Fasola and Fasola
[2010] FMCAfam 430
•11 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FASOLA & FASOLA | [2010] FMCAfam 430 |
| FAMILY LAW – Property dispute – assets of parties largely lost in commercial failure – consideration of contributions – consideration of husband’s properties in Italy. |
| Applicant: | MS FASOLA |
| Respondent: | MR FASOLA |
| File Number: | MLC 7887 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 22 April 2010 |
| Date of Last Submission: | 22 April 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 11 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moore |
| Solicitors for the Applicant: | V.M. Roccisano |
| The Respondent: | In person |
ORDERS
(a)This order be binding on the trustees of the:
Fund: [T] Masterfund
Trustee: [T] Australian Superannuation Limited
Address: [omitted]
(b)In accordance with s.90MT(1)(b) of the Family Law Act the wife is entitled to the specified percentage being 100% of each splittable payment made out of the husband’s interest in the fund and there be a corresponding reduction in the entitlements that the husband would have had but for these orders.
(c)The operative time is four business days after the day on which a sealed copy of these orders is served on the trustees of the fund.
(d)This order has effect from the operative time.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date;
(b)all insurance policies to become the sole property of the beneficiary named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is herby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Fasola & Fasola is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7887 of 2008
| MS FASOLA |
Applicant
And
| MR FASOLA |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a property dispute between two pensioners who have little in the way of assets. The substantial tangible assets of the parties are two blocks of superannuation standing to the benefit of the parties, and various property in Italy, together with chattels.
For the reasons that follow, I am going to order that the applicant wife be entitled to all of the superannuation, and the respondent husband will retain his interest in the properties in Italy, together with chattels falling as they stand.
The wife was born [in] 1943, and the husband [in] 1941. They are both retired.
Prior to forming a relationship with the husband, the wife had been married and had three children. Her first husband died in 1975, and she was unquestionably thereafter the owner of substantial (relative to the parties’ ultimate position) property interests. The details are set out in her affidavit.
The wife asserts, and the husband does not materially deny, that she commenced to live with the husband at a property she then owned in [suburb omitted] in about 1977. Their daughter, Ms L, now about
30 years old, was born thereafter and the parties formally married [in] 1980.
The parties separated for quite a substantial period of time. The parties have described this as being in 1995, and this date appears to be about right.
They appear to have reconciled for a period of time in 2003, and finally separated in October 2007.
It is clear that, following the marriage, the wife was persuaded to realise her various properties and invest the proceeds in business investments conducted by the husband.
It is not necessary to detail the history of these investments because it is common cause that in 1995 the business that the parties then operated at [omitted] was placed in liquidation and they lost, to all effects and purposes, everything.
Thereafter, the parties separated and conducted their financial affairs separately. It does appear, however, that the husband made two payments of some $1200, as it were, to top up the parties’ [T] superannuation in more recent times.
The [T] superannuation contributions had ceased when the business went into liquidation in 1995, and these payments, I accept, benefited the parties to some unquantifiable degree.
Upon final separation, the wife retained such furniture as the parties possessed, and the husband had to re-establish himself.
On 1 September 2008, Connolly FM made freezing orders in respect of the husband’s superannuation. In breach of those orders, the husband removed approximately $25,000 in superannuation from his [R] super, which appears to have accumulated post-separation in 1995. I will return to that matter later.
The Pool
The wife’s superannuation is worth $28,967, and the husband’s $68,147.
The husband is in possession of a Mazda car bought for $36,000, according to him, in 2004. Although the car appears to have been registered in the name of his daughter, it is clear that it is wholly controlled by the husband.
I was invited to allot a value of $12,000 to that vehicle but in the absence of any expert evidence, I am unable to do so. I can only say that the vehicle must have some value.
The husband is a half-owner, together with his sister, of a unit in [M] in Italy. He is also a half-owner of some land nearby at [B]. These properties have been valued and the valuer has, in a supplementary report, confirmed his earlier observations.
From the affidavit material supplied by the valuer, which I note is arguably hearsay but is clearly the best the Court will be able to do in the circumstances, it appears that the unit in [M] is worth 93,000 Euros but requires 45,000 Euros worth of repairs to be anything like habitable, thus having a net value of 48,000 Euros of which the husband’s half is 24,000 Euros. The land at [B], a half share of which belongs to the husband, is worth 17,390 Euros. Thus, the husband has a realisable value, more probably than otherwise, of 32,695 euros in property in Italy which, converted at the current rate of 1.439, equates to $47,048.
Additionally, the wife is adamant that the husband is in truth the owner in equity, at least, of a unit in [L] which appears to be worth a lot of money. The evidence about this unit was shadowy, to say the least.
Taking the husband’s evidence as admissions against interest, it would appear that a unit may have been bought in [L] in 1994 and registered initially in the name of the husband. It appears to have been rented out at all material times since.
Shortly thereafter, however, it was transferred to the name of the husband’s sister in about 1995. This was done, according to the husband, by his mother under a power of attorney in her favour over his own affairs. It was the husband’s evidence that this was done to reflect the fact that his sister was looking after their mother.
He also deposed that his mother had moved from the unit in [M] to [L] in 1986, and that the unit in [M] had not thereafter been inhabited.
While the husband’s evidence about these matters was, like his evidence generally, given in an exaggerated and unconvincing way, I do not find the wife’s evidence about this to be so compelling as to enable the Court to arrive at a conclusion that the husband has some ownership of the unit in [L].
It may be that the husband has some understanding with his sister as to the proceeds of the flat which, assuming it does exist, would undoubtedly have considerable value since there is no suggestion it has been at any stage encumbered. Nonetheless, the most I can do is say that the husband may have some interest, wholly unquantifiable, in a property in [L] which is clearly presently registered in his sister’s name and has been for about 15 years.
Each of the parties has a certain amount of jewellery. Although the husband has sought to make much of the jewellery in the possession of the wife, there is no present valuation of it, and I am unable to ascribe it any value. The same goes for the two watches and gold chain in the husband’s possession.
The furs in the possession of the wife have no identifiable value and indeed she offered to give them to the husband who declined to accept them. If they were worth the sort of money he has suggested in his affidavits, he would have accepted that offer with alacrity.
Apart from this, each of the parties has a number of chattels in their possession which are not the subject of any expert evidence, and I will simply order that each retain the same.
Add-backs
Counsel for the wife suggested there were three add-backs that ought to be notionally taken into consideration. The first was the sum of $12,579 wasted, it was alleged, by the husband since the proceedings began, this figure being extrapolated from bank records and the like provided by the husband.
The second was a van previously owned by the husband and sold by him for $7,000, which funds have disappeared.
The third was the [R] superannuation proceeds, already referred to, which the husband withdrew in breach of a Court order in the sum of $25,076.
In my view, all of these add-backs are well-established on the evidence. The proceeds of the van and the [R] superannuation amounts are not even in issue. To the extent that it is significant, and for reasons to which I will come it is not, I accept the submissions of the wife that the evidence shows that the husband dissipated some $12,000-odd since the proceedings began.
Contribution
The wife undoubtedly made a major contribution at the commencement of the relationship in terms of the properties she brought into it. The husband, as I find, had nothing of any value. He did not indeed seriously suggest that he did.
Both of the parties undoubtedly worked very hard during the relationship. To the extent that it is of any moment, I accept the evidence of the wife where it is in dispute. She both acted as a mother and worked very hard in the businesses in which they became involved.
This is an appropriate time to say a bit about credit. Neither party was a particularly good witness. The wife’s evidence was given with great emotion, and she was indeed almost overcome and unable to continue on at least one occasion. She plainly harbours the most bitter feelings towards her former husband.
Nonetheless, while she was undoubtedly an honest witness, she was a poor historian. Her affidavit material shows dates that are plainly inaccurate in part (see for example the suggestion that the parties first separated in 1993 in her first affidavit – this date is clearly wrong. It was 1995).
Nonetheless, the wife’s evidence tended in some respects to be extremely convincing. Her description of what happened about the furniture, for example, was compelling. I accept that she kept her furniture when the parties separated, and almost entirely this constituted the furniture when they reconciled. I reject the husband’s assertions that he contributed in any significant way.
The husband was not a convincing witness. His evidence exhibited the same florid tendency to over-exaggeration that is contained in his affidavit materials, which are replete with accusations of dishonesty and fraud alleged against the wife.
In fact, this criticism might be better made of the husband. The following credit points, in my view, are sufficient to illustrate his difficulties:
a)He withdrew his [R] superannuation in direct contravention of a Court order. His self-exculpation was entirely unconvincing;
b)his [R] superannuation was not disclosed in his financial statement;
c)his property in Italy was not properly disclosed in his financial statement. Indeed, in paragraph 6 of his affidavit filed in September 2008, he denied owning any property in Italy apart from the land at [B];
d)his explanation of the expenditure he had undertaken since the final separation in 2007 was extremely unconvincing. He has dissipated very substantial funds and even making every allowance for legal fees and costs of living and the like, he has plainly been very free with his money contrary to his denial.
This is not a case in which conventional analysis of contribution is really practicable. That is because the parties’ assets were, in almost their entirety, obliterated by the liquidation in 1995 of their business.
The superannuation, which is the only substantial asset in Australia, was generated according to the husband and his accountant,
Mr A, prior to that separation.
This was a relatively lengthy relationship during which both parties contributed as best they were able. The wife undoubtedly made a major initial contribution but as I have said already, this was entirely dissipated.
It will only be possible to approach the outcome on an asset-by-asset basis but, to the extent that it might be necessary, I would simply say that I would regard the wife’s contribution as being in ordinary circumstances such as to entitle her to a 10 per cent loading in her favour.
The Section 75(2) Factors
Both these people are in straightened circumstances. The husband, however, in addition to the aged pension, has an Italian pension of approximately $100 per week. He is marginally better off than the wife.
The husband is one of those people who, despite apparently having no income or assets, seems to live remarkably well. He is able to rent a property for in excess of $1,000 a month even though his nominal income is only approximately $1,700. He has been a member of the [omitted] Football Club for 25 years. He has managed to travel overseas on a number of occasions, the most recent in 2007 when he went to Italy after the death of his mother.
It is not possible to say with any certainty exactly how the husband obtains the funds that he plainly has obtained to go on supporting himself in this way. One is left with the uneasy feeling that he has resources he has not disclosed.
In the wife’s case, however, it is clear that she is in the most straightened circumstances and has no future bounty likely to accrue to her.
Were it necessary to do so, I would make a further five per cent adjustment in the wife’s favour under this heading.
Just and Equitable
This is an unusual case in which the just and equitable result is all too clearly obvious. The wife should have the entirety of the superannuation of the parties. She should not receive the 50 per cent that the husband proposes.
The husband should retain his interest in the property in Italy which, as I have said, is worth over $40,000.
The husband also retains the car, which I suspect has more than nominal value. He retains his jewellery and watches, and the wife retains her jewellery and furs.
Otherwise, each party should simply retain the chattels in their possession.
I have prepared draft orders to give effect to these conclusions, but will give the parties an opportunity to be heard before they are finalised.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 11 June 2010
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