Raisner & Kells [2023] FedCFamC2F 265

Raisner & Kells [2023] FedCFamC2F 265 (4 May 2023)

Background Details

• Applicant: De facto wife
• Respondent: De facto husband
• Relationship Type: De facto relationship
• Duration: Approximately 11 years. Commenced cohabitation in 2008 and separated on 11 June 2019.
• Ages at Judgment: 35 and 37

Children

• Children from Relationship: Two children, aged 12 and 9.
• Parenting Arrangement: Final parenting orders made on 16 May 2022, with the children primarily living with the de facto wife.

Initial Financial Positions

• De facto Husband:

  • Assets valued at approximately $120,000 at relationship commencement, including cash and vehicles.
  • Received a WorkCover payout before the relationship.

• De facto Wife:

  • Minimal assets at the commencement of the relationship.

Contributions During the Relationship

• Financial Contributions:

  • De facto husband primarily responsible for financial contributions. He paid $30,000 toward the first property in 2016, which the court found came from savings built up during the relationship, so it was a joint contribution.
  • Businesses established during the relationship; however, allegedly mismanaged post-separation.

• Non-financial Contributions:

  • De facto wife primarily cared for the children and performed most household duties.
  • Contributed to husband's business administration.

Post-Separation Contributions and Actions

• Financial Contributions:

  • De facto husband lived in and maintained C Street property and was responsible for related liabilities.

• Non-financial Contributions:

  • De facto wife remained the primary caregiver for the children.

• Dissipation and Management of Assets:

  • The court found that the de facto husband chose to stop paying the mortgage on the jointly bought K Street property, which was then sold by the mortgagee at a shortfall, in order to reduce the asset pool. He also put the family company into liquidation within six months of separation.

Current Financial Position & Property Pool

• Property and Liabilities:

  • C Street Property purchased in 2019, currently in de facto husband’s name.

• Superannuation:

  • De facto husband's superannuation, valued at $21,863.39.
  • De facto wife's superannuation, valued at $11,123.22.

• Debt Liabilities: Include a joint loan for a trailer and mortgage on C Street property.

• Total Asset Pool: $159,983.70, being non-superannuation assets of $126,997.09 and superannuation of $32,986.61.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed as 55:45 in favour of the de facto wife due to primary non-financial and caregiving responsibilities and contribution to family welfare.

• Future Needs Adjustments:

  • A further 15% adjustment, giving a 70:30 split in favour of the de facto wife, taking into account her greater future needs as primary caregiver with lower income potential.

Unique Aspects

• The court found that the de facto husband deliberately reduced the asset pool and avoided full financial disclosure.
• The court found that the businesses registered in the de facto husband's new partner's name were shams and that he was their true owner, so they were treated as his property.
• The de facto husband showed significant credibility issues which skewed the consideration of asset and contribution claims.
• The future needs division reflected the de facto wife's primary childcare responsibilities and lesser earning capacity.

Final Division

• Final Allocation: An overall 70:30 division in favour of the de facto wife. The C Street property was to be transferred to her with its mortgage discharged, the de facto husband was to pay her $1,215.37, and he was to bear the Westpac loan, the K Street debt and his credit card and tax debts (about $158,170.98).

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 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.