Acerra & Calvi

Case [2024] FedCFamC2F 110


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Acerra & Calvi [2024] FedCFamC2F 110

File number(s): HBC 478 of 2022
Judgment of: JUDGE TAGLIERI
Date of judgment: 2 February 2024
Catchwords: FAMILY LAW – property – almost 30 year de facto relationship – s 90SM property adjustment sought – if and when testamentary trust vested – whether testamentary trust contribution of both parties or of husband – whether post-separation financial contribution to be added back to pool – superannuation splitting order made – orders made adjusting net non-superannuation assets to 54 per cent to the husband and 46 per cent to the wife
Legislation:

Family Law Act 1975 (Cth) ss 90SF(3), 90SM, 90XT(1)(a)

Family Law (Superannuation) Regulations 2001 (Cth)

Cases cited:

Kessey & Kessey [1994] FamCA 162; (1994) FLC 92-495

In the Marriage of Bonnici [1991] FamCA 86; (1991) 105 FLR 102

Robertson & Wells [2022] FedCFamC1F 1046

Ward & Ward [2004] FMCAfam 193

Division: Division 2 Family Law
Number of paragraphs: 76
Date of last submission/s: 11 January 2024
Date of hearing: 4 and 9 October 2023
Place: Hobart
Counsel for the Applicant: Mr Trezise
Solicitor for the Applicant: Crotty Legal
Solicitor for the Respondent: Mr Mead, Mead Family Law

ORDERS

HBC 478 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ACERRA

Applicant

AND:

MR CALVI

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:

Non-Superannuation Assets and Liabilities

1.The properties situated at B Street, Suburb C, Tasmania and D Street, Town E, Tasmania (“the Properties”) be sold and for this purpose the following terms will apply:

(a)The sales will be by private treaty with such agent as the Husband and Wife agree to appoint and failing agreement as to the agent to be appointed within fourteen (14) days, the Properties be listed for sale with such agent as the President of the Real Estate Institute of Tasmania (“the President”) shall nominate (“the Agent”) and the costs of and incidental to the request of the President and such appointment be paid by the parties in equal shares as and when they fall due.

(b)The appointment of the Agent shall be on a sole agency basis for a period of not less than six (6) months.

(c)Both parties must co-operate in every way with the Agent during the sale of the Properties, including signing documents required to market the Properties and allowing inspection of the Properties at times reasonably requested by the Agent.

2.At the completion of the sales referred to in Order 1 of these Orders, the proceeds of sale be paid in disbursement of the following:

(a)All costs (including legal costs), commissions and expenses of the sales;

(b)Any council and water rates, land tax and other outgoings outstanding in respect of the Properties; and

(c)Thereafter to achieve a 54/46 per cent adjustment of the net non-superannuation assets in favour of the Husband, to be calculated in accordance with the findings and determination at…

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Acerra & Calvi [2024] FedCFamC2F 110
Case
[2024] FedCFamC2F 110
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia recently dealt with a property adjustment application in the case of Acerra v Calvi. The applicants, Ms Acerra, sought a property adjustment from Mr Calvi following the end of their nearly 30-year de facto relationship. The applicants' primary contention was that an equitable distribution of the net non-superannuation assets should be made in accordance with the principles outlined in section 90SM of the Family Law Act 1975. Ms Acerra argued for a 54 per cent share of the net non-superannuation assets, contending that the contributions of both parties to the relationship, including post-separation financial contributions, should be considered. In contrast, Mr Calvi argued that he should only be liable for contributions made during the relationship and that post-separation contributions should not be considered. Additionally, the applicants sought a superannuation splitting order to allocate a portion of the husband's superannuation to the wife.

In delivering the judgment, Judge Taglieri considered the evidence and submissions from both parties. The court examined the contributions of both parties to the relationship, including financial contributions, homemaking and child-rearing responsibilities, and other non-financial contributions. The judge also considered the nature and extent of any post-separation financial contributions made by either party. The court found that both parties had made significant contributions to the relationship and that the post-separation financial contributions should be added back to the pool for the purposes of making the property adjustment. The court determined that an equitable distribution of the net non-superannuation assets should be 54 per cent to the husband and 46 per cent to the wife. The court also made a superannuation splitting order, allocating a base amount of $121,484 to the wife from the husband's superannuation account.

The court ordered that the properties be sold and the proceeds distributed to achieve the 54/46 per cent adjustment of the net non-superannuation assets. The court also made orders regarding the implementation of the superannuation splitting order. The court emphasised the importance of cooperation between the parties in effecting the orders and granted liberty to apply for any necessary enforcement or variation of the orders. The final orders included detailed provisions for the sale of the properties, the calculation and disbursement of the proceeds, and the implementation of the superannuation splitting order. The court's decision provides a clear framework for the equitable distribution of the parties' assets following the end of their long-term relationship.

Orders

Orders of the court

HBC 478 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ACERRA

Applicant

AND:

MR CALVI

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

2 FEBRUARY 2024

THE COURT ORDERS THAT:

Non-Superannuation Assets and Liabilities

1. The properties situated at B Street, Suburb C, Tasmania and D Street, Town E, Tasmania (“the Properties”) be sold and for this purpose the following terms will apply:

(a) The sales will be by private treaty with such agent as the Husband and Wife agree to appoint and failing agreement as to the agent to be appointed within fourteen (14) days, the Properties be listed for sale with such agent as the President of the Real Estate Institute of Tasmania (“the President”) shall nominate (“the Agent”) and the costs of and incidental to the request of the President and such appointment be paid by the parties in equal shares as and when they fall due.

(b) The appointment of the Agent shall be on a sole agency basis for a period of not less than six (6) months.

(c) Both parties must co-operate in every way with the Agent during the sale of the Properties, including signing documents required to market the Properties and allowing inspection of the Properties at times reasonably requested by the Agent.

2. At the completion of the sales referred to in Order 1 of these Orders, the proceeds of sale be paid in disbursement of the following:

(a) All costs (including legal costs), commissions and expenses of the sales;

(b) Any council and water rates, land tax and other outgoings outstanding in respect of the Properties; and

(c) Thereafter to achieve a 54/46 per cent adjustment of the net non-superannuation assets in favour of the Husband, to be calculated in accordance with the findings and determination at [68]-[70] of these reasons for judgment and each party retaining the assets and liabilities in their names.

Superannuation Split

3. The base amount allocated to the Wife out of the superannuation interest held by the Husband with Super Fund 1 (“the Fund”), account number …29 is $121,484.

4. Pursuant to s 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever the Trustee of the Fund makes a splittable payment, the Trustee shall pay to the Wife or her legal personal representatives an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount specified in Order 3 of these Orders, and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this Order.

5. The previous Order has effect from the operative time.

6. The operative time is four (4) business days from the date this Order is served upon the Trustee of the Fund.

7. Each party and the Trustee of the Fund have liberty to apply in relation to the implementation of this superannuation splitting Order.

8. The Trustee of the Fund, in accordance with the obligations set out under the Family Law Act 1975 (Cth) and Family Law (Superannuation) Regulations 2001 (Cth), shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of the Wife, and make payment in accordance with Orders 3 and 4 of these Orders.

Other Property and Financial Resources

9. Unless otherwise specified in these Orders, and except for the purposes of enforcing payment of any money due under these or any subsequent Orders, each party is solely entitled to all property and financial resources (and choses in action) in their possession on the date of these Orders to the exclusion of the other. For the purposes of this Order:

(a) Banking and other accounts are deemed to be in the possession of the person whose name appears on the records of the relevant financial institution;

(b) Insurance policies are deemed to be in the possession of the beneficiary or beneficiaries named in the policy;

(c) Superannuation entitlements are deemed to be in the possession of the person named as the worker whose age or working future provides the conditions for payment out of such entitlements; and

(d) Each party is solely liable for and indemnifies the other against any liability encumbering any item of property of financial resource to which that party is entitled under these Orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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