Delmos & Cordell [2023] FedCFamC2F 1227

Delmos & Cordell [2023] FedCFamC2F 1227: Case Report

Relationship Details

• Type: De facto relationship (the parties never married)
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge O'Shannessy, 21 September 2023
• Duration: The parties began living together in about 2006, separated in 2010, resumed the relationship in 2013 and separated finally in April 2021.
• Ages at Judgment: Father 49, Mother 41.

Children

• Children of the Relationship: One child, aged 6.
• Other Children: The mother's elder child, aged 10, was born after a short relationship between the mother and another man, who was joined as the second respondent. The father has acted as that child's father since the child was a few months old, and the child believes the father is his father. The second respondent has not seen the child since the child was about two, doubted he was the father, did not take a DNA test and took little part in the hearing.

Initial Financial Positions

• Mother:

  • Owned a property in South Australia, which was sold in 2016 for $120,000. She kept $26,060.75 from the sale.

• Father:

  • Owned a car and a motorcycle, said to be worth roughly the same as the mother's equity in her property. That was not seriously disputed.

Contributions During the Relationship

• Financial Contributions:

  • The father worked full time and opened his own transport business.
  • The father received a small inheritance of $8,000, which was used for family purposes.

• Non-financial Contributions:

  • The mother did the home duties.
  • Both parties argued, and the court accepted, that their overall contributions were equal.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The father paid the mortgage and outgoings on the former home until it was sold in 2021 for $597,000.

• Assets After Separation:

  • The net proceeds of sale of the former home were $246,699. The father received $21,000 and the mother $30,000 as part property settlements, and the balance of $195,669 was held in trust.

Current Financial Position & Property Pool

• Father:

  • His business earns about $92,000 a year, about $62,000 after tax and child support. The business was valued at $110,000.
  • His "keep" (the business, his part settlement and legal fees, less his debts) was $112,538.

• Mother:

  • Works casually as a part-time domestic worker and relies mainly on Centrelink and child support, about $41,000 a year in total. Both parties are capable of employment.
  • Her "keep" (her part settlement and a car) was $36,500.
  • The income disparity after tax and child support was about $21,000 a year.

• Property Pool:

  • Net non-superannuation pool of $344,707, including the $195,669 held in trust.
  • Superannuation of $117,811, dealt with separately. The parties agreed that the father would split $20,884.50 of his superannuation to the mother.

Assessment of Contributions and Future Needs

• Contributions:

  • Equal.

• Future Needs Adjustments:

  • A 10% adjustment ($34,700) in the mother's favour, creating a disparity of 20% ($69,400), because the children will live with her and the burden and cost of raising them will fall mainly on her, and because of the income disparity. The father had proposed 5% and the mother 15% or more. The court looked closely at the dollar effect of the adjustment as well as the percentage.

• Final Division:

  • Non-superannuation assets divided 60% to the mother ($206,824) and 40% to the father ($137,883). From the trust funds the father received $25,345 and the mother the balance of $170,324, with interest shared in the same proportions.

Parenting Outcome

• The mother and the father were given equal shared parental responsibility for both children. The parties agreed to this, and the court found it was in the elder child's best interests even though the father is not his biological father, given his role in the child's life and the second respondent's absence.
• The children live with the mother in South Australia and spend school holidays with the father, plus weekends when he travels to the mother's area. The parties live at least five hours' drive apart.

Unique Aspects

• The parenting case involved a child whose biological father did not fully take part, and the court made orders sharing parental responsibility between the mother and the man who had raised the child.
• The mother moved the children to South Australia, near her parents, without agreement. The court was critical of the decision but found that equal time was not reasonably practicable given the distance, and that the children should live with her.
• The property decision is a careful example of how the court measures the money effect of a future needs adjustment in a modest pool.

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.

The mother and the father agreed to equal shared parental responsibility, so the court did not need to decide whether the presumption applied, and, as the law then required, it considered equal or substantial and significant time. The presumption of equal shared parental responsibility (former s 61DA) and the duty to consider equal or substantial and significant time (former s 65DAA) were repealed on 6 May 2024. In Western Australia the matching changes for children of unmarried parents took effect on 10 February 2025.