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 each of them respectively.
5.All extant applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Uhlmann & Rosenthal has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
introduction
These proceedings concern adjustment of the parties’ property interests under the provisions of Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
In determining these proceedings, I have had regard to all of the evidence presented at Trial. It is not possible to include every aspect of the parties’ evidence in these reasons for judgment. However, if a particular fact or issue is not mentioned in these reasons, it does not mean that I have failed to consider it.
background
The applicant de facto husband, Mr Uhlmann (“the husband”) was born in 1956 and is currently 66 years of age. He operates a business.
The respondent de facto wife, Ms Rosenthal (“the wife”) was born in 1957 and is 65 years of age. She is a health care worker.
The parties were never married but for ease of reference I shall refer to them as the husband and the wife.
The wife says the parties commenced cohabitation in or about November 2003. The husband says 2006 although in both the Initiating Application filed 24 March 2021 and the Amended Initiating Application filed 17 February 2022, the husband asserts that cohabitation commenced in 2005. The dispute about the date of cohabitation was not the subject of cross-examination nor raised at Trial save and except in the final written submissions. In such circumstances I am unable to make a finding about the precise date of the commencement of the relationship save to conclude that it commenced somewhere between 2003 and 2006. However both counsel conceded in final submissions that not much turns on this, and I agree with that proposition.
There is no dispute as to the separation date, being November 2019.
There are no children of the relationship. Each has adult children from former relationships who lived with the parties from time to time.
During the relationship the parties kept their finances separate save for the following:
·They had a joint self-managed super fund; and
·The wife was a beneficiary of the husband’s family trust.
Despite this, in 2012 the parties created joint wills bequeathing the majority of their property to the other party.
orders sought
The husband says that pursuant to s 90SM (3) of the Act, it would not be just and equitable to make an order for division of property. In the alternative, he seeks an order that provides for an alteration of superannuation accumulated during the relationship only.
When questioned as to what would happen with the self-managed super fund if the Court acceded to the husband’s primary position, the husband’s counsel said the parties would either continue to stay in the fund together or would deal with their interests in it by agreement between them.
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. This would reduce the total differential between the parties to 56% in favour of the husband.
documents relied upon
The husband relied upon:
(a)His Amended Initiating Application filed 17 February 2022;
(b)His Trial Affidavit filed on 17 February 2022;
(c)His Updated Financial Statement filed on 17 February 2022;
(d)His further Affidavit filed 8 March 2022.
The wife relied upon:
(a)Her Amended Response filed 3 March 2022;
(b)Her Trial Affidavit filed on 3 March 2022;
(c)Her Updated Financial Statement filed on 3 March 2022.
At the end of the evidence the parties provided written submissions. Counsel then attended a further hearing on 8 September 2022 to clarify issues arising from those submissions.
At the further hearing date I noted that the husband, in his Trial affidavit, refers back to a previous affidavit of the wife which was not relied upon by the wife. It was conceded by Counsel for the husband that to the degree that the husband refers to the wife’s older affidavit dated 14 May 2021, I ought to be able to refer to that affidavit. Counsel for the wife did not ultimately speak against this.
the evidence
The only witnesses called on behalf of the parties, were the parties themselves.
Some of the issues in relation to which the parties do not agree are not germane to the issues I must now decide. In relation to relevant parts of the evidence where the parties’ accounts differ, it seems to me that each party did their best to give truthful evidence. Of course, that evidence was from their own perspective. However, I did not form the view that either party was dishonest, nor intended to mislead the Court. The husband’s counsel submitted that I ought to find that the wife was less than forthright, pointing to her evidence about her tenant Ms B. However I find that, on the contrary, on this topic the wife gave evidence which appeared both honest and against her interest.
relevant legal principles
The relevant legal principles governing any application for property settlement between parties to a de facto relationship are set out in Part VIIIAB of the Act.
Section 90SM (1) authorises the Court following the breakdown of a de facto relationship to make such orders between the parties as it considers appropriate.
Section 90SM (3) makes it clear that the Court cannot make an order for property settlement unless it is just and equitable to do so.
Earlier Full Court authorities have identified a four step process that can assist the Court in reaching a just and equitable decision: see Lee Steere & Lee Steere (1985) FLC 91-626; Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93‑143; and AJO & GRO [2005] FamCA 195.
Assuming the Court is satisfied that it is just and equitable to make an order for property settlement, the Court must identify the parties' legal and equitable interests in the assets arising from their relationship, together with their liabilities. The Court should then assess each party's contributions during the relationship in accordance with ss 90SM (4) (a)-(c).
Then the Court must consider the range of factors set out in ss 90SM (4) (d)-(g), including the future needs factors identified in s 90SF (3). The Court should then consider its findings and, if the Court is satisfied that it is just and equitable to do so, make orders adjusting the parties' property interests.
The Full Court in Bevan & Bevan (2013) 279 FLR 1, 18 at [86], in the joint judgment of Bryant CJ and Thackray J, reminded trial judges that the "four step process" is not legislatively mandated. Rather, it provides a structured process towards the ultimate requirement, which is to ensure that a property settlement order is only made when the Court is satisfied that it is just and equitable to do so, and that the terms of the order itself are also just and equitable.
existing property interests
The parties were able to agree upon a joint balance sheet save for some minor issues.
The parties tendered by consent the following joint balance sheet.
Ownership Description Applicant’s value Respondent’s value ASSETS 1. PH C Street, Suburb D (“the C Street, Suburb D property”) $750,000 $750,000 2. CA E Street, Suburb F, QLD $E 203,500 $E 203,500 3. PH G Street, Suburb H, VIC $E 140,000 $E 140,000 4. PH J Pty Ltd (noting entity value $289,461 and Family Trust value with Debt added: Per 15 May Valuation $713,512 $713,512 5. PH CBA Account (ending …16) $1,734 $1,734 6. PH CBA Account (ending …35) $4,050 $4,050 7. PH Funds Held in Account of Ms K $E 28,000 $E 28,000 8. CA Westpac eSaver (ending …40) $E 0 $E 0 9. CA Westpac eSaver (ending …72) $9,000 $9,000 10. CA Westpac Choice (ending …70) $12 $12 11. CA Motor Vehicle 1 $E 25,000 $E 25,000 12. CA Motor Vehicle 2 Proceeds $E 5,000 $E 0 13. PH L Trailer $E 2,000 $E 2,000 Total $E 1,881,808 $E 1,874,808 ADDBACKS 14. CA Sale Proceeds (wasted post-separation) $E 86,058 $E 50,000 15. CA Expenses for C Street, Suburb D $E 35,000 $NIL Total $E 121,058 $E 50,000 LIABILITIES
16. PH C Street, Suburb D Mortgage – Included in Company M Valuation $(148,417) $NIL 17. PD G Street, Suburb H Mortgage $183,750 $183,750 18. CA E Street, Suburb F Mortgage $203,829 $203,829 19. PH CBA Mastercard (ending …25) $13,966 $NIL 20. CA Bank N Car Loan $14,344 $14,344 Total $415,889 $401,923 SUPERANNUATION Member Name of Fund Type of Interest Applicant’s value Respondent’s value 21. PH Uhlmann Superannuation Fund SMSF $E 123,774 $E 123,774 22. CA Uhlmann Superannuation Fund SMSF $E 199,497 $E 199,497 23. CA Super Fund O $67,034 $67,034 Total $E 390,305 $E 390,305
Following the evidence, the husband’s counsel conceded that it was not appropriate to include the husband’s Mastercard debt in the pool. With respect to the wife’s Motor Vehicle 2, counsel for the husband in his written submissions states that the husband seeks for it to be included in the pool but that it is a “button faintly pressed”. Given it was common ground that this car was effectively gifted to the wife’s daughter-in-law who has used it for some time I do not propose to include it in the pool.
add backs
It is not in dispute that the wife had the sole benefit of the proceeds of sale of her Suburb S property, of approximately $86,058 (“the proceeds of sale”).
The wife says the proceeds of sale were applied as follows:
·Part payment of her legal costs - $30,058;[1]
·Payments for the support and welfare of her adult son Mr P - $47,000; and
·The balance of $9,000 remains in her savings account.
[1] The wife did not specify this amount but this figure is calculated working back from the other two figures which are not controversial. The wife’s evidence was her legal costs were in fact far in excess of this figure.
The husband says the entirety of the proceeds of sale should be added back to the pool.
The wife says that only $50,000 of the proceeds should be included in the pool, that being the approximate amount she paid to support her adult son but not the amounts that went to her legal fees or the $9,000 which remains in the savings account and is therefore already in the pool.
The husband submits that the amount paid by the wife for legal fees is unknown. During the trial the husband’s counsel called for the wife’s lawyers trust account and this was not answered.
However, the wife argues that there was no necessity to provide the trust account in circumstances where the husband has failed to disclose his source of legal funding. The wife’s counsel submitted that the only evidence before the Court is that the husband paid his legal fees from the company and that it was not open to the Court to speculate whether this was from income or capital. The husband’s counsel argued that there were only two sources from which the company could have paid the legal fees and they were either by way of a Division 7A loan, which would not reduce the overall value of the business or from income. I accept this submission. There is no evidence that the husband has otherwise used business assets to pay his legal fees such that he has reduced the asset pool now available for division between the parties. The wife’s counsel submitted that his legal fees may have been hidden in his business expenses – but I was not pointed to any evidence of this and this was never put to the husband.
It is well established that the Court has a discretion whether or not it will notionally add back assets. It is also well established that notionally adding assets disposed of back into the pool is to be the exception rather than the rule. Generally, the Court is to take the property of the parties as they are at the date of the final hearing. Rather than adding back monies that have been dissipated, in many cases these issues can be more appropriately dealt with under s 90SF (3) (r) of the Act. The Court is not required to add back the assets that were in existence when the matter was heard, as parties are not expected to enter a state of suspended economic animation following the breakdown of their relationship.
Usually, reasonable expenditure will not be considered to fall within a category of acceptable addbacks. Indeed, parties are entitled to conduct themselves post separation “in a manner that is consistent with properly getting on with their lives” as outlined in C & C [1998] FamCA 143 at [46].
However I am satisfied in this case that the wife had sufficient income from which to meet her reasonable living expenses (as well as her adult son’s expenses if she so chose). This is even without the income of her tenant (which I shall refer to further below) and despite the failure to include her additional expenses at item 32 of her financial statement.
I note further that in line with authorities such as NHC & RCH (2004) FLC 93-204, and AJO & GRO [2005] FamCA 195 that when joint monies are used to pay for legal fees for one party it may be appropriate to notionally add those monies back into the pool.
The wife has utilised a premature distribution to her to pay her legal fees. If those funds were not added back, the husband would effectively be contributing to the wife’s legal fees.
Furthermore, given the wife’s failure to produce her lawyer’s trust account when called for, I find the inference to be drawn is that she applied the whole of the remaining proceeds of sale (after payments for her son) to her legal fees and that the $9,000 in savings was not from those proceeds.
Consequently I am satisfied that the entirety of the proceeds of sale ought to be added back to the pool.
The husband also seeks that the expenses he paid for the benefit of the wife towards C Street, Suburb D be added back to the pool or in the alternative these payments should be factored in as a post-separation contribution pursuant to s 90SF(3).
As the C Street, Suburb D expenses were not funds used by the wife per se but rather paid on her behalf, I find that this is a matter more appropriately dealt with under s 90SF (3)(r) – see below.
For completion, the parties agree that their timeshare has no value and should be retained by the husband.
Accordingly I find the pool available for division between the parties to be as follows:
Ownership Description Value 1. PH C Street, Suburb D, SA $750,000 2. CA E Street, Suburb F, QLD $E 203,500 3. PH G Street, Suburb H VIC $E 140,000 4. PH J Pty Ltd (noting entity value $289,461 and Family Trust value with Debt added: Per 15 May Valuation $713,512 5. PH CBA Account (ending …16) $1,734 6. PH CBA Account (ending …35) $4,050 7. PH Funds Held in Account of Ms K $E 28,000 8. CA Westpac eSaver (ending …40) $E 0 9. CA Westpac eSaver (ending …72) $9,000 10. CA Westpac Choice (ending …70) $12 11. CA Motor Vehicle 1 $E 25,000 12. CA Motor Vehicle 2 Proceeds $E 5,000 13. PH L Trailer $E 2,000 Total $E 1,881,808 14. CA Proceeds of Sale $E86,058 Total $E 86,058 15. PH C Street, Suburb D Mortgage – Included in Company M Valuation Nil 16. PD G Street, Suburb H Mortgage $183,750 17. CA E Street, Suburb F Mortgage $203,829 18. CA Bank N Car Loan $14,344 Total $E401,923
Member Name of Fund Type of Interest Applicants value 19. PH Uhlmann Superannuation Fund SMSF $E 123,774 20. CA Uhlmann Superannuation Fund SMSF $E 199,497 21. CA Super Fund O $67,034 Total $E 390,305 is it just and equitable that an order be made?
Having identified the parties’ assets and liabilities, and prior to making any order pursuant to s 90SM(4) of the Act, I must first be satisfied that it is just and equitable that any order be made pursuant to s 90SM (3) of the Act, as per the High Court decision of Stanford v Stanford [2012] HCA 52 (“Stanford”).
In Stanford, their Honours, in the joint judgment of French CJ, Hayne, Kiefel and Bell JJ, considered the expression “just and equitable” at paragraph 36 and noted that it:
…Is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
There is no presumption that the parties’ entitlements in the existing asset pool should be altered, or that one party has the right to have the property of the parties divided between them only on the basis of the considerations in s 90SM(4) of the Act. The Court must not conflate the determination pursuant to s 90SM(3) of the Act with its determination pursuant to s 90SM (4) of the Act. These are separate enquiries.
The husband’s case is that the parties kept separate finances during the relationship and that there were no joint purchases of real property and no significant contributions to the other party’s property. Accordingly, he says it would not be just and equitable to make any order pursuant to s 90SM(3).
The husband denies the parties consulted over financial decisions and says the issue with the Motor Vehicle 2 is just one example of this – where the wife gave the car to her son without consulting the husband.
The wife’s case is that although the parties commenced with separate finances that over time there was an assumption that they were accumulating assets for their joint benefit. Indeed her evidence is that she sold her Suburb R property on the basis that “it was no longer needed” as they were going to live in the C Street, Suburb D home.
The wife says that all major financial decisions were the subject of mutual discussion and agreement. In the wife’s written submissions it is put that this evidence was not challenged by the husband however I accept that the husband denies in his affidavit that there were ever any such discussions.
The wife says that the parties’ mutual intention to accumulate assets for their joint benefit was evidenced by way of their joint estate planning which took place in September 2012 in which each party made wills leaving the residue of their estate to the other.
Further to this, the wife says this intention is evident in that she was a beneficiary of the husband’s family trust being the Mr Uhlmann Family Trust (“the family trust”).
Ultimately, I accept the submissions of the wife that the facts in this case can be distinguished from those in cases such as Fielding & Nichol [2014] FCWA 77, the first instance decision in Chancellor & McCoy (2016) FCCA 53, and the Full Court decision in Chancellor & McCoy [2016] FamCAFC 256. This is not a case where the evidence shows that the parties kept their finances entirely separate, where there was no joint property, and where there was no intention for the parties to provide for the other in the future.
I also find that in the circumstances of this case, it is just and equitable to make an order pursuant to s 90SM of the Act for a division of property between the parties on the basis that both parties made contributions, financial and otherwise, which may not be appropriately recognised if the Court does not determine to make an order for the adjustment of property.
section 90SM(4)
In determining what orders are to be made pursuant to s 90SM (4) of the Act, I must:
weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment: see Aleksovski & Aleksovski [1996] FamCA 111 at [50] (Baker and Rowlands JJ) (“Aleksovski”).
In determining any application for property settlement, the Court is not embarking upon an arithmetical exercise but rather an examination of all the relevant factors set out in s 79(4) or in this case s 90SM(4). As noted by the Full Court in D & D [2003] FamCA 473 at [49]:
… the task of the Court in proceedings under s.79 is not akin to an accounting exercise. The task is to examine the facts of each case carefully to decide what is appropriate and just and equitable in the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions.
contributions in this case
Initial contributions
The husband’s evidence is that at the commencement of the relationship he owned a property at C Street, Suburb D (“the C Street, Suburb D property”) which he said was worth approximately $350,000 subject to a line of credit estimated at $100,000. In addition he said he had a superannuation interest of approximately $50,000 and long service leave entitlements. The wife says the husband’s line of credit was approximately $150,000. I note in the husband’s affidavit filed 8 March 2022 that there was a limit of approximately $150,000 but he says the amount outstanding was $100,000. There is nothing to corroborate the actual balance.
The wife’s evidence is that at the commencement of the relationship she owned a property at Q Street, Suburb R (“the Q Street, Suburb R property”) which she says was worth about $280,000 subject to a loan of $149,000 and a Motor Vehicle 1 worth $15,000. She says she also had superannuation of $48,000. The husband takes issue with the value of the wife’s property at the commencement of the relationship given she only purchased it for $172,000 the year before.
There are no retrospective valuations for each of the party’s properties. Each appears to be ‘guesstimating’ the values. Nor has the Court been provided with evidence of the precise balance of the loans at the commencement of co-habitation.
On the husband’s case he had about $250,000 worth of assets and the wife had about $20,000. On the wife’s case he had about $200,000 worth of assets and she had about $130,000. On either version the husband’s initial contribution was greater but the precise extent is unclear.
Contributions during the relationship
The husband’s case is that the parties met the costs and outgoings of their respective properties during the relationship and that neither made any substantial contributions to the other party’s property.
It is common ground the husband paid all of the mortgage payments and other outgoings on the C Street, Suburb D property in which the parties lived for the duration of the relationship.
The wife says that although the parties initially kept their finances separate and had no discussion about joint finances, that over time the parties both made improvements to the C Street, Suburb D property and were both involved in the maintenance of the property as well as sharing general living expenses.
The wife says that she paid for carpet at the C Street, Suburb D home, as well as for the installation of a gas space heater, for paint for the home and a home freezer system. On any view her direct financial contributions to the C Street, Suburb D party property were of a modest nature.
The husband also made few if any direct contributions to the wife’s property at E Street, Suburb F save for the air-conditioning.
It was not in dispute that the wife generally earned a greater level of income than the husband, at least for part of the relationship, which was enhanced through her tax-free salary package and/or reportable fringe benefits.
It appears the wife made a greater contribution to the parties’ superannuation during the relationship as her member balance in the self-managed fund is substantially more than the husband’s.
Otherwise the evidence was that the parties shared more or less equally in the day to day expenses such as groceries, eating out, holidays and travel. They each purchased food and other day to day items on an adhoc basis. As the husband conceded, they did not keep account of who spent what.
The wife acquired a motor vehicle which was used as the family vehicle whilst the husband had the benefit of a business car.
The wife said she was responsible for the vet bills for the husband’s pets. He largely agreed although not necessarily with the necessity for the treatment.
The husband conceded that “to a degree” the wife was primarily responsible for the internal cleaning of the home and that they shared the cooking and washing.
The wife says she also contributed to the husband’s business by cleaning, although I note the business mainly used external cleaners.
The parties’ children stayed with them at various times. The husband agreed that they each provided care and support for each other’s children. It was not in dispute that the parties assisted the children financially and non-financially at different times, for example they contributed to the cost of the wife’s son’s car and provided crockery for the husband’s daughter’s wedding. The husband also agreed the wife purchased gifts for his children and grandchildren.
Although the husband made a greater direct financial contribution to the mortgage and outgoings on the C Street, Suburb D property, I must also take into account the myriad of other contributions including the wife’s greater contribution to the superannuation. In the context of a long relationship I find that the parties’ respective contributions during the relationship were relatively equal.
Post separation
It is not in dispute that the wife has had the benefit of living in the C Street, Suburb D property since separation but has made no contributions to the mortgage, rates, insurance or even the utilities she has used in the property. The husband says he has paid some $35,000 towards the outgoings on the property since separation including the wife’s utility bills. The wife’s evidence was that she did not respond to demands to contribute to these costs as she was “emotionally worn down” and wanted to show the husband he could not treat her the way he had been treating her. This was seemingly in response to statements that she was “worth nothing”.
The wife concedes that the husband has made a post-separation contribution although points out that the mortgage was paid through the business as a business expense rather than from his taxable income.
The wife’s evidence was that if she had to pay rent for an equivalent property she would have had to pay about $425 per week as well as the cost of utilities.
The husband has also continued to maintain the lawn and gardens of the home noting he has had no access to the inside of the house since early 2020 (when the wife changed the locks) to attend to internal maintenance.
Despite paying no outgoings, the wife has allowed a tenant, a Ms B to reside at the C Street, Suburb D property. Ms B was paying $200 per week rent to the wife for an undetermined period. The wife’s evidence was that upon receiving a demand from the husband’s solicitors to pay rent and other outgoings on the property she told Ms B she could stop paying rent.
The husband argues that the wife ought to have disclosed Ms B as an income earner in part E of her financial statement. The wife’s counsel submits that the ordinary use of that part is for de facto partners and that no inference should be drawn from the wife’s failure to include a tenant. In my view Ms B should have been included in that section, given the wife conceded she had some income, albeit modest. However given the wife’s otherwise candid evidence on this issue I make no finding about her failure to include that information.
It was also submitted that the wife’s failure to include a value for additional expenses at paragraph 32 of her financial statement means that Ms B was paying all of the wife’s additional expenses in lieu of rent. However I accept that it is possible that because part N was not required to be competed that an error was made in failing to include the wife’s additional expenses in that paragraph.
Nonetheless, I find that on the evidence before the Court, that the wife had the capacity to pay the outgoings and utilities on the C Street, Suburb D property from her own income.
On the husband’s financial statement the weekly outgoings relating to the C Street, Suburb D property were as follows:
•Mortgage $162
•Rates $67
•Home and contents $45
•Total $274
The utilities are not quantified by either party.
The wife’s income on her financial statement is $1,731 per week not including income from her tenant which would make it $1,931.
Her expenses are $1,398 but these include paying $190 for her son’s mortgage.
Even though the utilities and any additional maintenance expenses are unquantified, it is apparent on these figures that the wife had the capacity to meet the mortgage, rates and home and contents insurance as well as these additional costs and to pay her son’s mortgage if she so chose. It is possible she could have even done so without rent from her tenant, a situation which was entirely her choice.
In all of the circumstances, I find that in paying all of the outgoings on the C Street, Suburb D property, including the wife’s utilities, the husband has made a greater post-separation contribution to the assets than the wife. This is a matter I take into consideration under s 90SF (3)(r).
Analysis
Overall, factoring in the myriad of contributions made by the parties including their respective initial contributions, their contributions during the relationship and post-separation, I have determined that the husband should receive an adjustment in his favour of 55 percent of the pool based on contributions.
section 90SF
Age and health of the parties
The husband is 66 years of age and in good health.
The wife is 65 years of age and likewise in good health.
Care of children under 18 years
There are no children of the relationship.
Income and financial resources of the parties
The husband continues to operate the J Pty Ltd business. His income on his financial statement is $55,328 per year but he is able to structure his affairs to minimise his taxation and to claim other benefits through his business.
The wife is a health care worker and her income based on her financial statement is $79,300.
Each also receives income from their respective investment properties.
Whilst the wife has a slightly higher income, both parties are nearing retirement age and accordingly I do not find that there should be any further adjustment pursuant to s 90SF.
Conclusion
The husband argues that if there is to be any division of assets that it should done on a global basis, incorporating both non-superannuation and superannuation into one pool.
Given the ages of the parties and nearness to retirement I find that a global approach to superannuation and non-superannuation property is warranted in this case.
A 55/45 division of the entire asset pool will result in a payment to the wife of $506,133.60. This is calculated as follows:
Ownership Description Husband to retain Wife to retain ASSETS 1. PH C Street, Suburb D, SA $750,000 2. CA E Street, Suburb F, QLD $203,500 3. PH G Street, Suburb H VIC $E 140,000 4. PH J Pty Ltd (noting entity value $289,461 and Family Trust value with Debt added: Per 15 May Valuation $713,512 5. PH CBA Account (ending …16) $1,734 6. PH CBA Account (ending …35) $4,050 7. PH Funds Held in Account of Ms K $E 28,000 8. CA Westpac eSaver (ending …40) 9. CA Westpac eSaver (ending …72) $9,000 10. CA Westpac Choice (ending …70) $12 11. CA Motor Vehicle 1 $E 25,000 12. PH L Trailer $E 2,000 Total $E 1,639,296 $E 237,512
ADDBACKS 13. CA Proceeds of sale $E 86,058 Total $86,058
LIABILITIES 14. PH C Street, Suburb D Mortgage – Included in Company M Valuation 15. PD G Street, Suburb H Mortgage $183,750 16. CA E Street, Suburb F Mortgage $203,829 17. CA Bank N Car Loan $14,344 Total $183,750 $218,173
SUPERANNUATION
Member Name of Fund Type of Interest Applicant’s value Respondent’s value 18. PH Uhlmann Superannuation Fund SMSF $E123,774 19. CA Uhlmann Superannuation Fund SMSF $E199,497 20. CA Super Fund O $67,034 Total $123,774 $266,531
Total Assets including Superannuation Husband Wife $1,579,320 $371,928 Adjustment
Total pool $1,951,248
Husband 55% $1, 073,186.40
Wife 45% $878,061.60
Assets in wife’s name $371,928
Payment to the wife $506,133.60
In dollar terms this will result in the husband receiving $195,125 more than the wife. In all of the circumstances of this case I find that this is a just and equitable result.
I propose otherwise to make orders in terms of those sought by the respondent in the written submissions. Although my preference would be for there to be a default sale in the event the payment is not made, so that the parties do not need to return to Court for enforcement, such a default is not proposed and no submissions were made. I have also included an order for the transfer of the time share, as both parties agreed it should be retained by the applicant.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 21 November 2022
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