In 2018, a Trial Judge of the Federal Circuit Court of Australia made Orders for a property settlement, in favour of the de facto husband. The outcome provided for the de facto husband to receive a significant adjustment of 75% of the pool of assets, and the de facto wife the remaining 25%.
In Whiton & Dagne [2019] FamCAFC 192, the Full Court of the Family Court overturned the decision of the Trial Judge, referring to his decision as a “‘leap from words to figures’ insufficiently heralded by any reasoning”.
The relationship between the parties had been characterised by family violence perpetrated by the de facto husband against the de facto wife and the children, leading to various periods of separation. Off and on again, the parties were in a relationship for some 17 years.
The decision of the Trial Judge was set aside, for many reasons, including:
The Trial Judge’s undervaluation of the wife’s contributions:
It was held that the trial judge had “discriminated between the worth of the wife’s contributions as homemaker and parent made in a de facto relationship, as compared with their worth had the parties been married.”
The Full Court commented that they were “unaware of any authority to support the notion of the trial judge” that the wife’s contributions were worth less simply because the parties were not married. In his judgment, the Trial Judge had not relied upon any authority to support his discrimination between married and de facto couples. Further, in the appeal, Counsel for the de facto husband did not refer to any authority that supported the Trial Judge’s interpretation of the law.
The trial judge’s treatment of family violence:
During the periods of separation, the wife had accrued debts in her name in order to obtain accommodation for herself and the children, having fled the former matrimonial home. The wife, having accrued debts in her name of $30,000, considered declaring bankruptcy.
At trial, the Judge accepted the wife’s evidence regarding the history of family violence perpetrated by the husband. However, he characterised the husband’s conduct, by having paid down the debt which was only incurred by the wife as a result of his violence, as generously “pulling her, as it were, out of the fire.” The payment of this debt by the husband, was then considered as an additional contribution on the part of the husband.
Although there are different legislative provisions which apply to de facto and married couples, the Court broadly applies the same principles for both when determining property matters. This Full Court decision confirms such.
If you have recently separated and are seeking specialist family law advice, contact us to schedule an appointment by phone on (02) 6225 7040, or email us at info@rmfamilylaw.com.au.