Mancini and Mancini
[2007] FMCAfam 629
•7 September 2007
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
Total assets
$1,067,611.90
Liabilities
Westpac mortgage (Caloundra)
$38,614.00
Capital Gains Tax Caloundra unit
$60,000.00
Capital Gains Tax BP shares
$60,000.00
Total liabilities
$158,614.00
(d)Therefore the net property pool is $908,997.90 (excluding superannuation and other interests).
Contributions
(a)Mr Mancini joined the RAAF in January 1965 as an engineering apprentice. He then remained in the RAAF until 1987. For most of that period of time he worked as an engineer. He had been in the RAAF for five years before his marriage to Ms Mancini in May 1970.
(b)At the time the parties married, neither of them had any particular assets worth noting. Mr Mancini had accrued 22% of his DFRDB pension entitlement by the time of his marriage.
(c)
During the marriage Ms Mancini primarily stayed at home and performed home making duties on behalf of the family.
Mr Mancini worked outside the home in order to earn an income for the family.
(d)In addition to performing the home making duties on behalf of the family Ms Mancini was also employed outside the home in many different jobs between 1970 and 1997. Her financial contributions to the family are stated in paragraph 23 of her Affidavit filed 13 July 2007. I accept her evidence in that regard.
(e)I also accept that Ms Mancini banked her income into the joint account. The income was used to pay for items required by the children or for household items. Ms Mancini did not spend any significant amount of money from her wages for her sole benefit.
(f)I find that Mr and Ms Mancini did their best for the benefit of their family throughout the course of their 35 year marriage.
(g)I conclude that the contributions based entitlements of the parties (to the non superannuation assets) are equal.
What are the current circumstances and the future needs of the parties?
Does there need to be an adjustment pursuant to s.75(2) of the Act? I will refer now to the relevant matters in s.75(2).
(a)(i) Ms Mancini is aged 55 years and Mr Mancini is aged 58 years.
(ii)
Ms Mancini does have some health issues. The report of
Dr G dated 26 May 2007 lists Ms Mancini’s health problems and those problems include Chronic Fatigue Syndrome; Fibromyalgia/Chronic Myofascial Pain Syndrome; Irritable Bowel Syndrome; menopausal symptoms; Hashimoto’s thyroiditis/hypothyroidism. Ms Mancini’s symptoms include: chronic fatigue; disturbed, poor and unrefreshing sleep; severe pain caused by the Fibromyalgia; varying degrees of “brain fog”; poor concentration.
(iii)Dr G states that these problems make even the smallest and mundane tasks at home an enormous and very painful effort.
(iv)Dr G concludes that Ms Mancini, “has several significant health battles on her hands; which will need lifetime medications, therapies and support.”
(v)
In paragraph 15 of his Affidavit filed 6 July 2007
Mr Mancini refers to a disability pension he receives from the Department of Veterans’ Affairs. This pension is paid because of lumbosacral spine degeneration; osteoarthritis to his knees and hands; asthma and allergic rhinitis.
(vi)I note paragraphs 35, 36, 37, 38 and 39 of the husband’s Affidavit refer to his various health concerns.
(vii)Mr Mancini said that he had at one stage considered retiring in September 2007. Mr Mancini changed his mind. He stated that he now has no plans to retire in the near future. I accept this evidence. I conclude, from observing and listening to Mr Mancini in the witness box, that he is likely to continue working for many years to come.
(b)(i) On leaving the RAAF in 1987 Mr Mancini commenced employment with BP. He continues to work for BP.
(ii)Mr Mancini receives a DFRDB pension in the amount of $283.75 per week. He will receive this for the rest of his life.
(iii)Mr Mancini also receives a pension from the Department of Veterans’ Affairs in the amount of $162.25 per week. He also receives other benefits through the Department of Veterans’ Affairs – in particular he has a Gold Card. The Gold Card entitles him to receive, free of charge, all of the health, medical and dental assistance that he needs. He also receives various sales tax exemptions (including when purchasing a motor vehicle).
(iv)In his Form 13 Financial Statement filed 6 July 2007 the husband states his average weekly income as follows:-
(a) total salary or wages before tax $2,016.00
(b) dividends and shares $173.00
(c) rent received $150.00
(d) DFRDB service pension $283.00
(e) DVA (health pension) $162.00
Total average weekly income $2,784.00
(v)Part G of the Form 13 states that the total income tax paid by the husband per week is, on average, $802.00. The net average weekly income for the husband is $1,982.00.
(vi)
Ms Mancini is currently working as a live in carer.
Ms Mancini cares for a friend, Ms M. Ms M offered
Ms Mancini a place to stay. Ms M is sight impaired with a prognosis of eventually being blind. Ms Mancini lives in Ms M’s residence and receives a weekly benefit from Centrelink of $300.10.
(vii)Ms Mancini’s work involves looking after Ms M and includes all household duties, appointments and hospital visits and assisting her in areas where her poor sight might place her in danger. I accept Ms Mancini’s evidence in the witness box that she does not perform the heavier household duties for Ms M. I accept that this is because Ms Mancini is not capable of performing the heavier household duties.
(viii)The wife’s Form 13 notes that, in addition to the weekly Centrelink benefit of $300.10, the wife also receives $92.30 maintenance paid by the husband. Ms Mancini’s total average weekly income is therefore $392.40.
(c)(i) The income from the DFRDB pension is paid to the husband each week in the amount of approximately $283.00. This will continue until the husband’s death.
(ii)If the parties were to remain married, and the husband died, the wife would receive 68% of the pension. The parties are, however, intending to divorce in the near future.
(iii)Neither party in this case contends that the DFRDB pension should be considered as a lump sum. The husband is not entitled to receive that money as a lump sum (i.e. it is not commutable).
(iv)Mr Galloway on behalf of the husband has argued for an order whereby that pension is split between the parties.
(v)
The wife stated in the witness box under cross examination that she thought that sounded attractive. After taking legal advice when she left the witness box the wife’s counsel
Mr Burridge informed the Court that the wife did not fully understand the implications of accepting a split of that pension. I accept Mr Burridge’s submission in this regard.
(vi)Counsel for the parties accepted that even if a splitting order was made in relation to the DFRDB pension, once the husband dies, Ms Mancini would receive no further payments pursuant to the pension.
(vii)Counsel for the wife submitted that there should be no splitting order in relation to the DFRDB pension. He submitted that the Court should take into account, when considering s.75(2), the fact that the husband will continue to receive the DFRDB pension in the amount of $283.00 per week for the remainder of his life. I accept that this submission made by Mr Burridge (on behalf of Ms Mancini) is the correct approach in this case.
(viii)I have had regard to the decisions of Ennis (No. B1942 of 2002) FCofA and Mowbray & Mowbray [2007] FamCA 167. Nothing in either of those decisions would lead me to alter the approach that I have adopted.
(ix)In my opinion it would be neither just nor equitable for the Court to require Ms Mancini to receive a share of the DFRDB pension.
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 equity
An 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 by
Mr 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:-
Husband’s value
Wife’s value
Amount adopted by the Court
BP superannuation
$463,345.00
$463,345.00
$463,345.00
ADF ANZ/Ing
$45,000.00
$45,000.00
$45,000.00
DFRDB pension
$296,509.00
$296,509.00
$Nil
(b)It is agreed between the parties that there is to be no lump sum value given to the DFRDB amount of $296,509.00.
(c)By reason of the decision of the Full Court of the Family Court in Coghlan & Coghlan (2005) FLC 92-220 I am required to consider the four step process once again in relation to this separate pool of assets (which includes superannuation).
(d)The husband was able to build a substantial amount of superannuation through his employment with BP. This was made possible because the wife (in addition to performing some employment outside the home) performed the homemaking duties. Having regard to the 35 year marriage and the findings, evidence and submissions that I have referred to (when considering the contributions made to the non superannuation property) I conclude that the contributions of the parties in relation to this second pool are equal.
(e)For the reasons referred to in paragraphs 10 and 11 herein, I conclude that there should be an adjustment in favour of the wife of 10%. In my opinion, an order whereby the wife receives 60% of the second pool of assets and the husband receives 40% is both just and equitable.
Conclusion
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.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: Jennie Witenden
Date: 7 September 2007
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