Carros & Carros (No 2) [2023] FedCFamC2F 564

Carros & Carros (No 2) [2023] FedCFamC2F 564

Background Details

• Type of Relationship: Marriage
• Duration: Commenced cohabitation in 1996, married in 2001, separated fully in 2019, divorce effective 2021, total cohabitation of 21 years.
• Ages of Parties at Judgment: Husband aged 52, Wife aged 61.

Children

• Children from Relationship: None
• Children from Previous Relationships: None

Initial Financial Positions

• Wife:

  • Owned a property in Suburb M purchased for $64,500 in 1997 before moving in together.
  • Funds for the purchase came from her resources.

• Husband:

  • Had a motor vehicle, furniture, and personal possessions.

Contributions During the Relationship

• Financial Contributions:

  • Wife owned Suburb M, used it as security for a loan to purchase Suburb J land.
  • Sale of Suburb M eventually contributed significantly to the construction of the former family home.

• Non-financial Contributions:

  • Both parties shared roles in homemaker duties and property maintenance.
  • Wife attended to Suburb J build more frequently due to her flexible work schedule.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Wife paid about $69,000 of mortgage repayments and maintenance on the former family home from her own resources after separation.

• Primary Caregiver and Maintenance:

  • Wife was responsible for maintaining the former home post-separation.

Current Financial Position & Property Pool

• Husband:

  • Income approximately $41,000 per annum from the business.
  • Superannuation balance: $448,904.

• Wife:

  • Income approximately $55,700 per annum (derived from insurance and TTR pension).
  • Superannuation balance: $322,780.

• Property Pool:

  • Total joint asset pool, including superannuation, valued at $3,230,294: net non-superannuation assets of $2,458,610 and superannuation of $771,684.
  • Former family home valued at $2.7 million, with an outstanding mortgage of $370,000.

Assessment of Contributions and Future Needs

• Contributions:

  • Contribution assessment: Wife 53%, Husband 47% for non-super assets.

• Future Needs Adjustments:

  • 3% adjustment in the wife's favour because of her limited ability to work and uncertain return to paid work, giving 56% of non-superannuation assets to the wife.
  • Superannuation treated as a separate pool and divided equally; instead of a splitting order, the wife's cash payment to the husband was reduced by $63,062.

• Final Division:

  • The wife was to pay the husband $984,116 and keep the former family home, failing which it was to be sold and the proceeds divided 56/44 after allowing for other assets. Considered globally, the wife received about 54.6% of the property and superannuation and the husband about 45.4%.

Unique Aspects

• Disputes on financial contributions included inaccurate business record-keeping by Husband and non-disclosure allegations by Wife.
• Significant variation and disagreement about maintaining financial transparency and detail in contributions.
• Decision heavily influenced by Wife's initial contribution with Suburb M, ongoing health issues, and uncertain earning capacity.

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.