Lindsay & Lindsay [2023] FedCFamC2F 122

Lindsay & Lindsay [2023] FedCFamC2F 122

Relationship Details

• Type: Marriage
• Duration: Married in 1990 and separated in May 2017. Total of 27 years.
• Ages: Husband born in 1968, Wife born in 1970. They met in 1988.

Children

• Children from Relationship: Five children, born in 1991, 1993, 2002, 2004 and 2007
• Special Needs:
  • The eldest daughter has autism and is on a disability support pension.
  • The youngest has a severe speech impediment and has needed extensive speech therapy.
  • The two daughters will need their parents' support throughout their lives.

Initial Financial Positions

• Husband:

  • No specific assets detailed at the start.

• Wife:

  • No specific assets detailed at the start. (The money from her father came after separation.)

Contributions During the Relationship

• Financial Contributions:

  • The parties bought F Street, Suburb C in July 2016 for $136,000, as tenants in common (the wife holding 9/10). The $24,000 deposit came from the husband's redundancy package; the wife (with the eldest daughter) then paid the mortgage.

• Non-financial Contributions:

  • The wife acted as primary homemaker and caregiver, especially for children with special needs.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The wife relied on money from her father, and after his death used her inheritance (about $287,000) to pay off the F Street mortgage and for living expenses.

• Non-financial Contributions:

  • Continued primary caregiver for children, including those with disabilities.
  • The wife did not receive spousal maintenance from the husband.

Current Financial Position & Property Pool

• Current Income and Assets:

  • Husband: Cash of $3,464; a boat, trailer, and caravan valued at $17,464 collectively; and superannuation of $385,941.
  • Wife: Jewellery and vehicle valued at $4,000; superannuation total of $112,773.
  • Value of properties: G Street - $270,000 ($180,000 net equity), B Street - negative equity of $40,000, F Street - $260,000 (unencumbered after the wife paid it off, originally bought for $136,000).

• Total Property Pool: $920,178.

Assessment of Contributions and Future Needs

• Contributions Assessment:

  • The parties agreed their contributions during the marriage were equal. The wife was given an 8% adjustment for her post-separation contributions (paying off F Street and carrying the main burden of parenting), so 58% to the wife and 42% to the husband.

• Future Needs Adjustments:

  • An additional 7% adjustment in the wife’s favour reflecting ongoing care responsibilities for children with special needs and lower earning capacity.
  • Final division: 65% ($598,115) to the wife, 35% ($322,063) to the husband. The wife keeps all three properties and a superannuation split of $81,343 from the husband to the wife makes up the balance.

Unique Aspects

• Dispute about whether F Street was bought as an investment or on trust for the eldest daughter. The court found there was no trust and included it in the pool.
• Primary caregiving responsibilities heavily factored into the division, considering the special needs of their children.
• The eldest daughter wrote a letter, at her mother's request, saying the property was bought mainly for her, but also for the other children. The court found this did not show a trust.
• The wife's use of her inheritance to clear the F Street debt after separation was counted as a significant post-separation contribution. The court did not add the other post-separation receipts (her inheritance, his termination payment) to the pool.

Main Takeaways

• Significant contributions and care responsibilities of the wife led to a favourable division ratio.
• The decision factored in the long-term needs and arrangements for children with disabilities.
• Acknowledgment of non-financial contributions heavily influenced the property settlement.

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.