Shankar & Shankar [2023] FedCFamC2F 880

Shankar & Shankar [2023] FedCFamC2F 880

Background Details

• Court: Federal Circuit and Family Court of Australia (Division 2), Sydney, Judge Eldershaw, 19 July 2023
• Type: Marriage
• Duration: The parties began living together and married in 1999. They separated on 14 July 2020 and were divorced in November 2021. The marriage lasted approximately 21 years.
• Ages: At judgment, the husband was 50 years old and the wife was 49 years old.

Children

• Children from Relationship: Three children, aged 22, 21 and nearly 18.
• Children from Previous Relationships: None mentioned.
• Special Needs or Circumstances: Not specified.

Initial Financial Positions

• Wife:
  • Savings of approximately $20,000.
  • The wife's parents gave the couple rent-free accommodation from late 1999 to about early 2001.
• Husband:
  • He was unemployed at the start of cohabitation; he said he had some savings but did not prove an amount.

Contributions During the Relationship

• Financial Contributions:
  • The wife applied her savings of $20,000 to the deposit on their first home, most of the deposit.
  • The wife worked full time as an allied health worker throughout, earning between about $43,000 and $65,000 per annum.
  • The husband worked in the trades, establishing his own business in 2006, with an income that fluctuated between $120,000 and $200,000 per annum.
  • The husband made lump sum payments totalling approximately $80,000 towards the first home's loan between 2009 and 2021.
• Non-financial Contributions:
  • The wife was the primary homemaker and parent before and after separation, and helped with the husband's business paperwork.
  • The husband carried out or arranged improvement works on the properties.
  • The husband's mother provided substantial childcare for periods while the children were young, which the court counted as a contribution by the husband.

Family violence

• The court found that the husband committed family violence against the wife throughout the marriage, including physical assaults, some in front of the children, and threats with a knife. It found that this had a discernible effect on her contributions, making her work as homemaker, parent and employee more arduous, and recognised this when assessing contributions (the principle in Kennon & Kennon).

Post-Separation Contributions and Actions

• Financial Contributions:
  • The wife stopped paying the home loans in November 2020.
  • The husband stopped regular payments on one loan account in late 2022 after a bank officer told him it related to the other property; the court found he was entitled to rely on that information.
• Non-financial Contributions:
  • The wife moved out with two of the children; the third child stayed with the husband.

Current Financial Position & Property Pool

• Assets and Debts:
  • Two investment properties were sold under earlier orders. The wife keeps the first home and the husband keeps the later home and his business companies.
• Income:
  • The wife earns a base salary of about $65,000 per annum.
  • The husband is a self-employed tradesman trading through a company; his taxable income was about $74,000 in recent years, and the court found he could earn about $120,000 a year plus superannuation.
• Total Value: Net pool of $1,665,547, including superannuation of $157,678.

Assessment of Contributions and Future Needs

• Contributions:
  • Assessed as equal. The wife's initial capital, the rent-free accommodation from her parents, her greater homemaking and parenting contributions (made more arduous by the family violence) and her continuous income were balanced against the husband's greater income, his work on the properties and his mother's help.
• Future Needs Adjustments:
  • A 10% adjustment to the wife under s 75(2), for the income disparity, the husband's capacity to earn more and his access to financial resources through his business.
• Final Division: The wife receives 60% and the husband 40% of the net assets. The husband was ordered to pay the wife $168,750, and each party is to discharge the loan on the property they keep.

Unique Aspects

• Family Violence: The court applied the principles in Kennon & Kennon as explained in Martell & Martell [2023] FedCFamC1A 71, and inferred the effect of the violence on the wife's contributions from the evidence.
• Loan confusion: The parties' cross-collateralised loans and conflicting information from the bank complicated the arrangements, and the court did not include a default sale provision.

Summary: The court found the husband's family violence made the wife's contributions more arduous, assessed contributions as equal, and made a 10% adjustment for her lower income and earning capacity, giving her 60% of the net assets.

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.