Donata & Hannes (No 2) [2024] FedCFamC2F 277

Donata & Hannes (No 2) [2024] FedCFamC2F 277

Relationship Details

• Type: De facto relationship
• Duration: Approximately 14 years, from mid-2008 to early 2022.
• Ages at Judgment: Applicant 60 years old, respondent 57 years old.

Children

• Children from Relationship: No children from the relationship were mentioned.
• Children from Previous Relationships: Not applicable.

Initial Financial Positions

• Applicant:

  • Receiving a disability pension from 1997.
  • Few assets at the relationship's commencement, apart from a furnished home.

• Respondent:

  • Few assets upon release from prison in 2008.

Contributions During the Relationship

• Financial Contributions:

  • Applicant withdrew her entire disability pension and contributed it to joint expenses.
  • Respondent acquired property in Suburb C in his name with a bank loan.
  • Property purchase price was $257,000, financed mainly through a bank loan, with no evidence that the applicant could have funded the purchase.

• Non-financial Contributions:

  • Applicant performed all household duties, providing homemaking support.
  • Supported the respondent in his employment and in staying sober and off illicit drugs.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The respondent received termination payments and the sale proceeds of the Suburb C property.
  • The applicant paid the site costs for the accommodation at Town E after separation.

• Non-financial Contributions:

  • Applicant had exclusive occupation of the accommodation.

• Dissipation of Assets:

  • The respondent had access to just under $186,000 after separation and could not adequately account for it. The court found he had recklessly dissipated at least $32,100, and added that sum back to the pool together with $20,000 of his legal fees, a total add-back of $52,100.

Current Financial Position & Property Pool

• Applicant:

  • No employment, relying on a disability pension.

• Respondent:

  • Not employed; receiving jobseeker payments since late 2022.

• Property Pool:

  • Sale proceeds from the Suburb C property: $326,650 held in trust.
  • Superannuation: $118,000, attributable to the respondent's employment during the relationship.
  • The court assessed the net pool, including the add-back and superannuation, at about $531,000.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed as 45% to the applicant and 55% to the respondent, taking into account that the applicant's contributions were at times more arduous because of family violence.

• Future Needs Adjustments:

  • Additional 5% to the applicant, acknowledging her health conditions, her lack of future employment prospects and the respondent's capacity to return to work.

• Final Division: Equal division at 50% for both parties, corresponding to $265,125.50 each, inclusive of an equal superannuation split.

Unique Aspects

• Family violence made the applicant's contributions as a homemaker more arduous.
• The respondent's incarceration history and his dissipation of funds after separation influenced the proceedings.
• The respondent was not permitted to cross-examine the applicant personally (s 102NA), and the court found he did not impress as a witness of truth, so it largely accepted the applicant's evidence.

Conclusion

The case highlights the interplay of contributions, future needs and family violence in a de facto property settlement.

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.