Henson & Marlin (No 4)

In the case of Henson & Marlin (No 4), the Federal Circuit and Family Court of Australia was tasked with determining property settlement issues between the parties, who were in their second de facto relationship. The applicant sought orders that would see her receive property valued at 40 per cent of the total nett value of the property, while the respondent sought to retain all real property under his control and to make a cash payment within 90 days of the order. The legal issues before the court included whether it was just and equitable to make an order under s 90SM of the Family Law Act 1975 (Cth), given the parties’ history and conduct, and whether the parties had agreed to keep their finances separate. The court rejected the respondent's contention that the parties had agreed to a "live separately financially" arrangement, finding instead that the applicant had always understood the property to be jointly owned. The court found it just and equitable to make an order under s 90SM, considering the applicant's role as the sole carer of two children and the respondent's history of inadequate disclosure and non-compliance with interim orders.

The court ultimately ordered that the respondent transfer specified real property to the applicant and make a cash payment within 45 days. The applicant was to be responsible for removing any caveats on the respondent's property and indemnifying him for certain school fees. Both parties were to indemnify each other for liabilities relating to the properties and were to retain specific personal property and bank accounts in their sole names. The order also provided for the appointment of a Registrar to enforce compliance if either party failed to act within 14 days of a written request. The final orders ensured that the applicant would receive a significant portion of the property, reflecting the court's consideration of the applicant's caregiving responsibilities and the respondent's past conduct.