Pickering & Pickering [2023] FedCFamC2F 1116

Pickering & Pickering [2023] FedCFamC2F 1116

Background Details

• Court: Federal Circuit and Family Court of Australia (Division 2), Melbourne, Judge O'Shannessy, reasons and draft orders 28 August 2023; final orders made on 31 August 2023 in Pickering & Pickering (No 2) [2023] FedCFamC2F 1168
• Type of Relationship: Marriage
• Duration: Approximately 16 years. The parties began living together and married in 2002. The date of separation was disputed; the court rejected the husband's date of December 2017, and the husband left the former matrimonial home in November 2018.
• Ages at Judgment: Wife 52, Husband 53

Children

• Children from Relationship: Three children aged 20, 17, and 13. Final parenting orders were made by consent in 2020, with the children living with the wife.
• Special Needs: The middle child had a serious illness after separation, at its worst from late 2020 to mid-2021, and the wife was the child's sole carer.

Initial Financial Positions

• Wife:

  • Owned a property that she sold in 2002 for proceeds of about $175,000.
  • $35,000 in savings and a car worth $4,000.

• Husband:

  • Owned a property that he sold in 2002 for net proceeds of about $100,000.
  • Owned a collectible motor vehicle, valued at $120,000 at trial.

• The court found the wife's initial contribution was greater than the husband's at the time.

Contributions During the Relationship

• Financial Contributions:

  • Both parties' sale proceeds went towards a jointly purchased property, later sold to buy the former matrimonial home.
  • The husband inherited about $110,000 in shares and cash from his father's estate after separation. Part was applied to his legal fees and was added back to the pool.

• Non-financial Contributions:

  • Both parties accepted, and the court found, that their contributions during the relationship, in which they raised three children, were about equal, each working long and hard in different roles.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Under interim orders made by consent in April 2019, the husband paid many of the wife's household costs, for a time more than child support would have required, which caused him financial stress. He later paid less than the orders required, and the court fixed arrears of about $37,700, to be paid from his share.

• Non-financial Contributions:

  • The wife cared for the children, including the middle child through a serious illness, while working for most of the time after separation.

• Legal fees:

  • Funds that each party had spent on legal fees (about $113,870 by the wife and $118,000 by the husband) were added back to the pool.

Current Financial Position & Property Pool

• Wife:

  • Employment income: about $77,000 per annum.
  • Superannuation balance: $106,200.
  • Occupied the former matrimonial home, valued at $1,500,000.

• Husband:

  • Income: Approximately $180,000 per annum, through his own business.
  • Superannuation balance: $138,386.
  • Assets include his business interests and several vehicles.

• Net Property Pool:

  • $1,829,774 of non-superannuation assets and liabilities, including the add-backs and overdue school fees of $69,052 treated as a joint debt.

Assessment of Contributions and Future Needs

• Assessment of Contributions:

  • Contributions were assessed overall as about equal (50/50), taking into account the wife's greater initial contribution, the husband's inheritance and the wife's parenting after separation in difficult circumstances. Superannuation was also treated as about equally contributed.

• Future Needs Adjustments:

  • An adjustment of 7.5% (about $137,175) in the wife's favour, for her care of the children, particularly the middle child, and the income disparity. The court rejected the wife's claim for a 70/30 division.

• Final Division:

  • 57.5% of the non-superannuation pool to the wife and 42.5% to the husband, with the arrears under the interim orders paid from the husband's share.
  • A superannuation splitting order equalised the parties' superannuation at about $122,293 each.
  • The wife had the option of keeping the home by paying out the husband (refinancing the mortgage and paying the overdue school fees); otherwise it was to be sold and the proceeds divided in the same proportions.
  • Claims for spousal maintenance and lump sum child support were refused.

Unique Aspects

• The demands of caring for the seriously ill middle child weighed significantly in the adjustment.
• The court tested the adjustment in dollar terms, comparing the resulting difference between the parties' shares with the difference in their likely future incomes.
• The overdue school fees were treated as a capital liability, like the mortgage.

Conclusion

The court found contributions equal over a long marriage and made a modest adjustment for the wife's greater care of the children and lower income. The final orders, made a few days later after the parties agreed minor changes to the draft, gave the wife the chance to keep the home.

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.