MARINO & PEMBERTON

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARINO & PEMBERTON

[2018] FCCA 3807

Catchwords:
FAMILY LAW – Property.

Legislation:

Family Law Act 1975 (Cth)

Applicant:

MS MARINO

Respondent:

MR PEMBERTON

File Number:

BRC 11052 of 2017

Judgment of:

Judge Henderson

Hearing date:

25 October 2018

Date of Last Submission:

25 October 2018

Delivered at:

Rockhampton

Delivered on:

25 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Arnold

Solicitors for the Applicant:

Suthers Lawyers

Counsel for the Respondent:

In person

ORDERS

That the husband transfer to the wife all his right, titles and interest in the property situated at Property A in the State of Queensland being the whole of the land comprised in Certificate of Title reference …described at …on Registered Plan …(“the home”) upon the wife complying with Order two (2).
That simultaneously upon the transfer above the wife shall pay to the husband in the sum of $40,000.00. The wife has three (3) months to pay the husband this sum.
That the husband retain the Bus.
That the wife indemnifies the husband in regards to the following liabilities:-
(a)Any outstanding rates on the property Property A owing to the Region 1 Regional Council including those accumulated prior to separation;
(b)Any liabilities to Bank regarding the shortfall from the sale of Property B; and
(c)Any liability to Mr D regarding fencing at Property A.
That the superannuation interest of the wife in Superannuation shall be split in accordance with the Family Law (Superannuation) Regulations 2001 (as amended) and in respect thereof:-
(a)The value of the wife’s interest in the said fun is $125,811.00;
(b)That in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the superannuation interest of the wife in Super, the husband will be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the bas amount of SIXTY-TWO THOUSAND DOLLARS AND ZERO CENTS ($62,000.00) and there will be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders;
(c)That these Orders bind the Trustee of the Fund and these Orders take effect from the operative time being the fourth business day after the day of service of these Orders on the Trustee; and
(d)This Order shall be binding upon the wife, her heirs, executors, administrators and personal representatives.
That Order five (5) stay operation for twenty-eight (28) days to accord the trustee procedural fairness.
That except as specially provided herein the husband and the wife each be declared the sole legal and beneficial owners of all other items or property and financial resources presently in their respective possession or control or which are held in their name and indemnify and keep indemnified the other from any debt or liability regarding same including but not limited to personal and other property and also to superannuation and other financial resources.
That each party bear their own costs.
That all outstanding applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

BRC 11052 of 2017

MS MARINO

Applicant

And

MR PEMBERTON

Respondent

REASONS FOR JUDGMENT

This is a property application. The wife is the applicant and she seeks the following orders:
(1)That the former matrimonial home which is a half-finished property at Property A be transferred to her;
(2)That she will pay the husband $40,000 upon that transfer; and
(3)That she will divide equally her current superannuation with the husband which is now some $125,000, it being a figure of $80,000 at separation.
The wife filed an initiating application in October 2017, an updated affidavit and financial statement dated 11 October 2018 and a case outline of the orders that she seeks. The wife is represented by Mr Arnold.
The husband is self-represented, and in property matters this does put parties at a disadvantage. He has filed a plethora of documents in the past, which I have read, being affidavits of 28 February 2018, 15 June 2018, 16 January 2018, a financial statement of 16 January 2018, his response filed 22 January 2018 and his updated trial affidavit of 22 October 2018.

The Balance Sheet

The former matrimonial home is worth $90,000.
A bus worth $4000, which the husband will retain.
The wife wishes retain the Motor Vehicle S.
The husband has some $4,500 in superannuation, and the wife has $125,000.
Superannuation was, as I said, only $80,000 at separation, but the wife agrees to provide half of its current value to the husband. The chronology of the matter is somewhat difficult and it is quite a sad tale.
The husband is only 45 years of age and the wife 48. He has not worked for five years, and he tendered to me exhibit 1, which is a job capacity assessment report prepared by Queensland Health for the Federal Government for the disability pension. It is fairly clear to me he will likely be on a disability pension shortly and has the capacity to work maybe eight to 14 hours a week. He suffers from spinal issue, difficulty with his wrist and major depressive condition which he has suffered from for some time.
The wife works as a public servant and she has worked in that occupation for some time and has maintained herself and her two children since separation in 2015 without support from the husband. I accept the wife did not seek support so that the husband could retain the small amount of money he does receive by way of Centrelink benefit. Even if she had asked for support it would have only been $8 per week. So in that sense the wife has made a contribution to the husband’s past and future needs although it is very modest.
The wife is 48 years of age.
The parties commenced cohabitation in 1993.
Their first child, Mr L, was born on …1999
Mr M was born on …2001.
The wife purchased a property at Property B for $45,000 in 2001.
The parties married in …2004.
They borrowed some money against the house, about $80,000 in 2003. They purchased a shop at Town C in 2008 and borrowed an additional $80,000, so the total borrowing was then $160,000. That business failed and it did not do well, unfortunately.
They borrowed another $55,000 against the matrimonial home in 2008, so had debts of about $215,000 by this stage in 2008.
They lost money when they sold the shop in 2009.
The wife received an inheritance of around $30,000 in 2011 and used that for the benefit of the family.
The home was flooded in 2013, and that is where, I am afraid, the husband is stuck, it appears to me. It was a traumatic event. I cannot imagine what that must have been like for these people and their children. Ultimately, they received an insurance payout of about $187-odd thousand dollars for that damage in 2013.
Of that money cash of $170,000 went into a personal Bank account.
The wife argues that the husband withdrew a total sum of $66,000 out of that account on 2 September 2013 and $38,000 on January 2015. It is unclear what he has done with that money but she seeks no order or makes any argument about that.
The parties purchased Property A for $38,000 in January 2015.
By November/December they 2015 spent all of the insurance moneys on either getting Property A into some habitable condition, laying of concrete, putting in windows, erection of steel frames and the like and on necessary living expenses such as insurance premiums, dentists bills, car insurance, rego and the like.
The husband tendered various bank accounts that the wife had provided to him in an endeavour to show the Court that the wife had wasted money that was intended to be used to renovate the house on her own expenditure such as groceries, getting her teeth done etc.
The husband added up that from separation in 2015 until 2017 the wife spent $17,914. $8,000 was for concrete costs otherwise he says it was wasted. That is $9,000 over two years for the support of two children when she is receiving no child support. There is no wastage here. The wife needed that money and used what she had to pay for the house renovations such as concrete and the children’s support.
The parties separated in November 2015.
They sold Property B in February 2017, and there was a shortfall of $14-odd thousand dollars from that sale.
The wife is paying that shortfall over time from her income.
The wife commenced the proceedings, and we are here today.
The matrimonial pool is modest, indeed.
There is the yet to be completed home at Property A worth $90,000.
The husband’s bus at $4000.
The wife’s Motor Vehicle T at $1200.
The husband’s superannuation of $4,500.
The wife’s superannuation of 125,000.
There is a personal loan of nearly $16,000 in the wife’s name which was taken out by her to fund the erection of an adjoining fence that had to be erected on their current property.
A joint ANZ credit card, a joint NAB credit card, which total $3,000.
There is a debt of some $5,000-odd dollars in back rates which the wife has entered into an agreement to re-pay at $300 a week and is so doing.
The wife’s case is that she will take over all these debt, the fence debt, the joint credit cards, rates arrears and indemnify the husband.
The husband, unlike the wife has made no other direct financial contribution other than his entitlement to the moneys from the insurance policy that were put into the bank due to his incapacity to work.
Additionally, the wife has been the sole parent of the children since separation.
The husband says he is entitled to 60 per cent of the current property, and equal amount of the wife’s current superannuation.
The husband asks that I take into account the fact that the wife will have long service leave at some point in time and that she damaged the bus that is now in his possession. The damage to the bus by the wife is not supported on the evidence.
In relation to the wife’s long service leave that is a factor. However, it is clear that the wife has taken on and shouldered most of the post-separation debt, which is extensive, having regard to the asset base and the low income earned. Up to the time when the matrimonial home was flooded, it may well have been that there was an equality of contribution by these parties to their assets, in their acquisition, maintenance and conservation and in parenting and homemaking contributions.
This is clear to me from reading the material.
After the flooding, a watershed for the husband, the husband’s health significantly deteriorated both mentally and physically, and the husband, it seems to me from his submissions today, is still stuck in that time. He kept referring to the Property B property throughout. The husband was unable to do as he had done previously and the wife was left to shoulder the future virtually alone.
From that time, it is clear to me, that the wife earnt the bulk of the family income and did the lion’s share of the parenting and as well as organisation for the family.
The husband says he worked hard on the Property A property, but given his physical disabilities, which are evident in his exhibit 1, I cannot see how he could have done that, given his clear mental and physical dysfunction that he unfortunately suffers from. The wife did not accept all that he said he did.
Up to 2013 I would say there is an equality of contribution. After that period of time the wife’s contributions rise astronomically. The wife was making something like 80% per cent of the contributions up to separation. Post separation nearly 100%
In those circumstances, I could not give the husband 60 per cent of the current value of the home, having regard to his contribution-based entitlement and the debt level.
Yet the wife’s assessment is that he receives $40,000, plus his bus, around 50% of the value of the house without regard to her taking over some $24,000 worth of joint matrimonial debt and noting she has also re-paid the Property B shortfall of $14,000. Taking account of the debt this is well over 60% to him .This is in my view, an exceedingly generous position for her to take.
This is consistent with the wife’s clear commitment to support her husband who has future needs, to the best of her ability, which she has done since 2013 and post separation, to her credit. The wife also agrees to allow the husband to have one-half of her current superannuation, yet she has increased that by $45,000 from her own efforts and energy post separation, again showing her commitment to be just and equitable to the husband and support him to the best of her ability whilst also maintaining for herself a home.
I am certain that this wife will get this place finished and get it sorted out.
The wife tells me, and I accept, through her lawyer, that she is able to borrow $40,000 to pay out the husband’s interest in the property, and I am going to give her that opportunity. I will give her three months to do that. This is, in my opinion, a very generous position the wife has taken. Had the wife not been so generous and it was left up to me entirely I do not know that the husband would have received $40,000 cash and half her current superannuation, and he should be grateful to his wife for her commitment to him and his future needs and to their children. The children are doing very well and are off at university and they have very bright futures ahead of them. This is a testament to both the parties in the early years however since 2013 it is due to the wife’s commitment to her children given their father’s very poor mental and physical health and functioning generally.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 19 December 2018

[2018] FCCA 3807

25 October 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Procedural Fairness