Garrity & Ansellin [2022] FedCFamC2F 217

Garrity & Ansellin [2022]

Background Details

• Applicant: De facto husband
• Respondent: De facto wife
• Relationship Type: De facto
• Duration: Approximately 8 years. Relationship commenced around December 2010 and ended by about the beginning of December 2018, after earlier separations in 2017 and 2018.
• Ages at Judgment: Husband 48 years, Wife 52 years

Children

• Both parties have children from previous relationships.
  • Husband's son, born in 1999, who lived with the parties part of the time
  • Wife's two children, born in 2000 and 2002, who lived with the parties full-time
• No children from the relationship

Initial Financial Positions

• Husband:
  • Owned a block at F Street, Town C bought in 1999 for about $150,000, on which he lived in a shed; it needed a house built to be habitable, which he could not afford
  • Had debts, and little in the way of assets or financial resources
• Wife:
  • Owned the established B Street, Town C property, with a granny flat, subject to a modest mortgage
  • Some superannuation and a motor vehicle
  • The court found her initial contributions significantly exceeded the husband's; the B Street property now makes up about 91% of the pool

Contributions During the Relationship

• Financial Contributions:

  • Husband sold F Street property for approximately $260,000 in 2013; he paid $50,500 into the wife's mortgage and $40,000 into a joint account, used largely for improvements including a pool.
  • Wife drew down on the B Street mortgage for household expenses, school fees and holidays.
  • The husband had periods of unemployment until the final years of the relationship; the wife was the financial manager and met most household expenses, including at times his phone plan and car registration.

• Non-financial Contributions:

  • Wife provided housing in B Street property for nearly the entire relationship.
  • Husband performed DIY tasks and works around the house, including drainage, a pergola and a concrete slab, though the wife disputed their quality.

Post-Separation Contributions and Actions

• Financial Contributions:
  • After separation the wife continued to pay the rates and utilities on the B Street property.
  • The husband lived in the granny flat on the property at times around the separations, paying board for a period.

Current Financial Position & Property Pool

• Husband:

  • Income from security job $108,888 gross annually
  • Rental accommodation
  • Superannuation: $36,947

• Wife:

  • Income as a manager $63,284 gross annually, inclusive of carer's benefit
  • Continued residence in B Street property valued at $905,000
  • Superannuation: $51,141

• Property Pool:

  • Total net value of properties and super: $993,088, comprising primarily the B Street property.

Assessment of Contributions and Future Needs

• Contributions:

  • Assessed at 12.5% for husband and 87.5% for wife due to the wife's significant initial contribution and her greater financial contributions to the household.

• Future Needs Adjustments:

  • An additional 2.5% adjustment (about $24,827) to the husband under s 90SF(3), taking into account the cumulative effect of the findings, including the wife's non-disclosure of payments from her employer beyond her salary.

• Final Division:

  • Husband to receive 15% ($148,963.20), Wife to receive 85% ($844,124.80). The husband keeps his superannuation and the wife pays him $112,016.20 within 60 days, failing which the B Street property is sold.

Unique Aspects

• Financial imbalance throughout the relationship primarily due to husband’s sporadic work and the wife’s real estate asset contributions from the start.
• Wife's non-disclosure of part of her income was taken into account in the adjustment in the husband's favour.

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.