Jaswal & Jaswal (No 2) [2023] FedCFamC2F 349

Jaswal & Jaswal (No 2) [2023] FedCFamC2F 349

Relationship Details

• Type: Marriage
• Duration: Married in 2007, commenced cohabitation in 2008, and separated in November 2016. Total duration approximately 8 years of cohabitation, 9 years of marriage.
• Ages at Judgment: Husband 45, Wife 43

Children

• Children from Relationship: One child, X, aged 7.
• Special Needs: X has a disability and needs frequent medical and therapy appointments.

Initial Financial Positions

• Wife:

  • Jewellery valued suggestively between $3,000 and $11,000.
  • No liabilities detailed.

• Husband:

  • Credit card debt of $12,000 at the start of cohabitation.
  • Supported wife's migration and living expenses initially.

Contributions During the Relationship

• Financial Contributions:

  • Joint purchase of properties; B Street, Suburb C ($540,000) and D Street, Suburb E ($352,500).
  • Joint savings and income deposits into shared accounts for mortgage and living expenses.
  • An insurance payout of about $153,000 for storm damage to the B Street property, received after separation and intended for repairs.

• Non-financial Contributions:

  • Both parties contributed to homemaker and parenting roles; wife's claims of primary care involvement in child X.
  • Disputed claims of family violence impacting contributions were assessed but not substantiated sufficiently for legal adjustment.

Post-Separation Contributions and Actions

• Financial Actions:

  • The wife withdrew the insurance money intended for repairs of B Street, Suburb C, about $153,000, and spent about $100,000 of it, including on the child's school fees and household items. She conceded this reduced the property available for division, and the repairs were not done.

• Primary Care Arrangements:

  • Wife continued to provide primary care for X.

Current Financial Position & Property Pool

• Wife:

  • Annual income approximately $88,500.
  • Total property before any adjustments: $217,386.

• Husband:

  • Annual income approximately $74,000.
  • Total property before adjustment: $591,916.

• Total Property Pool:

  • Combined superannuation and non-superannuation assets valued at $809,302.
  • Superannuation assets valued at $201,354.

Assessment of Contributions and Future Needs

• Equal Contributions: Contributions assessed as equal: both parties started with modest assets, and both worked and made homemaker and parenting contributions.
• Future Needs Adjustment: Wife granted a further 5% adjustment due to primary care responsibilities for X.
  • Final division: Wife 55% ($445,116), Husband 45% of the total property pool. The wife keeps the B Street property and pays the husband $179,572; the husband keeps the D Street property.

Unique Aspects

• Failure by both parties to provide full financial disclosure impacted asset valuation and necessitated adjustments based on available evidence.
• The daughter's special needs factored into the wife's future needs adjustment.
• The decision involved complex considerations of insurance and joint account transactions post-separation and their impact on asset availability for division.

Main Takeaways

• The division reflects equal contributions with a future needs adjustment to the wife due to her significant role as primary caregiver.
• Recent issues of asset dissipation and financial disclosure significantly influenced final judicial orders and distribution percentages.
• Orders account for compliance mechanisms, including appointing trustees for sale in the event of default by either party.

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.