Bryson & Bryson [2023] FedCFamC2F 997

Bryson & Bryson [2023] FedCFamC2F 997

Relationship Details

• Type: Marriage
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge Mansfield, 18 August 2023
• Duration: Married in 1994. Separated on 6 October 2020. The marriage lasted 26 years.
• Ages at Judgment: Husband 62, Wife 57

Children

• Children from Relationship: Three sons, all now adults.

Initial Financial Positions

• Neither party had significant liabilities or assets when they started their relationship or by their arrival in Australia.

Contributions During the Relationship

• Financial Contributions:

  • The husband maintained full-time employment throughout the relationship.
  • The wife initially studied English and pursued further education and employment, but her work history after 2014 was unclear.

• Non-financial Contributions:

  • Both parties contributed to raising the children and maintaining the household. The court found the wife was more likely to have attended to the welfare of the family, particularly in the earlier years.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The wife has had sole occupation of the Suburb D property since separation and has been making its loan repayments.

• Dissipation of Assets:

  • The day after separation the wife withdrew $39,906.53 from the joint home loan account and gave no proper explanation of its use. The court exercised its discretion to add that sum back to the asset pool as funds she had received.

• Adult Children:

  • The husband supports two of the adult sons, one of whom lives with him full time.

Current Financial Position & Property Pool

• Suburb D Property: Valued at $1,090,000.

• Vehicles:

  • Motor Vehicle 1 (joint): Valued at $500.
  • Husband's Vehicle: Valued at $17,500.
  • Wife's Vehicle: Valued at $30,000.

• Jewellery: Valued at $51,570 (found, on the balance of probabilities, to be in the wife's possession or for her benefit).

• Superannuation:

  • The superannuation interests were agreed and dealt with in a single pool with the other property.

• Addback: $39,906.53 for funds withdrawn by the wife after separation.

• Property overseas: The court found no evidence that the husband's interests in land overseas had any realisable value, and was not satisfied the wife held property there.

Assessment of Contributions and Future Needs

• Contributions:

  • Financial contributions favoured the husband due to his full-time work; non-financial contributions favoured the wife due to her greater role in the welfare of the family.
  • Overall contributions were assessed as equal, because the roles in a 26-year marriage were fulfilled consensually.

• Future Needs Adjustments:

  • Husband, aged 62, earns around $154,000 annually and aims for retirement soon.
  • Wife, aged 57, with some health issues, is unemployed after resigning from her job in 2023. The court was not satisfied that she lacked capacity to work.
  • No adjustment made for future needs as the factors offset each other.

• Final Division: The court found the property should be divided equally. The orders it made, as sought by the husband, gave the wife almost all of the non-superannuation assets (including the Suburb D property, subject to refinancing) and the husband his superannuation, an overall division of 49% to the husband and 51% to the wife.

Unique Aspects

• The wife raised serious allegations of family violence, but the court was not satisfied on the evidence that family violence had occurred, so it made no adjustment for it.
• The case involved extensive documentation and evidence, with both parties having contested several valuations and asset claims.
• The wife's withdrawal of substantial funds after separation without proper explanation was accounted for as an addback.

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Takeaways

• The court weighed the husband's financial contributions against the wife's contributions to the family and found them equal over a long marriage.
• Allegations of family violence need evidence before they can affect the assessment of contributions.
• The orders aimed to give the wife a chance to keep the home, while the husband retained his superannuation for retirement.

Appeal

The wife appealed. In Bryson & Bryson [2024] FedCFamC1A 32 (20 March 2024) the appeal was allowed because the trial judge had relied on parts of affidavits that had been objected to and were not read into evidence, including passages used to make findings against the wife's credit. Orders 7 to 11 were set aside and the matter was sent back for rehearing. Orders 1 to 6, including the transfer of the Suburb D property, had already been carried out and were not disturbed. The findings described above should be read in that light.

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.