SELLAR & SANSOM

[2015] FCCA 2084

FEDERAL CIRCUIT COURT OF AUSTRALIA

SELLAR & SANSOM [2015] FCCA 2084

Catchwords:
FAMILY LAW – Property.

Legislation:
Family Law Act 1975, ss.75(2), 90SM

Norbis & Norbis [1986] HCA 17
Pierce v Pierce [1998] FamCA 74
Stanford v Stanford [2012] HCA 52

Applicant: MS SELLAR

Respondent: MR SANSOM

File Number: SYC 7406 of 2012

Judgment of: Judge Henderson

Hearing dates: 22, 23 and 24 June 2015

Date of Last Submission: 24 June 2015

Delivered at: Sydney

Delivered on: 6 August 2015

REPRESENTATION

Counsel for the Applicant: Mr P. Batey

Solicitors for the Applicant: Goldrick Farrell Mullan

Counsel for the Respondent: In Person

ORDERS

1. That forthwith and upon request in writing by the respondent, the Registry Manager, Sydney provide to the respondent the title deeds held by the Court in respect of the property at Property C.

2. That within 42 days of the date of these orders, the respondent cause to be paid to the applicant the sum of $762,296.00 (the capital sum), $1,661.00 (costs ordered on 23 October 2013) and half of Mr D’s updated valuation fees $2475, being a total of $766,432.

3. That in the event the Respondent fails or neglects to pay the sums in accordance with Order 2 herein, then the parties are to do all things and sign all documents to cause to be offered for sale the whole of the property contained in and described as Property C, (the Property C property) at a sale price as agreed between the parties or failing agreement, at a sale price of $875,000 or such other amount as the single expert Mr D has deposed to in his updated valuation.

4. In the event the Property C property is not subject to exchange of contracts within 60 days of the date of the default by the Respondent of Order 2 herein, then the parties are to do all things and sign all documents to cause the Property C property to be submitted to and sold by public auction and reserve as agreed between the parties or failing agreement at a reserve, to be set by the President from time to time of the New South Wales Property Institute or his nominee.

5. In the event the Property C property has been submitted to public auction in accordance with the Order 4 herein and the property fails to be the subject of an exchange of contracts, then the parties are to do all things to submit the Property C property to successive auctions until sold with a reserve 5% less than the preceding auction.

6. That for the purpose of any sale or auction as provided in orders 3 – 5 herein, the Respondent shall submit to the Applicant the names of three local real estate agents within seven days of the respondent's default of Order 2 and within seven days thereafter the Applicant is to advise the respondent of the name of one of the nominated real estate agents and thereafter that nominated real estate agent shall have carriage of the sale and auction.

7. That upon the sale of the Property C property pursuant to orders 3, 4, and 5, herein the sale proceeds are to be disbursed in the following priority:

   (a)In payment of all reasonable selling costs, agents commission    and legal fees incurred on sale.

   (b)In payment to the Applicant of the capital sum or such amount remains unpaid of the capital sum together with      interest calculated from the date provided in order 2 herein to     the date of payment in accordance with the Family Law rules.

8. In the event the sale proceeds from the sale of all of the Property C property are insufficient to pay to the Applicant the amounts provided in Order 7.a – 7.b herein or such amount as remains unpaid together with interest, then the Respondent is to forthwith sell sufficient of his public company share portfolio to cause to be paid to the Applicant such amounts and interest as remains unpaid pursuant to Orders 7.a – 7.b.

9. That other than as provided in orders 2 to 8 herein, each of the parties be and are hereby declared to be the owner absolutely to the exclusion of the other of all those items of real property, bank accounts investments - howsoever held - motor vehicles furniture chattels and personalty currently in their possession and control.

10. That within 30 days of the date of these orders the parties do all things and sign all documents to cause the Applicant’s entitlement in the (omitted) self managed superannuation fund to be rolled over to complying self managed superannuation fund nominated by the Applicant, which for the purpose of these orders is the Applicant’s self managed super fund “Ms Sellar Superfund”.

11. In the event that either party fails or neglects to do anything or sign any document to give effect to these orders within 7 days of a written request to do so, then pursuant to section 106A of the Family Law Act, the Registrar of the Sydney registry of the Federal Circuit Court be and is hereby authorised to do anything, sign any document on behalf of either party so as to implement each or any of these Orders, upon either party filing with the Court an Application and supporting affidavit deposing to the default of a party to give effect to these Orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 7406 of 2012

MS SELLAR

Applicant

And

MR SANSOM

Respondent

REASONS FOR JUDGMENT

1. The matter of Sellar & Sansom is an application for property adjustment between a de facto couple, Ms Sellar, who is the applicant, and Mr Sansom, the respondent pursuant to section 90SM of the Family Law Act 1975. The parties have been, on the findings I have made, in a de facto relationship in excess of 20 years and had acquired substantial property during that time.

2. Each agreed that I should embark upon the hearing. There was no preliminary issue raised by either party such as referred to in Stanford & Stanford [2012] HCA 52.

3. The applicant sought an adjustment and variation to how the parties currently hold their property. The respondent sought the return of some personal items but he otherwise submitted I not interfere with the current holding by either party of their property including superannuation.

4. Mr Batey represented the applicant. The respondent represented himself. This placed him at significant disadvantage as he did not fully understand or comprehend the Court processes, the law, the procedures or the matters I needed him to address and to take into account in the exercise of my discretion.

5. Mr Sansom’s behaviour during the trial was at times unacceptable, however, Mr Batey treated him with courtesy and respect at all times.

6. Mr Sansom spent much of his energy prior to and throughout the trial on retrieving his good name, deriding the wife’s solicitor Mr Mullan, Mr D, the joint valuer who prepared a number of valuations of real estate and Mr Batey of counsel, rather than focusing on his and the de facto wife’s contributions to their current property.

7. At first blush this matter could be seen a somewhat simple property dispute under section 90SM of the Family Law Act.

8. The evidence for the parties was as follows:

The de facto wife:

·Initiating application, filed 7 December 2012.

·Primary trial affidavit of 4 June 2015 and her updated financial statement of 26 May 2015.

1. I read a case outline prepared by Mr Batey of counsel together with the applicant’s minute of order.

2. The de facto wife effectively seeks an equal division on the assets acquired by these parties over their 20 year relationship. The de facto husband asserts that the parties should keep the assets and debts that are currently in their name. There are no children of this relationship. The wife had 2 children at the commencement of the relationship.

The de facto husband’s evidence was as follows:

·Response filed 15 March 2013.

·Primary affidavit dated 2 June 2015.

·A financial statement dated12 June 2015.

·Affidavit dated 16 June 2015 with voluminous attachments marked Affidavit A, dated 16 June 2015,

·Affidavit B, dated 16 June 2015,

·Affidavit C, dated 16 June 2015,

·Affidavit D, 16 June 15, and

·Affidavit E, 16 June 15.

1. What the respondent had done in his second affidavit was to place into 5 separate categories the separate issues he wanted the Court to address. For example, affidavit A related to and was relevant to the financial aspects of the parties’ relationship. Much of affidavit A was left intact at the trial.

2. Mr Batey took objection to the admissibility on grounds of relevance to the entirety of the remainder of the respondent’s affidavits.

3. Affidavit B related to offers of settlement and complaints he made about Mr Mullan and I did not read any of the material in that affidavit. Parts of this affidavit may be relevant in a costs application.

4. Affidavit C related to complaints the respondent made of what he perceived was an improper or biased relationship between Mr Mullan and Mr D against him. That affidavit could only have been relevant had Mr D been called and he was not. Some of the annexures to this affidavit were tendered at the end of the trial on behalf of the respondent.

5. Affidavit D related to the management rights that the respondent claims had been stolen from him in respect of a property purchased during the relationship in the applicant’s name. The respondent was not able to make out a case that this material as filed was relevant or in an admissible form such that it assisted me to determine the party’s respective contributions to their current assets. Again, some of the attachments to that affidavit being correspondence letters and the like were either exhibited in the applicant’s material or tendered in evidence or came before the court in another way for example an annexure to the applicant’s affidavit.

6. The upshot was that the series of events of which the respondent complained came into evidence through the wife and some tendered material by the husband. For example respondent’s exhibit 4 was the management agency agreement entered into in 2011 between the respondent via his company (omitted) with the body corporate of (omitted) for the carrying out of caretaker duties at the strata complex together with other relevant documents. The applicant owns a unit at (omitted).

7. Affidavit E. A series of letters and complaints by the respondent regarding Mr Mullan’s conduct which may have some relevance in a costs application.

8. Thus the affidavits relied upon by the respondent after objections were the affidavit of 12 June 2015, 16 June 2015 and 22 June 2015 together with parts of affidavit A dated 16 June 2015, and some of the annexures attached to affidavits C and D which became exhibits.

9. The exhibits tendered by the parties were as follows:

For the applicant:

·Exhibit 1, updated objections to the material filed by the respondent which were in the main upheld.

·Exhibit 2, updated balance sheet which document was subsequently amended at submissions at the conclusion of the trial.

·Exhibit 3, documents relating to the home loan for the Queensland property.

·Exhibit 4, the only documentary evidence of the value of the respondent’s severance pay in 1996 when he was made redundant from his employment with (employer omitted).

·Exhibit 5, correspondence between the respondent and the strata managers for the Queensland property. This related to the initial purchase price for the unit and the significant role the respondent took in those negotiations including negotiations to obtain the management rights to the strata complex.

1. From reading this exhibit it is clear that the respondent was involved in the negotiations for purchase. There are e-mails addressed to him and Ms Sellar on 6 October 2011 from solicitors acting on their behalf, and again on 10 October 2011 to him and Ms Sellar and again on 11 October 2011.

2. Additionally the applicant gave evidence that the respondent contributed $115,000 to the purchase price of the unit by way of selling shares in his possession. This was clearly a joint venture on behalf of the applicant and respondent in 2011.

   ·Exhibit 6, summary of the respondent’s taxable income identified by him as being in his accountant’s handwriting for the years ended June, 2013 and 2014.

   ·Exhibit 7, photographs of various items the wife asserts are in the husband’s possessions which she claims are worth in the vicinity of $145,000. I have no evidence from any valuer only an assertion by the respondent to a bank in 2012 of their value when seeking a loan for share trading purposes. The respondent admitted he was the author of this document.

   ·Exhibit 8, a previous financial statement of the respondents dated 2 December 1996 and filed in unrelated Family Court proceedings.

   ·Exhibit 9, notice of the applicant’s legal fees.

   ·Exhibit 10, a statement from the (omitted) Bank in relation to drawdowns of monies made by the respondent post separation in relation to his Property C property and admitted by him.

   ·Exhibit 11, a letter from the applicant’s lawyers to the valuer dated 22 August 2014 confirming the respondent’s request that the garage at the property in Property H in the applicant’s sole name be separately valued and taken into account as a separate item in the valuation. Mr D’s valuation included the garage however the fact that he did not value the garage separately was an issue of contention for the respondent. Ultimately nothing turned on this issue.

   ·Exhibit 12, the respondent’s financial statement of 18 March 2013 filed in these proceedings and at a time when he was represented.

   ·Exhibit 13, the applicant’s updated balance sheet.

   ·Exhibit 14, the minute of the order she sought to effect an equal division of the assets in the party’s names.

   ·Four updated valuations by Mr D of Property C, Property H, Property P, Property I and Mr K’s valuation of the Queensland property.

3. The respondent contended the June 2014 valuations by Mr D were what I should rely upon and not the updated valuations filed the last 2 weeks or so before the trial.

The respondent’s exhibits:

·Exhibit 1, correspondence between the respondent and the applicant’s lawyers relevant to the valuation issues, much of which was taken out of the various affidavits that were not admitted into evidence.

·Exhibit 2, the minute of order the respondent sought which is that the parties retain the current assets in their possession.

·Exhibit 3, the various documents the respondent tendered disputing the updated valuation of Mr D. Valuations by Mr D were filed in June 2014. Updated valuations were filed the week or 2 before the trial. Given the volatile property market in Sydney, this was the most up-to-date evidence I could have about current valuations. The respondent had a significant objection to the updated valuations and sought to rely upon the June 2014 valuations.

·Exhibit 4, the respondent’s documents relating to the management rights of the Queensland property.

·Exhibit 5, letter from the respondent to the valuer dated 4 May 2015.

·Exhibit 6, the respondent’s final submissions in written form.

·Exhibit 7, letter to the valuer from the respondent dated 11 June 2015.

·Exhibit 8, letter to the valuer from the respondent dated 19 May 2015

·Exhibit 9, letter from the respondent to the valuer dated 12 May 2015.

1. The issues for determination were:

2. Whether I accept the respondent’s position that I rely upon the 2014 property valuations of Mr D or whether I accept the updated valuations of Mr D.

3. Ultimately there was no objection to Mr K’s valuation of the Queensland property although the respondent complained Mr K had not valued the management rights which the respondent said were attached to this unit. However, Mr K specifically addressed that issue in his updated report and determined no management rights attached to the unit and thus the respondent could not maintain his objection.

4. Secondly, whether I accept the respondent’s case that the applicant took his mother’s diamond ring at physical separation and if so, do I order that it be returned to the husband. The husband had a ring box on the bar table at all times during the trial. Theatrically at times he would pick up the ring box, open it state that this was the ring box of his mother’s diamond ring and that it was empty. He objected to Mr Batey touching the box at all times.

5. Whether I accept the respondent’s case that he received cash money from his mother’s estate of an unknown amount which was used to support the parties’ lifestyle.

6. Whether I accept that the applicant had in some way caused the respondent to be stripped of his management rights to caretake the Queensland property and that he ought to receive some additional amount for this loss of income due to her conduct. I accept and it is agreed that at the time of purchase of the unit the parties did pay for caretaker management rights which were assigned to (omitted).

7. Whether I adopt an asset-by-asset approach as urged upon me by the respondent to the contribution-based entitlement of the parties to their assets in that I not interfere with the current holdings of the parties’ property or whether I prefer the applicant’s position of an in-globo approach to the contribution based entitlement of the parties and a changing of current property holding.

Chronology.

1. The husband is aged 65. The wife is soon to be 60.

2. The applicant has two sons, Y, born in 1980 and X born in 1983.

3. In 1984 the respondent changed his name from Mr R to Mr Sansom.

4. In 1990 the parties meet. Interestingly in final submissions filed by the respondent, he asserted the parties had a relationship of 16 years. However, his affidavit dated 12 June 2015 at A3 he says:

   Ms Sellar and I separated in October 2012. I was in a relationship since approximately 1990.

5. At paragraph 5 of his affidavit of 12 June 2015 the respondent states:

   Between 1990 and 96 I live alternatively with my mother at (omitted) and at the Property P unit at Ms Sellar’s place at (omitted).

6. Clearly these parties commenced a relationship in 1990. This 22 year relationship was confirmed by the respondent in paragraph 5 of his affidavit of 12 June 2015 and paragraph A3 of his affidavit of 12 June 2015.

7. The respondent was made redundant from (employer omitted) on (omitted) 1994.

8. The respondent commenced working part time at (employer omitted) as a (occupation omitted).

9. 1995, X won a bursary to (omitted) Grammar School.

10. In 1996 the respondent purchased Property C. The parties lived together at that home with her sons on a permanent basis.

11. On 2 December 1996, the respondent filed a financial statement in the in his name of Mr R in unrelated Family Court proceedings relating to a debt owed to him by Mr A, the owner of (employer omitted) in this man’s own family law proceedings.

12. The respondent said in that document Mr A and/or his business owed him $100,000 as stated in applicant’s exhibit 8.

13. In 1997 the applicant sold her property at (omitted) and netted $83,391. The sale price was $110,000.

14. In 1998 the applicant’s mother died.

15. On (omitted) 2004, the respondent’s mother dies. The respondent is an only child.

16. In 2007 the applicant purchased Property H for $210,000.

17. This property was purchased by way of borrowings from (omitted) Bank of $195,000 with the applicant paying the deposit and stamp duty and other costs from savings. The property has been continually leased out including the applicant leasing the Property H garage.

18. The applicant asserts the respondent received the rental from Property H up until separation. Again, an indication of a joint endeavour by these parties in relation to wealth creation.

19. The respondent purchased a (omitted) motor vehicle. The applicant asserts she paid $23,050 for that vehicle. The respondent asserted he paid her back but there was simply no evidence to support that assertion.

1. This was the vehicle the respondent used in his business as a (occupation omitted) for (employer omitted) and he claimed a tax deduction for it.

2. In 2009 the (omitted) superannuation fund was established and the parties put two and a half thousand dollars cash and then transferred some (omitted) shares to set up the fund. The applicant rolled over money she had in her (omitted) Super to (omitted) Super of some $7000 and the respondent rolled over some $21,000 from his (omitted) Super. Clearly a joint venture.

3. In 2011, 1000 (omitted) shares were purchased by the parties for their super fund.

4. In 21 December 2011, the respondent entered into the caretaking agreement with respect to the Queensland property and on the next day the applicant settled on that purchase at a price of $620,000.

5. The applicant borrowed $495,000 from (omitted) Bank, the respondent contributed $115,000 from the sale of shares and it is clear the applicant then made up the difference by way of a draw down on her Property H property to pay the balance, stamp duty and purchase costs together with the management rights. This was clearly a joint venture by the parties.

6. In 2012 the parties purchased 2000 shares for (omitted).

7. In 2012 the respondent travelled overseas.

8. The parties separated under the one roof on 4 October 2012.

9. On 18 January 2013 the respondent sold some (omitted) shares and received some $30,000.

10. Between 2013 and 2014 the respondent travelled overseas on six occasions.

11. On 3 April 2013 the respondent sells further (omitted) shares receiving $34,037.37.

12. The applicant vacated the Property C property on 30 June 2013 having been made redundant by (employer omitted) on (omitted) 2013 and having rolled over her (omitted) superannuation to the Ms Sellar super fund.

13. The applicant commenced employment with (employer omitted) in Queensland in September 2014.

14. The respondent has drawn down the (omitted) Bank margin lending account to a debit balance of $162,204. It had a debit balance at separation on 4 October 2012 of $45.20. Only the respondent has drawn that money down.

The assets and liabilities:

1. The respondent asserted in his affidavit that the applicant has in some way caused him to be stripped of the management rights to the Property F property. His affidavit of 22 June 2015 annexes letters which he says support his assertion that management are attached to the unit the applicant owns. Mr K specifically looked at that issue in his report and could find no such attachment.

2. Secondly, the letter attached to the respondent’s affidavit does not support this assertion and states the manager is required to reside in a lot in the scheme which the respondent does not.

3. It is clear from the applicant’s exhibit 5 that the respondent was insistent that without the management rights to caretake the property, he would not agree to the settlement. Such was his determination that the applicant terminated her initial contract to buy the property due to a refusal of finance from (omitted) Bank for $595,000. The applicant then entered into a new contract for purchase which included the management rights needing only to borrow $495,000 from (omitted) Bank to settle on the purchase.

4. The applicant’s evidence that the finance refusal was the way out for the parties on the first contract for sale which did not include management rights is borne out in exhibit 5.

5. It is agreed that the management rights were settled the day before the settlement of the unit. The management rights were to Mr Sansom trading as (omitted) and are dated 22 December 2011. Both in the applicant’s affidavit and in the respondent’s material is a letter dated 12 March 2013 to the respondent from the strata managers of Property F. It says:

   “We have been instructed to write to you on behalf of the committee which has been advised at the recent committee meeting that you are no longer interested in caretaking the above scheme.

   Now in the absence of information to the contrary the body corporate is of the view that the Caretaking agreement dated 21 December 2011 has been abandoned and therefore the body corporate considers it at an end …”

6. The respondent’s evidence was that he did not respond to this correspondence asserting he was overseas. Nor has he taken up this issue with the strata managers despite an offer in that letter to contact them.

7. The respondent’s affidavit of 22 June 2015 annexes documents which show that the applicant’s son Y and his wife now have an agreement to caretake the property which is an agreement for one year and that the manager must reside in the unit in the strata complex which Ms Sellar does.

8. The respondent has not made out his case that management rights attach to the unit or that the applicant in some way caused these rights to be stolen from him. It was his failure to carry out his obligations to caretake the property that resulted in the agreement being terminated and no one else’s doing.

9. Going to the respondent’s objections to the updated valuations of Mr D.

10. The respondent’s contention is that I ought to reject the updated valuations of Mr D is rejected by me. I am entitled to take judicial notice of and it is common knowledge that the property market in Sydney has from 2014 through to 2015 increased significantly and is volatile. It is imperative at a hearing where a significant value of the parties’ assets is real estate that the most up to date valuations are provided and they have been.

11. It is a usual practice to update valuations when there is many months between the current valuations and the hearing date as is the case here.

12. Mr Sansom was unable to procure Mr D’s attendance at Court to give evidence. The subpoena he issued to him was defective and he was unable to have Mr D attend to be cross-examined by a request to attend as Mr D failed to return his calls on Mr Sansom’s evidence.

13. The respondent had not obtained any valuations of his own and sought merely to rely upon the previous valuations of Mr D in 2014, although he had made substantial objections to those valuations as well as his exhibits 3, 5, 7 and 9 attest.

14. Ultimately the respondent’s case was that Mr D was an agent of Ms Sellar via Mr Mullan and that these updated valuations were in some way biased against him and favoured the applicant.

15. The respondent has no regard for Mr Mullan and treated him in Court with contempt at times referring to him as “the Mullan”. He had no respect for Mr D either referring to him as “the Mr D”.

16. The respondent mounted an argument that Mr D has compromised his professional integrity in his updated valuations as he has increased exponentially the value of the property owned by the respondent and not the value of the property owned by the applicant. It is true that the increase in values were in respect of the respondent’s real estate, however in the absence of any other expert report or cross examination of Mr D, I accept the updated valuations as providing the most updated evidence of the value of the parties’ real estate.

17. In the absence of any expert evidence to the contrary, I am left with only the evidence of value contained in the updated valuations and I will accept them into evidence.

18. The asset pool as agreed or as I have found is as follows:

In the respondent’s name:

Property C	$1,100,000
Property P	$450,000
A garage at Property I	$50,000
Savings	$18,171
Share portfolio	$1,370,000 agreed
(omitted) motor vehicle	$10,000 agreed
(omitted) motor vehicle	$10,000 agreed

In the applicant’s name:

Property at Property F	$700,000 agreed
Property at Property H	$360,000
Share portfolio	$173,951. The respondent asserted the value was $188,000 however this figure was based upon share prices in 2014. The applicant relied upon share prices as at 15 June 2015 and thus is the more up to date value.
Holden motor vehicle	$3000 agreed
Contents and jewellery	$4,300
Collectables	$5300
Savings	$2290

1. I will not include the parties’ savings in the asset pool for distribution as I have no evidence these were monies acquired during the relationship and the parties have been separated for some 3 years.

Superannuation.

1. The Respondent has $330,855 in the (omitted) self-managed super fund.

2. The applicant has $261,205 in that fund and $424,677 in her own self-managed super fund.

3. There is a total of superannuation of $1,016,737.

Debts.

1. (omitted) Bank loan of $162,000 in respondent’s name.

2. I will disallow the respondent’s current credit card debt of $3,000. His evidence was clear. He pays his credit card off each month.

For the applicant.

1. The mortgage on the Property H property of $90,000.

2. The mortgage on the Property F property, $495,000.

3. Applicant’s debts $585,000.

4. One of the real issues of contention is the value ascribed to the respondent’s collectables and contents by the applicant of $180,000-$145,000 at final submissions.

5. The respondent does not accept this figure; I have no valuations to assist me. The applicant relies upon photographs applicant’s exhibit 7, her own observations of the contents of the home as set out at paragraph 52 of her affidavit and a document marked Applicant’s exhibit 10 completed by the respondent in his own hand for (omitted) Bank in 2012 where he asserted his cars, collectable, antiques, gold and silver and contents were worth $200,000. This document was used to obtain a margin lending loan.

6. Mr Batey says, even taking off the value as the respondent asserted of the motor vehicles of some $55,000 would still leave $145,000 of items in the respondent’s possession.

7. The respondent said his contents are worth the same as the applicant’s yet provides no evidence of such a diminution in the value he ascribed to them in 2012 and now.

8. I accept the applicant could have had the respondent’s contents valued. However, I have reservations whether he would have co-operated in this process given the tortuous process to obtain valuations both Mr Mullan and Mr D went through for the real estate.

9. From the photographs the respondent has a house full of older furniture, nick nacks, prints, Chinese masks, shields, and the like and no gold or gold bullion left. He has a silver bar worth about $1500 but otherwise his possessions are very second hand. I could not discern any particularly antique items which may have been of value in the photographs.

10. Doing the best I can on the evidence and finding that the husband’s cross examination on this issue satisfied me, he did not have possessions worth even $145,000 and that he had inflated the value of his possessions to the bank. I find a figure of $20,000 for his contents which is about 10% of his inflated value to (omitted) Bank to be the appropriate value.

11. The issue of add backs. It is clear that the respondent sold (omitted) Bank shares totalling some $64,000 which shares had been acquired during the relationship. However, he paid $44,593 for legal fees from this resource and used the remainder as he said on general living expenses.

12. The applicant also paid her legal fees in an amount of $57,000 from assets acquired during the relationship being part of her redundancy payout. I do not propose to add back the parties’ legal fees.

13. Two issues then remain. The wife received a redundancy payment of some $127,000 when she was made redundant from (employer omitted) on (omitted) 2013 and the respondent says this should be added back to the pool.

14. The applicant sets out at paragraph 38 to 43 of her affidavit what she did with that money. This money was used to meet the shortfall of rental over expense for the 2 investment properties in her name, pay her living expenses and legal fees as she did not find employment until September 2014. The attachments to the applicant’s affidavit annexure L and M went in uncontested as the respondent did not seek to ask her any questions on this and many other issues he raised despite my efforts to ensure he had asked the applicant all the questions he wanted answers to or where he believed she had made an error or was not being truthful.

15. This is another disadvantage the respondent laboured under as he simply stopped asking questions at a point and said, “what is the use” and sat down. He attempted to cross-examine the wife again, however, became very upset and made little in road into her evidence save that he obtained from her the concession that he put $115,000 of his money from the sale of shares into the Property F property and her agreement that without this money she could not have purchased the property.

16. The applicant’s case is made out that her redundancy money was spent on supporting herself for over 12 months, re-locating to Queensland, paying of expenses for her real estate over and above income received in rent and paying her legal fees and I will not add that sum back into the pool.

17. I will not add back the difference in the respondent’s paid legal fees and the shares he cashed in as I accept that money was used for his support.

18. It is a different scenario in relation to the drawdown by the respondent of $162,204 from the (omitted) Bank margin loan facility. The applicant says this is his debt and not a relationship debt as the respondent carried out this action without the applicant’s knowledge.

19. The respondent seeks that I find this debt to be a relationship debt and that the value of the parties’ assets be reduced accordingly. He says he used this money to live on much as the applicant used her redundancy money. I reject that submission by the respondent for the following.

20. During the period since separation the respondent has had occupation of the unencumbered home at Property C to the exclusion of the applicant. The applicant has had to privately rent.

21. The respondent has had the benefit of some $1,370,000 in shares and the dividends that come from those shares by way of income. That he chose to re-invest more than 50% of the dividends from his shares thus reducing the income available to him is a matter for him and the applicant is not to be disadvantaged financially by his unilateral decision to reduce the income available to him.

22. Thirdly he has not rented out his property at Property P which for some time, I was not at all satisfied as to the reasons he gave for not renting it. He asserted it was in a damaged state. Mr D’s valuation described it as in good condition.

23. He said he can only rent it to singles. That is no impediment to renting as many single people rent.

24. He had a surplus of monies paid for legal fees from his share sale approaching $20,000 together with a potential income stream of $1300 per week from share dividends and rent from Property P which he chose not to receive yet asks I accept he needed to draw down a further sum of $162,204 to support his lifestyle.

25. Part of the respondent’s lifestyle included 6 overseas trips in 12 months from 2013 to 2014. The respondent said he was going overseas immediately after this hearing.

26. The respondent continually made reference to the difficulty he had had in preparing his case as he asserted the applicant took all his documents at separation and did not return them. The respondent said he could not prepare tax returns, could not prepare documents, could not tell me what he paid and could not produce documents to support his case. He said that as she had copies of his documents this was proof of her theft.

27. This argument or excuse is not accepted by me. The applicant certainly has copies of the respondent’s personal details such as the respondent’s mother’s probate documents. The applicant did take the certificate of title of the Property C property at separation but handed it to the court and it is in safe keeping with the Court.

28. Her case was when they had separated under the one roof the respondent went overseas to (country omitted) in February 2013 and to (country omitted) in May 2013. Whilst he was on those holidays and not at the property, the applicant photocopied the documents. I accept her evidence that this is how she has copies of his documents.

29. Secondly, looking at the applicant’s exhibit 6, a typed up document from the respondent’s accountants which the respondent agreed was the case, the notes read

    “Mr Sansom. Notes per telephone discussion 8 July 2014. Spoke to Mr Sansom re tax return for 2013. He said to do 2013 and 2014 together. Info provided 2013: dividends, 83,580, franked dividends, 53,855, imputed dividends, 22,652. Other information per the ATO portal, example interest income, personal expenses as per previous year.”

30. That discloses an income in excess of $74,000 in 2013 for the respondent. This is at a time when the respondent asserts he had to draw down $162,000 on the (omitted) Bank margin loan to live and that he had no access to his documents because the respondent had taken them. The notes go on

    “2014, unfranked dividends, 76,692, franked dividends, $54,705, imputed dividends, 22,445. ‘An income of $77,000 for 2014.”

31. It is clear the respondent had access to his documents and that he gave his accountants this information from documents in his possession. His evidence that he merely relied upon the year before figures is not accepted by me.

32. Mr Batey put forward a proposition that the respondent still had this money squirreled away, a matter the respondent denied. I do not need to make such a finding as I find the monies the respondent withdrew from the (omitted) Bank loan were not necessary for his living expenses nor to maintain relationship assets such as the wife did with her redundancy money but were for his own purposes and thus the debt is his and not a relationship debt and will not reduce the value of assets held by the parties.

33. The respondent had ample income to support himself and the drawdown of that margin loan is either, as Mr Batey put it been kept as cash or he has used it on holidays for which the applicant ought not to be responsible.

34. The result of the orders sought by the respondent would be that the applicant would receive some 32 per cent of the relationship property and he some 68 per cent.

35. The applicant seeks an equal division of all assets.

36. The asset pool for division as I have found.

In the respondent’s name:

Property C	$1,100,000
Property P	$450,000
A garage at Property I	$50,000
Share portfolio	$1,370,000 agreed
(omitted) motor vehicle	$10,000 agreed
(omitted) motor vehicle	$10,000 agreed
Personalty and collectables	$20,000
Total	$3,010,000

In the applicant’s name:

Property at Property F	$700,000 agreed
Property at Property H	$360,000
Share portfolio	$173,951
Holden motor vehicle	$3000 agreed
Contents and jewellery	$4,300
Collectables	$5300
Total	$1, 246.551 less debts of $585,000 is $661,551 net in applicant’s name.

Superannuation

Respondent has $330,855 in the (omitted) self-managed super fund.

Total net assets in respondents name $3,340,855.

The applicant has $261,205 in that fund and $424,677 in her own self-managed super fund being $685,882.

Total net assets in applicants name $1,347,433.

1. I find that the total liquid asset pool being real estate, shares, contents, jewellery and motor vehicles and superannuation is $4,688,288.

2. One can see immediately the apparent inequity of the respondent having $3,340,855 in his name and the applicant only $1,347,433 in her name after a relationship in excess of 20 years.

3. I will deal with the superannuation assets and liquid assets as the one pool given the age of the parties, their superannuation is available now to the husband without penalty and will soon be for the wife who continues to work.

4. Mr Batey’s position was this and consistent with the principles in Pierce & Pierce [1998] FamCA 74 on initial contributions the husband is ahead. He had significant share portfolio at the commencement of the relationship. He had his interest in the Property I garage and Property P at the commencement of the relationship. The assertion he makes that he had some 600,000 value in shares is set out in his affidavits, A4 of his affidavit of 12 June 2015, is not necessarily accepted by me however the applicant agrees he had a significant share portfolio when they commenced a relationship.

1. He had the (omitted) sports car and a (omitted) car and his collectables. This Mr Batey says puts him ahead in terms of what the wife had which was the equity in her home at (omitted).

2. I reject the respondent’s evidence that he received $350,000 being a redundancy from the (employer omitted). There is no documentary evidence to support this sum being received only a figure of some $125,000. I accept that with this money, his savings and shares he purchased the property at Property C. I accept that the applicant made little, if any, contribution to the purchase price at Property C and that the properties at Property P, Property I and Property C were substantially, if not wholly, provided by him from pre-relationship income or assets. Mr Batey made that very concession.

3. I reject the respondent’s  evidence that he received cash from his mother’s estate and/or used it to support the party’s joint expenses for the following.

4. He only made reference to this cash under cross examination when Mr Batey was asking for a concession from him that without the applicant’s income being paid towards joint living expenses, he and she would not have been able to acquire the assets they had. He answered that any difference was made up by him from cash from his mother’s estate he received in 1999 or thereabouts and had all but expended by 2102/2013.

5. When pressed on this recent evidence, he failed to disclose how much cash he received despite repeated questioning.

6. He could not point to any document or bank record that this cash was received by him.

7. The applicant made no concession on this point in submissions.

8. Mr Batey says that the wife brought to the relationship her net equity in her home of some $90,000 and two young children and that as night follows day, the respondent made a contribution to parenting and home making of children who were not his children. Even in light of the applicant’s contribution as parent and homemaker, purchasing of food, paying rates taxes and the like and contributing her income to the parties asset base, he is still ahead on contributions resulting in a 60/40 split in his favour.

9. Mr Batey said post separation the respondent has had the benefit of the lion’s share of the assets of the parties since separation being the occupation of the former relationship home at Property C whilst his client had to pay rent and the benefit of the substantial share portfolio in his name.

10. I accept that submission. The applicant has had to rent while he has been able to live in a home rent free and whilst the applicant wife maintained solely the properties at Property H and Property F from her income together with rent received.

11. Mr Batey asserts I should allow her five percent for her post separation contribution to the relationship assets.

12. On Mr Batey’s case, this would bring the respondent’s entitlement to 55 per cent and the applicant’s to 45 per cent.

13. On a 45/55 division of the assets at $4,688,288 would give the applicant $2,109,729 and the respondent $2,578,559.

14. Mr Batey says I should allow a further adjustment to the applicant under section 75(2) of the Act. He says if I left her with 45% of the assets, her capacity to generate income would be lower than the respondent’s into the future.

15. Secondly that the respondent has not made a full and frank disclosure of his assets. He has not explained what he has done with the $162,000. He has not at all been frank about his true income in either his financial statements or documents he produced and I should make a further adjustment of 5% due to that non-disclosure and to give equality to their income producing assets.

16. If I accept this submission, this is an equal division or $2,393,118 to each.

17. The respondent’s case is that I maintain the current holdings of assets in the parties name including debts.

18. I reject such an approach as it would not result in a just and equitable distribution of assets acquired over a 20 year relationship namely 32% to the applicant and 68% to the respondent.

19. This is a relationship of over 20 years. It is clear the parties held assets in their separate names during that time. However, it is also clear from the subpoenaed material that the husband was instrumental in many of the financial decisions the parties made. The respondent said so himself in his submission. He submitted he created her wealth and made her wealthier than she would have been had it not been for the relationship.

20. That submission is of itself a submission of joint endeavour for if it is true of the applicant’s wealth growth, it is also true of the respondent’s wealth growth.

21. I accept the respondent assisted in increasing the applicant’s wealth as she did for him by parenting and homemaking activities, payment of rates, taxes, mortgages, food and for other joint household expenses, thus freeing up his income to re-invest.

22. The parties carried out numerous joint ventures. The purchase of the Property F property for investment and retirement, the setting up of the self-managed super fund, the setting up of (omitted) Super Fund, the purchasing of shares as part of their self-managed super fund, assisting each other to purchase properties.

23. These activities indicate a joint venture for a life together of a relationship in excess of 20 years. I prefer the approach set out in Norbis & Norbis [1986] HCA 17 a decision of the High Court which is that I will take the usual approach in lengthy relationships where there has been a co-mingling of income, effort and energy and deal with the division of assets as in-globo and not asset by asset.

24. I do not see on the evidence that I should make any further adjustment to the applicant than 45 per cent. I do not accept that the husband did not disclose his financial position; rather he misunderstood what was important for this Court. His focus was very much on the poor behaviour of Mr Mullan, how it is unfair that the applicant took his documents, has kept his mother’s diamond ring.

25. In relation to the diamond ring, I am unable to make any finding. The applicant’s evidence is to be preferred on all matters to the respondent and she denies she has the ring. He was histrionic, he was dramatic, his answers to questions such as a proper request for Mr Batey to produce a document elicited a response, “Well, she has got to show me hers before I show you mine.”

26. His focus was not on the issues I had to determine rather, a tit for tat approach. Having said that, I do not see that he has failed to disclose what his assets are, rather he chooses to present a case that what he has done is appropriate and everyone should accept his position.

27. Further he has a debt to (omitted) Bank of $165,000 which is his solely.

28. Given the significant initial contribution of the respondent by way of the provision of his money to purchase what was the relationship home for the applicant and her two children for many years, I find a 45% to the applicant and 55% to the respondent is appropriate in all the circumstances. Additionally the applicant will continue to work unlike the respondent who at age 65 is entitled to pull up stumps.

29. The applicant currently has assets in her name including superannuation of $1,347,433.

30. If she is to receive the sum of $2,109,729 this will require a payment to her by the respondent of $762,296.

31. In addition the respondent owes the applicant $1661 being a costs order made against him on 23 October 2013 and $2475 being one half of the fees of Mr D for the updated valuations. Those amounts together with the applicant’s entitlement is $766,432 in total to be paid by the respondent to the applicant.

32. After payment of this sum the applicant will have her substantial superannuation entitlements, her current income and sufficient monies to discharge her current mortgages and still have some $150,000 available to her. Given that she has some five years to work I find the wife will have sufficient income, capital and resources to support herself into the future.

33. The applicant is quite content for the respondent to retain the home at Property C and is prepared to give him an opportunity to pay to her an amount I have found is proper.

34. The respondent claimed that if he had to sell his shares he would have to pay capital gains tax. I have no evidence of the capital gains tax he may have to pay and thus cannot so find.

35. The respondent has the property at Property C which would more than, on Mr D’s valuation, provide for the monies to pay the applicant and it is a matter for him whether he determines to sell some shares to pay her or sell his home. He has an entitlement to superannuation which he can cash out without any tax penalty. It is entirely up to him how he re-adjusts his assets. Even if he paid the wife out from his share portfolio, he would still have some $600,000 in shares available to him together with his superannuation of $330,000, his home and his garage at Property I and unit at Property P which he can rent out immediately.

36. However, I must ensure the applicant can enforce the orders against an asset and thus I will provide for the home at Property C to be sold if the respondent defaults in paying the applicant the money I have found is her entitlement.

37. I find these orders are just and equitable. I find in all the circumstances these orders provide for each party to provide for their needs into the future, take into account the standard of living they enjoyed during the relationship and the contributions each have made to the current asset base and provide a just and equitable division of their assets and I will so order.

I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:

Date: 6 August 2015