Surace & Surace [2022] FedCFamC2F 1637

Surace & Surace [2022] FedCFamC2F 1637

Relationship Details

• Type: Marriage
• Duration: Approximately 6 ½ years. Commenced cohabitation in 2011, married in 2014, separated on a final basis on 27 July 2018 (after two earlier separations under one roof).
• Ages at Judgment: Husband 57, Wife 55

Children

• Children from Previous Relationships:
  • Husband had one child who tragically passed away in 2005.
  • Wife has two adult children from a prior relationship (33 and 31).

Initial Financial Positions

• Husband:

  • 50% interest in the B Street, Town C property.
  • $300,000 in savings from a negligence claim.
  • Approximately $70,000 in superannuation.
  • Had no liabilities.

• Wife:

  • Savings between $10,000 and $20,000.
  • Credit card debt of $8,000 and owed her mother $14,000.
  • Owned a motor vehicle.

Contributions During the Relationship

• Financial Contributions:

  • Husband's savings of about $300,000 were the springboard for buying the T Street, Suburb L property; he also paid out the wife's credit card debts in 2011.
  • Received $75,000 from his late mother's estate in 2012, and paid $21,000 from his savings for variations to the plans for the home.
  • Wife contributed $1,500 to property deposit (source uncertain).

• Non-financial Contributions:

  • Wife was primary homemaker and caretaker, responsible for daily household tasks and assisting in business administration for M Pty Ltd.
  • Took an active role in husband’s worker’s compensation claim post-accident.

Post-Separation Contributions and Actions

• Husband:

  • Resided in a storage container on a property gifted by his father.

• Wife:

  • Continued residing in the marital home until its sale with her family.

Current Financial Position & Property Pool

• Total Property Pool: $4,057,158 including real estate and superannuation.

• Wife:

  • Receives a carer's pension; withdrew her superannuation of $2,600 in mid-2020.

• Husband:

  • Inherited the D Street, Suburb E property in 2017, valued at $2,570,000, about 63% of the pool.
  • Superannuation value now $96,869.
  • Has not worked since 2016 and has limited capacity to return to work.

Assessment of Contributions and Future Needs

• Contributions: Assessed at 10% to the wife and 90% to the husband. The husband's financial contributions, including his initial savings and the inherited D Street property, were vastly superior; the wife made the greater homemaker contributions.
• Kennon claim: The wife sought an adjustment for family violence. The court found her evidence unreliable, did not find the husband had committed family violence as alleged, and found his mental health issues did not make her contributions more onerous. The claim failed.
• Future Needs Adjustments: A 2.5% adjustment (about $101,429) in the wife's favour because the husband will receive significantly more property, weighed against her family's 3 ½ years of post-separation occupation of the home. Total for the wife: 12.5%, or $507,145.

Unique Aspects

• The husband has lived with serious mental health issues since the death of his young son in 2005. The court found he was the victim of a serious assault by the wife's daughter.
• Complexity due to lack of complete payment on wife’s part towards mortgage and maintaining the sale-ready state of the marital home.
• In 2021 the wife had the husband's personal items thrown out, including a photograph of his late son, without notice to him. The court took this into account.

Outcome Summary

• Final division sees the wife receiving $405,567 from sale proceeds held in trust, with the husband retaining the majority of property assets, adjusted for the wife’s exclusive use benefit post-separation. The decision sought to equitably account for the contributions, post-separation actions, and future needs considerations.

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.