Scaletta & Scaletta [2023] FedCFamC2F 1290

Scaletta & Scaletta [2023] FedCFamC2F 1290

Background Details

• Type of Relationship: Marriage
• Court: Federal Circuit and Family Court of Australia (Division 2), Judge Eldershaw, 12 October 2023
• Duration: The relationship began in 2010, the parties married in 2011 and separated in November 2020. Approximately 10 years.
• Ages at Judgment: Husband 71, Wife 43

Children

• Children from the Relationship: None
• Children from Previous Relationships: The husband has three children from his first marriage and a younger son from a later relationship, who was 11 when the parties' relationship began.

Initial Financial Positions

• Wife:

  • Arrived in Australia from overseas in 2010 with approximately $2,500 in savings.

• Husband:

  • Owned the home (built during his first marriage), a 50% interest in another property with his sister, and two companies, one of which ran his business.
  • Also owned a property in a country town, bought in 2004 for $1,325,000.
  • Held a half interest, through a company, in another property that sold for about $2 million. The parties disputed whether it sold in 2004 or 2015.

Contributions During the Relationship

• Financial Contributions:

  • The husband's business provided most of the parties' income during the relationship, and his home was the parties' home.
  • Both parties worked in the business without a formal wage, taking cash from the till for their expenses.
  • The wife also worked in outside employment from 2010 to 2014 and applied her income to the parties' living costs.
  • The husband had a stroke in 2014.

• Non-financial Contributions:

  • The wife was the primary homemaker. She cared for the husband when he was ill in 2011, after his stroke in 2014 and when he was hospitalised overseas in 2015, and she brought him back to Australia.
  • The wife cooked and did domestic chores for the husband's younger son when he stayed on weekends and came to the business after school.

• Family violence:

  • The court found two incidents of family violence: one in which the husband left the wife on the roadside and later struck her, and one in which he held a gun and threatened self-harm during an argument. The court found these had a discernible effect on the wife's contributions, making them more arduous, and took that into account in assessing contributions.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The husband did not properly account for $650,000 from the sale of his half share of a property, and his financial statement did not mention his inheritance or that sale.
  • His company received rent of $104,000 a year plus GST from a leased property, which the court found was available to him.

• Non-financial Contributions:

  • The wife has continued to work and meet her own living expenses since separation.

Current Financial Position & Property Pool

• Wife:

  • Works casually as a care worker, earning $1,135 per week gross.
  • Rents a room for $250 per week.

• Husband:

  • Said he had no personal income; lives in the former home, valued at $3,600,000.
  • Is past retirement age and will not work again.

• Property Pool:

  • Assets of $6,085,794, less a home loan of $500,465, giving a net pool of $5,585,329.
  • The husband also has a financial resource: his half share of his late mother's estate, valued at $452,393, which had not been distributed.

Assessment of Contributions and Future Needs

• Contributions:

  • Wife 27.5%, Husband 72.5%. The husband's initial contributions overwhelmingly favoured him. The court also took into account the wife's work in the business, her homemaking and care of the husband, and the effect of the family violence on her contributions.

• Future Needs Adjustments:

  • 7.5% in the wife's favour, for the husband's greater income and financial resources, his failure to make full disclosure, and the wife's care of his son, taking into account the husband's age and that he is past retirement.

• Final Division:

  • 35% to the wife (about $1,954,865) and 65% to the husband (about $3,630,464).
  • The wife keeps her own assets and superannuation (about $145,058). The husband was to keep the former home and pay the wife $1,811,187 by 8 December 2023 (the reasons give $1,809,807). If he did not, the home was to be sold and the wife would receive 58.3% of the proceeds.

Unique Aspects

• Family Violence Impact: Two specific incidents were found to have made the wife's contributions more arduous and were recognised in the contributions assessment. General complaints that the husband was cranky and rude were given no weight.
• Non-disclosure by Husband: The husband's incomplete disclosure, including the unexplained sale proceeds and his undisclosed inheritance, was taken into account in the future needs adjustment.
• Property Sale Conditions: The husband was given the chance to keep his long-time home by paying the wife's entitlement, with a sale if he did not.

Main Takeaways

• Where one party brings almost all of the property into a 10-year marriage, the other party's contributions as homemaker, carer and worker in the business still carry real weight, and family violence that makes those contributions more arduous can increase that weight.
• Incomplete financial disclosure and a party's undisclosed financial resources can support an adjustment for future needs.

Appeal

The husband appealed, arguing mainly that he could not hear the trial properly and so did not have a fair hearing, and challenging the findings of fact, including on family violence. In Scaletta & Scaletta [2024] FedCFamC1A 87 (21 May 2024) Aldridge J found no lack of procedural fairness, held that the contributions findings were reasonable and that the challenged findings did not have a large effect on the outcome, and dismissed the appeal. The husband was ordered to pay the wife's costs of $30,000.

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 79(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 79(4)(ca)) and on their current and future circumstances (s 79(5)(a)), and any material wastage of property (s 79(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.