Turay & Nagi [2023] FedCFamC2F 720

Turay & Nagi [2023] FedCFamC2F 720

Background Details

• Type of Relationship: Marriage
• Duration: The relationship commenced in 1997 in Country G and ended in February 2022.
• Ages of the Parties: At judgment, the husband was 52 years old, and the wife was 47 years old.

Children

• Number of Children from the Relationship: Two children
  • Eldest child: Born in 2003, age 19
  • Youngest child: Born in 2006, age 16

Initial Financial Positions

• Neither the husband nor the wife had significant assets at the commencement of the relationship.

Contributions During the Relationship

• Financial Contributions:

  • The couple purchased the E Street, Suburb F property in 2013 for $640,000. Later they acquired a home and land package at B Street, Suburb C for $700,000.
  • The husband bought two properties overseas with the parties' savings; when they were sold, the proceeds reduced the mortgage on the B Street property.
  • The parties shared household expenses, including the mortgage repayments.
  • The husband claimed his mother had lent the parties about $169,000 in 2017, which the wife denied.

• Non-financial Contributions:

  • The husband and wife shared roles as homemakers and parents. The husband's mother also provided significant childcare.

Post-Separation Contributions and Actions

• The wife rented a property and the children live with her; the husband has not spent time with them since separation and pays no child support.
• The husband has mostly lived with his mother.
• The couple's division of assets was contentious, mainly revolving around the sale of the B Street, Suburb C property.

Current Financial Position & Property Pool

• Current Income and Employment:

  • Wife: Full-time health care worker
  • Husband: Full-time transport worker

• Superannuation:

  • Wife: $143,537
  • Husband: $129,089

• Major Assets:

  • Matrimonial home at B Street, Suburb C, valued at $1,150,000 with a mortgage debt of $275,872.
  • Motor Vehicle 1 valued at $21,000 (in wife’s possession)
  • Motor Vehicle 2 valued at $14,000 (in husband’s possession)

• Total Property Pool: Net assets, including superannuation, are $1,181,754.

Assessment of Contributions and Future Needs

• Contributions:

  • The court assessed the contributions of both parties as approximately equal during the relationship.

• Future Needs Adjustments:

  • The wife sought 5% for her back condition and her care of the children; the husband sought 10% for his health conditions (diabetes and a neurological condition requiring long-term treatment). Weighing both, the court made a 2.5% adjustment in favour of the husband.

• Final Division:

  • Wife: 47.5% of the property pool ($561,333)
  • Husband: 52.5% of the property pool ($620,420), with a disparity of $59,087 in favour of the husband.

Unique Aspects

• A significant dispute concerning the alleged loan from the husband’s family highlighted differences between the parties' claims and resulted in extensive investigation by the court.
• There were no bank records showing the alleged loan was paid to the parties; the husband's mother had paid about $169,000 to a third party, and the court was not persuaded that it was a loan to the parties, so it was not included as a liability.
• Both parties’ health conditions played a crucial role in the court's final decision regarding the division of assets.

Key Takeaways

• Equitable distribution was determined largely based on the overall equal contributions and adjusted due to the husband's future needs due to health concerns.
• The court emphasized a fact-based assessment rather than presumption regarding financial claims and liabilities.

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.