Isherwood & Callins [2023] FedCFamC2F 1628

Isherwood & Callins [2023] FedCFamC2F 1628

Relationship Details

• Type: De facto relationship
• Duration: Two periods of cohabitation: 2004 to 2007 overseas, then 2009 to 2017 in Australia.
• Ages at Judgment: Applicant (male partner) 43 years old, Respondent (female partner) 49 years old

Children

• Children from Relationship: Two children, aged 12 and 8 years.
• Post-Separation Arrangement: Children live with the respondent under consent orders made in 2023.

Initial Financial Positions

• Applicant:

  • Purchased an overseas investment property in 2006, which he did not disclose in his affidavit and which was sold in 2017. No clear starting financial details as of 2009 when they resumed cohabitation.

• Respondent:

  • In 2009, had her accounts with about $15,000 in savings.

Contributions During the Relationship

• Financial Contributions:

  • The respondent received a property settlement from her first marriage of $165,000 in 2010; how it was applied was disputed.
  • Purchase of two properties: B Street and D Street properties, with unclear contributions from both parties but significant contributions from the respondent.
  • The respondent earns more than the applicant, whose assessable income for the 2023 financial year was $76,649.
  • Redundancy payment received by the applicant amounting to approximately $45,000 was applied towards household expenses.

• Non-Financial Contributions:

  • Equal contributions as parents and homemakers during the second period of cohabitation were conceded by the respondent and accepted by the court. Contributions in the first period were found equal.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The respondent has met all ongoing costs related to the D Street property post-separation.

• Parental Contributions:

  • The respondent has undertaken the majority of childcare responsibilities post-separation as the children reside predominantly with her.

Current Financial Position & Property Pool

• Applicant:

  • Current property and assets valued at approximately $270,093, excluding undisclosed K Company shares.

• Respondent:

  • Current property and assets valued at $651,681.

• Total Property Pool: $921,774 plus the value of undisclosed K Company shares owned by the applicant.

• Significant Assets:

  • Two properties: B Street and D Street, with the applicant and respondent holding legal interests in both.
  • Superannuation valued at $437,955 combined for both parties.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed as 40% for the applicant and 60% for the respondent, reflecting superior financial contributions by the respondent, including the $165,000 property settlement sum.

• Future Needs Adjustment:

  • Further adjusted by 7% in favour of the respondent, considering her ongoing care and financial support of the children (including school fees and the applicant's inconsistent child support) and the applicant's non-disclosure of his shares, balanced against her higher income and her unclear dealings with one of the properties.

• Final Division:

  • Resulting division of property is 33% to the applicant and 67% to the respondent. In monetary terms, the applicant receives property worth $304,185 and the respondent $617,589, through a cash payment of $142,303 from the respondent and a superannuation split of $27,565 to the applicant. If she cannot pay, the D Street property is to be sold.

Unique Aspects or Factors Affecting Decision

• Non-Disclosure by Applicant:

  • Failure to disclose K Company shares significantly impacted the court's assessment of contributions and trustworthiness.

• Property Arrangements:

  • The court found the respondent's financial dealings with the B Street property were not transparent.
  • Because the proceedings were brought late, the court first granted leave to apply out of time.

• Parental Care and Financial Support:

  • The respondent continued to meet the financial needs for the children's education and welfare predominantly without consistent or significant support from the applicant.

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.