The recent case of Daymond and Daymond [2014] FamCAFc 212 talk about the division of assets acquired over a long marriage of some 21 years and takes into account the impact of one party, the husband in this case, of frequenting the pub instead of being at home assisting the wife with the care of two children and the particular care of one child with Asperger’s syndrome.
The trial judge awarded the wife 52.5% o the net assets and the husband 47.5%. The husband appealed the decision of the trial judge, only to find that his appeal was rejected and as he was totally unsuccessful, he was ordered to pay the wife’s costs on top.
The facts of the case are as follows:
- The husband and wife commenced co habitation in December 1988 and married in 1989
- The parties had two children, one of whom was diagnosed with Asperger’s syndrome
- The parties separated for a period of one year in 1997 and for 7 years between January 2000 and January 2007. Between January 2007 and final separation in 2009 the parties lived in separate homes
- The parties had a net asset position of $2,229, 963, including superannuation
- At the commencement of the relationship the Husband brought in a 13 per cent shareholding in the family company and a professional practice at an agreed value of $30,000 and the wife brought into the marriage a home worth about $45,000, a motor vehicle worth about $5,000 and superannuation of $15,000.
- The husband worked 7 days per week in his professional practice and working in the family business up until 2000. The wife was employed in a government job and worked part-time for the Husbands practice and at the local hairdressers.
- In 2007 the wife obtained a bachelors degree.
The wife’s case
The wife argued that her task of caring for the children on a day to day basis was made significantly more difficult because the husband was never around. The wife claimed that the husband would go to the pub every day and spend his time drinking while she was at home caring for the children and especially being responsible for the child with Asperger’s syndrome. The trial judge accepted that
” in respect of the extent to which the husband’s use of alcohol and, in particular, the time he spent at the pub, impacted upon the relationship of the parties”.
The trial judge agreed with the wife and found that her contributions during the marriage as both a homemaker and parent exceeded significantly that of the husband’s whose contribution were “minimal at best”.
The husband went to the pub twice a day on weekdays, from 12pm to 3:30pm and from 4pm -7:30pm each weekday and long periods of time over the weekends.
The husband’s case
The Husbands case was that his interests in his family company amounted to 74 per cent of the value of the property to be divided. The husband received this shareholding from inheritances and these were received late in the marriage, and the company was run by the husband’s family, with the wife having made no contribution to acquiring the shares or running the business. The husband made financial contributions to the assets that were substantial and he worked 7 days per week in his professional practice.
The Appeal Court found that:
“It is beyond doubt that the direct financial contributions by the husband as identified by the trial judge were significant, but the assessment of contributions is an holistic exercise, and it is necessary to take into account all contributions of the parties regardless of type and timing.
It was accepted by the Appeal Court that the trial judge was correct in saying that although the husband did work 7 days per week, because of his frequent time spent at the local pub, the wife undertook the lion’s share of looking after the home and caring for the children of the marriage.
The Appeal Court emphasised that the Husband chose to go to the pub rather than making contributions to the family and care of the children. This choice the husband made ended up costing him more than just a round of drinks at the pub!
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