• The respondent:

  • Income: Approximately $62,000 per annum from a government pension and a superannuation pension.
  • Superannuation: Receives a pension from Super Fund 1 with a lump sum value of $562,854. The court declined to treat that value as an asset: no splitting order was sought and it was not suggested the pension could be commuted or alienated.
  • No remaining funds from past property sales were noted.

• Property Pool:

  • Non-superannuation assets of $592,553, with the Town C property (worth $850,000, less a mortgage of $355,619) the main component.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed as 65% for the respondent and 35% for the applicant concerning non-superannuation assets.
  • No superannuation splitting orders were sought.

• Future Needs Adjustments:

  • No adjustment was made, because the contribution finding already left the respondent with nearly twice the value of the non-superannuation assets.

• Final Division:

  • The applicant to receive 35% of non-superannuation assets ($207,394). As she already held $3,472, the respondent was ordered to pay her $203,922 within 60 days.
  • The respondent retains the Town C property and must refinance the mortgage into her own name. If the payment is not made, the property is to be sold.

Unique Aspects

• The length of the de facto relationship was contested, the parties' accounts ranging from about twenty months to more than eight years. The court found it unnecessary to decide the exact length.
• The respondent's exclusive use of the Town C property since separation was part of the overall assessment of contributions.
• The decision did not provide for superannuation splitting, focusing solely on the division of the non-superannuation property.

Main Takeaways

• Evidence mattered: the court preferred documents and unchallenged evidence over assertions in an unsworn outline of case, and inaccuracies in the applicant's evidence led the court to prefer the respondent's account of the deposit.
• Justice and equity required the severance of the parties' joint ownership of the property.
• Where no splitting order is sought and a pension is not shown to be capable of being commuted, its capitalised value may be left out of the pool.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement between de facto partners in s 90SM(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 90SM(4)(ca)) and on their current and future circumstances (s 90SM(5)(a)), and any material wastage of property (s 90SM(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.