Otmar & Mack [2024] FedCFamC2F 37

Otmar & Mack [2024] FedCFamC2F 37

Background Details

• Applicant: Ms Otmar ('the Mother')
• Respondent: Mr Mack ('the Father')
• Type: De Facto relationship
• Duration: Commenced in 1995, cohabitated from 2003, separated finally on 26 January 2021.
• Ages: Mother aged 50 and Father aged 52 at judgment.

Children

• There are two children from the relationship:
  • Mr L, born in 2005, now 18 and not subject to court proceedings.
  • X, born in 2007, currently 16 years old.
• Children were residing with the Father with no contact with the Mother post-separation.

Initial Financial Positions

• Mother:

  • Removed $40,000 from joint accounts post-separation.
  • Receives WorkCover payments following a workplace injury.
  • Superannuation balance as of the final hearing: $63,423.

• Father:

  • Inheritance of $211,000 received in 2017 from his deceased mother's house.
  • Superannuation balance as of the final hearing: $91,138.
  • Maintained the family residence post-separation.

Contributions During the Relationship

• Financial Contributions:

  • Father contributed a $211,000 inheritance to the relationship.
  • Both parties engaged in paid employment throughout the relationship the Mother alleges that the Father, at times, refrained from work contributing to higher personal expenditures.

• Non-financial Contributions:

  • Both parties contributed to homemaking and childcare.
  • The Mother's prenatal mental health difficulties affected her contribution at times but were not a constant during the entire period.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The Father paid mortgage payments and retained the family home.
  • The Mother removed significant funds from joint accounts.

• Non-financial Contributions:

  • Father's involvement as the primary caregiver for the children post-separation.
  • The Mother claimed to contribute informally with possible involvement perceived as limited by her separation from the family.

Current Financial Position & Property Pool

• Income:

  • Mother: $320 per week from WorkCover payments.
  • Father: $1,189 per week from retail employment.

• Property Pool:

  • Total estimated non-superannuation asset pool: $650,000.
  • Includes family home, motor vehicles, and business assets/liabilities.

Assessment of Contributions and Future Needs

• Contributions:

  • Mother was assessed to have made substantial contributions in the roles of homemaker, parent, and income earner despite periods of mental health challenges.
  • Due to cannabis and alcohol consumption, Father's contributions were affected, but his larger financial inheritance gave him a slight advantage in the division, assessed at 54% to the Father and 46% to the Mother.

• Future Needs Adjustments:

  • An adjustment of 4% in the Mother’s favor based on her fragile mental health, limited financial resources and earning capacity, and the Father's greater responsibility for child care.
  • Final division: 58% to the Father and 42% to the Mother.

Unique Aspects

• The case is influenced considerably by family violence issues, specifically around the night of the injury, affecting the Father's credibility and the breakdown of relationships.
• Father's substantial alcohol and drug use impacted his contribution assessment, as it was found to be of significant concern and may have affected his parenting seriously.
• The presumption of shared parental responsibility was rebutted due to family violence, and the Father was given sole parental responsibility with stringent alcohol prohibitions while caregiving.

Summary

The final orders determined X should live with the Father, and the division of the asset pool favoring the Father but with substantial consideration given to the Mother’s circumstances and future prospects. Property sale and company wind-ups were ordered with equitable distribution adjusted to the respective parties' needs and contributions.