Mendel and Mendel

[2019] FCCA 3776

FEDERAL CIRCUIT COURT OF AUSTRALIA

MENDEL & MENDEL [2019] FCCA 3776

Catchwords:
FAMILY LAW – Property – contributions to small property pool – where husband’s greater earnings not reflected in existing assets – where husband made greater initial contribution to superannuation interests but otherwise contributions equal.

Legislation:

Family Law Act 1975 (Cth)

Family Law Regulations 1984 (Cth)
Family Law (Superannuation) Regulations 2001 (Cth)

Applicant: MS MENDEL

Respondent: MR MENDEL

File Number: DNC 521 of 2018

Judgment of: Judge Young

Hearing date: 5 December 2019

Date of Last Submission: 5 December 2019

Delivered at: Darwin

Delivered on: 5 December 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the Respondent: In person

Solicitors for the Respondent: In person

ORDERS

1. That Orders 1 to 4 (inclusive) are binding on the trustee of A Supernannuation (Member/Fund No: …26).

2. That the base amount of $49,803.43 is to be allocated to the applicant out of the respondent’s interest in the A Supernannuation fund account #...26.

3. That pursuant to section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the respondent’s interest in the A Supernannuation fund, the applicant shall be entitled to be paid calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

4. The operative time for Order 3 is four (4) business days after service of a certified sealed copy of the final Orders on the Trustee.

5. The Husband shall forthwith return to the wife the two engagement rings valued at $10,825 with the valuation certificates and lifetime care paperwork.

6. B Lawyers are authorised to release the sum of $10,000 held in B Lawyers Trust Account to the Wife, and release the sum of $14,250 to the Husband, once the Wife notifies them in writing that the Husband has complied with Order 1. Any balance is to be distributed equally to the parties.

7. That the Husband retain the following assets, chattels and investments for his sole use and benefit:

   (a)Vehicle C; and

   (b)All monies standing to his credit in bank accounts of his sole name including:

   (i)ANZ Access Advantage; and

   (ii)ANZ Progress Saver Account …65

   (c)All entitlements held in the D Superannuation Fund Account

8. That the wife retains the following assets, chattels and investments for her sole use and benefit:

   (a)Vehicle E;

   (b)All monies standing to her credit in banking of her sole name including:

   (i)ANZ Access Advantage Account: …63; and

   (ii)ANZ Progress Saver Account: …87

   (c)All Superannuation entitlements held in F Superannuation Fund Account …03

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 521 of 2018

MS MENDEL

Applicant

And

MR MENDEL

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a property case. The husband is 30 years old, the wife is 29 years old. There are no children. Both parties were unrepresented before me.  The parties began a de facto relationship in February 2010. They married in 2016. At the beginning of the relationship neither party had any assets of significant value. The husband was a public servant, however, and had a super entitlement which has been valued under the Family Law Regulations 1984 at $23,936 at the time the parties began living together in February 2010.

3. He had joined the public service in 2005 when he was about 17 years old and was a public servant until 2014.  Since leaving the public service, the husband has been in pretty well constant employment. He has technician qualifications and appears to have worked in the building industry largely. He is presently employed as an officer and earns about $88,504 a year.

4. The husband says that he suffers from post-traumatic stress disorder and mental health issues. He says this is a result of the circumstances around the break-up of the marriage. He annexed a psychiatrist’s letter to his trial affidavit. The psychiatrist was not available for cross-examination, nevertheless, I give the report some weight. It is noteworthy that the psychiatrist’s letter does not say the husband’s earning capacity has diminished as a result of his mental health issues. It notes that this litigation is a significant stressor for the husband and I would expect his health to improve with the conclusion of this litigation.

5. The husband says that his earning capacity was much greater than the wife’s during the relationship and he argues that he should be given significant credit for that. He gave evidence that in the 2015, ’16 and ’17 financial years, he earned $134,651, $195,726 and $189,929 gross respectively. This employment appears to have been during the years he was employed by Company G in Darwin. In comparison, the wife’s income for the same financial years was $30,080, $23,611 and $16,491.  The wife did not dispute those figures. The husband did not give evidence about his earning capacity in other years but I generally accept that his earnings have been significantly greater than the wife’s.

6. The wife is presently employed in the retail industry and earns $54,594 a year. The wife, however, pointed out that she made significant non-financial contributions during the parties’ relationship and marriage. She says that between 2010 and 2014, when the husband was in the public service, she relocated on four occasions. After the husband had left the public service, she relocated with him in Darwin in 2014 so that he could take up his high-paying employment with Company G.

7. I am satisfied that her support was an important factor in the husband’s high-earning capacity during that period. The husband points to a number of other factors he said should be taken into account. He said the wife’s father was advanced $25,000 odd in order to permit him to defend criminal proceedings. The husband suggests that this was his money but it appears to be, more accurately, matrimonial funds. The wife has, it appears, repaid $10,000 of this sum to the husband. The husband also says that he advanced almost $8,000 to the wife for cosmetic surgery towards the end of the marriage. I do not accept that either of these payments should be categorised as loans to the wife but, rather, are examples of the mutual support expected in a marriage.

8. The property pool is largely agreed. The only example of disagreement is the wife’s Vehicle E. She says that that is now worth $15,150 based on, according to her, a Red Book value. The husband says that the value should be $17,650, based on an earlier statement of value by the wife.  On the absence of any admissible evidence on the issue, I propose to treat the matter as an admission against interest by the wife and adopt the lower value that she has given.

9. Overall, I accept that the husband’s public service superannuation interest which existed at the beginning of the relationship is a significant factor and he should be seen as having made a greater financial contribution, or a greater contribution, because of that factor. The husband’s claim of having had a higher earning capacity during the marriage appears to be correct but that does not seem to be reflected in a significant asset pool.  It appears that the husband’s high earnings were reflected in higher consumption and, as an example of that, there was evidence that the parties travelled extensively internationally during that period.

10. Ultimately, I consider that, apart from the husband’s public service super as a greater initial contribution, the contributions overall should be seen as equal. I do not propose to make any adjustment for s. 75(2) factors. I consider that the proposal of the wife is just and equitable and I propose to largely make orders as she seeks.

11. The end result of the orders is set out in the following table:

Description	Wife	Husband	Total
Assets
1	Vehicle E	$15,150
2	Vehicle C	$6,500
3	Money held in solicitor’s trust account ($24,250)	$10,000	$14,250
4	Rings to wife	$10,825
Total assets	$35,975	$20,750	$56,725
Liabilities
0	0	0
Net assets	$35,975	$20,750	$56,725
63%	37%
Superannuation
5	Wife’s F superannuation	$24,428
7	Husband’s A superannuation  - split to wife	$49,803
8	Husband’s D Superannuation	$112,557
Total Superannuation	$74,231	$112,557	$186,788
40%	60%
Total assets and superannuation	$110,206	$133,307	$243,513
Overall	45%	55%

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  20 December 2019