Barrese & Arrico [2022] FedCFamC2F 1023

Barrese & Arrico [2022] FedCFamC2F 1023

Relationship Details

• Type: De facto relationship
• Duration: Relationship began in 2009, cohabitation commenced around 2014/2015, and ended in October 2019. Total duration approximately 4-5 years.
• Ages at Judgment: Both parties are 32 years old.

Children

• Children from the Relationship: None.
• Children from Previous Relationships: The case does not mention any children from previous relationships.

Initial Financial Positions

• Applicant (Wife):

  • Owned initial savings of $60,000.
  • Obtained a First Homebuyer's Grant.
  • Solely responsible for a $160,000 mortgage taken out for the purchase of Suburb C property due to husband's credit issues.

• Respondent (Husband):

  • Experienced credit issues which prevented him from taking part in the initial mortgage.

Contributions During the Relationship

• Financial Contributions:

  • The wife’s family provided rent-free accommodation for about 2-3 years.
  • The wife paid for land purchase, initial mortgage, utilities, and most household expenses.
  • The husband received $300,000 from his parents over six years, all of which he gambled away. He also conceded spending $141,700 on online gambling sites, and most of a further $55,000 in cash withdrawals went on gambling and illicit drugs.

• Non-financial Contributions:

  • Wife undertook the majority of homemaker responsibilities.
  • The husband's father, a builder, built the house at cost with no labour or profit margin (said to be worth over $50,000), and the husband's family did unpaid work on the property. The wife accepted that the forgone profit was equivalent to her savings used for the land.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The wife continued paying for the mortgage and other expenses on Suburb C post-separation.
  • In late 2019 the husband was found guilty of offences: in his employment he had used customers' money to fund his gambling. He served time in prison and was released in 2020.

• Disposition of Assets:

  • B Street property at Suburb C was sold following separation.
  • The husband attempted to sell the jointly-acquired Motor Vehicle 1 without knowledge of the wife.

Current Financial Position & Property Pool

• Assets and Debts:
  • The sale of Suburb C resulted in net proceeds of $146,826, after repair work to damage caused by the husband.
  • Motor Vehicle 1 assessed at $12,000, to be retained by the husband.
  • Superannuation assets remain separately retained by each party.
  • A car loan of $7,004 in the wife's name is to be paid from the proceeds.
  • Net non-superannuation asset pool: $151,822, excluding the dog and Motor Vehicle 2 (bought by the wife after separation). The gambling losses were not added back.

Assessment of Contributions and Future Needs

• Contributions Assessment:

  • Wife’s contributions (both financial and non-financial, including her parents' rent-free accommodation) were assessed as greater: 70% to the wife and 30% to the husband.

• Future Needs Considerations:

  • Both parties are 32 and in good health. The wife earns about $93,000 a year and the husband about $52,000.
  • A further 12% adjustment was made to the wife under s 90SF(3)(r) for the husband's reckless waste of income on gambling and the damage he caused to the home, after allowing an adjustment to the husband for the income disparity.

• Final Division:

  • Conclusion: 82% of net assets to the wife, equating to approximately $124,500, and 18% to the husband, equating to approximately $27,300 (including the car he keeps, worth $12,000). Each party keeps their own superannuation, and the wife keeps the dog.

Unique Aspects

• Significant financial dissipation by the husband due to gambling was treated as "wastage" under s 90SF(3)(r) rather than added back, because no certain sum could be identified. His ADHD diagnosis did not excuse it.
• The husband's damage to the home during the relationship, which was part of the family violence, had to be repaired from the sale proceeds and was treated as a further element of wastage.
• The dog was dealt with as a chattel but left out of the pool because its value could not be measured in dollars; the wife kept it because she had paid for and cared for it.

Key Takeaways

• Contributions and conduct throughout the relationship and post-separation largely influenced the court’s division of assets.
• The wife's substantial financial contributions and her family's support were central to her entitlement.
• The husband’s gambling and the damage he caused reduced his share of the property settlement.

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 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.