Mancini and Mancini - [2007] FMCAfam 629

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANCINI & MANCINI

[2007] FMCAfam 629

FAMILY LAW – Property.

Family Law Act 1975 – ss.75(2) and 79

Coghlan & Coghlan (2005) FLC 92-220
Ely & Ely [2006] FMCAfam 512
Ennis (No. B1942 of 2002) FCofA
Hickey & Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Mowbray & Mowbray [2007] FamCA 167

Applicant:

MS MANCINI

Respondent:

MR MANCINI

File number:

BRC1596 of 2007

Judgment of:

Howard FM

Hearing date:

2 August 2007

Date of last submission:

2 August 2007

Delivered at:

Brisbane

Delivered on:

7 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr Burridge

Solicitors for the Applicant:

Rhonda Penny Lawyers

Counsel for the Respondent:

Mr Galloway

Solicitors for the Respondent:

Hemming & Hart

ORDERS

Direct that the parties provide minutes of order by 12.00 noon Thursday 13 September 2007 to reflect these Reasons for Judgment.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC15969 of 2007

MS MANCINI

Applicant

And

MR MANCINI

Respondent

REASONS FOR JUDGMENT

Background

Ms Mancini married Mr Mancini in May 1970.
The relationship between the parties lasted 35 years and they separated on 26 August 2005.
Mr and Ms Mancini cannot agree how to divide their property.
Ms Mancini was born in 1951 and is currently aged 55 years.
Mr Mancini was born in 1949 and is currently aged 58 years.
The parties have two adult daughters living in the United States of America.
There are four matters to be considered[1]:-
(a)What is the net asset pool of the parties?
(b)How did each party contribute to that pool?
(c)The parties’ current financial and family circumstances and what are their needs both now and in the future?
(d)The requirement that the order be just and equitable.
[1] These four main issues to be determined by the Court reflect the well known four step approach in cases concerning s.79 of the Family Law Act (1975). In particular note Hickey & Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. Also note that this summary of the four step approach has been adapted from a decision of Mead FM in Ely & Ely [2006] FMCAfam 512.
Assets and Liabilities
(a)Mr Burridge of counsel appeared on behalf of the Applicant wife and Mr Galloway of counsel appeared on behalf of the Respondent husband.
(b)Mr Galloway provided a schedule of assets and liabilities. There is little or no dispute between the parties in relation to the assets and liabilities.
(c)I find that the asset pool (excluding superannuation) is as follows:-

Description

Value

Asset

Former matrimonial home Property S

$460,0000.00

Unit, Caloundra

$360,000.00

Furniture in the former matrimonial home

Allow nil

BP Shares (17,648 shares)

$242,660.00

Wife’s jewellery, et cetera

Allow nil

Husband’s tools, et cetera

Allow nil

Wife’s Camry

$3,000.00

Husband’s car (now sold)

$1,950.00

Big Sky Credit Union

$1.90

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 Mancini

Details

AGLC: Mancini and Mancini [2007] FMCAfam 629
Case: [2007] FMCAfam 629
Decision Date: 7 September 2007

CaseChat Overview and Summary

The case of Mancini and Mancini involved a dispute between the husband, Mr Mancini, and the wife, Ms Mancini, concerning the division of their property under Section 75(2) of the Family Law Act. The case was heard in the Family Court of Australia. The husband argued that there should be no adjustment in the division of the property, while the wife sought an adjustment of approximately 15% to 20% in her favour. The court was required to determine the appropriate adjustment, if any, to ensure a fair and equitable division of the property.

The court considered various factors in reaching its decision, including the disparity in the parties' earning capacities, the husband's income from the Defence Force Retirement and Death Benefit (DFRDB) pension and the Department of Veterans' Affairs (DVA) pension, and the evidence concerning Ms Mancini's health. The court concluded that an adjustment of 10% in favour of the wife was appropriate, as it considered a division whereby the wife received 60% of the net property (excluding superannuation) to be just and equitable under the circumstances. The court also addressed the division of a separate pool of assets, which both parties agreed upon.

The court's reasoning was based on a comprehensive assessment of the parties' financial situations and the evidence presented. The court's decision resulted in an adjustment in favour of the wife, with the final orders directing the parties to provide minutes of order by a specified date to reflect the court's reasons for judgment.

Orders

Orders of the court

Direct that the parties provide minutes of order by 12.00 noon Thursday 13 September 2007 to reflect these Reasons for Judgment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion in relation to Section 75(2) adjustment (a)Mr Galloway on behalf of the husband contends that there should be no adjustment pursuant to s.75(2).(b)Mr Burridge, on behalf of Ms Mancini, seeks an adjustment in the vicinity of 15% - 20% in favour of the wife.(c)I conclude that there should be an adjustment in favour of the wife in the amount of 10%. The matters which I have taken into account in reaching this conclusion include the disparity in the parties’ earning capacity; the husband’s income from the DFRDB pension and the DVA pension and the evidence concerning Ms Mancini’s health. Justice and equityAn alteration of property interests whereby the wife receives 60% of the net property (excluding superannuation) is, in all the circumstances, a just and equitable outcome. Superannuation and other interests(a)A separate pool of assets was presented to the Court byMr Galloway on behalf of Mr Mancini. Counsel for Ms Mancini has accepted that this second pool of assets is appropriate. The table is as follows:- As suggested by Counsel appearing at the hearing, I direct that the parties provide minutes of order by 12.00 noon Thursday 13 September 2007 to reflect these Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

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Description	Value
Asset
Former matrimonial home Property S	$460,0000.00
Unit, Caloundra	$360,000.00
Furniture in the former matrimonial home	Allow nil
BP Shares (17,648 shares)	$242,660.00
Wife’s jewellery, et cetera	Allow nil
Husband’s tools, et cetera	Allow nil
Wife’s Camry	$3,000.00
Husband’s car (now sold)	$1,950.00
Big Sky Credit Union	$1.90