Zidan & Omran [2023] FedCFamC2F 615

Zidan & Omran [2023] FedCFamC2F 615 (25 May 2023)

Background Details

• Type: Marriage
• Duration: Married overseas in 2005 (the mother came to Australia the following year), separated in February 2020, approximately 15 years.
• Ages of the Parties at Judgment: Not specifically provided.

Children

• Children from Relationship: Three children - X (born 2007, aged 15 years), Y (born 2007, aged 15 years), and Z (born 2015, aged 7 years).
• Special Needs: The twins, X and Y, diagnosed with learning disabilities and perceived to have special educational needs.

Initial Financial Positions

• The case lacks explicit financial details at the start of the relationship regarding cash, property, superannuation, or debts for the parties.

Contributions During the Relationship

• Financial Contributions:

  • Unknown specifics at the relationship's start.
  • The father had equity in a property bought before the marriage, and the parties first lived with his parents; the court found he made the greater initial contributions.
  • The mother's Centrelink benefits were paid into a joint account. The father obtained mortgages and credit cards through fraudulent loan applications, and the parties likely struggled to service the mortgage.
  • No clearly outlined inheritances, gifts, or other significant financial receipts.

• Non-financial Contributions:

  • Primary care and homemaking roles predominantly undertaken by the mother during the relationship.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Limited financial support exchanged between parties post-separation.

• Non-financial Contributions:

  • Under interim orders made in late 2021, the children have lived with the father since October 2021, and the mother has not seen them since then.

• Dissipation of Assets:

  • Both parties failed to give proper financial disclosure, leaving their finances opaque.

Current Financial Position & Property Pool

• Property Pool:

  • Primary asset: Former matrimonial home in Suburb C, now sold, with proceeds of $160,468 held in trust. After notionally adding back part property settlements already paid to each party, the court divided $165,718.
  • The mother has a motor vehicle valued at $7,000; father retains superannuation worth $4,095.

• Liabilities:

  • No outstanding liabilities specifically linked to either party were detailed.

Assessment of Contributions and Future Needs

• Contributions:

  • No separate percentage was given. The father made the greater initial contributions; the mother contributed her Centrelink benefits and homemaking; and the father has borne the care of the children since October 2021.

• Future Needs Adjustments:

  • Considering contributions and s 75(2) factors together, the mother receives 70% of the adjusted net sale proceeds and the father 30%. The mother keeps her car and the father his superannuation.
  • The s 75(2) factors favoured both parties: the father has full-time care of the children and receives no child support, but has significant family support including rent-free accommodation and unsatisfactory finances; the mother has lost her Centrelink benefits and is homeless.

Unique Aspects

• Significant compliance issues arose from the mother, affecting evidence collection and case proceedings.
• Cultural issues and allegations of family violence were raised and were relevant to both parenting and property.
• Complications in financial disclosure from both parties, impacting the clarity and transparency of the financial assessment process.

Main Takeaways

• Sole parental responsibility was awarded to the father because of the mother's non-compliance with orders and her failure to demonstrate an understanding of the children's needs; the children live with him and spend time with the mother as agreed.
• The mother receives most of the sale proceeds because of her lack of income and accommodation.
• The focus on the children's best interests, ensuring continuity and stability with the father, guided the court's decision.

These factors collectively informed the court's judgment on parenting orders and financial divisions, balancing the preservation of the children's wellbeing while considering the long-term financial security of both parties.

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. The presumption of equal shared parental responsibility (former s 61DA) and the duty to consider equal or substantial and significant time (former s 65DAA) were repealed on 6 May 2024. In Western Australia the matching changes for children of unmarried parents took effect on 10 February 2025.