Problem 1 – Property Settlement (Marriage)

Andrew was born 1 August 1975 in Adelaide, SA. Mim was born 3 September
1978 in Adelaide, SA. Andrew and Mim met in early 1998 at an art class, and
when they met, Andrew was studying a Bachelor of Visual Arts at Adelaide
Central School of Art and working part-time at an art supply store. Mim was
working full-time as a junior lawyer at a large commercial law firm, and also
shared a strong appreciation for the arts.

At the commencement of their relationship, Mim had significant accumulated

assets, comprising of:

Freehold townhouse in Norwood $210,000

Motor Vehicle $20,000
Furniture and Effects $10,000
Superannuation $10,000
TOTAL $250,000

Andrew had minimal assets at the commencement of their relationship. He

moved in with Mim in her townhouse in Norwood soon after their relationship
began. They married on 22 November 2001. Shortly after, they decided that
Andrew would not work once they had children and would remain at home to
take care of them until youngest child was of school age.

On July 1, 2006, the couple had twins – Tom and Martine. Andrew was the
children’s primary carer and undertook majority of household tasks – including
cooking, cleaning, gardening and general maintenance around the house.
Andrew did not return to work once the kids had commenced school, as he and
Mim decided that it was best for him to attend to all of the household matters,
and support children’s growing extra-curricular activities – including art classes
and piano lessons.

Mim worked particularly long hours to provide financially for the family. She was
rarely home before the children went to bed each evening. Her only day off was
usually on Sundays. In 2012, she was promoted to Partner in the law firm, which
meant that she had to often travel interstate to meet with clients.

In early 2005, the parties purchased their matrimonial home in Unley. They
moved into the property, renting out the Norwood townhouse. The retained
payments from townhouse reduced mortgage registered on matrimonial home.
In late 2017, it became evident that the parties’ marriage was deteriorating.
They were continually arguing, with Andrew saying he hardly ever saw his wife,
and that she had become a “completely different person to the one he had
married”. On 2 December 2018, parties had separated, and Mim moved into
the Norwood townhouse, which had recently become vacant. Mim now
continues to work as a partner in the law firm – earning $350k/year.

Since separation, Mim has been living in Norwood townhouse. She suffered a
mental breakdown as result of her marriage, recently taking 2 months’ annual
leave from work. During this, she withdrew all the savings from her sole bank
account ($50,000) to purchase new furniture, appliances and indoor plants for
the townhouse. She wanted to try and “start again” with a newly decorated
home.

Mim is currently not paying any periodic Child Support (but is liable to, under
provisions of Child Support (Assessment) Act 1989), but is paying mortgage
repayments for Unley home, and twins’ private school fees at Pembroke
College.

Andrew continues to reside in Unley home with twins – now aged 14 years. He
has applied for Centrelink benefits – he is struggling to make ends meet
financially. He has nearly depleted all of the savings in joint savings account,
and has not worked since twins were born – despite finishing his Visual Arts
degree.

Andrew now approaches you for advice as to the property settlement. He

would like to know what orders the Court is likely to make, taking into
account factors set out in s 79(4) of the FLA 1975 (Cth). Advise Andrew
assuming the valuations of the assets, as at separation are current values.
S 79 – Jurisdictional Requirements
To be eligible to apply for a s 79 property settlement, at least one of the parties
must either:
• Be an Australian citizen.
• Live in Australia and consider Australia to be their permanent home, or
• Ordinarily live in Australia, and have done so for at least 12 months before
application.

The parties must have been married.

Institution of Property Proceedings – Time Limitations

• FLA s 44(3) – Matrimonial property proceeding shall not be instituted,
except by leave of the court, after the expiration of 12 months from the date
of the divorce.
• Since the parties have not been divorced, they are eligible to commence
property proceedings. There is no limit on the length of the time parties can
be separated, before commencing property proceedings.

Matrimonial Property Settlement – s 79 FLA

Matrimonial property determinations are governed by s 79 of the FLA. In order
to ensure that all the required factors are considered in a logical progression,
the Court’s often utilised a stepped process.

5-Step Process:
1. Identifying matrimonial property – both legal and equitable (assets and
liabilities).
2. Is it just and equitable to make an order altering property rights?
3. Assess the parties contributions – financial, non-financial, and to the welfare
of the family – s 79(4) or s 90SM(4).
4. Assess the s 75(2) or s 90SF(3) factors.
5. Determine whether the proposed orders overall are just and equitable – s
79(2).
Step 1 – Identify the parties’ assets, and their values as at the date of separation.
• Rule 13.04 requires each party to a financial case in the Family Court to
make full and frank disclosure of their financial circumstances at the
commencement of the proceedings.
• In all property problems, assume full and frank disclosure unless facts
clearly suggest otherwise.

At the date of separation, Mim and Andrew had the following assets and
liabilities:
Norwood Townhouse (in Mim’s sole name) $400,000
Home in Unley (in joint names) $2,000,000
Mortgage registered over Unley home - ($500,000)
Motor Vehicle (in Mim’s name) $30,000
Motor Vehicle (in Andrew’s name) $50,000
Savings (in joint names) $50,000
Savings (in Mim’s name) $50,000
Furniture and Effects (in Unley home) $20,000
Credit Card debts (in joint names) - ($20,000)
TOTAL $2,080,000

Pooling Superannuation
• Only asset that may be separately assessed would be superannuation.
• It is increasingly common for a Court to adopt a 2-pool approach with
superannuation quarantined in a separate property pool, as superannuation
entitlements are treated as quasi-property, and are often treated differently
from current realisable assets when property orders are made.

Step 2 – Is it just and equitable in the circumstances to make an order altering

the property interests of the parties? If no – end of the matter. If yes – proceed
to step 3.
• Stanford & Stanford (2012) – highlighted on correct interpretation of FLA, a
court must first consider whether it is just and equitable to make a s79 order.
• Here, since parties have recently separated, and request property matters
be resolved – it clearly is just and equitable to consider property orders that
separate the ownership of the matrimonial property.
• If court finds it is not just and equitable, the court may alternatively make a
declaration as to property rights under s 78.
Step 3 – Consider contributions made, according to s 79(4)(a)-(c)
• 2 possible judicial approaches to assessment for entitlement of parties to
property – the global approach and asset-by-asset approach.
o Global – division of parties’ assets as an overall proportion of each
contribution, taken as an overall global view of total assets.
o Asset-by-Asset – determination of parties’ interests in individual items of
property.
• When to use global v asset approach?
o Here, considering parties’ contributions, Court would adopt a global
approach taking into account long duration of marriage, and financial
interdependence of parties.
o It is usual for court to consider property of parties on a global approach,
it is open to court to determine contributions with respect to each item
properly (asset-by-asset/Norbis approach).
▪ Most commonly utilised where marriage is either short/rigorous
maintenance of separate finances during marriage (Norbis v Norbis
(1986)).
• S 79(4)(a) – Direct Financial Contribution to Acquisition
o A direct financial contribution is made to acquisition of property by way
of contribution to original purchase/cost price.
o This includes all assets, including matrimonial home, but also investment
properties, businesses, motor cars, boats.
o Norwood Property - Mim owned at commencement of relationship.
o Pre-Relationship - In addition to Norwood property, Mim contributed a
motor vehicle and furniture and furnishing at commencement of
relationship. These were depreciating assets whose value would have
eroded by separation.
o Unley Property
▪ Both parties would have made D/F contribution to purchase price
with capital acquired from respective incomes.
▪ Shortly afterward, Andrew ceased working – reduction in mortgage
from 2006-18 attributed to Mim’s income.
▪ Rental income from Norwood property applied to reduction of
mortgage – contributed by Mim.
o Interest component of payments on mortgage is considered to be
payments for conservation of property – not payments for acquisition of
property.
o Can be presumed that during long marriage, during which Mim was only
income earner, contributions of this type were incurred.
• S 79(4)(a) – Indirect Financial Contribution can include:
o Financial contributions to non-property expenses (e.g. holidays, school
fees food and entertainment). By meeting these expenses – other party
has greater ability to pay property related expenses (e.g. mortgage,
rates and renovations).
 o Single income family – no contribution of this type.
• S 79(4)(b) – same as (a), but deals with contributions other than financial
ones.
o Andrew undertook gardening and general maintenance – constituting
direct non-financial contributions.
• S 79(4)(c) – contributions made to welfare of parties and children of
marriage.
o Contributions to welfare of family during premarital cohabitation and
post-separation before divorce are covered.
o Andrew ceased all employment when kids were born in 2006. He was
primary carer, undertook majority of household tasks including cooking,
cleaning etc.
o Received almost no assistance from Mim – who worked 6 days a week.
Once she was promoted in 2012, she was often away inter-state on law
firm business.
Step 4 – Assessing s 75(2) Factors – s 79(4)(e)
• S 75 is designed to identify a parties financial resources, financial and
support commitments, and capacity to earn an income which will determine
a parties capacity to support themselves in future.
(a) Age and State of Health of Parties.
o Andrew is 45 years old and in good health.
o Mim is 42 years old – has recently suffered mental breakdown for
which prognosis is uncertain.
(b) Income, Property and Financial Resources & Physical and Mental
Capacity for Gainful Employment
o Mim has been a high earner throughout her professional career –
currently earning $350,000 per year.
o Andrew has not been employed for 14 years, undertaking full-time
care of the children. He could resume employment, but will
probably require some period of re-education to bring his
qualifications up to date.
(c) Care and Control of a Child of the Relationship under 18 Years of Age
o Andrew has full-time care of 2 children aged 14 years.
o Children are of an age where Andrew would be able to resume full
or part-time employment.
(d) Commitments Necessary to Enable Party to Support (i) themselves;
and (ii) a child/another person that party has a duty to maintain
o Andrew is unemployed, and has applied for Centrelink benefits –
struggling to make ends meet financially. He has nearly depleted all
savings of joint savings account.
o Mim is currently not paying any periodic Child Support (is, however,
liable to do so under Child Support (Assessment) Act 1989) – but
is paying mortgage repayments for Unley home and twins’ private
school fees.
(g) A standard of living that, in all circumstances, is reasonable
o Andrew is at a standard living that is well below what was enjoyed
by the parties during the marriage.
(n) Terms of any order made under s 79 in relation to (i) the properties of
the parties
o The total realisable assets of parties are $2.08m, of which Andrew’s
contribution has been assessed at 50%.
(na) Any child support under Child Support (Assessment) Act 1989 that is
liable
o Mim is liable to pay child support, should Andrew make an
application for it.
 Post-Separation Expenditures
• From time of separation until s 79 orders are made, distributing matrimonial
property, the property in possession of a party is effectively held in trust,
and can only be expended for reasonable cost of living.
• Mim withdrew all savings from her sole bank account ($50k) to purchase
new furniture, appliances and indoor plants for Norwood townhouse. She
wanted to try and “start again”, with a newly decorated home. This would
clearly constitute an unreasonable expenditure of matrimonial property, and
may well be characterised as a pre-settlement distribution to Mim.

Superannuation
Final task for Court is to determine what should be done regarding
superannuation pool, where parties’ superannuation entitlements are as
follows:

The parties’ superannuation entitlements are as follows:

Mim’s Superannuation $120,000
Andrew’s Superannuation $30,000
TOTAL $150,000

Where a substantial disparity exists between entitlements, the Court is likely to

ensure both parties are given adequate superannuation to provide sufficient
retirement income.

Both parties are in their 40s, with many potential income producing years to
increase superannuation before reaching retirement age (65 years).

Andrew’s capacity to increase superannuation by full-time employment will be

limited during next 4 years – until children reach 18 years of age. His earning
capacity is substantially lesser than Mim’s.

Mim has ample high-earning years, and Andrew has sufficient lower income
years to increase their superannuation – Court is likely to divide superannuation
pool equally, between parties to enable them both to have a reasonable basis
upon which to build their superannuation after Orders have been made.
 Problem 2 – Parenting Orders
Zayne and Chantelle met in Fiji, in 2005 – marrying in 2007.

The parties separated in 2017, and both have continued to reside in Adelaide.
Pursuant to an Order made by consent in the Court on the 14th of April 2017 –
the children were to live with the wife. A further Order was made by consent
that the children spend time with the husband on alternate weekends, and half
the school holidays. A further Order made by consent was that the husband
has lived in a rented house on the same street where the wife and children live
in the former matrimonial home.

The wife has now made an application to the Court to alter the existing Orders.
She has applied for Orders giving her sole parental responsibility and, further,
that she be allowed to relocate with the children to Fiji. She proposes that the
children spend time with the husband during half of the summer school
vacation, and whenever he comes to Fiji, upon giving her reasonable notice.
The husband is totally opposed to the wife’s application, and seeks an Order
restraining the wife changing the children’s place of residence from the current
address, and an Order that the children should live with him if the wife relocates
to Fiji, and spend time with the wife as may be ordered. He also seeks to have
the existing Parenting Orders kept in place.

In support of her application, the wife, through both affidavits and oral
testimony, presents to the court that difficulties in her post-separation life with
the husband started from the time she entered into a de facto relationship with
her new partner, Amos, about 6 months ago.

The wife claims that the husband drives past her residence every day, staring
into the front window, and in addition, makes rude gestures and comments to
her when he is out walking the dog at night. The wife finds this conduct
intimidating. The wife further gave evidence of domestic violence during the
marriage, although she made it clear that the husband was never physically
violent towards the children, although he did shout threats at the wife in the
presence of the children.

The wife says she was initially reluctant to move away from her family and
relocate to SA, but did so because the husband assured her that they would
make frequent return visits to Fiji. She further alleges that the husband reneged
on that promise, and that they have only returned once since relocating. The
wife strongly believes that the quality of her life and that of the children will
greatly improve if the relocation were to occur.
The husband denies the wife’s allegation about harassment and violence. He
admits that he glances at the wife’s house each morning, as he drives by
because sometimes the children are at the window, and wave to him.
Furthermore, that the wife has misinterpreted his mutterings of ‘stupid bitch’,
and his angry gestures when he is walking his dog as being directed at her, as
they are, in fact, directed at the dog who is extremely disobedient in public and
causes the husband considerable annoyance. The husband claims that the
wife’s primary motive in seeking to relocate, is to undermine his relationship
with the children, and substitute Amos (who intends to accompany Chantelle to
Fiji) as their de facto father. He further states that the wife’s claims of domestic
violence during the marriage are a total fabrication. He acknowledges that, by
mutual consent, they engaged in, what he terms, ‘rough sex’, from time-to-time.

Prior to the hearing, the Court, in accordance with s 62G(2), directed a family
consultant to provide the court with a report on the views of the children this
matter, and any other information relevant to their care, welfare, or
development.

The Family Consultant reported that:

• During his interview with Jason, aged 11, Jason expressed that he had a
much stronger bond with his mother, than his father, but was happy to also
spend time with him. He also stated that he liked his mother’s new partner,
who was Fijian, and he felt comfortable with him. He informed the family
consultant he wished to return to Fiji to live, and that he considered it would
be nice to see his dad during school holidays and whenever he visited.
Jason said he had a lot more fun living in Fiji, being able to do things with
cousins, and enjoying the laid back Fijian lifestyle.
• During his interview with Naomi, aged 7, she stated that she wanted to
remain in Adelaide, where she liked school, and all her friends were. She
liked the present arrangement, where she mostly lived with her mother, but
could spend lots of time with her father, but if her mother moved to Fiji, she
would be happy to live with her father. She also stated she did not like her
mother’s new boyfriend, who looked at her strangely, and she tried to avoid
contact with him as much as possible.

The husband believes Jason’s expressed views about the relocation do not
represent his true feelings. He asserts that Jason was manipulated by the wife,
to express those views to the Family Consultant, but, in fact, wants to remain in
SA. He says Jason has a great future as an elite swimmer, and needs to keep
training with the group that he coaches. The husband states that the
considerable expense in travelling to and from Fiji will make it very difficult for
him to visit, as he can barely afford for the children’s proposed yearly visit to
SA.
After close of trial, the wife provided the Court with a medical report from her
psychiatrist, stating that as a result of the husband’s alleged recent harassing
behaviour, old emotional wounds have now opened, and she is suffering from
PTSD – affecting her relationship with the children. The psychiatrist’s report
suggests the wife would benefit from the relocation, particularly as it will enable
her to escape the close association with the husband, and obtain the support
and nurture of her extended family. The husband was unaware of this report,
until it was presented to the court after the conclusion of the trial.

Consider how the Court would proceed with determining this matter, and
what final Orders, if any, should be made?

Keep in mind the Court is not limited to the Orders requested by the
parties, and may make whatever Orders it believes are appropriated.

The exam question involves considering the appropriate PO that might be

made in these circumstances. In making these orders, the best interest of the
child is the paramount consideration (s 60CA). the objects and principles that
outline the best interests of children are found in s 60B(1)(2)(3) – are squarely
focussed on protecting children from harm, and spending their time with both
parents and other people significant to their care. To avoid a duplication of
effort, it is preferable, when determining the appropriate PO, to first give a
general consideration to the relevant best interest factors.

Best Interests of the Child – SS 60B & 60CC

• Section 60CC outlines the mandatory criteria to be considered in
determining what is in a child’s best interests.
• Section 60CC is divided into – primary (s2) and additional considerations
(s3). The Primary Conditions are:
o The benefit of the child having a meaningful relationship with both
parents (s 60CC(2)(a)), and,
o The need to protect the child from physical and psychological harm, as
a result of exposure to abuse, neglect or family violence (s 60CC(2)(b)).
• These factors repeat those found in s 60B, specifically ss (1)(a) and (b),
clearly identifying the primary objectives in determining the broad
objectives of any PO.

Best Interests of the Child – S 60CC(3)

To achieve these primary objectives, the requisite substratum of relevant facts
and circumstances in the case need to be identified. This is accomplished by
considering the additional consideration, found in s 60CC(3). In considering the
s 60CC(3) considerations, the following factors could be identified as being
relevant:
• Jason (11) prefers remaining with mother and relocating to Fiji. Naomi (7) is
happy to be in the custody of either parent, but wants to remain in Adelaide.
• Children have a good relationship with both parents. Jason has a good
relationship with Chantelle’s de facto partner, Amos, but Naomi feels
uncomfortable around him.
• The parental separation was initially amicable, and the parties had agreed
to an arrangement, whereby the children lived with the mother, and spent
substantial time with the father under a consent order. After about 1 year,
the mother applied to have the consent order altered to sole parental
responsibility, and to relocating the children from Adelaide to Fiji.
• Both parents have fulfilled their obligations to exercise their parenting
responsibilities, and to financially support the children.
• The distance between Fiji and Adelaide is in excess of 1500kms, and would
severely limit the capacity of a parent who resides in Adelaide to have
regular physical contact.
• The children were born in Fiji of a mixed Australian/Fijian couple. The
children resided in Fiji until they were 7 and 3 years of age, and have resided
in Adelaide for the last 4 years.
• There are allegations of family violence against the father arising from
alleged arguments, abusive language, harassment and stalking.

An initial analysis of s 60CC(3) would suggest the following, re primary

considerations:
• S 60CC(2a) – the children currently enjoy a meaningful relationship with
both parents.
• S 60CC(2b) – the children may have been exposed to low levels of
psychological harm from the father shouting at the mother in their presence.
Otherwise, no issues about protecting the child from harm seem evident.

Parental Responsibility – S 61DA

• S 4(1) - In cases of parental separation – primarily concerns major long-
term issues.
• S 61DA - The Court must apply presumption that it is in best interests of the
child, for their parents to have equal shared parental responsibility.
• S 61DA(2) – Presumption can be rebutted, in situations where there are
reasonable grounds to believe parent has engaged in family violence/abuse
of the child.
• S 61DA(4) – Presumption can be rebutted that there are reasonable
grounds to believe it is not in best interests of the child.
Live or Spend Time With – S 65DAA
Where a parenting order provides for equal shared responsibility, the Court
must next consider what time the child will spend with each parent, according
to provisions of s 65DAA.
• Requires Court to consider whether child spending equal time with parents
is in best interests, and reasonably practicable.
• Here, children have not been in equal shared arrangement since separation,
but have instead spent primary time with mother, and substantial time with
father.
• Significant issue is that for equal shared arrangement to work, both parents
must embrace it as something they believe can be successfully
implemented.
• The hostile nature of the relationship between the parties is a good indicator
that an equal time arrangement, but that substantial and significant time in
terms of s 65DAA(2), as previously existed, is still appropriate.
• Make sure any proposed order considers the ‘reasonably practicable’
requirement

Relocation
Consider application by mother for children’s primary residence to be relocated
to Fiji. No specific section of the Family Law Act refers specifically to this subject
of relation.
• Issue requires that relocating parent show that move will enhance, or least
maintain the current, welfare of the child by reference to the facts.
• Any such arguments should address; the best interests of the child – noting
how the move is a positive one, and will be preferable to existing status quo.
• Here, mother must, on balance, demonstrate why relocation to Fiji is better
for long-term benefits of children, as opposed to remaining in Adelaide –
where both children will be able to maintain close relationship with father by
being able to spend substantial and significant time with him.
o Distinguish between why relocation is best for child, as opposed to what
is best for parent. Generally, parent’s interests are not a significant
consideration.
• A parent opposing relocation has to show positives of present situation,
while also trying to point out potential/real problems to be associated with a
move.
o Father’s submissions should address:
▪ Strength of current relationships and inherent positives
▪ Loss of time spent with child, and expected effect of that loss of time
on maintaining a meaningful relationship
▪ Negative effect of a dislocation from child’s current circumstances
▪ Uncertainty of how child will adjust to such a substantial change in
circumstances.
• Here, strong arguments could be made in favour, and against, the
relocation.

Additional Issues
As the Court has power to alter existing orders (s 80NBA), the applicant will
need to demonstrate there are significant changed circumstances justifying
reconsideration (Rice and Asplund).
• Getting the psychiatrist’s report into evidence after the trial has closed
requires that the proceeding be re-opened before final orders are made.
• This requires that the further evidence is so material, that interests of justice
require its admission, and that the further evidence would most probably
affect result of the case (Summitt & Summitt [2009]).
 Problem 3 – Property Settlement (De Facto)
Janice (Plaintiff) and Greg (Respondent) first met in about August 2013, at a
time when they were both employed by the Adelaide Casino, she was a cashier,
and he was a card dealer – still employed here at present.

At the time, when Janice and Greg met, she was living with her parents. Greg
was, at the time, still married and living with his wife and daughter – who was
then, aged 5 years. It seems clear that the parties were attracted to each other,
and their friendship rapidly developed to the stage where they were having an
extramarital affair.

It was as a result of their relationship that Janice decided to leave her parents’
home, renting a flat as of September 2014. Thereafter, Greg became a frequent
visitor to the flat, often staying for meals, and, on occasion, staying overnight.
Also, the parties would go on discreet social outings. Despite the closeness of
their relationship, however, Greg did not contribute to the Janice’s household
or other expenses, but paid the cost of their social outings. In 2015, Janice fell
pregnant to Greg, but the child was born prematurely, and died shortly
afterwards.

In January 2015, Greg and his wife separated with the wife leaving the
matrimonial home and Greg continuing to live there. The parties divorced in
March 2016, and shortly afterwards, a property settlement between the parties
occurred. At around that time, Janice and Greg began associating more openly
than previously. In addition, Janice started to spend weekends at Greg’s home.
On those occasions, she helped with the household chores. However, despite
the increased time that the parties spent in each other’s company, each of them
appears to have maintained a fair measure of independence, and, in particular,
to have kept their finances separate from the other, maintaining their own
residences.

In May 2016, Janice received an inheritance of $100,000 from her grandfather.

It was during this period, that Janice, having considerable disposable income
as a result of the inheritance, claims to have refurnished and decorated Greg’s
home, and established a garden. These claims are disputed by Greg –
suggesting that while Janice did, during 2016-7, make some improvements to
the home, they were not extensive – certainly not exceeding $10,000 in value,
and secondly, that, in any event, when Greg offered to reimburse Janice for the
cost of the improvements, she rejected his offer.
In February of 2017, when Janice began living with Greg on a full-time basis in
his home – he told her the following:
“I don’t want us to be dependent on each other for our financial security.
If we are to live together, I don’t want to know about your financial affairs.
We should keep that part of our lives separate. We can be responsible for
joint expenses, as we agree from time to time. I don’t want to go through
the ordeal I experienced over property when the wife and I divorced.”
At the time, Janice made no response to Greg’s declaration about their de facto
financial affairs, but now states that she viewed his statement to be just de facto
jitters about her moving in and she did not take it sereiously.

Once they commenced living together, the parties seem to have shared the
household expenses in a rough sort of way. Thus, from the start, Greg provided
Janice with $260 per week, as his contribution towards the cost of food and
other household items. Greg, additionally, paid the council, water rates and
electricity costs, and the cost of their recent Gold Coast holiday. Greg and
Janice each paid the running expenses of their respective cars.
There does not appear to be any real dispute that after Janice went to live at
Greg’s home, that Janice undertook most of the household duties while Greg
was responsible for home maintenance and gardening. The relationship
between the parties eventually broke down, and they separated in April 2018.
Soon after separation, Janice discovered she was 3 months pregnant with
Greg’s child.

At the time of separation, the de facto property pool between the parties was
as follows:

House (in Greg’s sole name) $700,000

Mortgage registered over house - ($400,000)
Janice’s Motor Vehicle $20,000
Greg’s Motor Vehicle $30,000
Janie’s Savings and Other Financial Assets $120,000
Greg’s Savings and Other Financial Assets $50,000
Furniture and Household Effects $30,000
Greg’s Superannuation $120,000
Janice’s Superannuation $75,000
TOTAL $745,000

Consider whether Janice and Greg had a relationship that would bring
them within the de facto property provisions of the Family Law Act 1975?

Assuming that the parties do fall within the property jurisdiction of the
Family Law Act 1975, discuss how the court is likely to determine a de
facto property settlement between them.
Jurisdictional Issues
• The Family Law Act Cth (1975) as amended applies. The start date for the
de-facto provisions in SA was 1 July 2010. Parties must have separated
after this date for the new provisions to apply – this is satisfied on the facts.
• The parties are Australian residents, and ordinarily reside in Australia – for
the purposes of instituting any family law proceedings (s 90RG). The
proceedings can be commenced in SA, as the parties were residing in
South Australia.
• Sections 90RD, 90SB and 90SM are the most relevant sections for property
settlement, where parties are in a de-facto relationship.
Does a De Facto Relationship Exist?
Where there is dispute between parties as to existence or duration of a de facto
relationship, you need to apply s 90RD declaration – which can determine
existence, period(s) during which it existed/ended, whether there is a child of
the relationship, and whether substantial contributions were made, as per s
90SM(4)(a-c). need to determine whether parties have a relationship as a
couple living together on a genuine domestic basis (4AA(1)(c). A party can
enter into a de facto relationship if they are already married (4AA(5)(b).

In determining the existence of the de facto relationship, Court must

undertake a detailed application of the s 4AA(2) factors:
• Duration
o They lived together intermittently for a number of years, on a full-time
basis for a year;
• Sexual Relationship
o Evidently existed;
• Degree of Financial Dependence/Interdependence
o Each party largely bore their own cost of living until last year;
o No joint assets or bank accounts;
• Degree of Mutual Commitment to a Shared Life
o Both seemed commitment to each other;
• Care and Support of Children (if applicable)
o No children; Child born, but died before separation, and Janice
discovered after their separation that she was pregnant.
• Registration of Relationship
o Relationship was not registered;
• Reputation and Public Aspects of Relationship
o Did not socialise very often in public, until after divorce in early 2016.
*Relationships Register Act 2016 – the fact that the relationship was registered,
does not mean it will qualify as a de facto under s 90RD.

Brief discussion of the criteria in section 90SB. Have any of the requirements
in s 90SB been satisfied? Discussion about when the relationship commenced
and when it ended. Is total period of the de facto relationship more than 2
years? If not, does ss (b) or (c) apply?
Preliminary Property Settlement Issues
• Section 44(5) – there is a 2 year limitation period from the date of separation,
in which this matter clearly falls.
• Janice should be advised to lodge a caveat immediately over the title to the
de facto home.
• Brief discussion that Janice can also seek injunctive orders in her
application, restraining Greg from selling the property. However, if there is
a caveat lodged, then the Court may not grant such an injunctive order as
being necessary.
• Brief discussion as to whether an application for urgent or interim spousal
maintenance can be made by either party. Unlikely to succeed, because
neither party can argue successfully that they are unable to adequately
support themselves.

Main Property Settlement Issues

A Global or Asset-by-Asset Approach?
The Court can adopt an asset-by-asset approach, based on the separation of
the parties’ financial affairs throughout the relationship, and the relatively short
duration of the de facto.

5-Step Process
Step 1 – Identifying De Facto Property
• Assume full and frank financial disclosure. Otherwise, any orders may be
set aside in the future, or the Court may draw an adverse inference: Black
and Kellner (1992).
• All items listed in the property assets would be considered de facto
property.
• Assume assets valued at the time of the hearing – Mackie (1981); P and P
(1985).
• The assets for distribution – realisable assets totalling $550,000 and
superannuation interests totalling $195,000. Probably appropriate to
quarantine superannuation assets in a separate pool. Why?

Step 2 – Is it Just and Equitable to Make Property Orders in this Case? – S

90SM(3)
Here, the equitable threshold poses no problem, as parties have recently
separated, and they desire that court resolve their property dispute.
Step 3 – Assess the Parties Contributions
• There is no presumption of a 50:50 starting point – Mallett (1984).
• No guidance as to the weight to be attached to each element – 90SM(4).
• Direct financial contribution to acquisition (s 90SM(4)(a))
o Greg purchased a de facto home (net value $300,000).
o Both parties contributed to purchasing furniture and household effects.
o Both parties purchased motor vehicles.
o Both parties have savings accounts.
o Janice’s inheritance would be included in her savings and other financial
assets.
o Both parties have contributed to superannuation assets.
• Direct financial contribution to conservation or improvement (s 90SM(4)(a))
o Janice contributed at least $10,000 to home improvements.
• Direct non-financial contribution (s 90SM(4)(b))
o Greg could argue that he undertook general handyman work to the
property – e.g. maintenance and gardening.
• Indirect non-financial contributions (s 90SM(4)(b))
o No facts to support.
• Welfare of family (s 90SM(c))
o No children of relationship.
o Janice’s pregnancy? No relevance – even if matter is adjourned till
pregnancy finalised, no significant childcare before matter resolved to
increase Janice’s contribution to welfare of family.
o Janice undertook homemaker role and household duties.
o Greg paid for cost of everyday living expenses and holidays.
• Therefore, at this stage, contributions would likely be assessed in favour of
Greg re: realisable assets – likely 60/40. Greg made substantially greater
financial contributions to offset Janice’s greater contribution to welfare of
family – only significant when childcare is involved.
• With regard to superannuation, Greg would argue that each should retain
their own super accounts – exclusively accumulated individually, and largely
prior to the commencement of the de facto relationship. Also, both parties
are young enough to grow their superannuation in the future.
Step 4 – Consider Matters Set Out in s90SM(4)(d)-(g) and Take Into Account
s90SF(3) Factors
• Brief discussion of relevant s 90SF(3) factors.
• Most significant issue – Janice’s pregnancy. Should the unborn child be
considered in assessing s 90SF(3) factors?
• If there was a child of the relationship, it would clearly be a significant factor.
A child not in existence would not be considered as a factor. In these
circumstances, where the existence of a newborn child would be of such
substantial importance, the applicant should have applied for an
adjournment of the case – to allow this important issue to be resolved.
• If no child taken into consideration, an adjustment in favour of either party
after assessing the s 90SF(3) factors would be unlikely. If a child is taken
into consideration, an adjustment of 15% in favour of mum, resulting in a
property settlement of 55/45% in favour of the matter.

Step 5 – Are the Proposed Orders Just and Equitable?

there does not appear to be any need to alter the property orders, based on
concerns of justice & equity.