Marella & Marella (No 2) [2023] FedCFamC2F 821

Marella & Marella (No 2) [2023] FedCFamC2F 821 Case Report

Relationship Details

• Type: Marriage
• Duration: The parties started dating in 2008, married and began living together in 2012, and separated on 1 November 2018 (about six years of cohabitation).
• Ages at Judgment: Husband about 33 (born 1989), Wife about 31 (born 1991).

Children

• Children from Relationship: One child, X, born in 2015 (aged 7 at the time of judgment). The wife also has a second child from a later relationship.

Initial Financial Positions

Initial contributions were modest. The husband perhaps provided some extra financial contribution (he had bought a property in 2010 with about $19,000 equity, sold in 2016); the wife gave no evidence of hers.

Contributions During the Relationship

• Financial Contributions:

  • In 2015 the parties bought a home, valued at $545,000 at the time of the case, with a mortgage of about $311,000.
  • They were supported by a $30,000 loan from the Husband's parents, documented in a loan agreement and accepted as a joint liability.
  • After the child's birth the Wife stayed at home and the Husband was in paid employment, which ended in 2018.
  • Some concern over the level of specificity in evidence regarding financial positions provided by the Wife.

• Non-financial Contributions:

  • The Wife was primarily a homemaker and caregiver for their child, X.
  • The husband stopped work shortly before separation and is on a disability pension.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The Wife lived in the former marital home and made very modest mortgage payments, totalling some $10,600.62; the husband paid rent elsewhere and paid the house insurance.
  • The husband received $36,280 of his superannuation early on compassionate grounds in 2019 and used it for living expenses.

• Non-financial Contributions:

  • The Wife has had sole care of X, but the court found she had been antipathetic to the Father spending time with the child despite the parenting orders, and had rebuffed his offers of financial help for the child.

Current Financial Position & Property Pool

• Major Assets:

  • Former marital residence valued at $545,000, primary asset in the property pool.
  • Liabilities of about $353,000: the mortgage (about $311,000), the $30,000 loan from the Husband's parents, and amounts owed to Legal Aid by each party.

• Current Income:

  • Both parties rely on government benefits; the husband receives a disability pension.

Assessment of Contributions and Future Needs

• Contributions: Assessed as equal, during the relationship and overall.
• Future Needs Adjustments: None. Both parties are young, neither is likely to be in paid work soon, and both receive government benefits. The court drew adverse inferences from the Wife's failure to call evidence about her support from her new partner and her father.
• Final Division: The Court ordered the sale of the marital residence, with proceeds to be divided equally after repayment of expenses and debts. After repayment of the mortgage and the loan from the Husband's parents, the net proceeds were to be split with each party receiving 50%. These were the orders sought by the Husband.

Unique Aspects

• Legal Representation Issues: The Wife's legal preparation was severely lacking, leading to significant concerns.
• Health and Employment Considerations: Both parties are young, but neither has a clear path to employment due to health challenges.
• Third Parties Influence: The Wife's father's offer of financial help to keep the home was not substantiated. No evidence was given by her father or by the father of her second child, and the court drew adverse inferences from their absence.

Conclusion

The decision centred on the equitable division of assets primarily consisting of the marital home and resolution of outstanding debts. The case was complicated by insufficient disclosure and preparation by the Wife's side, ultimately leading to an equal division of remaining assets following a forced sale of the home.

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.