Upton & Upton [2023] FedCFamC2F 1296

Upton & Upton [2023] FedCFamC2F 1296 Case Report

Relationship Details

• Type: Marriage
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge Dickson, 12 October 2023
• Duration: The parties began their relationship in about 1991, married in the late 1990s (the judgment gives both 1996 and 1998) and separated finally in February 2014. The court treated the marriage as lasting 16 years.
• Ages of Parties at Judgment: Husband 53 years, Wife 51 years.

Children

• Children from Relationship: Two adult children, aged about 21 and 19 at trial. Both live with the wife.
• Special Needs or Circumstances: None noted.

Initial Financial Positions

• Husband: No significant assets noted at the start of the marriage.

• Wife: No significant assets noted at the start of the marriage.

Contributions During the Relationship

• Financial Contributions:

  • Both parties worked and in 1999 jointly bought their first home for $185,000, with a modest deposit and a mortgage.
  • That property was later subdivided and redeveloped, with one block sold to the husband's father.

• Non-financial Contributions:

  • Both parties contributed as homemakers and parents during the marriage.
  • The court assessed the contributions from marriage to separation as equal.

Post-Separation Contributions and Actions

• Financial Contributions:

  • After separation the husband became involved in several businesses that failed, borrowed from family, friends and the wife, and could not afford his own accommodation.
  • From October 2015 the wife was solely responsible for the financial support of herself and the children. She met the expenses of the former home and most of the children's expenses, and later sold the former home and used the proceeds to buy her current home.
  • Between 2017 and 2018 the wife paid the husband $68,000 to help him meet debts. The husband accepted this should be brought into the balance sheet.
  • In early 2017 the wife's parents advanced her $500,000 under a written loan agreement. The court found it was not a true liability: it was unsecured and interest free, repayment had never been sought and was only a possibility, and the husband was not a party to it. The court excluded it from the balance sheet and took it into account as part of the contributions.
  • The wife's parents also paid about $315,802 in private school fees for the children.

• Non-financial Contributions:

  • The wife was primarily responsible for the children's care after separation. The husband accepted that her post-separation contribution to their care was not matched by his.
  • The court accepted that the husband gave the wife practical help and did maintenance at the former home between 2014 and 2021.

• Dissipation of Assets:

  • The husband withdrew $20,000 from his superannuation in 2020 and paid it into a business venture that failed. The court added it back to his superannuation.
  • The $74,784 the wife had spent on legal costs was added back against her. The husband's other proposed add-backs against the wife were not accepted, and nor was the wife's claim that the husband made a negative contribution over the sale of the subdivided property.
  • The husband conceded that he gambled regularly, but the court made no separate adjustment for it.

Current Financial Position & Property Pool

• Net pool (including superannuation and add-backs): $1,514,603.

• Wife's Retained Items:

  • Her home (valued at $1,250,000, with a mortgage of $210,556), her car, her superannuation, the legal costs add-back and her credit card debt.
  • Net position before the settlement payment: $1,261,524.

• Husband's Retained Items:

  • His car, a small share in a syndicate valued at about $2,000, the $68,000 already paid to him by the wife, and his superannuation (including the $20,000 add-back).
  • Net position before the settlement payment: $253,079.

Assessment of Contributions and Future Needs

• Contributions:

  • Equal from marriage to separation.
  • Overall, a 25% adjustment in favour of the wife on account of her "overwhelming" post-separation contributions.

• Future Needs Adjustments:

  • None. Both parties were in good health and employed, neither had to support a child or another person, and each had ongoing support from family. The court found no s 75(2) adjustment was warranted.

• Final Division:

  • 75% of the net assets (including superannuation) to the wife and 25% to the husband.
  • The wife was ordered to pay the husband $125,571 within 60 days, with the home to be sold if she could not pay.

Unique Aspects or Things That Affected Decisions

• The $500,000 from the wife's parents, although documented as a loan, was not treated as a debt of the marriage because repayment was uncertain and had never been sought. It was taken into account as a contribution.
• The husband's failed business ventures after separation, and his reliance on others for support, contrasted with the wife's long period of supporting the children and keeping the home.
• The court rejected the wife's alternative claim for 99% of the assets, saying it ignored 16 years of contributions by the husband.

Main Takeaway: Contributions during the marriage were equal, but the wife's sole financial and practical support of the family for most of the nine years after separation justified a 25% adjustment in her favour. Money from a party's parents labelled a "loan" will not be treated as a debt of the marriage where repayment is only a possibility.

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.