Mestre & Goodman [2023] FedCFamC2F 1217

Mestre & Goodman [2023] FedCFamC2F 1217

Background Details

• Court: Federal Circuit and Family Court of Australia (Division 2), Sydney, Judge Murdoch, 27 September 2023
• Applicant: The applicant (male partner)
• Respondent: The respondent (female partner)
• Relationship Type: De facto
• Duration: Approximately 20 months. The parties began living together in mid-2019 and separated in February 2021.
• Ages at Judgment: The applicant and the respondent were each 45 years old.

Children

• Children from Relationship: One child, born in 2021 and aged 2. She was only four weeks old when the parties separated.
• Children from Previous Relationships: The applicant has a son from a previous relationship, who spent five nights a fortnight with him.

Initial Financial Positions

• Applicant:

  • Owned the Suburb J property, bought in 2002 for $235,000, with a mortgage of approximately $200,000.
  • Employed full-time managing a company and earning approximately $285,000 per annum.
  • Held shares in two companies and owned a motor vehicle.

• Respondent:

  • Employed full-time earning approximately $148,200 per annum.
  • Owned a motor vehicle.
  • Savings of approximately $28,000 and superannuation entitlements of approximately $174,000.
  • Credit card liability of $2,200.

Contributions During the Relationship

• Financial Contributions:

  • The applicant received two work-related bonuses ($33,000 and $75,000) and $74,971.02 from a property adjustment with his former wife.
  • The applicant paid the outgoings on the Suburb J property and the joint health insurance while the parties lived there.
  • The Suburb C property was bought in both names in early 2020 for $1,520,000. The applicant paid $241,958 towards the acquisition costs, drawn from his equity in the Suburb J property, and the respondent paid $167,707.67 from her own savings.
  • The respondent bought groceries and household items and contributed lump sums to the Suburb J property ($2,500 for floors, $2,500 for painting, and $12,000 in 2020).

• Non-financial Contributions:

  • The respondent did most of the household tasks and helped care for the applicant's son.

Post-Separation Contributions and Actions

• Childcare: The respondent has been primarily responsible for the child since separation, which allowed the applicant to keep working full time.
• Financial Contributions: The applicant paid the expenses of the Suburb C property but had the sole use of it. He did not pay child support for most of the period from June 2022 to April 2023, leaving the respondent solely responsible for the child's needs for a significant time, although he paid the arrears before the hearing.
• Sale of the Suburb J property: The applicant sold it and said he paid the proceeds to his mother to repay a loan. The court was not satisfied that any loan existed, and took the disbursal of the funds into account under s 90SF(3).
• Dissipation of Assets: The applicant's claims to add back money withdrawn by the respondent after separation were rejected.

Current Financial Position & Property Pool

• Applicant:

  • Income: $4,921 per week ($255,892 per annum).
  • Has had, and will probably continue to have, financial help from his mother.
  • Retains E Pty Ltd, the company he controlled during the relationship.

• Respondent:

  • She gave no clear evidence about her employment; the court proceeded on the basis that she had probably returned to paid work, likely part time, and would earn less than the applicant.
  • Remains responsible for the primary care of the child.

• Property Pool:

  • Total non-superannuation property value: $504,379.
  • Total superannuation property value: $623,146.
  • Total property pool value: $1,127,525.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed on a single pool at 60% to the applicant and 40% to the respondent. The court rejected the applicant's proposed "three pool" approach.

• Future Needs Adjustment:

  • A 15% adjustment in favour of the respondent, weighing her continuing care of a young child, her lower income, the applicant's mother's financial support and the money each party had at their disposal after separation.
  • Final division results in 45% to the applicant ($507,386) and 55% to the respondent ($620,139).

Unique Aspects

• The parties spent at least $571,000 between them on legal fees, more than the value of the non-superannuation property and at least half the total pool.
• The applicant's mother's financial help to him was treated as a relevant factor, although no loan from her was proved.

Orders Made

• The applicant to pay the respondent $332,060 within 42 days.
• The respondent's interest in the Suburb C property to be transferred to the applicant, who is to refinance the mortgage.
• The respondent to transfer her shares in E Pty Ltd to the applicant and resign as a director.
• Each party to retain the other property held in their name, subject to the orders.

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 between de facto partners 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.