Family Law – Property Adjustment: Making Just and Equitable Orders

In Eaton & Eaton [2012] FMCAfam 9 (17 January 2012) Jarrett FM had before him an application for property adjustment under s.79 of the Family Law Act 1975 (Cth). Relevantly this is what he found.

Insofar as married couples are concerned, the law in relation to property adjustment is relatively settled and the approach to the determination of such an application is well established.
(See:
•    In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626;
•    In the Marriage of Ferraro (1993) FLC 92-335;
•    In the Marriage of Clauson (1995) FLC 92-595;
•    In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355; and
•    C v C (2005) Fam LR 414.)

Generally speaking there are four (4) stages to the proper consideration of an application for property adjustment under s.79 of the Family Law Act 1975 (Cth):

1. Identify the property, liabilities, and financial resources of the parties at the time of the hearing.
2. Evaluate the contributions of the parties as defined by s.79(4) of the Act, with particular reference to those matters listed in s.79(4)(a), (b) and (c).
3. Evaluate the matters to which the Court is directed by s.79(4)(d) to s.79(4)(g), and in particular, s.75(2) of the Act, insofar as any of those matters are relevant.
4. Be satisfied that the order that is proposed to be made is just and equitable in all the circumstances.

The justice and equity of the actual orders proposed to be made is what the Court must consider. (See Russell v Russell [1999] FamCA 1875; (1999) FLC 92-877)

The preferred approach is to:
•    Deal with the superannuation assets and the non-superannuation assets separately; and
•    Apply the four step process set out above to each class of assets.

However the parties to such an application often agree for the Court to approach the matter on the basis that there was one pool of assets, which included both superannuation and non-superannuation assets.