Harry & Harry (No 4) [2023] FedCFamC2F 1288

Harry & Harry (No 4) [2023] FedCFamC2F 1288

Background Details

• Type: Marriage
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge Glass, 13 October 2023
• Duration: Approximately 4.5 years. Cohabited from about mid-2016, married in 2019, and separated in February 2021.
• Ages at Judgment: Husband 36, Wife 38

Children

• Children from Relationship: One child, born in 2019 (aged 4).
• Special Needs or Circumstances: Under parenting orders made in December 2022, the child has lived solely with the husband since March 2023. At the time of the property hearing the child was not spending time with the wife, because she had not engaged with the supervision agency.

Initial Financial Positions

• Husband:

  • Equity of $100,000 in a property he owned at the start of cohabitation.
  • Savings of $17,550.
  • Superannuation interests worth $25,735.
  • In total, assets worth $143,285.
  • Before the relationship (in 2016) he had also inherited a quarter remainder interest in farming properties, subject to his mother's life interest. That interest was valued at $602,734 at trial and was treated as a contribution made on his behalf.

• Wife:

  • A car bought on finance in 2015, with little equity.
  • A Higher Education Contribution Scheme (HECS) debt of approximately $30,000.

Contributions During the Relationship

• Financial Contributions:

  • The husband's initial contribution exceeded the wife's by $173,285.
  • Both parties earned approximately $60,000 per annum at the start and applied their income to joint purposes. The wife's income went mainly to living expenses and the husband's to debts and savings.
  • The wife's HECS debt was largely repaid from the husband's earnings.
  • In 2018 the husband bought a half interest in a business and its premises with business finance. In 2020 the parties bought two further properties, financed by refinancing the husband's property.

• Non-financial Contributions:

  • Husband: Continued to work full time.
  • Wife: Did not return to work after the child's birth in 2019 and was primarily responsible for the child's care and household duties.

Post-Separation Contributions and Actions

• Financial Contributions:

  • After separation the husband paid child support of $433 per week. From January 2022 the wife kept the rental income from one of the investment properties, which the court treated as in place of child support while the child was in her care.
  • The husband met all the outgoings on the two investment properties. He paid the mortgage on the home the wife occupied until September 2021, and the wife paid it after that.
  • Since the child came into the husband's care in March 2023, the wife has kept the rental income without paying the outgoings on that property or any child support.
  • The wife did not comply with consent orders made in March 2023 for the sale of one property, which caused the husband to keep paying its mortgage while it stood vacant.

• Non-financial Contributions:

  • Wife continued as primary carer until March 2023.
  • Husband has been the child's sole carer since March 2023.

• Family violence:

  • The wife alleged family violence, but her evidence was conclusory and the court was not satisfied that her contributions were made more difficult as a result.

Current Financial Position & Property Pool

• Property Pool: $2,084,141, being $1,929,502 in non-superannuation property and $154,639 in superannuation.

  • It included three real properties, the husband's family trust (holding his half interest in the business, valued at $282,557), his half interest in the business premises ($140,800) and his remainder interest in the farming properties ($602,734).

• Husband:

  • Works part time, earning about $66,000 per annum, a reduction of about 40% since the child came into his full-time care.

• Wife:

  • Said she was unemployed, with income from rent and Centrelink. At the hearing she disclosed for the first time that she had been working from mid-2023, earning up to about $1,000 per week, and had applied for jobs paying about $70,000 per annum.

Assessment of Contributions and Future Needs

• Contributions:

  • Husband's contributions assessed at 70%, Wife's at 30%.
  • The assessment reflected the husband's much greater initial contributions and inheritance, the short relationship, and his post-separation payment of outgoings and care of the child.

• Future Needs Adjustments:

  • A further 5% adjustment in favour of the husband, because he has the sole care of a four-year-old child and a reduced earning capacity, while the wife has a present earning capacity.
  • Final division: Husband 75%, Wife 25% of the total property.

• Orders:

  • The wife had 60 days to pay the husband $139,898 and discharge the mortgage on the home she occupied, failing which it would be sold.
  • The other two properties were to be sold, with $100,000 held towards capital gains tax and the balance divided equally.
  • The husband kept his business interests, trust, superannuation and farming interest.
  • The wife was also ordered to repay the husband $23,777.80 in disbursements and costs.

Unique Aspects

• The wife did not disclose her employment income until the hearing, which counted against her maintenance claim.
• The wife's non-compliance with earlier orders for the sale of a property caused the husband financial loss and was taken into account.
• The court was not persuaded by the wife's claims that the husband earned far more than he disclosed. His failure to produce some business bank statements was not found to be deliberate and did not lead to an adjustment.

Spousal Maintenance

• The wife sought spousal maintenance of $26,000 per annum for six years. She did not establish that she could not support herself, given her undisclosed recent employment and her earning capacity.
• Even if she had, the husband did not have the capacity to pay, as his expenses exceeded his income. The application failed.

Conclusion

• The court ordered a 75/25 division in the husband's favour, reflecting his much larger initial contributions in a short relationship, his post-separation contributions, and his sole care of the child.

Related decisions

• The same court and judge decided the parties' parenting case in Harry & Harry (No 2) [2022] FedCFamC2F 1746 (21 December 2022), which placed the child with the husband, and an enforcement and costs application in Harry & Harry (No 3) [2023] FedCFamC2F 553 (11 April 2023).

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.