Vergara & Vergara [2023] FedCFamC2F 57

Vergara & Vergara [2023] FedCFamC2F 57 (27 January 2023)

Relationship Details

• Type: Marriage
• Duration: Married in 2003, separated in February 2019 but lived under one roof until September 2019, divorced on 26 May 2020; total of about 16 years.
• Ages: Husband 53 years, Wife 49 years at the time of judgment.

Children

• Children from the Marriage: Two children, born in 2005 and 2007 (aged 17 and 15).
• Primary Care: Children remain under the primary care of the mother.

Initial Financial Positions

• Husband:

  • Owned Motor Vehicle 4.
  • Modest savings, applied for the family.

• Wife:

  • Held savings approximately AU$20,000 in "L account" at the start of the marriage.
  • Contributed these savings towards family expenses.

Contributions During the Relationship

• Financial Contributions:

  • The husband worked for most of the marriage and contributed his earnings.
  • In 2006 the husband's mother advanced $100,000 under two promissory notes. Most went into a property in the USA, later short sold, which the court found brought the family no net benefit; $15,000 helped the family while the husband was unemployed in 2009 to 2011.
  • Wife's savings were used for family expenses, and she worked as a carer for the first three and a half years of the marriage. Her parents also helped with living expenses.
  • In 2015 the family sold their US assets and moved to Australia, and in late 2016 bought the B Street, Suburb C home in joint names.

• Non-financial Contributions:

  • The wife was the primary homemaker and caregiver for children.
  • The husband was involved with childcare when at home.

Post-Separation Contributions and Actions

• Financial Actions:

  • From mid-2018 the husband paid his bonuses and commissions into his own account, which he said was for tithing. The wife sought to add back his post-separation tithes; the court refused, finding they were consistent with his faith and paid mostly from his post-separation income.
  • Wife transferred $72,000 from a joint account to her sole account for family and personal expenses.

• Non-financial Contributions:

  • The wife continued as the primary caregiver for the children.

Current Financial Position & Property Pool

• Husband:

  • Income: $50,000 annually.
  • Owned cars, life insurance policies with a $15,800 surrender value, and US bank accounts worth $6,693.
  • Lives in the former home, B Street, Suburb C.

• Wife:

  • Income: $54,000 annually from part-time work as a carer, plus Centrelink benefits and child support.
  • Lives with the children in rented accommodation; savings of $32,000 (from $72,000 she moved from a joint account in March 2019).

• Property Pool:

  • Net value of $627,340 available for division, including $195,398 of superannuation, after the $268,000 mortgage. The home was valued at $600,000.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed as equal due to both party's financial and non-financial inputs during the marriage.

• Future Needs:

  • Adjusted by 5% in the wife's favour (about $31,367) because of her modest earning capacity, her primary care of the children, and the modest pool.

• Final Division:

  • Wife received 55% of the net pool, and the husband received 45%. The husband must move out of the home within 28 days; the wife refinances the mortgage, pays him $74,486 and takes the home.

Unique Aspects

• The husband claimed the parties owed his mother $188,734. The court found the debt might have been extinguished when the US property was short sold, or waived, and that there was so much uncertainty that it should be disregarded. The advance was considered instead as part of contributions.
• Unusual religious tithing factor contributing to the financial dispute and post-separation asset management.
• The husband stayed in the former home after the wife left with the children in September 2019.

Summary: The division was influenced by the wife's greater future needs, including her ongoing care of the children and modest earning capacity. Contributions were assessed as equal. The claimed debt to the husband's mother was disregarded, and his post-separation tithes were not added back.

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.