Charles & Charles [2023] FedCFamC2F 1237

Charles & Charles [2023] FedCFamC2F 1237

Relationship Details

• Type: Marriage (the judgment refers to the parties as husband and wife and decides the case under s 79; it does not give the date of marriage)
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge Newbrun, 22 September 2023
• Duration: The relationship ran from about 2002 until a separation of about 12 months in 2013, resumed in early 2014, and finally ended in about September 2016.
• Ages: Husband 51, Wife 41 at the time of judgment.

Children

• Children from Relationship: Two children, aged 19 and 13. The elder son lived with the husband from 2018, when he was 14, until he turned 18. The younger child lives with the wife and is at boarding school.
• Other Children: The wife also cares for two young children (aged 2 and 4) from her new relationship, and another child aged 9.

Initial Financial Positions

• Husband:

  • Owned two lots in the town where the parties lived, bought in 1995 for $5,000 and in 1996 for $25,000 (the second with a house), each with savings and a modest mortgage.
  • Owned a car (bought for $24,263 with a $5,000 deposit and the rest on finance), another vehicle, company shares, most of his tools, plant and machinery, and superannuation.
  • He said he did not know his net asset position at the start of the relationship.

• Wife:

  • Owned a motor vehicle, 5 head of livestock, and a horse.

Contributions During the Relationship

• Financial Contributions:

  • In 2004 the parties bought a farming property in joint names for $110,000, with a bank loan and a loan from the husband's father. In 2012 they bought the adjoining property for $185,000, with a bank loan and loans from the husband's parents.
  • The husband paid the mortgages, outgoings and utilities on both jointly owned properties during the relationship, and repaid his father's loan on the first property in full. He also paid off the loans on his own two properties.
  • In mid-2016, a few months before separation, the husband bought a transport business for $305,000 on vendor finance.
  • The wife was almost always in paid work and used her income for the children's needs and household expenses, and sometimes to pay bills when the husband was short. The court found this indirectly helped the husband meet the mortgages and the business loan.

• Non-financial Contributions:

  • The wife was the primary carer of the children and the primary homemaker, which the court described as a significant contribution.
  • She built up the livestock from her initial 5 head to about 60 at separation and did most of the farm work, about 20 hours a week. The proceeds of her livestock sales went into the husband's account.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The husband paid all expenses of the second farming property until November 2018. After that the wife paid them, except the repayments to the husband's parents.
  • The husband paid no child support from 2016 to 2018 and has paid about $1,250 per month since.

• Non-financial Contributions:

  • The wife remained the primary carer of the younger child, while the husband was the primary carer of the elder son from 2018 until he turned 18.
  • The wife alone managed the farming properties after separation, including through a drought from about 2017 to 2020.

Current Financial Position & Property Pool

• Husband:

  • Income mainly from his transport business: taxable income of $132,903, $127,212 and $141,259 in the three years to 30 June 2023.
  • Superannuation of $115,000.

• Wife:

  • Part-time employment earning $400 to $500 per week, plus about $4,000 to $5,000 a year from livestock in a normal year. She does not expect to return to full-time work for several years.
  • Superannuation of $30,333.

• Property Pool:

  • $803,828 in net non-superannuation property and $145,333 in superannuation, a total of $949,161.
  • The husband's pre-relationship properties and his business stayed in the pool, because the wife had contributed indirectly to them.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed at 60% to the husband and 40% to the wife, taking into account the property the husband brought in and his payment of the loans and outgoings, against the wife's indirect financial contributions, her farm work and her care of the children.

• Future Needs Adjustments:

  • An adjustment of 2.5% in the wife's favour, for the husband's significantly greater earning capacity, his business as an income-earning asset and his larger superannuation, resulting in a final division of 57.5% to the husband ($545,767) and 42.5% to the wife ($403,393).

• Final Division:

  • The husband keeps his two properties, the business, vehicles, shares, equipment and superannuation, with the business overdraft, the debt to his parents and his other debts, a net $487,555.
  • The wife receives the two farming properties (refinancing their mortgages into her name), the livestock and her superannuation, a net $461,606.
  • The wife must pay the husband $58,213 within 3 months, failing which the smaller farming property is to be sold.

Unique Aspects

• The wife's farm work and livestock management, including during the drought, were recognised as significant contributions.
• Property one party owned before the relationship can stay in the pool where the other party has contributed indirectly to keeping and paying for it.
• The wife's new partner pays most of the younger child's boarding school fees. The court took the wife's new household into account, but there was no evidence that she and her partner could not support their own children.

Summary

The court weighed the husband's larger financial contributions against the wife's indirect financial contributions, farm work and care of the children, and then made a small adjustment for the husband's greater earning capacity. The wife kept the farming properties and the livestock, paying the husband a cash sum.

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.