Elsner & Elsner [2023] FedCFamC2F 1419

Elsner & Elsner [2023] Case Report

Relationship Details

• Type: Marriage
• Duration: Commenced cohabitation in 1994, married in 1996, and separated in May 2022. Approximately 28 years of cohabitation.
• Ages at Judgment: Husband is 62, and the wife is 60.

Children

• The couple has two adult children, aged 25 and 24.

Initial Financial Positions

• Husband:

  • Owned a property at Suburb C, purchased in 1987 for approximately $72,000 with a mortgage.
  • Had certain savings and owned two L Company life policies.
  • Purchased shares in F and G companies using savings prior to the relationship.

• Wife:

  • Owned a car valued at $10,000 and had savings amounting to $2,000.
  • Purchased shares from her savings after the commencement of cohabitation.

Contributions During the Relationship

• Husband's Contributions:

  • Significant financial contribution by acquiring and renovating Suburb C property before and during cohabitation.
  • Work on the house, including large renovations and major extensions.
  • Employed regularly, providing majority income for family expenses.

• Wife's Contributions:

  • Financial contribution in supporting household expenses and children's education and activities.
  • Homemaker and primary caregiver, especially when the children were young.
  • Received an inheritance in 2016, part of which went to family expenses, renovations and the children; the court valued her financial contribution from it at about $60,000.

Post-Separation Contributions and Actions

• Financial: No dissipation of assets alleged. Wife continued to maintain and pay the outgoings on Suburb C until the sale.
• Non-Financial: Wife prepared the family home for sale and maintained it post-separation.

Current Financial Position & Property Pool

• Husband:

  • Income around $1,700 gross per week (including overtime).
  • Superannuation balance at $256,261.

• Wife:

  • Income approximately $700 per week.
  • Superannuation balance at $341,399.

• Property Pool:

  • Total asset pool valued at $2,437,905 inclusive of superannuation.
  • Significant asset: sale proceeds of Suburb C.

Assessment of Contributions and Future Needs

• Contributions:

  • An initial inequity noted due to the husband's ownership and value appreciation of Suburb C.
  • Contributions to the non-superannuation assets assessed at about 52% to the husband and 48% to the wife, acknowledging both financial and non-financial contributions over the long marriage. Superannuation was equalised by an agreed splitting order.

• Future Needs Adjustments: No adjustments applied as both parties did not demonstrate a significant disparity in future needs concerning health, income, and capacity to earn further income.

• Final Division: About 52% to the husband and 48% to the wife overall. From the Suburb C sale proceeds held in trust, the wife received $760,836 and the husband $748,495.

Unique Aspects

• Initial contributions by the husband through the ownership and improvement of Suburb C provided a foundational asset that influenced the division of property.
• The parties kept separate bank accounts throughout the relationship.
• The court admitted evidence of an earlier in-principle settlement agreement, despite the usual exclusion of settlement negotiations, because the parties had acted on it, including by selling their home (Evidence Act 1995 (Cth) s 131(2)). The agreement was not binding, and the court made its own assessment.

Summary and Key Takeaways

• The lengthy period of marriage emphasised holistic contributions over specific initial and post-separation contributions.
• The court balanced initial asset contributions with lifelong non-financial contributions, seeking fairness in future life capacity for both the husband and wife.

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.