Maciel and Maciel - [2007] FMCAfam 262

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACIEL & MACIEL

[2007] FMCAfam 262

FAMILY LAW – Property settlement – contributions – US Military pension received during relationship – future financial resource – US Military Pension and US Social Security to be received post separation – whether splittable – how to adjust for overseas entitlements.

Family Law Act 1975 (Cth)

C & C (2005) FCAFC 429
Gould (1996) FLC 92-657
FHL v EHL (2006) FAMCA 1287
D J v A J (2006) FCAFC 961
Doolan (unreported FCA 20/11/03)
Hickey (2003) FLC 93-143
Buckby (unreported FCA 15/09/06)

Applicant:

MR MACIEL

Respondent:

MS MACIEL

File Number:

BRM2534 of 2006

Judgment of:

Baumann FM

Hearing date:

13 December 2006

Delivered at:

Brisbane

Delivered on:

6 March 2007

REPRESENTATION

Counsel for the Applicant:

Ms Carew

Solicitors for the Applicant:

Wheldon & Associates

Counsel for the Respondent:

Mr Waterman

Solicitors for the Respondent:

Harrington Family Lawyers

THE COURT ORDERS:

That the amount held in the Trust Account of MP in the sum of $369,035.85 be paid:-
The applicant Husband ,$115,708.43
The respondent Wife, $253,327.41
That the parties shall close the joint bank account held with Suncorp and the balance of the account shall be paid to the husband.
That save and except for the provisions of orders 1 and 2 hereof each party is to retain for their sole use and benefit absolutely all other property and financial resources, held in their sole name or possession as at the date hereof, and without limiting the generality thereof, the Husband shall retain his bank accounts, the Mitsubishi motor vehicle, accrued work benefits, his superannuation account, furnishings and his entitlements from the United States to a Service Pension and Social Security Pension, and the wife shall be entitled to her bank accounts, Peugeot motor vehicle, accrued work benefits, superannuation account and furnishings.
That each party is to be solely responsible for any debt in their sole name.
That any application for costs should be made in writing and filed and served within 14 days. The respondent to any costs application shall file and serve written submissions and response within 7 days of service. Any written submission in reply shall be filed and served within a further 7 days.

THE COURT NOTES:
That for the purposes of this order, the pool of assets adopted by the parties is:-

Husband’s Superannuation account $224,811.00

Wife’s Superannuation account $162,863.00

Net Sale proceeds of former Matrimonial home holding the Trust Account of MP $369,035.85

TOTAL $756,709.85.

IT IS NOTED that publication of this judgment under the pseudonym Maciel & Maciel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 2534 of 2006

MR MACIEL

Applicant

And

MS MACIEL

Respondent

REASONS FOR JUDGMENT

(Settled from Reasons delivered orally)

Introduction

After a marriage of over 25 years, the applicant husband, Mr Maciel (now aged 63) and the respondent wife, Ms Maciel (now aged 49) are unable to agree on how the pool of property they amassed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maciel and Maciel

Details

AGLC: Maciel and Maciel [2007] FMCAfam 262
Case: [2007] FMCAfam 262
Decision Date: 6 March 2007

CaseChat Overview and Summary

In the matter of Maciel and Maciel, the Federal Magistrates Court was tasked with determining how to divide the assets of a long-term marriage that ended in separation. The husband, Mr. Maciel, had served in the United States Navy for over 28 years and was entitled to a US Navy pension and a future Social Security benefit. These overseas pensions posed a unique challenge in the property settlement process as the Court had to determine whether they could be considered as assets and how they should be treated under Australian law. The wife, Ms. Maciel, argued that these pensions should be valued and split between the parties, while the husband contended that they were not assets and should not be included in the pool of divisible property.

The Court held that the US Navy pension and the future Social Security benefit were financial resources that needed to be considered when determining the just and equitable division of the parties' property. The Court acknowledged that the husband's pension was a direct financial contribution during the marriage, and it should be valued as a financial resource under the Family Law Act. However, the Court found that the husband's contributions, including his salary and the pension, provided a significant benefit to the family during the marriage. In assessing the contributions, the Court determined that the husband's contributions were greater than those of the wife, but not to an extent that would warrant a substantial adjustment in his favour. The Court also considered the s.75(2) factors, particularly the husband's future financial resources, and made an adjustment of 10% in favour of the wife to account for these benefits.

Ultimately, the Court ordered that the pool of assets, including the net proceeds of the sale of the matrimonial home, the husband's and wife's superannuation accounts, and other personal property, be divided between the parties. The husband was awarded 45% of the total pool, and the wife was awarded 55%. This resulted in the husband receiving the majority of his superannuation and the wife receiving the majority of the sale proceeds of the matrimonial home. The Court considered this division to be just and equitable, taking into account the husband's imminent retirement and the wife's ability to increase her superannuation through employment.

Orders