Bar and JMR - [2004] FamCA 859

[2004] FamCA 859

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE

DGF 1371 of 1998

IN THE MARRIAGE OF:

B.A.R

(Husband)
and

J.M.R

(Wife)

EX TEMPORE JUDGMENT DELIVERED BY

THE HONOURABLE JUSTICE YOUNG

Date of Hearing: 15 September 2004
Date of Judgment: 15 September 2004

Appearances: Mr Davis of counsel for the applicant husband
The respondent wife on her own behalf

The matter of R file 1371 of 1998, comes before me in the defended list of cases at Melbourne for a two‑day hearing. For the purposes of these proceedings it was agreed that the husband would be applicant, although strictly in the wider section 79 proceedings that were previously before the court the wife was then applicant. Counsel appears for the husband. The wife appears to present her own case to the court.
The specific issue in this case is as to the accuracy and applicability of Schedule 2 of the Family Law (Superannuation) Regulations 2001 in the valuing of a defined benefit interest in the growth phase. Many public sector funds have now made applications for scheme specific methods of such a valuation differing from that currently provided for within Schedule 2. Such a valuation, in accordance with current Regulations would likely produce an unjust outcome in the particular financial circumstances of this case and the way in which the issue has arisen during trial. I will now consider these matters in some detail in this extempore judgment given the orders which I have foreshadowed.
The initial application before the court is that of 23 April 2004 filed on behalf of the husband where he sought a property settlement pursuant to section 79 of the Family Law Act 1975. He submitted in respect of his current superannuation that a base amount be allocated to the wife and he was content for a separate superannuation fund then to be established by and under her sole control. The critical issue was as to the quantum to be allocated to that fund and to form the basis of a splittable payment to be made from the husband's superannuation. The husband proposed a sum of $36,000. Otherwise and in reference to that application there were various other orders concluding the property settlement before the court and notations, one of which was that the parties should acknowledge and agree that the wife, pursuant to previous orders made by Smithers J on 14 September 1999, received an additional sum of $44,800 which should be offset against the wife's claim presently before the court in relation to superannuation.
Subsequently, Counsel opened the case for the husband and he amended the dollar figure to be the splittable payment to the wife by reducing that sum to a sum of $30,667. The approach taken by counsel for the husband on instructions from his client was to have regard to the formula determined by this court West v Green (1993) FLC 92-395, a case which effectively apportioned the years of marriage as against years of superannuation contribution and expressed that as a percentage which was then relevant for the determination of the appropriate dollar value of such superannuation interest.
In this case the marriage is of 12¾ years. The husband has been contributing to superannuation for 30 years. It was submitted by counsel for the husband that only 42 per cent of his contributions should be considered by the Court in s.79 proceedings. The arithmetic on the basis of the defined benefit lump sum being $359,369 therefore meant that 42 per cent of that sum equated to a sum of approximately $150,000, one half of which was $75,467. From that sum the $44,800 figure identified in the notation to the husband's orders sought should be deducted and that would leave exactly $30,667 available to be the base payment by way of a superannuation splitting order in favour of the wife.
I should at this stage identify that during the hearing of the case which proceeded before me until a time when I determined that the matter should be halted and I have given an extempore judgment, counsel for the husband subsequently, on instructions, increased what the husband would be prepared to accept as the base amount to a sum of approximately $48,000.
As to the wife's claim before the court, she had an amended response to the application for final orders filed 30 July 2004. In that document she identified the appropriate base amount to be allocated to her to be $97,551. Accordingly, as the matter progressed on the second day of the hearing the respective applications before me were approximately $50,000 apart, with the husband seeking to establish a splitting order with a base allocation of $48,000, the wife seeking $97,551. With that background of the applications I now turn to the facts of this case.
The parties cohabited in August 1984. The marriage was in December 1985. Separation occurred in May 1997. The marriage and cohabitation period was therefore approximately 12 and three‑quarter years. A decree nisi of dissolution of the marriage was pronounced in early 1999. The husband is 50 years of age. The wife is 43 years of age. The husband is a senior State Public Servant. The wife is a self‑employed bookkeeper earning approximately $25,000 per annum. The husband's salary for the purposes of the valuation evidence before the court was $79,000 but he has said in evidence that his base salary now is closer to $82,000 and in addition he is in receipt of on‑call payments which average approximately $4,000 per annum. Accordingly his current salary is in gross terms approximately $86,000 per annum.
There are two children of the marriage: L, 17 years, and J, aged 13 years. They both live with the wife. L is doing her VCE year and J is in year 7. The husband pays child support as assessed of $280 per week. The husband has remarried. His new wife is a public servant. That marriage was in March 2000. He lives with his new wife in their property at FS, together with her two children, a son aged 14 years and a daughter aged 10 years. The husband’s new wife earns approximately $62,000 gross per annum from her full‑time employment.
There was a preliminary issue in the property proceedings as to whether there were any arrears of school fees but on the evidence so far it seems to me that the obligation to pay both primary and secondary school fees was divided between the parents. The husband has discharged his obligation to pay fees to the primary school. I am unaware of the wife's payment of her share of those fees as she had not concluded her evidence‑in‑chief. As to the school fees the current arrangement is the husband pays half and the wife should be paying half, but again I do not know the current end result of that financial arrangement.
The significant aspect of this property case is that orders were made by consent on 14 September 1999 in proceedings before Smithers J. Both parties were then represented by experienced counsel, Mr Davis for the husband and Mr Sweeney for the wife. On that day orders were made concluding all spousal maintenance issues. The payment of $10,000 was paid to the wife representing capitalised spousal maintenance for the next three years and on that basis the periodic spousal maintenance order then extant and having been made on appeal by Carter J was confirmed. There is no application before me by the wife to renew any spousal maintenance notwithstanding the three‑period having since elapsed. The wife is in full‑time employment and has an obligation to support herself.
The orders as to property settlement were made by way of interim property distribution. That is the heading to paragraph 3 of the order and it is an appropriate designation of the type of orders that were then made. They were not made as partial settlement of property but as interim property orders. What the wife received was a transfer to her name of the then matrimonial home. It was valued at $195,000 subject to a mortgage of $82,000. Thus there was an equity of $113,000 in that property. The wife took over the mortgage debt and that is and has been her responsibility. Otherwise it would seem from the evidence of the husband, which I accept, that the other assets excluding superannuation were of minimal value and they are highlighted in the notation to that 1999 Court Order. What the court did by consent was provided for in paragraph 4 of the order and that was to adjourn pursuant to section 79(5) of the Family Law Act all questions of:
“the wife's entitlement to future alteration of the property interests of herself and her husband under the husband's entitlement to the Emergency Services Superannuation Scheme or otherwise until further order”.
There were other procedural and case management orders together with various injunctions made at that time but otherwise the case has stood in abeyance pending a determination of the property superannuation issues subsequent upon the passing of the Family Law Superannuation Legislation. It has been a major submission of counsel for the husband that it was the court that has now relisted this superannuation aspect of the section 79 proceedings and that the wife was simply disinterested in or did not diligently pursue that application. I have not heard from the wife on that aspect but the primary issue before me now - however it came about and however long it took to be relisted - what is before me for determination is the question of the further alteration of property interests. What is fundamentally the issue in this case is that the parties have not had a final determination of property altering their interests pursuant to section 79 of the Act. That is what must occur but at an appropriate time.
The husband has been a member of the public sector superannuation fund for almost the whole of the time that he has been with the Public Service. Initially he joined the then State Superannuation Fund on 1 April 1974. In 1987 he transferred to the ESSS scheme and he remains a member of that scheme. He has not made financial contributions from his salary to that scheme since approximately the separation date. He, however, continues to have entitlements and those entitlements have increased either because of his increase in salary or promotion. These are detailed by him in paragraphs 14, 15 and 18 of his primary affidavit, which I have read. I also understand that he deposes to the ESSS scheme being generous and the specific reasons why it is so generous, providing as it does an acknowledgment for physical dangers and high stress levels. They are matters that need to be appropriately considered in determining a just and equitable order pursuant to section 79. As an aside, the husband has also, as of 2002, joined an additional superannuation scheme known as Essplan and his current entitlement post‑separation in that scheme is approximately $16,500. He maintains that the wife should have no interest in that fund.
In terms of the property aspects of this case there was evidence in the husband's documents and given by the husband in his viva voce evidence that the wife had sold the former matrimonial home, had made a capital profit and he did not share in and did not have the benefit of that increase, having previously agreed to an earlier transfer of that home to the sole name of the wife. I am aware that the wife has foreshadowed her evidence will be that she has made substantial renovations or redecoration to the home, but that is a matter upon which I make no further comment at this stage because I am yet to hear that evidence. I do understand that the wife has bought a new home, that she has a significant mortgage encumbering that home and the actual equity therein will need to be a matter properly considered before the court in due course when all issues of a just and equitable settlement of property are to be concluded.
Dealing with the husband's evidence I indicate that otherwise I have read his affidavit. There are some matters in the affidavit that perhaps properly should not be there in terms of evidence and admissibility of evidence but that is a matter that I leave for another day as it does not impinge upon the extempore judgment that I am now delivering.
As to the superannuation there was evidence before the court from a single expert. That expert was Mr W and his various reports were before the court annexed to the affidavit of the husband's solicitor. I have read each of those reports and Mr W has been called to the court and has given evidence. Those reports were dated 11 June 2004, 30 June 2004 and 12 July 2004. I pause there to initially observe that an expert witness has a particular duty and certain rights which are clearly expressed in Chapter 15.5.5 of the Family Law Rules 2004. In rule 15.5(9) it is said (in summary):
(i)An expert witness has a duty to help the court with matters that are within the expert witness's knowledge and capability.
(ii)The expert witness's duty to the court prevails over the obligation of the expert witness to the person instructing or paying the fees and expenses of that expert witness.
(iii)The expert witness has a duty to:
(a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert's knowledge and capability.
(b)…
Further on in subparagraph (d) the obligation of the expert witness is:
to consider all material facts including those that may detract from his expert opinion.
I return to the evidence of Mr W. His preliminary report was prepared seemingly at the request of the solicitor for the husband, although there is some evidence that the husband attended at his office and paid in full the applicable fee. Mr W was clearly put forward as the single independent expert witness. On the basis of that first report he determined that the defined benefit interest of the husband in the ESSS plan in its growth phase was $359,369. That valuation was undertaken on the basis of information and financial details supplied to the husband including salary, age and other financial issues. They are detailed in the report. I note that the preparation of the report was dependent upon the retirement age then being 65, the salary then being $79,344 and the benefit being calculated on the basis of a lump sum scheme.
On 30 June and following a request from the wife, Mr W produced a subsequent report differing only in that the husband's retirement age was taken to be 50 and not 65 and that produced a very marked difference. The defined benefit of the husband increased from $359,369 to $485,699, an increase of approximately $125,000. Secondly, the defined benefit interest as at separation on 27 May 1997 also markedly increased, this time from $196,531 to a sum of $277,469, an increase in excess of $80,000.
Subsequently and because of matters that I will refer to in a moment Mr W further reconsidered and produced an updated report after particular examination and investigation by him of the applicable Regulations and aspects of the ESSS scheme. In his report dated 12 July 2004 he confirmed that the retirement age for valuation purposes should be 65 years, that the request by the wife to act upon the age of 50 years was inappropriate and he recorded, although in a slightly different form, the initial value of the defined benefit interest as at both the date of separation and as at 15 January 2004. I am uncertain as to why 15 January 2004 was selected as the date, particularly as it is now nine months later when the matter comes on for hearing and one would have thought that between 1 January and 15 September of this year there would have been a further real increase in the entitlement of the superannuant husband. In any event, the other issue is that the current salary of the husband is now $86,000 and not $79,344 as I accept it previously had been. However, those two matters may be relevant for future valuations or issues but they do not further concern me today.
What I need to do is to consider and understand the process which Mr W adopted in his application of the Family Law (Superannuation) Regulations 2001 (“the Regulations”). The appropriate starting point is to have regard to the Family Law Act, section 90MT(2) which in summary states that before making an order for a splittable payment the court must determine the value of the interest in the following manner:
(a)if the regulations provide a method for determining the value of the interest, the court must determine the value in accordance with the regulations;
(b)otherwise the court must determine the value by such method as it considers appropriate.
Regulation 29 describes the method for determining the gross value of a defined benefit interest and that was understood and applied by Mr W who then considered Sub-Regulation 31, but subsequently in his latter report considered the provisions of Regulation 30 which provides that:
For the purpose of determining the gross value of a defined benefit interest in accordance with the method set out in schedule 2, the minister may approve in writing as the retirement age for all members of the eligible superannuation plan in which the interest is held or an identifiable class of members of the plan an age other than:
(a) the retirement age specified in the governing rules of the plan; or
(b) the age of 65 years.
Prior to considering that subsection it was appropriate to consider Regulation 3, being the definition section, both the definition of members' retirement age and of the phrase "relevant date", which in relation to a payment split under a splitting order is said to be the date determined by the court. As to the member's retirement age, counsel for the husband referred me to that subsection of the definition clause and subparagraph (b) thereof states:
If the latest retirement age for the member specified in the governing rules of the plan is no more than 65 years or no retirement age is specified in the governing rules of the plan - 65 years.
I do not have in evidence before me the particular details of the ESSS Fund. It does, however, from the expert evidence of Mr W, seem to be a fact, but at this stage of the case I have not made a concluding finding, that 65 years is the applicable retirement age. As such and if that be the case, it would negate the concerns of the wife in the way in which she endeavoured to obtain that second opinion of valuation from the expert witness as to the husband's interest on the basis of age 50.
Schedule 2 of the Superannuation Regulations identifies the method for determining the gross value of the defined benefit interest in the gross growth phase. It is common agreement in this case that the husband has a defined benefit interest and that it is in the growth phase.
The appropriate methods properly identified by Mr W are referred to in paragraph 2 of Part 1 of Schedule 2. The three available methods are to perform a calculation on the basis of either a lump sum, a pension or a combination of a pension and lump sum. The specific evidence in this case is that there is only one option available to the husband and that is to take a lump sum. Indeed at one stage in the evidence of Mr W the matter was stood down to enable him to consult his database and make an appropriate telephone call to the trustees of the fund, which he did, and his evidence was that a lump sum is the one and only option that is available to the husband. That explained why he calculated the defined benefit of the husband on the basis of a lump sum and not the alternative pension or part pension basis provided for in Schedule 2.
On the basis of the evidence then before me I would have likely accepted the evidence of Mr W. The issue, however, which significantly developed in this case and which has primarily led to this extempore judgment being delivered can be summarised in the following paragraphs.

The overwhelming obligation of the court when hearing a section 79 application is to make an order that is just and equitable. What is just and equitable will of course depend upon the particular facts and the acceptance and evaluation of evidence and the discretion of the trial judge. There are, however, very specific guidelines provided in section 79(4) and section 75(2) of the Act. This was the procedure that I intended to adopt in the hearing of the alteration of interest in the matter before the court.
Counsel for the husband, in opening the case, indicated that the approach that the court should take was to consider a West v Green (supra) type formula, to have regard to the available defined benefit interest and to apportion, having regard to the years of marriage and years of contribution by the husband to superannuation and other relevant offsetting factors, an appropriate determination specifically considering only the balance of superannuation. I reminded counsel for the husband and I incorporate in this judgment, that these parties have not as yet had a section 79 hearing. All matters are strictly before the court including the equity that the wife might now have in her property, other assets including superannuation and the relevant and proper valuations thereof.
When Mr W was giving his evidence it became very clear that in his professional opinion and he said that of many other superannuation professionals significant difficulties are held with the way in which the valuation process in the Family Law (Superannuation) Regulations 2001 has been drawn and proscribed. Specifically the issue is whether or not they can be accurately relied upon by an actuary or professional witness, with the experience of Mr W, to determine a just and fair valuation. I accept, and counsel for the husband was at great length to impress upon me, that these Regulations binding on the Court. To that extent they set out the way, with no latitude, that Mr W should have approached the task, notwithstanding what I accept to be his genuine opinion professionally held that it was both inappropriate and did not bring about a just and fair valuation.
Specifically what Mr W said was that if he were to produce a proper, fair and just valuation of a defined benefit superannuation interest in the growth phase, he would do so on the basis of actual salary and the benefit factor indexed to the date of retirement. That is not the current procedure within the Regulations. Generally in discussion with counsel for the husband or otherwise in hearing the evidence of Mr W or in questions put to him, what has been very much the issue is whether there is "a double discount" available to this husband or indeed generally to superannuants in the position of this husband. Mr W, to his credit, did not back away from his proposition that there is a fundamental flaw in valuations derived following the current Regulations. I propose to draw that immediately to the attention of the superannuation subcommittee of the Family Court and to the Chief Justice. However I will not be the first to highlight that difficulty.
What became very clear from the evidence of Mr W was his specific knowledge that there are many applications from various superannuation funds that have been lodged with the Federal Attorney‑General for reconsideration and for a new methodology to be adopted in calculating and determining a defined benefit interest. Specifically the expert witness was aware that the ESSS had lodged such an application with the Attorney‑General. Counsel for the husband fairly conceded that during the hearing but after court hours on the first day of hearing he became aware of that fact as a result of his discussions, as he informed the court, with appropriate officers of the ESSS fund.
Accordingly, the court was confronted with the very difficult scenario of having a valuation which has been based on what was considered to be a typical private sector defined benefit scheme but which does not fairly and properly value the defined benefit interest of a superannuant in a public sector fund. The current valuation has however adopted the procedures set out in the Family Law (Superannuation) Regulations 2001. Subsequently and prior to giving this extempore judgment and I have now raised with counsel for the husband and with the wife that there are specific guidelines on the Attorney‑General's Department web site and also on the Family Court of Australia web site dealing with this particular issue relating to defined benefit funds. The funds which have lodged applications for a scheme specific methodology which differs from the Schedule 2 approach are listed thereon, including the ESSS.
Looking at the document which was released on 3 September 2004 on the Family Court website and to which I was directed by the link from the Attorney‑General's web site, it records that:
"6. It is recognised that this method of valuation may be misleading, in relation particularly, to public sector funds."
Thereafter it continues:
7. Consequently, applications for scheme‑specific methods or factors for valuing defined benefit interests in growth phase are expected to come mainly from the public sector superannuation funds.
It then noted that various amending applications including, of particular importance, an application from the ESSS fund have now been lodged. The document, perhaps which could be described as a press release, then says in the following terms:
“8.The Attorney‑General's Department is currently going through the process of approving the necessary scheme‑specific factors and methods. Funds affected are likely to advise their members that they have applied for approval of such methods and factors and suggest that non‑member spouses await the results of those applications.
9.Applications for adjournment of proceedings may flow in such situations.
10. The Family Court is liaising with the Attorney‑General's Department and will provide information on its web site when it is notified that applications have been approved in relation to particular funds."
What is, it seems, before the Federal Attorney‑General - and noting that this is in a period leading up to an election and therefore the government is in caretaker mode is both approval of further specific funds and also the specific issues, variations and changes in methodology that Mr W suggested in evidence in this case have been lodged for action by the Department hopefully in the immediate future and after the election of a Federal Government.
The issue - and I emphasise this is an extempore judgment given effectively without notes and during the hearing - that I am confronted with – is as to the concerns which I have expressed if the matter proceeds on the basis of an inappropriate and inaccurate valuation. I do not in any way criticise Mr W because he did the job that he was asked to do under the current legislation. On his evidence and from what I have otherwise seen by way of the releases from the Attorney‑General's Department and the Family Court, that seems to emphasise the limitations of the present Regulations at least for such defined benefit funds in the growth phase, and my comments are limited to that type of fund as that is all I have had evidence upon and have considered.
What I must do is balance the wider interest to do justice between the parties and to comply with section 79(2) with the urging of counsel for the husband that I should proceed on the current basis, albeit inaccurate, and determine this case. Very much counsel for the husband’s submissions touched on the fact that his client has been to court on many occasions. The matter has effectively been "at large" for the better part of five years since the hearing before Smithers J or some seven or eight years since separation. Clearly finality is required. However, as I tried to discuss and explain to counsel for the husband the overwhelming obligation of the court is to do justice to all parties. That I can only do, it seems to me, by adjourning these proceedings before me on a date to be fixed.
There is a real difficulty as to when that date would or could be. The Federal Government is in caretaker mode and no doubt the new Government in the run‑up to and immediately after Christmas will have concerns with other issues. I would have little influence whatsoever in urging a new Federal Attorney‑General to act with haste on this issue. It is particularly disrupting the lives of this family and probably many other families in this country. However I must take the facts as I find them. I must be satisfied that I act in a way that affords justice and is equitable.
I would well understand that the husband is disappointed in that approach. The wife has made, albeit somewhat at my invitation, an application for an adjournment of these proceedings pending proper evidence and a correct valuation of the superannuation interests and entitlement of the husband. It would seem to me to be wholly inappropriate to reject that application and not to adjourn the proceedings. The question is until when.
Counsel for the husband has indicated to me that he does not want to address on that basis but does want it to be as soon as practicable. What I do not want to do is bring the matter back to court - whether the husband represents himself or retains legal counsel, that is his choice, but I would like to do it at a time when the expert opinion, which will absolutely have to be updated and corrected and that will of necessity reflect the then income of the husband and financial and employment circumstances and rank of the husband, can be filed. It has to be updated. It can be done by Mr W. I see no reason why he should not remain the independent expert witness.
I am somewhat uncertain as to what is an appropriate time but what I can do is to direct that the matter be relisted before me, not before 1 May 2005 and otherwise give a direction that the matter can be earlier listed upon application; that is, if the Federal Attorney‑General acts as he or she may be advised, and corrects what are likely the anomalies in this methodology and valuation process. Hopefully this case can then have an accurate valuation of the defined benefit interest in the growth phase of the husband's superannuation entitlement and can then move forward to the section 79 alternation of interest hearing.
I propose to indicate that the matter is and should be part‑heard before me. I do have some knowledge of the case now. I understand that one or both parties might not want - given that I have expressed certain preliminary and very guarded views throughout this case - to hear the matter hereafter. Any view that I may have formed on the evidence of the husband would of course have been subject to hearing the evidence of the wife and the totality of the evidence in the case. If the matter can be listed before me I will endeavour to do that when the matter is ready, willing and able to proceed. Before it proceeds there must be proper summary of argument documents filed. I took this case on notwithstanding the lack of compliance with the requirements to have a summary of argument by both sides. Otherwise there will have to be a redefining of the appropriate orders sought.
As I said, these are extempore reasons given directly in court with the parties and counsel for the husband present. They have been given without any prepared judgment and they touch upon the preliminary issues in this matter. What counsel for the husband urged was that any application to adjourn could or should only be upon the basis of section 79(5). I reject that approach. There was an earlier agreement by consent to adjourn pursuant to section 79(5) this application and that is what came on before me yesterday on a two‑day listing in this defended list. Counsel for the husband referred me to a number of authorities such as Grace and Grace (1998) FLC 92-792 and Turner v Turner (1984) FLC 91-528 which I have in the very brief time available considered. However, it does seem to me that what I am doing is adjourning this application part‑heard before me on its merits because I am wholly unsatisfied as to the state of evidence and accuracy of evidence. I was mindful of the Family Law Rules 2004 as recently amended and in particular Rule 1.04 which states:
The main purpose of these rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances.
Thereafter Rule 1.07 states:
To achieve the main purpose the court applies these rules in a way that:
(a)deals with each case fairly, justly and in a timely
manner.
(b)…
I otherwise did reflect upon the responsibilities of parties and lawyers in achieving that main purpose and I well appreciate there are other subparagraphs to each of rules 1.04 and 1.07. It does seem to me that to do justice I need to adjourn the case. I do not consider, but counsel for the husband may well differ, that I am specifically adjourning the matter pursuant to section 79(5) of the Act. My view is that that adjournment has already been consented to by the parties and I am adjourning this specific hearing before me until such time as it is ready to proceed with proper and accurate and reliable evidence.
Accordingly, the order that I propose to make in this case - and I will hear any other issue from counsel or the wife subsequently - will be in the following terms.
Upon hearing counsel for the applicant husband and the wife as the respondent wife, it is ordered:
1.THAT the further hearing of all extant applications now before the Court be adjourned on the basis that it is part-heard before Young J. and is not to be listed before 1 May 2005 unless the Court upon application determines an earlier date.
2.THAT the parties obtain an updated expert report from Mr [W] … as to the then current valuation of the husband’s defined benefit interest in the growth phase of his superannuation entitlements, such further expert valuation to be obtained at a date and time when Mr [W] considers that he is fairly and properly able to value such entitlements.
3.THAT within sixty (60) days the wife pay to the husband the sum of $300 being 50% of the agreed fee of Mr [W] for his past report(s).
4.THAT within sixty (60) days the husband and wife each pay 50% of the reasonable attendance fee of Mr [W] to give evidence at Court this day.
5.THAT the parties share equally the reasonable costs of any further valuation report or professional charges of Mr [W] or of [his organisation].
6.RESERVE liberty to the husband to apply upon reasonable written notice to the Court for a certificate for costs thrown away arising from the adjournment of these proceedings on the second day of hearing.
IT IS CERTIFIED
7.THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the applicant husband.
IT IS DIRECTED
8.THAT each of the exhibits be retained upon the Court file.
9.THAT the reasons for judgment be transcribed and be made available to each of the parties.

I certify that the preceding 49 paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate

Date: 20 September 2004