Canton & Canton [2023] FedCFamC2F 836

Canton & Canton [2023] FedCFamC2F 836 (16 June 2023)

Background Details

• Type: Marriage
• Duration: The parties commenced cohabitation in 2003, married in 2007, and separated on 20 August 2017. Total of approximately 14 years.
• Ages: Husband 51 years old, Wife 41 years old at the date of judgment.

Children

• There are no children from this marriage, and none mentioned from previous relationships.

Initial Financial Positions

• Husband:

  • Owned a Sydney property with equity of approximately $50,000.

• Wife:

  • Cash savings of approximately $15,000 at the start of the relationship.
  • Owned a Motor Vehicle 5 valued at approximately $5,000.
  • Inherited $10,000 early in the relationship.

Contributions During the Relationship

• Financial Contributions:

  • Wife contributed her savings and inheritance; inheritance used to meet joint obligations.
  • Husband contributed about $50,000 of equity from the Sydney property towards the jointly bought house in Suburb Q; the wife paid all of its mortgage repayments.
  • Both parties worked during the relationship; the wife's income funded most of the joint account, which also paid many of the husband's company's expenses.

• Non-financial Contributions:

  • Wife overwhelmingly attended to homemaking responsibilities and contributed unpaid labour to the husband's business.

Post-Separation Contributions and Actions

• Financial Contributions:

  • After the first month, the husband paid the mortgage of the Town B property post-separation, while having exclusive use of it.

• Non-financial Contributions:

  • Wife paid out joint debts of approximately $25,000 and $6,000 after separation.

Current Financial Position & Property Pool

• Assets:

  • Town B property valued at approximately $555,000.
  • C artworks valued at $12,100.
  • Wife's bank accounts total $11,500.
  • Wife's Motor Vehicle 3 valued at $9,000.

• Liabilities:

  • Mortgage on Town B property totaling $257,155.

• Superannuation:

  • Wife’s ANZ superannuation valued at $72,000.
  • Husband's superannuation value is historical, last recorded in 2015 at $40,844 but likely increased.

• Net pool, including superannuation: about $659,089 (excluding a missing business vehicle of unknown value and any growth in the husband's superannuation).

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed at 60% to the wife and 40% to the husband over the whole pool, including superannuation. The husband probably made the greater initial contribution, but the wife made greater financial contributions during and after the relationship and bore the overwhelming bulk of the homemaking. The court also sought to avoid the wife being short-changed by the husband's failure to give evidence.

• Future Needs Adjustments:

  • No adjustment was made for future needs. Both parties can work. The husband is older, but no adjustment was made in his favour given his complete failure to participate or disclose his income.

• Final Division: 60% of the property and assets were awarded to the Wife, leaving the Husband with 40%.

Unique Aspects

• The case proceeded on an undefended basis as the Husband failed to participate meaningfully or comply with court orders.
• The court accepted that the wife was a victim of coercive and controlling family violence, including financial abuse. It found the evidence did not support a separate Kennon adjustment, but gave real weight to the disproportionate share of expenses she bore.
• Wife was awarded costs on an indemnity basis due to the Husband's conduct, fixed at $15,000, though it was slightly less than a full indemnity.

Summary

This case involved significant difficulties due to the husband's lack of participation and compliance throughout the proceedings. Despite these challenges, the wife was granted a majority share of the marital assets due to her financial contributions, her role as a homemaker, and the husband's failure to actively engage in the judicial process. The court's orders required the wife to pay out the mortgage (about $255,000) in exchange for the husband's interest in the Town B property, and the husband to vacate it so that the wife could resume possession.

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.