Daultrey & Tavener [2023] FedCFamC2F 1480

Daultrey & Tavener [2023] FedCFamC2F 1480

Relationship Details

• Type: De facto relationship.
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge Tonkin, 17 November 2023.
• Duration: The court declared periods of cohabitation totalling 6 years and 11 months, between early 2009 and late 2014, with breaks in between.
• Ages at Judgment: De facto husband 62, de facto wife 53.

Children

• Children from Relationship: None.
• Children from Previous Relationships: Each party was a single parent when they met. The de facto husband had two teenage daughters living with him and two other children from his first marriage, and the de facto wife had sole care of her three young children.

Initial Financial Positions

• De facto Husband:

  • Through his company, a 24.9% interest in a manufacturing business, bought with a vendor loan from his former wife's parents on which he still owed about $246,136.
  • Owned the O Street property with a mortgage, which had little equity.
  • Superannuation of $114,760.

• De facto Wife:

  • Owned the J Street property unencumbered, and the H Property apartment with a substantial mortgage.
  • Superannuation of $17,000.
  • Ran a business from home.

Contributions During the Relationship

• Financial Contributions:

  • The de facto wife used J Street as security for the H Property apartment mortgage and later to fund the development of A Street. When J Street was sold in late 2012 she applied the net proceeds to the mortgage.
  • She sold the H Property apartment to the de facto husband at a reduced price, for what he was able to borrow, to help him into the property market. He paid her the shortfall in January 2015.
  • The de facto wife funded the Town F development almost entirely, while the de facto husband gained about $82,000 in tax benefits from it.
  • The de facto husband received about $1.5 million from the sale of his business interest and the business premises, and applied none of it, nor the proceeds of O Street or the H Property apartment, to the parties' property.

• Non-financial Contributions:

  • The court did not set out separate findings on homemaker or parenting contributions; its assessment of contributions was holistic.

Post-Separation Contributions and Actions

• Financial Contributions:

  • In October 2020, under an earlier court order made in these proceedings, the de facto wife paid the de facto husband $200,000, and the A Street property was taken off the market.
  • The parties' finances remained intermingled until the de facto husband left A Street for good in 2016. He has since remarried.

• Disclosure:

  • Both parties' credibility was in issue. The de facto husband did not give full and frank disclosure and could not document his financial contributions, and the de facto wife failed to disclose more than $300,000 of income and a vehicle bought for $130,000 in cash.

Current Financial Position & Property Pool

• De facto Wife:

  • Non-superannuation property interest valued at $965,186.
  • Superannuation interest valued at $121,303.
  • Combined interest of $1,086,489 (62.5%).

• De facto Husband:

  • Non-superannuation property interest valued at $264,196.
  • Superannuation interest valued at $385,948.
  • Combined interest of $650,144 (37.4%).

• Overall Property Pool: Combined property pool valued at $1,736,633, the main asset being the A Street property, worth $1,000,000. The two Town F units had a negative net value of $136,814.

Assessment of Contributions and Future Needs

• Contributions:

  • The court took an asset-by-asset approach. Of the assets the parties had built up jointly (A Street and the Town F units, worth $863,186 net), the $200,000 already paid to the de facto husband was about 23%. The court found that a 77/23 split of those assets reflected each party's contributions over the whole relationship.

• Future Needs Adjustments:

  • No adjustment was made for future needs (s 90SF(3)). The parties had been separated for nine years.

• Final Division: The court made no order adjusting the parties' property interests, only orders declaring who owned what.

  • The de facto wife keeps A Street, both Town F units, her vehicles and her superannuation: a total of $1,086,489. The de facto husband is to transfer to her his units in the trust that holds one of the Town F units.
  • The de facto husband keeps his term deposit, shares, vehicles, bank accounts and superannuation, and is solely liable for his own debts. With the $200,000 already paid to him, his total is $846,673.

Unique Aspects

• The litigation lasted five years, and poor disclosure by both parties made it hard for the court to assess contributions.
• The Town F units had fallen in value and their mortgages had grown, and the rental scheme supporting them ends in 2024, so the de facto wife, who wished to keep them, was unlikely to gain much from them.
• The $200,000 paid to the de facto husband in 2020 was decisive. The court said that had it not been paid, its decision may have been different.

Conclusion

• The court found it was not just and equitable to make any order adjusting the parties' property interests, because the earlier payment of $200,000 already reflected the de facto husband's share of the jointly built assets.
• The orders declared each party's interests in the property they held, and allocated the debts.

Appeal

The de facto husband appealed. In Daultrey & Tavener [2024] FedCFamC1A 64 (22 April 2024) the appeal was dismissed: no error of principle was shown, the findings were open on the evidence and adequately explained. He was ordered to pay the de facto wife's costs, fixed at $15,000.

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 between de facto partners in s 90SM(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 90SM(4)(ca)) and on their current and future circumstances (s 90SM(5)(a)), and any material wastage of property (s 90SM(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.