Radek & Radek [2023] FedCFamC2F 1153

Radek & Radek [2023] FedCFamC2F 1153

Relationship Details

• Court: Federal Circuit and Family Court of Australia (Division 2), Newcastle, Judge Betts, 1 September 2023
• Type: Marriage
• Duration: Approximately 16 to 17 years; cohabitation for around 15 years.
• Start Date: Relationship commenced around 2002/2003; the parties lived together from early 2004 and married in 2005.
• End Date: Separated under the one roof in mid-2018; physically separated in mid-2019.
• Ages at Judgment: Husband 49, Wife 48.

Children

• Children from the Relationship: Three children, aged 16, 14 and 12.
• Special Needs: The middle child has significant disabilities requiring a high level of care and support, partly funded through the NDIS. The wife cares for him full time.

Initial Financial Positions

• Husband:
  • Around $65,000 in the bank, mostly in term deposits, and managed funds of less than $25,000.
  • Superannuation of approximately $18,000.
• Wife:
  • Lived in the Suburb C property, then owned with her former partner and subject to a home loan of $300,000.
  • Superannuation of less than $28,400.
  • A motor vehicle bought for $20,000.

Contributions During the Relationship

• Financial Contributions:
  • Husband: Primary income-earner; his pay went into the home loan account, and in 2003 he paid the $25,000 that bought out the wife's former partner's interest in the Suburb C property.
  • Wife: Primary homemaker and parent, with some income contributions; her parents gave financial help, and she received an inheritance of $100,000 in 2018, which went into the home loan.
• Non-financial Contributions:
  • Husband: Helped with household tasks, the children's care and the children's activities.
  • Wife: Responsible for everything else relating to the home and the children, especially the high-needs child, and managed the household finances by agreement.

Post-Separation Contributions and Actions

• Financial Contributions:
  • Husband made home loan repayments until March 2022 and bought his own home in July 2021 with help from his parents.
  • Wife: Managed household expenses and the children's needs, with financial help from her mother.
• Non-financial Contributions:
  • The wife remained the primary carer for all the children, who have spent little time with the husband since separation.
• Dissipation of Assets: None found, but the home loan balance grew to $298,406 with no redraw left, which the court put down to both parties living at or beyond their means.

Current Financial Position & Property Pool

• Husband:
  • Weekly income: $5,576, with a surplus the court found questionable because of tax debts and a fixed interest rate due to end in 2024.
• Wife:
  • Weekly income: $1,807, mostly child support and government benefits; she had been out of paid work for seven years and was not expected to find meaningful work in the foreseeable future.
• Property Pool:
  • Total net assets: Approximately $2.8M including superannuation.
  • Real Estate: The Suburb O home, bought by the husband for $910,000 after separation; the Suburb C home held by the wife.
  • Superannuation: Combined total of about $635,000.

Assessment of Contributions and Future Needs

• Contributions:
  • Non-superannuation property: 53% to the wife, 47% to the husband.
  • Superannuation: Divided equally.
  • The shares held for the children's benefit (a financial resource): 50% each.
• Future Needs Adjustments:
  • A further adjustment of 20% of the non-superannuation property to the wife, given her role as the full-time carer and her lack of earning capacity, and 5% of the superannuation because of the husband's greater capacity to contribute to super.
  • The court treated the wife's mother's continuing financial support as a financial resource under s 75(2), but gave it limited weight, and disregarded possible future inheritances on both sides.

Unique Aspects

• Significant Care Responsibilities: The wife's unrelenting care of the high-needs child.
• Future Financial Challenges: The husband's tax debts and the coming end of his fixed interest rate made his surplus doubtful over the next few years.
• Parental Support: Both parties had been financially supported by their parents.

Conclusion

• Final division: The wife received 73% of the non-superannuation property ($1,592,302) and the husband 27% ($588,933); the wife received 55% of the combined superannuation and the husband 45%.
• Because the wife already held more than her share of the non-superannuation property, she was ordered to pay the husband $132,984 within 60 days and keep the Suburb C home, refinancing the mortgage to remove the husband. A superannuation splitting order was to give effect to the reasons.
• The court said the orders had to be just and equitable to both parties, and declined to make the husband sell his home or borrow to fund a cash payment to the wife in place of a superannuation split.

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.