Berger & Berger [2023] FedCFamC2F 1477

Berger & Berger [2023] FedCFamC2F 1477

Relationship Details

• Type: Marriage
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge Glass, 20 November 2023
• Duration: Cohabitation commenced in 2002, married in 2003, separated in 2020, divorced in 2022. Total duration of the relationship was approximately 18 years.
• Ages of the Parties at Judgment: Husband is 50, and Wife is 49.

Children

• Children from the Relationship: Two children, a son aged 18 and a younger child aged 14.
• Special Circumstances: The older child has a disability and receives services through National Disability Insurance Scheme funding. He spends about equal time with each parent; the younger child lives with the wife and spends five nights a fortnight with the husband.

Initial Financial Positions

• Wife (initial contribution of $298,616, plus the apartment):

  • Equity of $156,379 in the K Street property, Suburb L.
  • A half interest in 1 M Street, Suburb L, valued at $107,500.
  • A one-third interest in an apartment in Country H, of unknown value at the time.
  • Land at N Street, Suburb P valued at $25,000.
  • Shares worth $7,237 and savings of $2,500.

• Husband (initial contribution of $333,160, plus the S Street interest):

  • Property at Q Street, Suburb R, with equity of $233,160.
  • One-fifth interest in a property at S Street, Suburb T, later sold for $74,554, which was applied to joint purposes.
  • Savings of $30,000, and a further $70,000 the court accepted on his unchallenged evidence although no document corroborated it.

Contributions During the Relationship

• Financial Contributions:

  • The wife received approximately $192,000 from her father between 2003 and 2009, including a cheque of $100,000 in 2007. These funds benefited the family.
  • The husband applied substantial savings to building the home on the K Street property.
  • In 2009, the Suburb R property was sold, and the net proceeds of about $400,000 were applied to the Suburb J mortgage.
  • In 2020, the husband's parents gave the parties $15,000 and each child $5,000, all of which the wife kept.

• Non-Financial Contributions:

  • The wife was primarily responsible for the care of the children and was the homemaker. When he was not working, the husband shared parenting and homemaking tasks equally, and he cared for the children while the wife studied at night from late 2015 to early 2019.
  • The husband spent substantial time after hours on the K Street build, overseeing the work and labouring, and helped with the renovations at 1 to 2 M Street.

Post-Separation Contributions and Actions

• Financial Contributions:

  • In 2022, the husband received a victims of crime payment of $17,000, which he applied to living expenses and legal fees. The wife abandoned any claim that it be added back.
  • In early 2023, the 1 M Street property was sold, and the proceeds of $573,166 were deposited into the parties' joint offset account. Each party's part property settlement payment of $100,000 came from that account.

• Non-Financial Contributions:

  • The husband paid child support as assessed and contributed to the children's expenses. The court rejected the wife's evidence that he contributed nothing.
  • The wife provides more of the care of the younger child.

Current Financial Position & Property Pool

• Husband:

  • Current salary approximately $96,000 annually.
  • Assets valued at $147,198, plus the $370,150 balance of the offset account (excluding superannuation).

• Wife:

  • Salary of $84,626 annually, but a higher net income than the husband and a greater future earning capacity.
  • Holds a one-third interest in an apartment in Country H valued at $100,000.

• Property Pool:

  • Non-superannuation interests of $1,905,111, the main asset being the Suburb C home ($1,700,000, with a mortgage of $483,347), and superannuation of $568,735: $2,473,846 in total.
  • The wife's student loan debt of $59,292 was not treated as a joint liability. It stays with her future income.

Assessment of Contributions and Future Needs

• Contributions Assessment: Assessed at 55% in favour of the Wife, a finding that she contributed approximately $190,500 more than the Husband.
• Future Needs: No adjustment. The wife provides more care of the younger child, but she has a greater net income and future earning capacity, and she deliberately failed to disclose rental income from the Country H apartment and a Country H bank account.
• Final Division: 45% of the non-superannuation assets to the Husband and 55% to the Wife. To achieve this, the Wife must pay the Husband $339,952 within 60 days, refinance and keep the Suburb C home; if she cannot, the home is to be sold. The Husband's superannuation is split by $40,694 to the Wife to equalise superannuation.

Unique Aspects

• The wife's deliberate non-disclosure of rental income and a foreign bank account was taken into account, although the court inferred that the undisclosed sums were likely to be modest.
• The court generally preferred the husband's evidence. It found the wife's evidence evasive and, in places, untrue.
• The court accepted the expert valuation of the overseas apartment, which the wife had not displaced.

The orders give the wife 60 days to pay the husband and refinance the Suburb C property in her name. If she does not, the property is sold, and the husband is paid $339,952 with interest from the sale proceeds.

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 in s 79(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 79(4)(ca)) and on their current and future circumstances (s 79(5)(a)), and any material wastage of property (s 79(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.