Keem & Polmear [2023] FedCFamC2F 196

Keem & Polmear [2023] FedCFamC2F 196

Background Details

• Applicant: De facto wife
• Respondent: De facto husband
• Relationship Type: De facto
• Duration: Approximately 42 years, from around 1977 to about October 2019.
• Ages at Judgment: De facto husband, 66 years; de facto wife, 73 years.

Children

• Children from Relationship: One daughter, aged 45 years.
• Special Circumstances: The daughter lives with and cares for the de facto wife.

Initial Financial Positions

• De facto Husband: No significant assets at the relationship's commencement.
• De facto Wife: Received Housing Commission accommodation in about 1979. No significant assets at the relationship's commencement.

Contributions During the Relationship

• Financial Contributions:

  • From about 1979 the couple ran several family businesses together, including a business called Company J. The de facto wife was not paid for her work in the business.
  • The parties bought a property at U Street, Town K for $487,000, put in the de facto husband's name. The deposit came from the parties' funds and the mortgage was repaid from business income. When it was sold in about September 2019, the de facto husband used part of the proceeds to buy a property at R Street, Town Q.

• Non-financial Contributions:

  • The de facto wife was the primary homemaker and caregiver during the relationship, maintaining the home and caring for their daughter.
  • Provided care for the de facto husband, particularly after 1995 due to his worsening health.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The de facto husband received about $1,640,000 from the sale of the U Street property. He failed to disclose that he had transferred $500,000 overseas in ten internet transfers in May and June 2020, and did not account in time for how he had spent the proceeds.

• Non-financial Contributions:

  • The de facto wife continued to have no significant earning capacity due to age and health issues.

• Asset Dissipation:

  • The de facto wife sought to add back $555,441 of unaccounted sale proceeds. The court did not add that sum back. Instead it found $291,236 of the husband's spending were premature distributions of relationship property (including spending in Country V, where he travelled with his new wife), and took them into account in the de facto wife's favour.

• Primary Caregiver Arrangements:

  • The parties' daughter has lived with and cared for the de facto wife since separation.

Current Financial Position & Property Pool

• De facto Wife:

  • Retired, receiving a pension, with no earning capacity.
  • Resides in Housing Commission accommodation.
  • Receiving treatment for cancer; her life expectancy is not known.

• De facto Husband:

  • Receives an age pension of $701 per fortnight.
  • No earning capacity; serious medical conditions, with his medical expenses paid by Medicare.

• Property Pool:

  • Total net assets valued at $1,475,381, including:
    • R Street, Town Q property valued at $1,050,000.
    • Trust monies: $344,001 (held in two solicitors' trust accounts).
    • R Street property chattels of $79,380 and a motor vehicle.

Assessment of Contributions and Future Needs

• Contributions:

  • The Court assessed the contributions to the relationship's assets as about equal (50/50), looking at both financial and non-financial contributions.

• Future Needs Considerations:

  • No earning capacity and significant health issues were noted for both parties.
  • The de facto wife’s need for a new mobility scooter and machine for her medical condition noted.
  • The court made a 5% adjustment in the de facto wife's favour under s 90SF(3)(r) for the de facto husband's premature distributions (half of $291,236 is $145,618) and his late and incomplete disclosure, giving 55% to the de facto wife and 45% to the de facto husband.
  • The court rejected the de facto husband's claim that the daughter had taken a valuable coin from his safe.

• Final Division:

  • De facto wife awarded 55% of the asset pool equalling $811,459: the de facto husband to pay her $465,458 within 42 days, and the $344,001 in trust to be released to her.
  • De facto husband awarded 45%, equalling $663,921, keeping the R Street property.

Unique Aspects

• Non-disclosure and Financial Mismanagement: Significant attention was given to the de facto husband's failure to account for substantial proceeds from the property sale and his undisclosed overseas transfers.
• Health Considerations: Both parties have considerable health issues, influencing their financial capacities and needs.
• Legal Delays and Issues: Complications arose from the de facto husband's delayed financial disclosure and his time in Country V, where he was stranded by the COVID-19 pandemic and admitted to hospital.

Conclusion

The Court concluded the property division by considering significant premature distributions of assets by the de facto husband, assessing contributions as equal with an adjustment for the de facto husband's premature distributions, ensuring a fair and equitable settlement in the circumstances given the lengthy nature of the relationship and both parties' current situations.

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 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.