Radcliffe & Marsters [2023] FedCFamC2F 611

Radcliffe & Marsters [2023] FedCFamC2F 611

Background Details

• Applicant: the wife
• Respondent: the husband
• Type: Marriage
• Duration: 16 years. Relationship commenced in 2004, the parties married in mid-2007, and they separated in late 2020.
• Ages at Judgment: Applicant 50 years old, Respondent 52 years old.

Children

• Children from Relationship: One child, X, born in 2009 (aged 13 years at judgment).
• Children from Previous Relationships: The Applicant has a daughter, aged 22 years, from a previous relationship. The Respondent has two sons from a previous relationship, for whom the Applicant also provided some care.

Initial Financial Positions

• Applicant:

  • Employment as an educator.
  • Received an inheritance of $84,449.90 during the relationship.
  • Owned Vehicle 2.

• Respondent:

  • Owned K Street property with his former wife, later transferred to him.
  • Superannuation and minimal assets like vehicles and tools.

Contributions During the Relationship

• Financial Contributions:

  • Applicants contributed as the primary breadwinner.
  • Respondent introduced the K Street property. Its equity funded the deposit on the D Street property in 2010, and when it was sold in 2019 the proceeds reduced the D Street mortgage, an important financial contribution.
  • The Applicant's inheritance of $84,449.90 (received in 2018) was used for various expenses, including a car.

• Non-financial Contributions:

  • Respondent took primary care of X for the first three years after his birth, while the Applicant worked full time.
  • The Respondent provided substantial care for the Applicant's daughter during the relationship.
  • Significant renovations on the parties' properties by the Respondent.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Respondent continued working flexibly post-separation as a contractor.

• Non-financial Contributions:

  • The Respondent sought a family violence order against the Applicant, but his application was unsuccessful.

• Caregiver Arrangements:

  • Under interim arrangements X lived mainly with the Respondent. The final orders provide for X to live with each parent on a week-about basis.

Current Financial Position & Property Pool

• Applicant:

  • Weekly income: $1,827.15.
  • Retains $50,846 in net assets excluding D Street.
  • Superannuation Fund Contents: $190,669.93.

• Respondent:

  • Income: $1,340 per week including benefits.
  • Retains $151,494 in net assets excluding D Street.
  • Superannuation balance: $47,812.21.

• Property Pool:

  • Net non-super pool: $425,172.
  • Total superannuation pool: $238,482.14.

Assessment of Contributions and Future Needs

• Contributions:

  • Non-superannuation: determined as equal (50% each), weighing the Applicant's higher regular income against the Respondent's property contribution, renovations and care of the children.
  • Superannuation: 55% to the Applicant and 45% to the Respondent, because the Applicant contributed significantly more.

• Future Needs Adjustments:

  • 5% adjustment to the Respondent on each pool, considering the Applicant's more settled employment, the Respondent's care of her daughter, the Applicant having re-partnered, her long service leave and her better ability to build superannuation.

• Final Division:

  • Division of non-superannuation assets is 55% to the Respondent and 45% to the Applicant.
  • Division of superannuation assets is equal (50%-50%), by a split of $71,428.86 to the Respondent.
  • The Respondent was given 60 days to refinance and keep the D Street property, failing which it would be sold.

• Spousal maintenance: The Respondent's application for spousal maintenance was dismissed.

Unique Aspects

• Notable conflict at separation involving family violence allegations, and a dispute about whether the child should live in an equal time arrangement.
• Respondent unable to refinance mortgage, triggering potential sale of D Street property.
• Superannuation withdrawal by the Respondent was not held against him, because he had primary care of X at the time and the money was likely spent on necessary expenses.

The resolution involved complex considerations of both parties’ contribution to finance and non-financial aspects including child-care and due division to ensure fairness reflecting care and income changes post-separation.

Appeal

The husband appealed. The appeal, heard by Riethmuller J of the Federal Circuit and Family Court of Australia (Division 1), was allowed in part, and the property application was sent back for rehearing. On the rehearing, in Radcliffe & Marsters (No 2) [2024] FedCFamC2F 1787 (13 December 2024), the court found contributions equal and, because the husband failed to give disclosure or file trial material, made a 5% adjustment to the wife, dividing all the assets, including superannuation, 55% to the wife and 45% to the husband. The property division described above therefore no longer stands.

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. 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.