Viswan & Parveen (No 2) [2023] FedCFamC2F 666

Viswan & Parveen (No 2) [2023] FedCFamC2F 666 (1 June 2023)

Relationship Details

• Type: Marriage
• Duration: Commenced living together and married in 2013; separated in February 2019. The relationship lasted approximately 6 years.
• Ages: Husband 42 years, Wife 38 years at the time of judgment.

Children

• No children from the relationship, nor from previous relationships mentioned.

Initial Financial Positions

• Husband:

  • Two properties and superannuation, with a net value at the commencement of cohabitation of approximately $449,000.

• Wife:

  • Minimal net assets at the commencement of the relationship.

Contributions During the Relationship

• Financial Contributions:

  • The husband worked full-time and contributed his earnings towards mortgage and living expenses.
  • The husband purchased a property during the marriage, supported by a mortgage from ANZ.

• Non-financial Contributions:

  • The wife was primarily responsible for homemaking duties.
  • The wife underwent IVF treatment, involving numerous medical procedures and facing significant stress and discomfort.
  • The wife worked part-time for a total of about 5 to 7 months during the relationship.

Post-Separation Contributions and Actions

• Financial Contributions:
  • The husband continued to pay mortgage and maintain properties post-separation.
  • The husband gave the wife $10,000 after separation.

Current Financial Position & Property Pool

• Husband:

  • Assets: about $2,795,650, mainly three properties.
  • Liabilities: $1,867,288 mortgage debt.
  • Superannuation: $236,000.
  • Net assets including superannuation: $1,172,962.

• Wife:

  • Assets: bank accounts and jewellery of $7,200, and superannuation of $1,400, totalling $8,600.
  • Recently unemployed, previously employed earning $65,000 per annum.
  • Living with the husband's sister since separation.

Assessment of Contributions and Future Needs

• Contributions Assessment:

  • Husband's contributions assessed at 82.5% of total net assets, while the wife's contributions were assessed at 17.5%.
  • The husband's financial contributions weighed heavily due to initial assets and mortgage payments.

• Future Needs Considerations and Adjustments:

  • A 2.5% adjustment was made in favour of the wife due to her homemaker role delaying her career and educational outcomes.
  • Resulting adjustments: 80% of net assets to the husband and 20% to the wife.
  • Monetary value of final division: Husband retains $938,369 of net assets, wife to receive $234,592.

Unique Aspects or Things that Affected Decisions

• The financial agreement was set aside due to undue influence and unconscionable conduct by the husband. The wife was found to have signed under pressure, without freely exercising her judgment, and the husband took advantage of on her special disadvantage.
• Discrepancies in affidavits and conflicting recollections influenced findings. The credibility of the wife's and husband's testimonies was weighed, leading to limited acceptance of the husband's testimony.

Summary and Outcome

• The court assessed the husband's contributions significantly higher than the wife's due to initial financial input and ongoing mortgage liabilities.
• A judgment for assets distribution was rendered, adjusting for the wife's role during the marriage and her future needs based on her limited financial state and living circumstances post-separation.
• The judgment mandated the husband to pay the wife $225,992 from his net assets or sell a property if he failed to comply within 10 weeks.

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.