McManus & Bracken (No 2) [2023] FedCFamC2F 640

McManus & Bracken (No 2) [2023] FedCFamC2F 640

Relationship Details

• Type: Marriage
• Duration: The couple commenced cohabitation in 2006, married in 2012, and separated in March 2020, constituting approximately 8 years of marriage.
• Ages at the end of the final hearing: Husband 51, Wife 43.

Children

• Two children from the relationship: X, born in 2013 (aged 9), and Y, born in 2014 (aged 8).
• Final parenting orders: the children live with both parents on a five nights out of nine shared care arrangement (not equal time), plus half the school holidays.

Initial Financial Positions

• Husband:
  • Asserted a total of $200,000 in savings from the sale of a property in Country F at cohabitation, contributing $105,000 to the matrimonial home.
• Wife:
  • Contributed $105,000 towards the purchase of the matrimonial home.
  • There was a dispute concerning additional funds beyond the $105,000, with the wife asserting a total of approximately $130,000 in savings.

Contributions During the Relationship

• Financial Contributions:

  • The Husband was the primary income earner, with his income ranging between $100,000 and $110,000 annually.
  • The Wife worked part-time and earned approximately $54,000 gross annually.

• Non-financial Contributions:

  • The Wife was the primary homemaker and primary caregiver for the children. During COVID-19 lockdowns, she handled the majority of home-schooling.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The Wife continued paying the mortgage on their Former Matrimonial Home (FMH) post-separation until the FMH was sold in December 2022.

• Dissipation of Assets:

  • Following separation, the Husband withdrew $118,900, moving funds between accounts apparent through a $110,000 cheque withdrawal, temporarily undisclosed until subsequent proceedings were initiated.

Current Financial Position & Property Pool

• Net property pool: Approximately $935,000, plus $354,000 in superannuation. Leaving aside the wife's interest in a deceased estate (about $125,000), the "jointly contributed" pool was about $804,000.
• Proceeds from the sale of the FMH were held in trust at $622,990, with liabilities including outstanding mortgage at separation.

Assessment of Contributions and Future Needs

• Contributions:

  • Equal 50/50 contribution over the jointly contributed assets was determined as fair based on financial contributions and the parenting role played by both parties.

• Future Needs Adjustments:

  • The Wife sought a 20% adjustment, which the court called unrealistic. Because the Wife will have the greater share of the children's care, which is likely to affect her income more than the Husband's, a s 75(2) adjustment of 5% (about $40,500) was made in her favour, giving 55% to the Wife and 45% to the Husband of the jointly contributed pool. The income disparity after child support and benefits was not significant.

• Final Division:

  • The division assigned 55% of the jointly contributed asset pool of $804,418 to the Wife ($442,429.90) and 45% to the Husband ($361,988.10), largely paid from the sale proceeds held in trust. The Wife also keeps her interest in the deceased estate, and each party retains about $177,000 of superannuation.

Unique Aspects

• The controversial handling of the $110,000 cheque by the Husband led to a significant dispute regarding disclosure and trial credibility.
• The Wife's post-separation inheritance of about $125,000 was treated as contributed entirely by her and was left with her, outside the jointly contributed pool.
• Both parties presented incomplete disclosure initially, complicating asset assessment, and significant interpersonal conflict throughout proceedings impacted both the financial and parenting outcomes.

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. The presumption of equal shared parental responsibility (former s 61DA) and the duty to consider equal or substantial and significant time (former s 65DAA) were repealed on 6 May 2024. In Western Australia the matching changes for children of unmarried parents took effect on 10 February 2025.