Yamikani & Ain (no 2) [2024] FedCFamC1F 89

Yamikani & Ain (No 2) [2024] FedCFamC1F 89
Federal Circuit and Family Court of Australia (Division 1) First Instance
Christie J
Property – the parties commenced cohabitation in 1991 and separated on a final basis around the end of 2019 – the applicant applied for property adjustment – held: the applicant had included in his list of assets monies which were advanced by him to the respondent – both parties, by their conduct in record keeping (applicant) and repayments (respondent), treated the funds advanced as having been lent as opposed to gifted – the applicant conceded the loans were now statute barred – however, the existence of the advances and repayments remained relevant, as they informed the discussion of the parties’ financial arrangements – a superannuation interest is generally to be treated as property, rather than a financial resource – Part VIIIB of the Family Law Act 1975 (Cth) now permits the Court to make orders which change the beneficial entitlements of the spouses in superannuation entitlements and which are binding on third party trustees – however, the Court does not have the power to alter the beneficial entitlements of spouses in off-shore superannuation accounts nor does it have the power to bind foreign third parties – the applicant’s off-shore superannuation account should therefore be treated as a financial resource – the Court must understand the stated and unstated assumptions on which the parties operated the financial aspects of their relationship – the terms of the parties’ wills did not offer any evidence in respect of contribution, but spoke only to the provisions which the spouses made for one another in the event of death – the evidence did not allow a conclusion that each party contributed to the maximum of their respective capacities and abilities within these various roles, with a genuine mutuality to their relationship, and with the financial decisions and arrangements being subject to the unstated assumptions that devolve from mutuality – the applicant had applied his income to his debts and then to investments in his own name – the respondent had spent money on the purchase of illicit drugs, he ceased meeting expenses such as strata fees and withdrew his investments and superannuation, and had accrued credit card debt – no questions of non-financial contribution, nor the length of the relationship, cast doubt on the appropriateness of assessing contribution through the lens of what each party had acquired in his own name – the Court made orders for a cash adjustment to the respondent – there is no statutory obligation that the adjustment be expressed as a percentage, and given the Court’s findings about the separate nature of the parties’ financial affairs, it was appropriate to fix the adjustment in dollar rather than percentage terms.
Yamikani & Ain