Todd & Calise [2023] FedCFamC2F 1644

Todd & Calise [2023] FedCFamC2F 1644

Background Details

• Applicant: the male partner (referred to as "the husband" in the judgment)
• Respondent: the female partner (referred to as "the wife" in the judgment)
• De facto relationship
• Duration: Approximately 3 years. Relationship commenced around 2012 and ended around August 2015.
• Ages: Husband 70 years old, Wife 56 years old at the time of judgment.

Children

• No children of the relationship. The husband had three children from his earlier marriage.

Initial Financial Positions

• Husband:

  • Owned the Suburb C property, subject to a mortgage of about $225,000.
  • Had some defined benefit superannuation, a small amount of savings, shares with K Company, a vehicle, and chattels.

• Wife:

  • Owned a property on L Street, Suburb M, bought for $140,500 in 2010 with a significant mortgage which was around $240,000 at the relationship's start.
  • Had a small amount of savings, a vehicle, and minimal superannuation.

Contributions During the Relationship

• Financial Contributions:

  • Husband contributed by acquiring and holding the Suburb C property.
  • Wife invested in the Town E property with the husband contributing $34,000 towards its purchase.
  • Wife paid $180,000 towards the Suburb C mortgage in return for a joint interest in that property.
  • Wife bought the Town G property in 2015 for $49,000 without any contribution from the husband; he was placed on the title.
  • Wife also funded renovations and improvements on the Suburb C property.

• Non-financial Contributions:

  • The wife undertook significant renovation and maintenance work on the Suburb C property, including modernising the kitchen and garden improvements.
  • She was engaged in upgrading Town E property with detailed work on the interior and exterior.

Post-Separation Contributions and Actions

• Financial Contributions:

  • Both had income from renting the Suburb C property after separation.
  • Expenses like taxes and upkeep for properties were handled individually as per who retained beneficial enjoyment of each property.

• Non-financial Contributions:

  • Wife largely stayed at Town E and undertook activities there.

Current Financial Position & Property Pool

• Husband:

  • Receives a pension equivalent to $45,000 per year.
  • Currently earns additional income from rental of the Suburb C property.

• Wife:

  • Owns a 71% share in a property in New Zealand valued at $226,870.
  • Conducts a small business operation on the Town E property.

• Real Properties:

  • Suburb C, NSW: Valued at $800,000.
  • Town E, NSW: Valued at $100,000.
  • Town G, NSW: Valued at $40,000.
  • No mortgages or liabilities reported against these properties.

Assessment of Contributions and Future Needs

• Contributions:

  • Town E property: 40% contribution by husband, 60% by wife due to improvements done.
  • Suburb C home: 62.5% to the husband and 37.5% to the wife, after considering the wife's cash, effort and non-financial contributions.
  • Town G property: the husband's contribution was negligible.
  • On contributions, the wife's entitlement in Suburb C ($300,000) less a $40,000 offset for the husband's contribution to Town E gave $260,000.

• Future Needs Adjustments:

  • The court considered the wife's medical conditions and lesser financial security, and her New Zealand property, and made no general adjustment, only a $3,000 allowance towards the cost of securing access to the Town E property.

Final Division

• The husband keeps the Suburb C property and pays the wife $263,000 ($260,000 plus a $3,000 allowance under s 90SF(3) for the easement and survey costs of the Town E property); the wife takes the Town E and Town G properties.

Unique Aspects

• The notable length of post-separation financial entanglement, almost three times longer than the relationship itself.
• Easement problems with the Town E property, involved ongoing legal proceedings which influenced asset division considerations.
• The unusual necessity of dividing assets on a property-by-property basis due to the brief relationship period and existing individual asset bases prior to the relationship.

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.