Clement & Clement [2023] FedCFamC2F 1415

Clement & Clement [2023] FedCFamC2F 1415

Relationship Details

• Type: Marriage
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge Newbrun, 3 November 2023
• Duration: The relationship ran from 1998 to about November 2020, approximately 22 years.
• Ages: Husband is 52 years old, and the wife is 50 years old (turning 51 in 2023).

Children

• Number and Ages: Four children, aged 13, 15, 17, and 20 at the time of separation. Post-separation, all reside with the husband. Only the youngest, now 16, is under 18; the adult children are financially independent and two pay the husband board.
• Special Needs: None stated.

Initial Financial Positions

• Husband:

  • Did not possess significant assets or liabilities at the start of the relationship: a car, minor savings and personal effects, and no superannuation.

• Wife:

  • Owned a car, some O Company shares, and superannuation of about $7,000.

Contributions During the Relationship

• Financial Contributions:

  • Both parties applied their incomes to property acquisition, debt reduction and the family.
  • Husband was the primary income earner, working full time as a tradesperson.
  • Wife sold her O Company shares (about $11,000) and her car (about $6,000) towards the deposit on the parties' first property.
  • The husband won two bets totalling $17,700 and used the money for family holidays.

• Non-financial Contributions:

  • The wife attended to the majority of household duties and the care of the children. The husband's help with the children was quite modest, given the time he spent gambling.
  • The wife assisted the husband with administrative work for his transport company, and had the benefit of a company car.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Since April 2021 the husband has paid the mortgage on the former matrimonial home (about $28,043) and its rates, insurance and other outgoings.
  • The wife paid about $4,771 towards the mortgage on the Suburb E investment property and has managed it, saving about $3,907 in management fees.
  • Since January 2021 the wife has paid child support as assessed.

• Non-financial Contributions:

  • The husband has cared for and maintained the children in the former matrimonial home since separation.
  • The wife provided some care, often returned to the home to cook meals for the children, took them on outings and paid for some of their activities, but had little overnight time with them.

Current Financial Position & Property Pool

• Husband:

  • Income: $1,442 weekly before tax, with a greater earning capacity than the wife.
  • Assets: Furniture, personal effects, tools, shares in his company, superannuation.
  • Liabilities: Credit card debt.

• Wife:

  • Income: $1,200 weekly before tax as an administration officer.
  • Assets: Furniture, superannuation.
  • Liabilities: Centrelink debt of $6,253.

• Property Pool:

  • Net non-superannuation assets of $1,488,445 and superannuation of $227,589, a total of $1,716,034, dealt with as one pool. The main assets were the former matrimonial home at Suburb C ($1,350,000) and the investment property at Suburb E ($725,000).

Assessment of Contributions and Future Needs

• Contributions: Contributions were assessed equally (50% for each party) concerning both non-superannuation and superannuation assets.

• Future Needs Adjustments:

  • The husband sought 5% for his need to rehouse himself and the children and his care of the youngest child. The wife sought 5 to 7% because her health condition affects her capacity to work. Taking into account all the matters, including the husband's greater earning capacity, the court made a 2.5% adjustment in the wife's favour (52.5% to the wife and 47.5% to the husband).

• Final Division:

  • Total value allocated to the wife: $900,917 (52.5%).
  • Total value allocated to the husband: $815,116 (47.5%).
  • Both properties are to be sold. From the Suburb C proceeds the wife receives $560,175 and the husband $506,825. From the Suburb E proceeds, after capital gains tax, the wife receives $236,148 (including a balancing sum of $40,983) and the husband $135,596.

Unique Aspects

• The court refused the husband's claim to add back $57,422 the wife withdrew after separation, and the wife's claim to add back $103,520 the husband paid his lawyers, accepting that the wife spent hers on reasonable living expenses and that the husband had adequately explained how he paid his legal fees. Only $2,038 the husband withdrew after separation was added back.
• The husband gambled throughout the relationship and after it, but the court found he roughly broke even, so there was no loss to account for.
• The parties' self-managed superannuation fund is to be wound up.

Summary

This case involved the division of property after a 22-year marriage, influenced by both parties' financial and non-financial contributions, which were found to be equal, and by the wife's health, which reduced her earning capacity. The modest adjustment for the wife's future needs was balanced against the husband's care of the children since separation and his need to rehouse.

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.