Engleby & Engleby [2023] FedCFamC2F 540

Engleby & Engleby [2023] FedCFamC2F 540

Relationship Details

• Type: Marriage
• Duration: Cohabitation began mid-2010, married mid-2011, separated under one roof in 2016; the mother and child left in 2020. The court treated the relationship as about six years.
• Ages of Parties: Ages not specified at the time of judgment.

Children

• One child from the relationship: X, born in 2011, aged 12 at the time of judgment.
• No children from previous relationships are mentioned.

Initial Financial Positions

• Mother: Owned the Suburb D property acquired in mid-2010.
• Father: At the start of cohabitation, no specific assets or savings are mentioned.

Contributions During the Relationship

• Financial Contributions:

  • Mother paid all mortgage payments for Suburb D property and covered significant expenses such as the deposit and stamp duty.
  • Father made some contributions towards groceries, food, activities, and utility bills.

• Non-financial Contributions:

  • Father was a primary carer for a period and involved in childcare, including making household contributions.
  • The court found that the father's contributions were materially impaired by his child abuse and family violence, which also made the mother's contributions more difficult.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The father continued to contribute to some utility bills.
  • The father stayed in the mother's home from 2016 after being asked to leave, without paying rent, rates or the mortgage, which the court treated as controlling and coercive conduct.

• Non-financial Contributions:

  • The mother remained the primary caregiver for X since separation.
  • The father did not have physical contact with X since July 2020.

Current Financial Position & Property Pool

• Mother:

  • Continues mortgage payments on Suburb D property (valued at $950,000, mortgage $380,000).
  • Responsible for child X's schooling and related expenses.
  • Lives with her family, contributing about $200 a week.

• Property pool: Assets of $982,536 less liabilities of $410,664, a net non-superannuation pool of about $571,872. Superannuation of $369,131.60, including $115,044 the mother accumulated during the relationship.

• Father:

  • Has lived in the mother's home since separation and must now move out within 28 days.
  • Child support arrears of about $5,000.

Assessment of Contributions and Future Needs

• Contributions:

  • Significant financial contributions by the mother, including the home she bought in 2010.
  • Non-financial and child care contributions by the father acknowledged; his earning capacity was diminished while he was a primary carer.
  • Before any Kennon adjustment the father would have received 35%.

• Future Needs Adjustments:

  • The s 75(2) factors considered included the mother's ongoing care of X without the father's involvement, the father's child support arrears, and the father's benefit from occupying her home.

• Final Division:

  • The father receives 30% of the net property pool (reduced from 35% under the Kennon principle because his family violence and child abuse made the mother's contributions more difficult), paid by the mother as $123,200, and a superannuation split of $34,513 (30% of the $115,044 the mother accumulated during the relationship).

Unique Aspects

• The court emphasized the father's issues with mental health and the negative impact of his behavior on the mother and child.
• Consideration of safety and psychological wellbeing of X led to orders restricting the father's contact with X according to her wishes.
• The ongoing nature of mental health and family violence concerns influenced parenting orders significantly, aligning with the child’s expressed wishes against seeing the father.

Main Takeaways

• The court emphasized the mother's total financial contributions and ongoing sole parenting role.
• Protection of the child from perceived psychological harm was prioritized over attempted reconciliation.
• The father received a reduced share of the property because his family violence and child abuse made the mother's contributions more arduous (a Kennon adjustment).

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. 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.