Bittoren & Bittoren [2022] FedCFamC2F 1273

Bittoren & Bittoren [2022] FedCFamC2F 1273

Relationship Details

• Type: Marriage
• Duration: Married in 1977, separated in 1981, and divorced in 2019. In total, they were married for approximately 4 years before separating.
• Ages at Judgment: Husband 76, Wife 70
• Who applied: The Husband applied for the home to be sold and the proceeds split 65% to the Wife and 35% to him. The Wife sought a transfer of the home to her, in effect keeping about 96% of the property.

Children

• Children from Relationship: One child, an adult daughter, born after the parties first separated.
• Children from Previous Relationships: Wife has one child from a prior relationship, an adult son.
• Special Needs: their daughter suffers from significant disabilities, including a significant intellectual disability, and has multiple serious medical and mental health conditions. She cannot be left at home alone.

Initial Financial Positions

• Neither Party: Had significant assets at the start of the relationship. Both were employed and resided in rental accommodation.

Contributions During the Relationship

• Financial Contributions:
  • Joint acquisition of the B Street, Suburb C property in 1980 for approximately $38,000, with a $4,000 deposit paid entirely by the Wife from her savings.
  • The Husband initially claimed he made all the mortgage payments, but accepted in oral evidence that he did not pay at the start. The Wife was solely responsible for the smaller Ministry of Housing loan, and the Husband gave her some cash towards the Bank G loan only in the last year of the relationship.
  • Contributions from Wife's family, particularly her mother, aided in maintaining house payments and household expenses.
• Non-financial Contributions:
  • The Wife was solely responsible for the care of her son from her earlier relationship and with no support from his father, and met all the household expenses during the Husband's periods of absence before the home was bought.

Post-Separation Contributions and Actions

• Financial Contributions:
  • The Wife, with help from her parents, met the mortgages and household costs from separation until about 1987 or 1988.
  • From about 1987 or 1988 the Husband met the Bank G loan repayments (about $28,000 then owing) until it was repaid in 1998. He paid no child support or spousal maintenance, and the court found this greatly reduced the weight of those repayments.
• Non-financial Contributions:
  • Wife provided sole care to the parties’ child, their daughter, due to her special needs and has cared for their daughter alone since separation.
• Property Post-Separation:
  • The extent of the Husband's works on the B Street property was disputed. The court accepted the Wife's account, including that she paid to fix or finish some of his works and arranged and paid for other works herself.

Current Financial Position & Property Pool

• Husband:

  • Income from age pension at $531 per week.
  • Assets valued at $47,068.

• Wife:

  • Income from age pension at $355.90 per week, plus a carer's payment of $67.50 per fortnight.
  • Residence at B Street, Suburb C property.
  • Savings of approximately $11,000.

Assessment of Contributions and Future Needs

• Contributions:

  • Wife assessed to have contributed 85% compared to Husband's 15%, attributed largely to her extraordinary parenting contributions to their daughter and her financial contributions with support from her family. Most of the contributions were made after separation, over about 40 years.

• Future Needs Adjustments:

  • A further adjustment of 10% in the Wife's favour (about $124,000) due to her ongoing responsibility as the primary carer for their daughter and the impact of her needs, especially considering her inability to work.

• Final Division: On the court's assessment the Husband was entitled to 5% ($61,964). He already held $47,068, so the full balance would have been $14,896. Because the Wife could not borrow and had only about $11,000 in savings, the court found it was not just and equitable to make her sell their daughter's lifelong home to pay him less than $4,000 more. She was ordered to pay him $11,000 and keep the B Street property, which left the Husband with about 4.7%.

Unique Aspects

• Significant emphasis on the Wife’s ongoing care responsibilities for a severely disabled adult child, a substantial factor in the division of property.
• The financial help given by the Wife's parents was treated as a contribution made on the Wife's behalf, which added to her contributions.

Main Takeaways

• The prolonged nature of the Wife's unrelenting caregiving commitment to their daughter largely determined the court's decision in her favour.
• Husband’s intermittent financial contributions post-separation, counterbalanced by long-term reliance on Wife’s family support and her continuous caregiving, were crucial in property division.

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.