Guan & Shen [2024] FedCFamC2F 117

Guan & Shen [2024] FedCFamC2F 117

Background Details

• A de facto relationship existed between the applicant mother and the respondent father.
• Duration: The relationship commenced in 2005 and ended in April 2021, lasting approximately 16 years.
• Ages at Judgment: Applicant (Mother) - 41 years old; Respondent (Father) - 50 years old.

Children

• Two children from the relationship, aged 12 and 11.

Initial Financial Positions

• Applicant (Mother):

  • The relationship began when she was in her final year of university, working part-time.
  • Savings: $7,500 to $10,000 at the start of the relationship.
  • Owned no property at the beginning.

• Respondent (Father):

  • No formal degree or proper stable job in Australia at the relationship's commencement.
  • Savings: $7,500 to $10,000 at the start of the relationship.
  • Owned no property at the beginning.

Contributions During the Relationship

• Financial Contributions:

  • The applicant paid deposit amounts for properties, contributed $50,000 for the Suburb E property and $53,500 for the Suburb G property.
  • The respondent's contribution was mainly $15,000 towards the deposit of the Suburb E property, with nominal contributions thereafter.
  • The applicant worked almost full time throughout, apart from maternity leave, with an annual salary now around $110,000.

• Non-financial Contributions:

  • The applicant was the primary carer for the children and managed most homemaking tasks, with help from the maternal grandmother, who also lent her about $40,000 towards the Suburb G property.
  • The respondent's non-financial contributions were minimal, with a focus on personal interests over family obligations.

Post-Separation Contributions and Actions

• The applicant continued as the primary caregiver for the children post-separation and maintained the properties.
• The respondent made little contribution after separation; child support was about $38 a month, and it was said those payments had ceased.

Current Financial Position & Property Pool

• Applicant:

  • Continued to reside with the children in the Suburb G property.
  • Income of approximately $3,000 fortnightly, struggling with mortgage payments and child expenses.
  • Superannuation worth approximately $160,000.

• Respondent:

  • Living in the Suburb C property with no disclosed additional assets in Australia.
  • Holds two overseas properties valued at approximately $700,000, and made limited financial disclosure.

• Total Property Pool:

  • Suburb E Property (in the applicant's name) valued at about $940,000.
  • Suburb G Property (in the applicant's name) valued at approximately $1.8 million.
  • Suburb C Property (in the respondent's name) valued at approximately $545,000.
  • The respondent's two overseas properties, about $700,000.
  • Several of the properties were mortgaged; the court put the net real property at about $2.7 million.

Assessment of Contributions and Future Needs

• Contributions:

  • Financial and non-financial contributions: Majority by the applicant due to her consistent financial support and role as the sole caregiver for the children.
  • Her contributions were evaluated substantially higher than those of the respondent.

• Future Needs Adjustments:

  • The court took into account that the applicant has sole parental responsibility and is likely to carry the full financial burden of the children, that the respondent failed to disclose his finances or take part in the proceedings, and that he pays little child support.

• Final Division:

  • The applicant kept the Suburb E and Suburb G properties. The Suburb C property was ordered to be sold and the net proceeds divided 80% to the applicant and 20% to the respondent. The respondent kept his overseas properties. The court calculated that this left the applicant with about $1.9 million of the roughly $2.7 million in net real property and the respondent with about $850,000.
  • The respondent was ordered to pay the applicant's costs.

Unique Aspects

• The undated 2017 financial agreement was declared not binding because the applicant had not received the required independent legal advice (s 90UJ(1)(b)), and was also set aside for hardship and because the respondent's threats made his conduct unconscionable (s 90UM(1)(g) and (h)).
• The hearing proceeded undefended; the court also made parenting orders giving the applicant sole parental responsibility.
• The substantiated absence of the respondent's involvement post-separation increased the equitable considerations for the applicant's share of assets and responsibilities.

Main Takeaways

• The court decided in favour of the applicant, attributing a larger share of property assets to her, acknowledging her primary caregiving role and greater financial contributions.
• The court emphasised revisiting and addressing binding financial agreements' validity, underscoring the significance of proper legal procedures and advice.
• The judgment took into account the ongoing needs and stability of children post-separation, treating the applicant's future care of the children as a key factor.

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.