Hemming & Hemming [2022] FedCFamC2F 1824

Hemming & Hemming [2022] FedCFamC2F 1824 Case Report

Background Details

• Type: Marriage
• Duration: Married and commenced cohabitation in 2002, separated in August 2015. The relationship lasted for approximately 13 and a half years.
• Ages: Both parties are aged 42 at the time of judgment.

Children

• Children from Relationship: Two children, born in 2006 and 2008.
• Living Arrangements: Since interim orders in March 2020 the children have lived with the mother and spent five nights a fortnight in school terms with the father.
• Parenting outcome: The parents agreed on equal shared parental responsibility. The father sought week-about time; the court found that would not be in the children's best interests and continued the existing arrangement.

Initial Financial Positions

• Wife:

  • Claimed pre-marital savings of approximately $40,000, later found to be more accurately $20,000-$30,000.

• Husband:

  • Owned a portfolio of shares acquired as a minor and received approximately $116,186 in inheritances in early 2002.
  • The mother's gifts and loans supported the purchase of properties without mortgage.

Contributions During the Relationship

• Financial Contributions:

  • Husband inherited substantial sums and received parental financial support, facilitating the purchase of properties.
  • Both parties managed an array of rental properties and investments over time.

• Non-financial Contributions:

  • Wife contributed significantly as a homemaker and primary parent, especially after 2006 when the husband began working long hours.
  • Wife also managed rental property operations, including leasing and maintenance tasks.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Wife used rental income from properties she retained to cover expenses.

• Non-financial Contributions:

  • Wife continued as the primary carer for the children.
  • Two investment properties were sold under an interim order, and each party received $193,047 in December 2019.

• Property and Assets:

  • The wife's one-third share of her late father's estate, $516,666, was included in the pool at its full value although not yet received.

Current Financial Position & Property Pool

• Husband:

  • Retained substantial rental income and had cash/savings on hand.
  • Managed family trust properties and remained in possession of company assets.

• Wife:

  • Held assets including the family home at M Street, Suburb H, and rental property at B Street, Suburb C.
  • Expected inheritance from late father valued at $516,666.

• Total Value: The net asset pool, including the wife's inheritance and $243,671 of superannuation, was valued at $3,178,733.

Assessment of Contributions and Future Needs

• Contributions:

  • Wife's contributions assessed at 49% while the husband's at 51%, acknowledging his financial inputs and wife's homemaking role.

• Future Needs Adjustments:

  • 1% adjustment favouring the wife for the effect her care of the children will have on her work, equating to $31,787.

• Final Division: Both are entitled to 50% of net assets, $1,589,366.50 each. Because the husband held a larger share of the superannuation, the wife pays the husband $87,831 and receives a superannuation split of $62,095.50 from him.

Unique Aspects

• Significant scrutiny of pre-marital financial positions, especially regarding inheritances and savings estimates.
• Emphasis on non-financial contributions given the homemaking and propelling role of wife during the husband's professional advancement.
• Dispute resolution focused on rentals and cash flow management, showcasing self-substitutive financial management strategies post-separation.

Conclusion

Orders for equal division of assets were made, with a cash payment from the wife and a superannuation split to her. The father's application for week-about time with the children was refused.

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.