Otmar & Mack [2024] FedCFamC2F 37

Otmar & Mack [2024] FedCFamC2F 37

Background Details

• Applicant: the mother
• Respondent: the father
• Type: De Facto relationship
• Duration: Commenced in 1995, cohabited from 2003, separated finally in January 2021.
• Ages: Mother aged 50 and Father aged 52 at judgment.

Children

• There are two children from the relationship:
  • An older child, now 18 and not subject to the proceedings.
  • A younger child, currently 16 years old.
• Both children lived with the father after separation and had not spent time with the mother.

Initial Financial Positions

• The court found that each party brought substantial assets into the relationship.

• Mother:

  • Removed $40,000 from joint accounts immediately after separation.
  • Receives WorkCover payments following a workplace injury.
  • Superannuation balance as of the final hearing: $63,423.

• Father:

  • Inheritance of $211,000 received in 2017 from the sale of his late mother's house.
  • Superannuation balance as of the final hearing: $91,138.
  • Has lived in the family home since separation.

Contributions During the Relationship

• Financial Contributions:

  • Father contributed a $211,000 inheritance, but the court found that a very significant part of it was indirectly spent on cannabis and alcohol, so it was given limited weight.
  • Both parties engaged in paid employment throughout the relationship the Mother alleges that the Father, at times, refrained from work contributing to higher personal expenditures.

• Non-financial Contributions:

  • Both parties contributed to homemaking and childcare.
  • The mother's mental health difficulties affected her contribution at times but were not constant throughout the relationship.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The Father paid mortgage payments and retained the family home.
  • The Mother removed significant funds from joint accounts.

• Non-financial Contributions:

  • Father's involvement as the primary caregiver for the children post-separation.
  • The Mother claimed to contribute informally with possible involvement perceived as limited by her separation from the family.

Current Financial Position & Property Pool

• Income:

  • Mother: $320 per week from WorkCover payments.
  • Father: $1,189 per week from retail employment.

• Property Pool:

  • Total estimated non-superannuation asset pool: $650,000.
  • Includes family home, motor vehicles, and the interests in the parties' companies and trust, which were to be wound up. Superannuation was dealt with separately.

Assessment of Contributions and Future Needs

• Contributions:

  • Mother was assessed to have made substantial contributions in the roles of homemaker, parent, and income earner despite periods of mental health challenges.
  • Due to cannabis and alcohol consumption, Father's contributions were affected, but his larger financial inheritance gave him a slight advantage in the division, assessed at 54% to the Father and 46% to the Mother.

• Future Needs Adjustments:

  • A further adjustment of 4% in the father's favour, mainly because he will solely support the younger child (including housing) for about two more years, weighed against the mother's fragile mental health and the father's superior financial position at the time.
  • Final division of non-superannuation assets: 58% to the father and 42% to the mother, a difference of about $104,000.

Unique Aspects

• Family violence was central. On the night of separation the police removed the mother from the home, and about two months later she was charged with assaulting the father; the charges were later withdrawn, and the court found that the mother had been repeatedly a victim of family violence by the father and had not assaulted him.
• Father's substantial alcohol and drug use impacted his contribution assessment, as it was found to be of significant concern and may have affected his parenting seriously.
• The then presumption of equal shared parental responsibility was rebutted because of the father's family violence. The father was given sole parental responsibility, restrained from consuming any alcohol or illicit drug while the child is in his care, and the child is to spend time with the mother as the child wishes.

Summary

The final orders provided for the younger child to live with the father, and divided the non-superannuation assets in the father's favour. Property sale and company wind-ups were ordered with equitable distribution adjusted to the respective parties' needs and contributions.

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.

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.