FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wheatland & Robinson [2022] FedCFamC1F 877
File number(s): MLC 4392 of 2020 Judgment of: KARI J Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where parenting issues were resolved by consent on the first day of trial – Where there is one child of the relationship – Where the child will remain in the wife’s primary care due to risk factors presented by the husband’s admission he suffers from an alcohol addiction – Where the relationship consisted of an eight and a half year marriage - Where each of the parties sought to add back notional property – Where the parties engaged in a lavish lifestyle during the marriage – Where the Court is satisfied that a just and equitable approach can be achieved by adopting a single property pool – Where the husband has accrued an entitlement to a lifetime pension - Where the Court found that the pension entitlement should be treated as an income stream and should not be included in the net property pool – Where the wife is 22 years the husbands junior – Where the wife has capacity to earn a reasonable income, and can expect to do so for the foreseeable future – Where the husband is paying child support and will continue to do so in the future – Where the Court ordered an overall division between the parties as to 55 per cent to the wife and 45 per cent to the husband – Where the court dismissed the wife’s application for costs for the late resolution of the parenting issues Legislation: Family Law Act 1975 (Cth) Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31; [2016] FamCAFC 35
Bevan & Bevan (2013) FLC 93–545; [2013] FamCAFC 116
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Hickey & Attorney-General (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kohan & Kohan (1993) FLC 92-340; [1992] FamCA 116
Mayne & Mayne (2011) FLC 93-479; [2011] FamCAFC 192
Medlon & Medlon (No. 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005)191 FLR 294; [2005] FamCA 158
Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4
Stanford & Stanford (2011) FLC 93-483; [2011] FamCAFC 208
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Vass & Vass (2015) 53 Fam LR 373; [2015] FamCAFC 51
Division: Division 1 First Instance Number of paragraphs: 264 Date of hearing: 7-8 March and 6-10 June 2022 Place: Melbourne Counsel for the Applicant: Ms Tulloch Solicitor for the Applicant: Garland Hawthorn Brahe Counsel for the Respondent: Mr Sweeney Solicitor for the Respondent: Saunders Family and Estate Lawyers ORDERS
MLC 4392 of 2020 FEDERAL CIRCUIT…
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CaseChat Overview and Summary
The case of Wheatland & Robinson involved a dispute over property settlement between a husband and wife following their separation. The central issues were the division of the husband's defined benefit pension, currently in the payment phase, and whether to notionally add certain amounts back into the asset pool. The husband opposed a split of his pension, while the wife sought an equitable division. Additionally, both parties promoted different amounts to be notionally added back into the asset pool.
The court examined the evidence and submissions from both parties, including expert opinions on the husband's pension entitlements. The court found that the husband's lack of candour regarding his alcohol addiction did not render his evidence unreliable. Instead, the court adopted a sophisticated analysis of the husband's evidence, considering the facts in dispute. The court also noted the emotional difficulty the husband faced during the trial, particularly in confronting allegations of workplace misconduct and his addiction issues.
After assessing the contributions and needs of both parties, the court decided on an overall division of 55 per cent to the wife and 45 per cent to the husband. This division took into account the net property of the parties, which amounted to $993,461, including the wife's superannuation entitlements. The wife held net property valued at $349,657, while the husband held net assets of $118,365, with $150,000 of the net assets held by each party being notional. The court also considered the net proceeds from the sale of the former matrimonial home, which amounted to $525,439.
In conclusion, the court ordered that the wife retain 55 per cent of the assets, resulting in her receiving net property valued at approximately $546,404. The husband would retain 45 per cent of the assets, amounting to approximately $447,057 in net property. The court also ruled that any insurance claim proceeds received by the husband would be divided between the parties in the same proportion. Furthermore, the wife was awarded costs in relation to the parenting aspect of the proceedings, considering the husband's misleading conduct regarding his alcohol addiction.
The court examined the evidence and submissions from both parties, including expert opinions on the husband's pension entitlements. The court found that the husband's lack of candour regarding his alcohol addiction did not render his evidence unreliable. Instead, the court adopted a sophisticated analysis of the husband's evidence, considering the facts in dispute. The court also noted the emotional difficulty the husband faced during the trial, particularly in confronting allegations of workplace misconduct and his addiction issues.
After assessing the contributions and needs of both parties, the court decided on an overall division of 55 per cent to the wife and 45 per cent to the husband. This division took into account the net property of the parties, which amounted to $993,461, including the wife's superannuation entitlements. The wife held net property valued at $349,657, while the husband held net assets of $118,365, with $150,000 of the net assets held by each party being notional. The court also considered the net proceeds from the sale of the former matrimonial home, which amounted to $525,439.
In conclusion, the court ordered that the wife retain 55 per cent of the assets, resulting in her receiving net property valued at approximately $546,404. The husband would retain 45 per cent of the assets, amounting to approximately $447,057 in net property. The court also ruled that any insurance claim proceeds received by the husband would be divided between the parties in the same proportion. Furthermore, the wife was awarded costs in relation to the parenting aspect of the proceedings, considering the husband's misleading conduct regarding his alcohol addiction.
Orders
Orders of the court
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Background
Background to the litigation
There were however two major areas of dispute between the parties relating to the question of property settlement, namely:(a)How the Court is to deal with the husband’s defined benefit pension entitlement which is presently in the payment phase, with the wife seeking a split of the same to her and the husband opposing the same; and(b)Whether the Court notionally add back into what is a small pool of assets, various amounts promoted by each of the parties.BACKGROUND The short history of the parties’ relationship is as follows:(a)The husband was born in 1953 and he is 69 years of age.(b)The wife was born in 1975 and she is 47 years of age.(c)The parties met in or about late 2005.(d)The parties began living together in a de facto relationship in approximately mid-2009, when they began living together in a home owned by the husband at E Street, Suburb F in the state of Victoria.(e)The parties married in 2011.(f)The parties separated in December 2019. There is some dispute between the parties as to when their committed relationship actually commenced. The wife puts that date much earlier than the husband. However it appears from the oral evidence of the parties that they both considered that they were in a committed relationship by at least the time that the husband was working in public service in 2008, as the husband acknowledged the wife as his partner at that time. The wife however did acknowledge during her oral evidence that the parties separated for a period of time in 2008, and that they both dated other people during that time. There is one child of the marriage, X, born in 2014. X is 8 years old. Prior to the relationship of the parties, the husband was a public servant. He served in senior positions, and retired in 2006. Throughout his career commencing in 1992, the husband accrued an entitlement to a lifetime pension pursuant to the Super Fund 1 (“Super Fund 1”). That pension has been in the payment phase from the time of the husband’s retirement from public service. The husband will continue to receive the pension until his death. At the current time, the husband’s pension is paid at the rate of $151,545 gross per annum. The time leading up to the parties’ separation was difficult and fraught as a consequence of a series of allegations, investigations and findings relating to the husband’s conduct during his time in the public service. These events culminated in the husband resigning from his position in 2018. Running concurrently with the events related to the husband’s conduct at work, the husband also suffered from what he now acknowledges was a significant alcohol addiction; noting that the wife also alleges that the husband has also abused prescription medications. In early 2018 the husband was admitted to J Hospital as a consequence of his poor mental health and excess alcohol consumption. Since that time there have been a further six admissions to the J Hospital for largely the same issues, approximately as follows:(a)early 2018;(b)late 2019;(c)mid-2020;(d)late 2020;(e)early 2021; and(f)mid-2021.
Evidence
Evidence Before The Court
The four step approach will otherwise be adopted.THE EVIDENCE The trial hearing took place over a period of 5 days. Each of the parties gave oral evidence and were subjected to cross examination. In addition, the wife relied on evidence from her new partner Mr Flynn, and he was also subjected to cross examination. The material received into evidence relating to financial issues from each of the parties was as follows:(a)Husband’s Second Amended Initiating Application filed 21 December 2021;(b)Husband’s Affidavits filed 21 December 2021 and 23 May 2022;(c)Husband’s Financial Statement filed 25 December 2021;(d)Wife’s Amended Response to Initiating Application filed 3 December 2021;(e)Wife’s Financial Statement filed 7 February 2022;(f)Wife’s Affidavit’s filed 2 February 2022 and 23 May 2022; and(g)Affidavit of Wife’s partner Mr Flynn filed 2 February 2022. The parties additionally obtained a single expert opinion from Mr O in relation to the husband’s Super Fund 1 pension entitlements. Mr O had prepared three reports, and he was cross examined. Unfortunately the opinion provided by Mr O in his third report was a qualified one, as the Super Fund 1 had not released to Mr O all of the necessary information to enable him to provide a firm opinion. This resulted in the need for a subpoena to issue to the Super Fund 1 following the conclusion of the trial hearing, and the preparation of an addendum report from Mr O to incorporate the further information. Following the release of Mr O’s addendum report, the parties did not seek to adduce any further evidence or make further submissions. Accordingly, all four of Mr O’s reports were before the Court, dated as follows:(a)7 March 2022;(b)1 April 2022;(c)6 June 2022; and(d)25 July 2022. Mr O’s evidence has been of assistance in understanding the nature, form and characteristics of the husband’s pension entitlements. So far as each of the parties were concerned it appeared to the Court that they each found trawling over the entrails of their relationship at times difficult; albeit for what appeared to be different reasons. It was apparent that the husband found the trial process emotional, particularly when confronted with the workplace misconduct allegations and his addiction issues. The wife’s counsel made strong submissions attacking the husband’s credit, as a consequence of his addiction, his inability to be candid with the Court in relation to his addiction until the eleventh hour and his lack of compliance when it came to his discovery obligations. When the husband gave oral evidence he indicated that the nature of his addiction was that he was not able to be honest with himself, let alone the Court when admitting the true level of his alcohol addiction. While there was a clear inconsistency between the husband’s asserted “alcohol free” position in February / March 2022 with the reality of his circumstances at the time, the husband’s counsel rebuked any suggestion that the Court should disregard the whole of the husband’s evidence simply because of his lack of candour regarding his substance addiction. Submitting instead that the Court should take a more sophisticated analysis of the husband’s evidence when considering the facts in dispute. The Court accepts this submission. The Court is satisfied that in all of the circumstances of this case, the husband’s lack of candour in relation to his alcohol addiction does not render the whole of the husband’s evidence unreliable.
Decision
Reasons for decision
When taken together with the adjustment in favour of the husband at the contributions stage of assessment, the effect of the Court’s findings is that there be an overall division between the parties as to 55 per cent to the wife and 45 per cent to the husband.CONCLUSION As identified earlier in these reasons, the net property of the parties is $993,461 (inclusive of the wife’s superannuation entitlements). The wife holds net property of $349,657 comprised of: Significantly, $150,000 of the net assets held by the wife is notional, and $163,942 is comprised of superannuation entitlements which cannot be accessed until the wife satisfies a condition of release, which will presumably be when she reaches retirement age. The husband holds net assets of $118,365 comprised of: As with the wife, $150,000 of the net assets held by the husband is notional, thus in real terms the husband’s net asset position is in deficit to the tune of $31,635. A division which would see the wife retaining 55 per cent of the assets would see her retaining net property with a value of approximately $546,404. Conversely, a 45 per cent division to the husband would see him retaining net property with a value of approximately $447,057. The differential between the parties is an amount of approximately $99,347 in favour of the wife. The net proceeds from the sale of the former matrimonial home is an amount of $525,439. In circumstances where the wife presently holds net property in the amount of $349,657, she will have distributed to her an amount of $196,747 from the net proceeds of sale. The husband on the other hand holds net property in the amount of $118,365. He will receive an amount of $328,692 from the net proceeds of sale. If there was to be a calculation of what each of the parties are to receive, excluding their respective notional property of $150,000, then:(a)The wife is retaining property with a net value of $396,404 of which $163,942 is held in superannuation; and(b)The husband is retaining property with a net value of $297,057. In addition as identified earlier in these reasons, in the event that the husband makes a successful insurance claim, any proceeds that are received by him shall be divided as to 55 per cent to the wife and 45 per cent to the husband.THE WIFE’S COSTS APPLICATION As indicated earlier in these reasons, during the course of the trial the wife made an oral application for costs in relation to the parenting aspect of the proceedings. The application was made against a backdrop of parenting issues resolving on the first day of trial after the husband’s counsel had made her opening submissions. The Court understands that the husband agreed final parenting orders in identical terms to those promoted by the wife. The wife’s position is that she incurred unnecessary legal costs in not only readying the parenting aspect of the proceedings for trial but also generally. In making the costs application some significant emphasis was placed upon the husband’s conduct in relation to the parenting proceedings. In particular submissions were made that the husband had misled the Court in relation to the ongoing nature of his alcohol addiction, as he had deposed to the contrary in his trial affidavit and had told various experts the same. In that context the wife also complained of the husband’s misleading conduct with respect to hair follicle testing; including but not limited to not complying with testing requests, attempting to explain away alcohol positive test results (for example suggesting that the use of hand sanitiser had led to a positive result) all of which gave an intentional false impression that the husband had not resumed consuming alcohol to excess, when in fact he was and had been.
Ratio Decidendi
Legal Principle Established
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