Uhlmann & Rosenthal - [2022] FedCFamC2F 1582

Federal Circuit and Family Court of Australia
(DIVISION 2)
Uhlmann & Rosenthal [2022] FedCFamC2F 1582

File number(s): ADC 1405 of 2021

Judgment of: JUDGE JENKINS

Date of judgment: 21 November 2022

Catchwords: FAMILY LAW – PROPERTY – final hearing – de facto relationship of approximately 14 years – whether it is just and equitable to make an order for property settlement – add backs – joint self-managed super fund – one party a beneficiary to the other party’s family trust – joint wills bequeathing assets to the other – where the parties otherwise kept their finances separate

Legislation:
Family Law Act 1975 (Cth) ss 79(4), 90SF, 90SM, 90ST, Part VIIIAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Aleksovski & Aleksovski [1996] FamCA 111

Bevan & Bevan (2013) 279 FLR 1

C & C [1998] FamCA 143

Chancellor & McCoy [2016] FamCAFC 256

Chancellor & McCoy (2016) FCCA 53

NHC & RCH (2004) FLC 93-204

D & D [2003] FamCA 473

Fielding & Nichol [2014] FCWA 77

Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93‑143

Lee Steere & Lee Steere (1985) FLC 91-626

AJO & GRO (2005) FLC 93-218

Stanford v Stanford [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 105

Date of last submission/s: 29 August 2022

Date of hearing: 2–3 August 2022

Place: Adelaide

Counsel for the Applicant: Mr Dillon

Solicitor for the Applicant: Brian Deegan Lawyers

Counsel for the Respondent: Mr Richards

Solicitor for the Respondent: Swan Family Lawyers
ORDERS

ADC 1405 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR UHLMANN

Applicant

AND:
MS ROSENTHAL

Respondent

order made by:

JUDGE JENKINS

DATE OF ORDER:

21 November 2022

THE COURT ORDERS THAT:
1.That within 60 days of the making of Final Orders in the proceedings the Applicant pay to the Respondent the sum of $506,133.60.
2.As to the Mr Uhlmann Family Trust:
(a)The Respondent will forthwith do all necessary acts and things and sign all necessary documents to:
(i)Transfer or assign to the Applicant or his nominee the Unpaid Present Entitlements standing to her credit in the sum of $23,868;
(ii)Give effect to her removal as a beneficiary of the Trust.

(b)The Applicant will hereafter indemnify the Respondent and keep her forever so indemnified against any claim or liability of whatever nature arising out of the financial dealings of the Trust including but not limited to any liability for income tax whether such liability may relate to the past, present or future financial dealings of the Trust.

3.That the Respondent forthwith do all acts and things necessary to transfer to the Applicant all her right, title and interest in the party’s timeshare.
4.Except as otherwise provided in these Orders, the Applicant and the Respondent are each entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Uhlmann & Rosenthal

Details

AGLC: Uhlmann & Rosenthal [2022] FedCFamC2F 1582
Case: [2022] FedCFamC2F 1582
Decision Date

CaseChat Overview and Summary

These proceedings concern the division of the property of the parties to a de facto relationship of approximately 14 years, pursuant to Part VIIIAB of the Family Law Act 1975 (Cth). The husband seeks a declaration that it would not be just and equitable to make an order for property settlement. In the alternative, he seeks an order that provides for an alteration of superannuation accumulated during the relationship only. The wife seeks the non-superannuation assets of the parties be divided 60% to the husband and 40% to the wife and that each party otherwise retain their respective superannuation interests. The husband has been ordered to pay the wife $506,133.60, representing 45% of the pool. The wife is to remove herself as a beneficiary of the husband's family trust and transfer her unpaid present entitlements to the husband. The wife is to transfer her interest in the parties' timeshare to the husband. The parties are otherwise to retain their respective assets.

Orders