Massey & Duval [2023] FedCFamC2F 115

Massey & Duval [2023] FedCFamC2F 115

Relationship Details

• Type: Marriage
• Duration: Cohabitation commenced in 2006, married in 2008, separated in 2010, resumed in 2012, separated finally in about September 2018, and divorced on 13 January 2020. The court counted about ten years of actually living together.
• Ages at Judgment: Husband 52, Wife 48

Children

• Children from Relationship: None
• Children from Previous Relationships: Husband has two adult children from a previous relationship.

Initial Financial Positions

• Husband:

  • Owned a property in Suburb L under renovation with a mortgage (sold in 2006 for a balance of <$20,000)
  • Superannuation: $7,603
  • Motor Vehicle 3, TV & sound system, motorbike & race gear, some furniture, tools

• Wife:

  • Owned motor vehicles, horse floats, fifteen horses, saddlery, riding equipment, fully furnished house, and Company K shares.

Contributions During the Relationship

• Financial Contributions:

  • Both parties made financial contributions to their living expenses. The Wife paid a $19,900 deposit from her savings towards buying the C Street, Suburb D property; the Husband funded his share with a loan from his mother, repaid during the relationship. The Husband brought debt into the relationship when it resumed in 2012.
  • Husband's income generally was higher, although the Wife also earned through various sources, including reselling items and work as an educator.
  • After separation the Wife withdrew $38,800 from the mortgage offset account, which the Husband sought to add back.

• Non-Financial Contributions:

  • The Wife undertook the greater share of homemaking tasks and also cared for the Husband’s children when they were younger.
  • The Husband performed maintenance tasks and renovations on the home.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The Husband claims he continued paying towards the mortgage for several months post-separation.
  • The Wife withdrew funds from joint accounts soon after separation and later missed mortgage and council rate payments, adding to the debt.

• Non-Financial Contributions:

  • The Wife continued residing at C Street, Suburb D property and managed the domestic responsibilities.

• Dissipation of Assets:

  • Conflict over withdrawal of funds by the Wife post-separation and Husband's removal of items from the former matrimonial home.

Current Financial Position & Property Pool

• Husband:

  • Has remarried and lives in his new wife's house, paying $300 a week. On WorkCover at 80% of his usual wage after a workplace incident; his income is still about twice the Wife's.
  • Inheritance: $140,000
  • Superannuation balance at trial: about $245,810

• Wife:

  • Resides at C Street, Suburb D property.
  • Superannuation balance: $99,971, after an unexplained $20,000 withdrawal in 2020
  • Has had cancer surgery and osteoporosis

• Property Pool:

  • Total non-superannuation net assets valued at $452,297.
  • Primary asset: C Street, Suburb D property.

Assessment of Contributions and Future Needs

• Contributions:

  • The Husband earned more and did more of the renovation work; the Wife paid the deposit and did most of the domestic work. Contributions to non-superannuation assets assessed at 51% to the Husband and 49% to the Wife.
  • Superannuation contributions assessed at 62% to the Husband and 38% to the Wife.

• Future Needs Adjustments:

  • Adjusted by 10% in favour of the Wife, chiefly for the disparity in incomes and resources, giving a 59/41 division of non-superannuation assets.
  • Superannuation adjusted by 7.5% in the Wife's favour, after allowing for her unexplained $20,000 withdrawal, giving 54.5/45.5 to the Husband.

• Final Division:

  • Non-superannuation: 59% to Wife, 41% to Husband, amounting to $266,855.23 to the Wife and $185,441.77 to the Husband.
  • Superannuation pool split: 54.5% to Husband, 45.5% to Wife, requiring a transfer of $57,359.35 from Husband's fund to Wife’s fund.

Unique Aspects

• The case involved disputes over financial mismanagement, claimed waste on the Wife's horses and claimed poor workmanship by the Husband. The court rejected the waste claim about the horses, and found the Wife's claims of the Husband's excessive gambling or drinking not established.
• The Wife argued under the Kennon principle that family violence made her contributions more onerous. The court found the relationship volatile but the evidence insufficient to find either party's contributions were made more arduous.
• The court used a two-pool approach because the Husband's superannuation was about $145,000 more than the Wife's and he is years from being able to access it.

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.