Mancini and Hodges - [2013] FCCA 1392

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANCINI & HODGES

[2013] FCCA 1392

Catchwords:
FAMILY LAW – De facto relationship – de facto Wife’s poor health – negative non-superannuation asset pool – only financial resource de facto Husband’s superannuation – lengthy relationship.

Legislation:

Family Law Act1975, s.75(2)

Clives v Clives (2009) 40 Fam LR 273
C v C (2005) FLC 93-220
Doherty & Doherty (1996) FLC 92-652
AJO v GRO (2005) 33 Fam LR 134
Semperton v Semperton (2013) 47 Fam LR 626
Stanford v Stanford (2012) 247 CLR 108

Applicant:

MS MANCINI

Respondent:

MR HODGES

File Number:

CAC 414 of 2012

Judgment of:

Judge Neville

Hearing date:

3 July 2013

Date of Last Submission:

3 July 2013

Delivered at:

Canberra

Delivered on:

3 July 2013

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mr D Farrar

Solicitors for the Applicant:

Farrar Gesini Dunn, Canberra

Counsel for the Respondent:

In Person

Solicitors for the Respondent:

N/A

ORDERS

The Respondent pay to the Applicant the sum of $400 per week by way of spouse maintenance, as set out in Order 2 of the Orders dated 11 April 2013, and:
(a)Payments are to be due from the date of these Orders and weekly thereafter;
(b)Payment of amounts due are to be withheld from monies payable by the (omitted) Pty Ltd to the Respondent, and paid to the Applicant or into such bank account as she may from time to time nominate. (omitted) Pty Ltd shall be entitled to withhold $5 from the payment on account of their administrative costs; and
(c)Payment of maintenance pursuant to this Order will be indexed to increase annually in accordance with the consumer price index (All Groups) for Canberra as published by the (omitted)Australian Bureau of Statistics, the amount of any increase to equal the percentage increase in that index between the last quarter prior to the anniversary of this Order, and the same quarter of the preceding year.
(a)The Respondent pay to the Applicant the sum of $35,701.07, being the sum of $30,600 referred to in Order 1 made by this Court on 11 April 2013, together with arrears under Order 2 of that date, up to the date of this Order.
(b)Payment of the amount referred to in 2(a) of these orders will be made within 28 days, failing which the Registrar of this Court issue a Third Party Debt Notice in the terms of the Notice that is attached hereto as Annexure “A”.
The Respondent pay, and indemnify the Applicant, against liability for any money owing by the parties jointly (or by either of them individually) at the date of these Orders, to the (omitted) Bank including any sum owed by them or either of them to that bank consequent upon the sale of the farm property at (omitted).
The Respondent is to pay, within 42 days of these Orders:
(a)The sum of $5,451.72 to (omitted);
(b)The sum of $690.85 to (omitted) Council;
(c)The sum of $2,297.79 to (omitted) Pty Ltd, previously trading as (omitted);
(d)The…

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 Mancini and Hodges

Details

AGLC: MANCINI & HODGES [2013] FCCA 1392
Case: [2013] FCCA 1392
Decision Date: 3 July 2013

CaseChat Overview and Summary

This matter concerned an application by the Applicant for spouse maintenance and property settlement orders against the Respondent. The proceedings were heard by Judge Neville.

The court was required to determine the appropriate orders for spouse maintenance, the division of property, the payment of debts, and the division of superannuation interests between the parties. Specifically, the court had to consider the Respondent's obligations regarding ongoing maintenance payments, a lump sum payment for arrears, and the discharge of joint and individual liabilities. Furthermore, the court needed to address the division of specific superannuation interests and the allocation of ownership and liabilities relating to various assets, including a motor vehicle.

The court made orders for the Respondent to pay the Applicant $400 per week in spouse maintenance, indexed annually to the consumer price index. The Respondent was also ordered to pay a lump sum of $35,701.07, representing arrears and a previous court order, within 28 days. The Respondent was further ordered to pay and indemnify the Applicant against all joint liabilities owing to the bank and specific debts to various third parties within specified timeframes. In relation to superannuation, the court ordered that the Applicant be entitled to 87% of each splittable payment from two of the Respondent's superannuation interests, with these orders to take effect upon service on the respective trustees. The court also ordered that each party be the sole owner of property in their possession or name, and to indemnify the other against liabilities related to that property.

By consent, the Respondent was ordered to transfer his interest in a Nissan motor vehicle to the Applicant and to lodge his 2013 income tax return by 31 August 2013, paying 100% of any refund received to the Applicant within 24 hours. Provisions were made for adjustments if the tax refund was less than $7,800, and for any surplus to be credited towards monies owed by the Respondent. The Respondent was also ordered to pay the Applicant's costs fixed at $2,500 by 31 August 2013. Until compliance with the tax return and vehicle transfer orders, the Respondent was to pay and indemnify the Applicant against all lease and insurance payments for the vehicle. Thereafter, the Applicant was to bear these costs. Finally, the Respondent was ordered to notify the Applicant within 48 hours of securing employment through any agency other than a specified company.

Orders

Orders of the court

The Respondent pay to the Applicant the sum of $400 per week by way of spouse maintenance, as set out in Order 2 of the Orders dated 11 April 2013, and:

(a) Payments are to be due from the date of these Orders and weekly thereafter;

(b) Payment of amounts due are to be withheld from monies payable by the (omitted) Pty Ltd to the Respondent, and paid to the Applicant or into such bank account as she may from time to time nominate. (omitted) Pty Ltd shall be entitled to withhold $5 from the payment on account of their administrative costs; and

(c) Payment of maintenance pursuant to this Order will be indexed to increase annually in accordance with the consumer price index (All Groups) for Canberra as published by the (omitted)Australian Bureau of Statistics, the amount of any increase to equal the percentage increase in that index between the last quarter prior to the anniversary of this Order, and the same quarter of the preceding year.

(a) The Respondent pay to the Applicant the sum of $35,701.07, being the sum of $30,600 referred to in Order 1 made by this Court on 11 April 2013, together with arrears under Order 2 of that date, up to the date of this Order.

(b) Payment of the amount referred to in 2(a) of these orders will be made within 28 days, failing which the Registrar of this Court issue a Third Party Debt Notice in the terms of the Notice that is attached hereto as Annexure “A”.

The Respondent pay, and indemnify the Applicant, against liability for any money owing by the parties jointly (or by either of them individually) at the date of these Orders, to the (omitted) Bank including any sum owed by them or either of them to that bank consequent upon the sale of the farm property at (omitted).

The Respondent is to pay, within 42 days of these Orders:

(a) The sum of $5,451.72 to (omitted);

(b) The sum of $690.85 to (omitted) Council;

(d) The sum of $11,915.38 to Mr M;

(e) The sum of $770 to (omitted);

(f) The sum of $2,400 to Mr B;

The Respondent indemnify the Applicant against each of the liabilities mentioned in the preceding Order 4, above.

In accordance with section 90MT(1)(b) of the Family Law Act 1975:

(a) The Applicant is entitled to be paid a specified percentage of each splittable payment out of the Respondent's interest in the (omitted) Fund employer superannuation (member account number (omitted)) ("the (omitted) Fund");

(b) The Respondent's entitlement (and the entitlement of such other person to whom a splittable payment be made) to payments out of the Respondent's interest in the (omitted) Fund is correspondingly reduced;

The specified percentage for the purposes of Order 6 above is 87%;

Orders 6 and 7 have effect from the operative time and the operative time is four days after service of this Order upon the Trustee of the (omitted) Fund ("the (omitted) Trustee");

(omitted) Trustee shall do all acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement created by Orders 6 and 7; and

(b) Pay the entitlement whenever a splittable payment becomes payable out of the Respondent's interest in the (omitted) Fund.

10.

In accordance with section 90MT(1)(b) of the Family Law Act 1975:

(a) The Applicant is entitled to be paid a specified percentage of each splittable payment, within the meaning of s90ME of the Family Law Act 1975, out of the Respondent's interest in the (omitted) Superannuation ("the (omitted)");

(b) The Respondent's entitlement (and the entitlement of such other person to whom a splittable payment be made) to payments out of the Respondent's interest in the (omitted) is correspondingly reduced;

11.

The specified percentage for the purposes of Order 10 above is 87%;

12.

Orders 10 and 11 have effect from the operative time and the operative time is four days after service of this Order upon the (omitted) Superannuation, the Trustee of the (omitted) ("the (omitted) Trustee").

13.

(omitted) Trustee shall do all acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement created by Order 15 and 16; and

(b) Pay the entitlement whenever a splittable payment becomes payable out of the Respondent's interest in the (omitted) Fund.

14.

Except as otherwise provided in these Orders:

(a) The Applicant and Respondent each be, as against the other, the sole legal and beneficial owners of all items of property currently in their respective names, or where there is no legal title, currently in their respective possession; and

(b) Each of the Applicant and Respondent is to pay, and indemnify the other against, any liability in that party’s name, or encumbering any item of property to which that party is entitled pursuant to these Orders.

15.

The Respondent pay the Applicant's costs, fixed at the sum of $2,500, on or before 31 August 2013.

AND BY CONSENT, IT IS FURTHER ORDERED THAT:

16.

The Respondent transfer to the Applicant all of his interest in the Nissan (model omitted) motor vehicle currently in the possession of the Applicant.

17.

(a) The Respondent is to lodge his income tax return for the financial year ending 30 June 2013 on or before 31 August 2013.

(b) The Respondent pay to the Applicant, within 24 hours of receiving same, 100% of any tax return received by him for the financial year ending 30 June 2013.

18.

(a) In the event the amount specified by Order 16 above is less than $7,800, then within 7 days of receiving his tax return, in addition to the tax return itself, the Respondent pay to the Applicant a sum equal to the difference between the tax return and $7,800;

(b) If the amount specified in Order 16 is greater than the payout figure of the lease debt relating to the Nissan (model omitted) motor vehicle in the possession of the Applicant, then any surplus will be a credit towards monies due by the Respondent to the Applicant pursuant to Order 2.

19.

Until such time as the Respondent has complied with Orders 16 and 17 above, he is to pay, and indemnify the Applicant against liability for, all lease payments and insurance payments with respect to the Nissan (model omitted) motor vehicle in the possession of the Applicant.

20.

From such time as the Respondent has complied with Order 16 and 17 above, the Applicant is to pay, and indemnify the Respondent against liability for all outgoings, including insurance premiums, with respect to the Nissan (model omitted) motor vehicle in the possession of the Applicant.

21.

The Respondent is to notify the Applicant within 48 hours of securing employment through any agency other than (omitted) Pty Ltd.

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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