Division of Property and Adjusting the Interests of a Separated 40 and 49 Year Old Couple with Two Children
Sappho & Sappho (No 2) [2022] FedCFamC1F 786 (18 October 2022)
The parties have agreed that the respondent will transfer his interest in a property to the applicant, and the respondent will pay for the children's education, mobile phones and medical costs, as well as the applicant's mortgage repayments, insurance and private health insurance. The court must decide on the value of the respondent's initial contributions and the impact of later contributions on that initial contribution, and make orders that are just and equitable when adjusting the interests of the parties in the division of property.
Facts:
The applicant is 40 years of age and not in paid employment, while the respondent is 49 years of age and a self-employed healthcare professional. The parties met in 2005, cohabited in 2007/2008, and married in 2009. They have two children, X and Y, and separated in August 2019. The applicant has primary care of the children, who attend OO School.
The respondent has since started a de facto relationship with his business manager. The parties have agreed that the respondent will transfer his interest in the Suburb G property to the applicant as part of their settlement. The respondent claims to have held a valuable interest in multiple assets at the commencement of the relationship, including properties, motor vehicles, and a superannuation interest.
As part of the settlement, the respondent has agreed to pay for the children's education and extracurricular expenses, mobile phones, and medical costs; and the applicant's mortgage repayments, insurance, and private health insurance.
The parties disagree as to the value of the respondent's initial contributions and the impact of later contributions on that initial contribution. The court must weigh the initial contribution by the respondent with all other relevant contributions of both the respondent and the applicant.
Issue:
The issue is determining a just and equitable division of property between the parties.
Applicable law:
Analysis:
The Court is required to make orders that are just and equitable when adjusting the interests of the parties in the division of property. The Court must consider the direct and indirect financial contributions made by the parties to the acquisition, conservation or improvement of the property, the contributions other than a financial contribution made directly or indirectly by the parties to the acquisition, conservation or improvement of the property, and the contribution made by the parties to the welfare of the family in their capacity as parent and homemaker. The Court is also required to take into consideration the parties' best endeavours to provide for the family and to promote the care, welfare and development of the children.
Conclusion:
The respondent will transfer to the applicant the Suburb G Property, discharge any liability in relation to the Motor Vehicle 1, and pay the settlement sum. The respondent will also be responsible for discharging the mortgage in favour of NAB and outgoings associated with the Suburb G property. Furthermore, the applicant will transfer her interest in the joint Westpac account and resign from any position she may hold in the Companies, transferring all of her shares and entitlements to the respondent. The applicant will also renounce and surrender any and all beneficiary interests or entitlements to the income and assets in the Trusts.
Splitting order 1 and splitting order 2 are also included in the order, specifying the percentage of the SMSF interest to be paid to each party. Lastly, the order outlines that the property in the furniture, furnishings, personal effects, separate savings, superannuation entitlements, and other real or personal property or financial resources are to be vested in the applicant or respondent respectively. A Registrar of the Federal Circuit and Family Court of Australia (Division 1) is appointed to execute any document necessary to give effect.
Case: Sappho & Sappho (No 2) [2022] FedCFamC1F 786
Judgment of: BERMAN J
Counsels:
