MANNERWELL & MANNERWELL

[2011] FamCA 733

FAMILY COURT OF AUSTRALIA

MANNERWELL & MANNERWELL [2011] FamCA 733

FAMILY LAW – previous orders discharged – death of the husband – proceeds be released to the wife

Family Law Act 1975 (Cth)

APPLICANT: Ms Mannerwell

RESPONDENT: Mr Mannerwell

FILE NUMBER: MLC 8597 of 2010

DATE DELIVERED: 9 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 September 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Tonkin, David Stagg Tonkin & Company

THE RESPONDENT: No appearance

Orders

1. That paragraph 10 of the orders made on 12 October 2010 be discharged.

2. That all proceeds held in the F Account at the B Bank at Suburb C be released to the wife.

3. That the parties otherwise retain the assets in their respective possessions.

4. That there be liberty to apply.

5. That the reasons be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Mannerwell & Mannerwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8597 of 2010

Ms Mannerwell

Applicant

And

Mr Mannerwell

Respondent

REASONS FOR JUDGMENT

1. This is an application relating to financial issues that was begun on 13 September 2010.  The husband is not party any longer to the proceedings, having died in an accident on 11 April 2011.  The parties were married in 2004, and did not live together prior to that time.  There are two children of their relationship, K, who has just turned five, and R, who is about two and a half.  The matter came before the Court in October 2010, at which stage I made orders on the urging of the wife where she was represented by counsel and the husband appeared in person. 

2. The only relevant order for today's purposes is paragraph 10 which required that from the sale proceeds of the parties' home at E Street, Suburb D, that moneys be placed in a solicitor's controlled moneys account pending further order of the Court.  As will be evident from what I have just said, subsequent to that time, the husband died.

3. The husband filed a financial statement in October 2010, but otherwise appears to have filed nothing.  Subsequent to the parties' marriage, but obviously prior to his death, he executed a will.  Much of the will is of no substance for the purposes of this application, other than two important factors.  The first is that the husband appointed the wife as the executor and trustee and, secondly, that he left all of the property to her.  I say "all of the property" because the will makes reference to some superannuation.  Unless there is something unusual about his case, that superannuation would not form part of the estate as the money belonged to the trustee.

4. Probate of that will has been granted by the Supreme Court of Victoria on 21 July 2011; notice, presumably, having been given such as to satisfy the Registrar of the ability to issue the probate order.  No one appears to have challenged the wife's position as the executor and trustee as such. For the purposes of these proceedings, she is not only the applicant but she is also the respondent.  But I can conclude that as the husband had not altered his will, nor filed any process in this Court defending her application, that there is little dispute about what should happen to the property of the parties.

5. I am satisfied in the circumstances that it is appropriate to deal with the matter under Part VIII of the Family Law Act. There is some pressing urgency about the matter as the proceeds of the sale are in the controlled moneys account, and there are people pressing for payment including tradesmen and lawyers.

6. The parties' history shows that they jointly purchased a property in Suburb G prior to the marriage to which the deceased contributed some $50,000 from the proceeds of a home that he had had, and the wife contributed only a few thousand dollars towards the deposit.  The parties then married and, following their honeymoon, moved into the home in April 2004.  Leaving aside the equity in that property, the parties otherwise had very modest assets.  The wife and the husband were both working up until the time that the wife gave birth to K in August 2006, and she then returned some eight weeks later.

7. In 2006, the parties purchased a vacant block of land which is the real property that is now reflected in the cash in the controlled moneys account.  The purchase price of the vacant land was approximately $168,000 - most or all of which was borrowed from the H Bank.  Thereafter, the property earlier mentioned was sold for approximately $430,000 and after the payment of a variety of debts as well as the mortgage to the H Bank that had been obtained for the acquisition of the Suburb D property, there was little money left over.

8. In about November 2007, the husband was admitted to hospital suffering depression and psychotic episodes, and he was an inpatient there for approximately four weeks.  Subsequent to that, the parties' financial relationship took a turn for the worst and, as a result, the income into the household was substantially reduced.  The husband did not return to full time work until late in 2008 when he learned that he might receive a redundancy payment.  Plans had been drawn up to build a house on the vacant land and a contract was entered into with the wife's father to construct the property.  The wife was working as a manager at that time, and was earning a significantly greater salary than she had earlier been receiving prior to and after the birth of K.  The construction of the house went ahead, but was not finished.  In 2008, the wife stopped working to prepare for the birth of R who came into the world in January 2009.

9. In March 2009, the husband received the anticipated redundancy package of approximately $100,000 and then a further $20,000 a little later.  The wife seemed, at the time of the filing of the proceedings, unclear as to what he had done with all of that money, and without the benefit of the husband having filed any material, it is not surprising that that issue remains a little unclear.

10. Separation occurred in March 2009 when the wife left the rental property that the parties were living in, bearing in mind that the house was still being built.  Subsequent to the separation, it has been the wife who has had the substantial responsibility for the care of two very young children, and with the death of the husband, that situation will continue for many years to come.

11. There is significant other material about the husband's financial dealings subsequent to separation, including problems associated with his behaviour, his gambling, and also moneys he received from his late father's estate.  None of those seem now to be of any great consequence because the reality is that the only assets of the parties, as known to the Court, would be the proceeds of the sale of the partly constructed property which was the subject of the October 2010 orders.  There is no one here to claim an interest in that property other than the wife, and she is the sole beneficiary in the husband's estate.

12. Section 79 of the Family Law Act requires a Court to, initially, determine the property of the parties.  It is not clear what that property is, other than the fact that the cash is in the trust account and the husband had some entitlements upon his death to superannuation, which I have earlier mentioned will flow through to his children according to his will, providing the trustee has no objections.  In any event, it would appear that that money is not going to the wife.  It is clear, therefore, that doing the best I can on the evidence before me, and bearing in mind it is unchallenged, that the amount of money in the estate is modest.

13. The second issue to be looked at is the question of contribution.  On any view, up until the time that the parties separated, the contributions were modestly different.   Whilst the husband brought in a greater amount at the commencement by virtue of the proceeds of the sale of the property he had owned, there were consistent difficulties towards the end of the marriage in which the husband was and was not working, making the role of the wife no doubt more arduous.  That is clear from the affidavit that she filed on 13 September 2010.  Be that as it may, it seems to me that I can conclude that with the period subsequent to the separation, the wife having the responsibility for the children and that being a significant ongoing contribution into the future, her overall contribution must be seen as greater than that of the husband.

14. There must be an assessment of that contribution, but that does not require a Court to be precise about the respective contributions in either percentage or dollar terms.  All that is necessary is that an assessment is made which clearly identifies the contribution.  Having regard to the nature of this particular case, it seems to me that I can conclude that the wife's contribution is greater than that of the husband.

15. The third step in the process is to examine the factors set out in section 75(2) of the Family Law Act.  I do not propose to go through each of those and in many ways, it is unnecessary that I do so, having regard to the fact that the evidence of the wife is unchallenged.  I have been told that the evidence that the wife presented to the Court in September 2010 in financial terms has not changed.  At that stage, she was receiving Centrelink benefits and, therefore, living on a very modest sum.  Bearing in mind her responsibilities for the two children and the fact that the father of the children has died - that will no doubt will be a traumatic issue for them itself over the years to come - she has a long and arduous road financially ahead of her to support two very young children.

16. On that basis, and bearing in mind the fact that the community is otherwise supporting her, it seems to me that I should make a significant adjustment in her favour.  I do so as well, having regard to the fact that what would have otherwise probably been her entitlement to the husband's superannuation, looks as though it is going to people other than her.  Even if the persons who are the beneficiaries of that superannuation are children, the wife is going to be struggling to live on what she has in the foreseeable future.  Those matters justify an adjustment giving the wife all of the property of the parties.

17. In those circumstances, I turn to the fourth and the final step which is that the Court must be satisfied that whatever the outcome is, it is just and equitable to both parties.  The irony of this is that whilst it is not unusual to see situations where a party dies, the deceased in this case has left the substantial portion of what he would otherwise receive, back to the wife.  In those circumstances, I see no logical reason not to find that it is just and equitable to leave the entire proceeds of the sale of the home to the wife.  She would otherwise retain whatever other assets she has in her possession or control, including those assets that she will come into possession of by virtue of the distribution of any entitlement under the will to her.

18. In those circumstances, I am content to make orders in terms of the discussion I have had with counsel for the wife.

RECORDED:   NOT TRANSCRIBED

Those orders will be made today.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 September 2011.

Associate:

Date:  20 September 2011