Pelley & Pelley [2022] FedCFamC2F 933

Pelley & Pelley [2022] FedCFamC2F 933

Relationship Details

• Type: Marriage
• Duration: Approximately 20 years. The couple cohabited from 1999 and married in 2001. They separated for about six months in 2017, reconciled, and finally separated in late December 2019 or early January 2020.
• Ages of Parties at Judgment: Both husband and wife were 47 years old.

Children

• There are two children from the marriage:
  • A son born in 2004.
  • A son born in 2005.
• No children from previous relationships are mentioned.

Initial Financial Positions

• Both parties owned a car and had unspecified amounts of savings when they started living together. Each party also owned their own personal effects.

Contributions During the Relationship

• Financial Contributions:

  • Both worked throughout the marriage. Before his 2016 workplace injury the husband earned about $120,000 a year and the wife about $46,000; from mid-2017 her income exceeded his.
  • The husband's lump sum worker's compensation of $30,000 in 2009 or 2010 bought a car used by the family.
  • Inheritance: the husband received about $10,000 from his grandfather in 2014, used for family purposes.
  • After his injury the husband turned to alcohol and gambling, and the court found he likely gambled away some of the superannuation and disability payments he received in 2018 and 2019.

• Non-financial Contributions:

  • The wife did almost all the child care and domestic work throughout the marriage and supported the husband after his injuries.
  • The court found the husband engaged in a course of conduct amounting to family violence, which made the wife's contributions as homemaker and parent more arduous.
  • She worked in various paid employments throughout the marriage.

Post-Separation Contributions and Actions

• Financial Actions:

  • The husband remained in the former home with their younger son and made mortgage and rates payments. In May 2021 he received $430,000 of damages for his workplace injury and spent part of it in breach of an injunction.
  • The wife moved out and rented accommodation, covering some expenses related to the family home post-separation.

• Non-financial Contributions:

  • The wife continued to care for one child while the husband cared for the other.

• Dissipation of Assets:

  • The husband told the court he had gambled all the damages; the court found that was a lie, that he had moved money through his son's account to keep it out of reach, and that he had not made proper disclosure. $170,000 was notionally added back to the pool.

Current Financial Position & Property Pool

• Husband:
  • Owns two motor vehicles ($56,281), a boat ($10,000), furniture, tools and fishing equipment ($5,000) and animals ($90,000).
  • Superannuation balance: $729.
• Wife:
  • Owns a motor vehicle valued at $17,250 and has superannuation worth $94,935.
• Real Estate:
  • The main property at B Street, valued at $540,000 with a secured mortgage of $272,294.
• Total Net Pool: $897,782 inclusive of all assets, liabilities, superannuation and $170,000 of add-backs. Assets bought with the husband's damages made up $424,962, or 47.3% of the pool.

Assessment of Contributions and Future Needs

• The wife sought 85% of the net assets, and the husband 75%, relying on his damages.
• Contributions: Assessed at 40% for the wife and 60% for the husband. The husband's damages counted as a significant direct financial contribution by him; weighed against that were the wife's much greater homemaker and parenting contributions, made more arduous by his family violence, his gambling, and her post-separation payments.
• Future Needs: No adjustment either way under s 75(2). The wife sought 30% and the husband 5%. The husband's own non-disclosure left the court unable to assess his income or capacity to work.

Unique Aspects

• The husband's spending of his damages in breach of an injunction was dealt with by add-backs, not by a further adjustment, to avoid double counting.
• The application for an increased share by the wife owing to non-disclosure and alleged waste by the husband.
• The court ordered the husband to leave the home within 28 days so it could be sold, rejecting his plan to stay until the younger son finished school.

Conclusion

The court divided the net pool 40% to the wife ($359,112) and 60% to the husband ($538,669). The home is to be sold, and the wife receives $70,574 from damages money held in trust to bring her to her share.

This judgment emphasises a thorough examination of both financial and non-financial contributions in a lengthy marriage, the aftermath of post-separation contributions, and accountability for financial dissipations impacting the equitable division in property settlements.

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.