Acerra & Calvi [2024] FedCFamC2F 110

Acerra & Calvi [2024] FedCFamC2F 110 (2 February 2024)

Background Details

• Applicant: the wife
• Respondent: the husband
• De facto relationship
• Duration: Approximately 30 years. Relationship commenced around 1990 and ended in June 2020.
• Ages: Applicant (Wife) – about 58 (the husband is three years older), Respondent (Husband) - 61 years at the time of judgment.

Children

• Children from Relationship: Two adult children.
• Special Needs: The youngest child, aged 19, is considered "high needs" due to mental health issues, has lived with the wife post-separation, and receives financial support from the husband.

Initial Financial Positions

• Neither party made initial financial contributions at the commencement of the relationship.

Contributions During the Relationship

• Financial Contributions:

  • Husband was the primary income earner throughout the relationship.
  • After his father's death in 2011, $600,000 was received under a testamentary trust, and in 2018 the husband inherited from his stepmother's estate (including $100,000, shares of $240,000 and a one-third interest in a property). The wife agreed the family benefited from trust distributions, used for mortgages, renovations and holidays.

• Non-financial Contributions:

  • Wife was the primary caregiver for the children, managing homemaking and childcare responsibilities.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The Husband financially supported the youngest child by paying $650 per fortnight.

• Non-financial Contributions:

  • The Wife has continued providing emotional support and care for the youngest child.

Current Financial Position & Property Pool

• Income:

  • Husband: Approximately $80,000 per annum.

• Assets & Debts:

  • Testamentary trust valued at $700,055 controlled by the Husband.
  • Properties located at B Street, Suburb C, Tasmania and D Street, Town E, Tasmania to be sold and proceeds divided.
  • Husband has no debts, owns a third interest in a property at Town P.

• Superannuation:

  • Husband's superannuation is partially allocated to Wife with a specified base amount of $121,484.

Assessment of Contributions and Future Needs

• Contributions:

  • The parties' contributions as primary carer and primary breadwinner were assessed as equal. The testamentary trust and the other inheritances were treated as the husband's financial contributions and, being extraordinary and a large part of the pool, warranted an 8% adjustment in his favour.
  • There is no adjustment for post-separation contributions towards the youngest child, because the parties' differing kinds of support were treated as equal.

• Future Needs Adjustments:

  • A 4% adjustment in favour of the wife because of the disparity in earnings and earning capacity.

• Final Division: Non-superannuation assets: 54% to Husband and 46% to Wife, achieved by dividing the net proceeds of the two properties to be sold. Superannuation equalised by a splitting order with a base amount of $121,484. A claimed add-back was rejected.

Unique Aspects

• The testamentary trust established in 2011 was a key asset; the parties agreed it had practically vested and that the husband had sole control of it.
• The youngest child's mental health needs highlighted continuous support requirements, influencing post-separation contributions.
• Complexities included debate over the testamentary trust's contributions and the delineation of post-separation payments meant for child support or property settlements.

Main Takeaways

The case extensively delved into trust-related contributions and disparities in earning capacities. The final division favoured the husband (54% of non-superannuation assets) because of his inheritances, reduced by an adjustment for the wife's lower earning capacity.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement between de facto partners in s 90SM(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 90SM(4)(ca)) and on their current and future circumstances (s 90SM(5)(a)), and any material wastage of property (s 90SM(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.