Nitaya & Paramat [2023] FedCFamC2F 37

Nitaya & Paramat [2023] FedCFamC2F 37 (23 January 2023)

Background Details

• Relationship Type: Marriage
• Duration: Married in 2006, separated in September 2012, divorced in July 2016. Cohabitation under the same roof continued until December 2014. Total years since marriage approximately 10 years.
• Ages at Judgment: Husband 60, Wife 59

Children

• Children from Relationship: None.
• Children from Previous Relationships:
  • The wife has two sons from a prior relationship:
    • The elder son, aged 29, who was joined as the second respondent.
    • A younger son, aged 26.

Initial Financial Positions

• Husband:

  • At the start of the relationship, he had savings between $3,000 to $4,000, and a motor vehicle of unstated value.
  • Worked as a factory worker.

• Wife:

  • No significant property or assets were presented by the wife.
  • No estate of her own.

Contributions During the Relationship

• Financial Contributions:

  • In 2006 the parties bought a property at D Street, Suburb E, NSW in equal shares with a home loan.
  • Husband primarily paid the home loan with the wife handling groceries and household expenses.
  • In 2014 the parties made a financial agreement. Under it, in October 2014 the husband transferred his half of the property to the wife's elder son, with a promise that he could keep living there. The agreement was declared not binding in June 2021 by another judge (s 90G), because the husband had not received the required legal advice.

• Non-financial Contributions:

  • No specific non-financial contributions by either party addressed in detail.
  • Both lived with and supported the wife's children from a prior relationship.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Husband stopped paying the home loan in mid-2014; the court found the wife's elder son more probably paid it after that.
  • In June 2017 the elder son changed the locks and excluded the husband from the property.

• Non-financial Contributions:

  • Neither spouse made continued non-financial contributions after separation.

• Dissipation of Assets:

  • The wife used up her superannuation, saying it went on living expenses during COVID-19, but gave no real evidence; the evidence she did give was mostly of gambling.

Current Financial Position & Property Pool

• Husband:

  • Superannuation balance of $66,859.
  • Cash savings of $24,683.
  • Works full time as a factory worker, earning about $810 a week gross (taxable income $44,762 in 2021-22).

• Wife:

  • No current superannuation after fund closure.
  • Unemployed.
  • The court found her two sons are a significant financial resource for her.

• Property Pool: The husband's claims for equitable and common law relief to recover a half interest failed. The elder son's half of the property and its share of the loan were excluded from the pool. The pool was $279,042.

Assessment of Contributions and Future Needs

• Contributions:

  • Contributions to the property were equal as at August 2014, and the court found contributions to the wife's interest equal between husband and wife.
  • No adjustment was made for the husband's post-separation savings and superannuation, given the wife's late and unreliable disclosure.

• Future Needs Adjustments:

  • No adjustment for future needs. The husband sought none, and the court rejected the wife's argument that she needed to keep a roof over her head.

• Final Division:

  • Wife to pay $93,750 to the husband. Each retains their separate assets and liabilities.

Unique Aspects

• The husband lost the benefit of the promise that he could keep living in the property when the wife's elder son changed the locks in 2017.
• The wife's financial statement and affidavits were 'translated' to her by her son, who had a financial interest in the case; the court gave her evidence little weight.
• The financial agreement was not binding, so the court decided the case under s 79, but the husband's earlier transfer to the son stood.

The wife keeps her interest in the property but must pay the husband $93,750 by 23 April 2023.

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.