Small pool – Wife’s superior marital and post-separation contributions (including her six years of primary care of the parties’ disabled child) undervalued by trial judge– Adjustment made for wife under s 75(2) (to take account of the cost of future care) was also inadequate
In Causey [2018] FamCAFC 81 (19 April 2018) Murphy J, sitting in the appellate jurisdiction of the Family Court of Australia, heard the wife’s appeal against a 70:30 property division made by Judge Turner at an undefended hearing in respect of a 22 year marriage. The parties had four children, the youngest of whom (who was still living with the wife) suffered from autism spectrum disorder, attention deficit hyperactivity disorder and an intellectual impairment.
Judge Turner determined the case at an undefended hearing, the husband having filed no material. While the husband had made no disclosure the Court found the net pool to be $266,160 including superannuation. It ordered that the wife retain the home but pay the husband $21,613. The parties were to retain their personal possessions of which the husband’s super was $58,236 (22 per cent of the pool). The wife’s marital and six years of post-separation contributions were assessed as an adjustment in her favour of 10 per cent, a further 10 per cent adjustment being made for her under s 75(2).
On appeal, Murphy J said (from [34]):
“It bears reiteration that the husband did not provide even the most basic of information required by the Act and Rules. There remains the possibility that he retains property that has not been disclosed and which he retains independent of the wife.
[35] Secondly, the uncontested evidence – which could not in any way be described as inherently improbable or not otherwise capable of being accepted was that:
- Both parties had contributed income to the family;
- The wife contributed in two roles as a homemaker and parent and as an income earner;
- The contributions by the wife as a homemaker and parent were … significantly greater than those of the husband; and
- The contributions made by the wife were made in difficult circumstances; the wife made allegations of family violence and there were four children, one with significant disabilities.
( … )
[37] Leaving aside the issue of contributions being ‘adjusted’ from some unspecified position … I … consider that her Honour’s finding … that ‘there is no evidence to support an adjustment in favour of either party, as the contributions of the parties were equal’, with respect to the period up to separation, was not reasonably open on the evidence … There was … ample uncontested evidence of an imbalance in favour of the wife.
[38] The period between separation and trial was approximately six years and as a consequence bore significance in assessing contributions over the whole of the 28 year period between cohabitation and the hearing. On any view of the contributions of the parties, based on the unchallenged evidence of the wife not otherwise impugned by her Honour, the contributions of the wife were significantly greater than those of the husband:
- The wife made significant capital contributions to the home (notably the sole realisable asset the subject of the proceedings) while the husband made none;
- The wife made significant indirect contributions to the preservation of the home while the husband made none;
- The husband provided minimal child support and owed arrears of the same. The wife was left to support herself and the parties’ child with special needs from her own resources;
- The wife contributed to the day-to-day care of the parties’ child with special needs while the husband’s day to day involvement in his care was minimal at best; and
- The wife accessed superannuation funds that would otherwise be available to her upon retirement to not only improve the parties’ only realisable asset;
- The wife provided financial assistance to the husband to establish himself post-separation; and
- The wife continued in two roles; one as a modest income-earner, the other as, effectively, a full-time carer for the disabled child.
[39] Her Honour assessed that evidence as requiring an adjustment of10 per cent – that is about $26,600. In my … opinion that assessment markedly undervalued the wife’s contributions in the post-separation period.
[40] Looking at the totality of the contributions across the entire period of approximately 28 years from the date of marriage to the date of trial, the wife’s contributions of all types were very significantly greater than those of the husband and all the more so by reference to the dollar value of the same in this very small asset and superannuation pool. The disparity of 20 per cent as assessed by her Honour equates to approximately $53,000. That markedly undervalues the disparity in contributions in this marriage.
( … )
[43] The ‘adjustment’ for the factors taken into account pursuant to s 75(2) … being assessed at 10 per cent, has a dollar value of about $26,600. …
[44] That adjustment and amount fails … to take account of the cost and arduous nature of the ongoing care of the parties’ child which will continue long into the future. That care impedes the wife from obtaining full-time work. That in turn impedes the wife from earning her way out of the financial difficulties inherent in the breakdown of this relationship.”
As to the potential for a splitting order for the husband’s superannuation, Murphy J said at [51]-[53]:
“ … [The husband’s retention of]his superannuation interest [by which] he receives about 22 per cent of the [total pool] … might be seen as generous to him. …
… [However] the wife acknowledges [that] … cooperation from the husband is likely to be non-existent … [and] effectively concedes that an order requiring the husband to facilitate a … splitting order would require … enforcement orders …
I am acutely conscious of the mandate in s 81 of the Act. ( … )”
Discretion was re-exercised, the wife to receive the home and the husband to receive no payment. The husband’s retention of his super meant an overall division of 78:22 in favour of the wife.