Bauer and Bauer
[2013] FCCA 1125
•21 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAUER & BAUER | [2013] FCCA 1125 |
| Catchwords: FAMILY LAW – Property – Advance of monies by husband’s parents a loan or gift – adjustment for small pool. |
| Legislation: Federal Circuit Court Rules 2001, Reg 15.06A |
| Cases cited: Pellegrino and Pellegrino (1997) FLC 92-789 |
| Applicant: | MR BAUER |
| Respondent: | MS BAUER |
| File Number: | NCC 2191 of 2010 |
| Judgment of: | Judge Myers |
| Hearing date: | 28 March 2013 |
| Date of Last Submission: | 28 March 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 21 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Graham |
| Solicitors for the Applicant: | Peter Hamilton & Associates |
| Solicitors for the Respondent: | Self Represented |
ORDERS
That all previous orders be discharged.
That within 14 days from the date of these orders the husband pay to the wife the sum of $16,398.84.
That within 35 days of the husband paying to the wife the sum provided for in order 2 above the wife vacate the property at Property V.
That simultaneous with the wife vacating the property at Property V the husband pay to the wife the further sum of the $16,398.84.
That within 28 days the husband cause to be discharged the Car loan to the (omitted) Bank secured against and or drawn down for the purposes of purchasing the Ford (omitted).
That within 28 days the husband transfer to the wife all of the husbands right title and interest in the Ford (omitted) motor vehicle registration number (omitted).
That the wife be declared to be the owner of and retain all of the furniture and furnishing located Property V as at the date of these orders.
That otherwise as provided for in these orders each party be declared to be the sole beneficial owner of all items of property including chattels, goods, furniture, furnishings and other property which at the date of the orders are in that parties possession, monies and other investments which stand in that parties name, any motor vehicles in that parties name and their respective superannuation entitlements.
That in the event either party refuses to or neglects to execute any document or instrument including real property transfer, within 7 days of a written request to do so, necessary to give effect to these orders a Registrar of this Court is appointed pursuant to the provisions of section 106A of the Family Law Act1975 to execute such documents on behalf of the party who has refused or neglected to execute such document or instrument and do any other acts or things necessary so as to allow for the operation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Bauer & Bauer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2191 of 2010
| MR BAUER |
Applicant
And
| MS BAUER |
Respondent
REASONS FOR JUDGMENT
This is a matter in which the applicant husband Mr Bauer (hereinafter referred to as “the husband”) makes application for orders for a property settlement pursuant to s.79 of the Family Law Act1975 commenced by the filing of an initiating application in the Newcastle Registry of the Federal Magistrates Court of Australia (as it was then known) on 23 August 2010.
At the hearing the applicant was represented by Mr Graham of counsel instructed by Peter Hamilton and Associates. The respondent wife Ms Bauer (hereinafter referred to as “the wife”) appeared self represented.
The husband sought to rely upon the following documents in support of his case:
i.Amended application filed 23 February 2013;
ii.Financial statement of the applicant husband filed 27 February 2013;
iii.Affidavit of the applicant husband sworn 13 March 2013 filed 14 March 2013.
iv.Affidavit of Ms E sworn 18 March 2013 file 14 March 2013.
v.Two affidavits of Mr K both sworn 18 March 2013 and both filed 19 March 2013.
vi.Affidavit of Ms P sworn 27 March 2013 filed 27 March 2013.
vii.Outline of Case document.
The court has read and considered the documents filed by the husband. In the husband’s amended initiating application he sought particular orders. The husband later refined the orders sought by him as set out in the “Precise Minute of Order Sought” in his Outline of Case document. The final orders sought by the husband in that document are summarised as follows:
a)That the husband pay the wife $5,000.00.
b)That upon the wife vacating the property at Property V leaving the same in good repair the husband pay to the wife the sum of $20,000.00.
c)That the husband transfer to the wife the parties interest in a Ford (omitted) motor vehicle Registration Number (omitted).
d)Otherwise each party retain any asset currently in their name (including superannuation entitlements).
The wife sought to rely upon the following documents in support of her case:
i.Amended Response to Initiating Application filed 29 May 2013.
ii.Affidavit of Ms Bauer sworn/affirmed 16 April 2012 filed 17 April 2012.
iii.Affidavit of Ms Bauer affirmed 21 March 2013 filed 21 March 2013.
iv.Financial Statement of the wife filed 17 April 2012.
The court has read and considered the documents filed by the wife in the proceedings.
The wife sought orders as contained in the Amended Response to Initiating Application that provided that the father’s amended initiating application filed 26 April 2013 be dismissed. It was clear however having read the mother’s affidavit filed 21 March 2013 particularly numbered paragraph 27, that the wife wished to retain the Ford (omitted), with the husband to pay out the remaining balance owed on the vehicle, the wife sought to retain the property at Property V with the husband to refinance the mortgage at the property so that the wife received the property with a debt of only $100,000, the wife retained her furniture and furnishings and that she received some $50,000 in superannuation. The orders sought by the wife would require her to pay to the husband by way of superannuation split the sum of $10,000.
The court has read and considered those documents tendered during the course of the proceedings forming exhibits “A” – “M”. The court has heard and considered the submissions made at the conclusion of the evidence in the proceedings.
Background
The husband was born on (omitted) 1969 and the wife was born on (omitted) 1968.
The husband had a child to a previous relationship X born (omitted) 1996.
The parties commence cohabitation in 2002 and married on (omitted) 2003.
The wife deposes that at the commencement of the parties’ relationship the husband had an arrangement in place with his former partner whereby there was what the wife describes at paragraph 5 of her affidavit sworn 21 March 2013 as “custody arrangements for X…. on a week about basis”.
During the course of the parties marriage they had a child namely Y born on (omitted) 2000.
The parties separated on 18 August 2010 and final parenting orders were made on 21 July 2011.
The husband deposes that he is a (occupation omitted) for the (omitted) and receives an income of some $60,521.76 per annum. The husband deposes that the wife works part-time some 20 hours per week for (omitted). The wife confirms her employment as that of a (occupation omitted) working for (omitted) earning a weekly income as disclosed in her financial statement in the sum of $525 per week.
The husband deposes that at the commencement of the relationship he owned the following assets:
i.A business called (omitted) Pty Ltd. The husband deposes he was a director of the company at the time of commencement of the relationship and that his interest in the company was worth $50,000.
ii.The property at Property V, that the husband purchased in 1997 in the sum of $130,000. The husband deposes at paragraph 11 of his affidavit that the home had belonged to his parents, and that he purchased the property at a reduced rate of $130,000 and at the time of commencement of the relationship the property was worth $200,000.
iii.A property at Property M. The husband deposes at paragraph 12 of his affidavit that the property was purchased by him in 1998 with his ex-partner, that he received the property as part of a property settlement with his ex-partner. The husband deposes that the value of the property at the commencement of the relationship with the wife was worth $320,000.
iv.A boat worth $25,000.
v.A Ford (omitted) motor vehicle worth $35,000
vi.A Toyota (omitted) worth $10,000.
vii.Furniture and contents worth $5000
viii.Superannuation with various super funds valued at $30,000
ix.186 (omitted) shares.
x.1241 (omitted) shares
xi.Tools and equipment worth $17,000.
At paragraph 12 of the husband’s affidavit he deposes that he had the following liabilities at the commencement of the relationship:
i.Mortgage on Property V with the (omitted) Bank the sum of approximately $70,000.
ii.Mortgage on the Property M property with the (omitted) Bank in the sum of approximately $129,000.
iii.A five year lease on the Ford (omitted) motor vehicle in the sum of $30,000
iv.A loan from the husband’s parents in the sum of $110,000.
The husband deposes at paragraph 13 of his affidavit that he contributed net assets of approximately $300,000 at the commencement of the relationship.
The husband deposes the wife came into the relationship with non-superannuation assets and a number of small debts including a telephone bill and credit card debt. The husband deposes the wife had approximately $35,000 in superannuation at the commencement of the relationship.
The wife deposes at paragraph 3 of her affidavit filed in 21 March 2013 that she owned a Ford (omitted) motor vehicle with $8000 at the commencement of the relationship, personal effects worth in the order of $2000 and superannuation in the sum of $30,000. The wife further deposes that she had no debts.
The husband deposes at the commencement of the relationship he was working for what he refers to paragraph 16 of his affidavit sworn 13 March 2013 as “my business” (omitted) Pty Ltd, and at that time he was the sole director of the company was drawing a wage of approximately $1000 per week.
The wife deposes that at the time the parties met in about 2002 the wife was working at (omitted), in the (omitted) department where she was earning $60,000 per annum.
The husband deposes that after the parties commenced cohabitation, the wife changed her employment to the (omitted) area obtaining work with the (omitted) Bank and the (omitted) Bank where she worked on a part-time basis.
The wife deposes that she was able to work part time at the (omitted) Bank and assisted financially towards the household expenses of the parties, but that she resigned from this position as the husband needed her assistance to look after X when the husband in the words of the wife “went out to do (omitted) work”.
The husband deposes that shortly after the parties commenced living together the wife had a discussion with him about selling either of the properties at Property M or at Property V with a view to the parties then living in the remaining property. At paragraph 20 of the husband’s affidavit he deposes to a conversation he had with the wife in which she indicated she did not feel comfortable moving into the Property M property in circumstances where the husband had lived there with his ex-wife. The husband deposes that as a result of that conversation the Property M property was placed on the market for sale. The property ultimately sold with the settlement of such sale occurring in on or about 23 July 2003.
At paragraphs 21 and 22 of the husband’s affidavit he deposes that Property M sold for $320,000; that there was a mortgage of $129,000 and that the net proceeds from the sale amounted to $176,000.
The husband deposes that just prior to the parties’ marriage he became aware of a business opportunity that involves the purchase of a half share in a property at Property D1. The wife deposes that the husband purchase 50% of the Property D1 property, a commercial centre, that was operating from premises at Property D1 & D2 and that the husband borrowed the sum of $300,000 from his parents to fund the purchase. It is clear having read the husband’s affidavit and having observed the cross examination of the parties that the wife’s assertion that the husband purchased 50% of Property D1 & D2 simultaneously is incorrect.
The husband deposes, and the Court accepts that initially the husband approached his parents to borrow the sum of $300,000 for the purchase of the property at Property D1 being the premises that the court will refer to as “Property D1”. At paragraph 26 of the husband’s affidavit he deposes that he had initially hoped to use the sum of $50,000 from the proceeds of the sale at Property M but was unable to do so as the settlement of that sale did not complete as quickly as the husband thought it would.
At paragraph 27 of the husband’s affidavit he deposes that he again approached his parents seeking that they loan to him an additional sum above the $300,000 allowing him sufficient finances to complete the purchase of Property D1.
The husband deposes that the total cost of the purchase of Property D1 was $404,442.16 and that such sum included a payment for what the husband refers to at paragraph 27 of his affidavit as “additional plant and equipment”.
Annexed to the husband’s affidavit and marked with the letter “D” is a copy of the transfer dated 16 May 2003 that shows the purchase price of the one half share in Property D1 for $320,000. The transfer is stamped by the Office of State Revenue evidencing stamp duty having been paid in the sum of two dollars.
The Court takes judicial notice that ad valorem stamp duty would have been paid to the Office of State Revenue on such purchase.
Annexed to the husband’s affidavit and marked with the letter “E” is a hand written document titled “Advance of Loan to Mr Bauer”. The document suggests that stamp duty was paid on the purchase of the Property D1 property together with other monies for what is described as “plant and equipment start-up new company” in the sum of $42,000.
Husband further deposes that upon the sale of the Property M property he repaid into his parents the sum of $176,000 on about 23 July 2003. The husband annexes to his affidavit a document marked with the letter “F” that purports to evidence a payment to the husband’s parents the sum of $176,000. The document purports to disclose that after payment of that sum to the husband’s parents had been made an amount remained owing to the husband’s parents in the sum of $228,442.16.
The husband sets out at paragraph 30 is of his affidavit that Mr C, being one of the vendors from whom the husband had purchased a one half share in Property D1, operated a business trading as (omitted) business. Prior to the settlement of Property D1 the husband deposes he moved his business (omitted) Pty Ltd to a spare shed located at Property D1. At paragraph 32 of the husband’s affidavit he deposes that just prior to settlement he formed a company with Mr C named (omitted) Pty Ltd. The husband deposes that (omitted) Pty Ltd entered into a lease whereby that entity leased the whole of the land at Property D1 from the husband and Mr C. Consequently the husband’s company (omitted) Pty Ltd, the business (omitted) business and another business called (omitted) business (that operated from Property D1) became tenants of and paid rent to (omitted) Pty Ltd.
The husband deposes the rent was paid by the above three tenants to (omitted) Pty Ltd that resulted in the husband receiving the sum of some $2000-$2500 per month. The husband deposes the monies he received were paid to his parents to repay the loan advanced by them to him.
The wife deposes following the purchase of what she describes as the “Property D1 property” she began to work at the (omitted) office.
At paragraph 5 of the wife’s affidavit she deposes that during the weeks in which the husband and she had X in their care the wife would commence work at the (omitted) office at 10.00am so as to allow her enough time to take X to school at (omitted). The mother deposes she would finish working at the (omitted) office at 2.00pm thus allowing her sufficient time to collect X at the end of her school day.
The wife deposes at paragraph 7 of her affidavit that on the weeks X was not in the husband’s and her care, she would commence work at 9.00am and finish at 5.00pm as well as attend to what the wife describes as “household duties”.
The husband deposes that the wife would work from 8.00am until 4.00pm five days per week; that the hours were flexible; that there were periods when the wife would turn up late for work and leave early; and that it was not unusual for the wife to arrive at work at 10am and leave at approximately 12 noon.
The wife deposes that when she fell pregnant with the parties’ daughter Y she stopped working due to nausea she was experiencing. The husband makes no mention as to why the wife ceased employment setting out at paragraph 35 of his affidavit that the wife continued to work for him in what he terms as “my business for a period of approximately 6 months. After this, Ms Bauer did not work in paid employment the rest of our relationship”. Having heard the cross examination of the parties and having considered the affidavit material filed by the parties, the Court accepts that the cessation of the wife’s employment coincided with the wife’s pregnancy and subsequent birth of Y.
The husband deposes at paragraph 36 of his affidavit that in about March 2004 he purchased with Mr C in equal shares Property D2 for $350,000. The husband deposes that he was required to pay approximately $175,000 to purchase a one half share in the property and funded the purchase of the property by borrowing money from his parents and the amount of $200,000. The husband annexes to his affidavit a loan agreement dated 1 April 2004 that is attached and marked with the “G”. It is not apparent whether stamp duty was paid on the loan agreement.
At paragraph 37 of the husband’s affidavit he deposes that the remaining sum of $25,000 being the difference between the sum of $200,000 borrowed from his parents and sum of $175,000 paid towards the purchase of Property D2 was in the words of the husband “used to financially support my business (omitted) Pty Ltd”. The court takes judicial notice that the husband made no allowance in his affidavit for the payment of ad valorem stamp duty to the office of State revenue in his calculations that would have been paid on the purchase of the Property D2 property.
At paragraph 30 of the husband’s affidavit he deposes that a (omitted) business were renting premises at Property D2 and that following completion of the purchase those tenants continued to pay rent for their occupation of the premises at Property D2.
At paragraph 39 of the husband’s affidavit he deposes that the (omitted) businesses paid rent to (omitted) Pty Ltd.
The husband deposes at paragraph 39 of his affidavit that (omitted) Pty Ltd then received rent in the sum of approximately $8000 per month of which the husband received a 50% share equating to $4000 per month.
At paragraph 15 of the wife’s affidavit she deposes to rental income being received on the properties at Property D1 & D2 in the sum of approximately $4000 per month. The wife deposes that such money had been paid directly to the husband’s parents since 2003.
At paragraph 40 of the husband’s affidavit he deposes that during the course of the relationship between the parties all of the money that he received from (omitted) Pty Ltd were paid to his parents with the exception of an amount of $250 per week that was retained by the parties for their benefit from August 2009 up until separation in August 2010. The husband further deposes that throughout the period of the rent had been received in relation to both Property D1 & D2 various deductions were made from those sums for rates, repairs and the like and that this had resulted in the amounts being paid to his parents to vary from time to time.
At paragraph 41 of the husband’s affidavit he deposes that he “recently” ceased deducting $250 per week from the rental monies received as in his words he “could no longer afford to do this and apply enough money to the repayment of the loan to my parents”.
The wife deposes at paragraph 17 of her affidavit that the husband was in control of their financial situation and she was in her words “unable” to “state anything” as “nothing” had been disclosed to her. The court does not accept this assertion in circumstances where the wife has provided significant information with respect to the parties’ finances.
At paragraph 19 of the wife’s affidavit she deposes that she had seen no evidence of the debt owed by the husband to his parents other than what she terms as “self created” documents supplied to court with the exception of what she terms a “legal document” for a loan from the husband’s parents for $350,000 “taken out two (2) months after separation”.
A major issue of contention between the parties at the hearing was that related to the liability owed by the husband to his parents.
Despite the wife’s assertions at paragraph 19 of her affidavit she conceded during the course of proceedings in discussions prior to the commencement of the parties giving evidence (that is found at pages 6 – 9 of the transcript of the proceedings on 27 March 2013) that the husband owed his parents the sum of $306,384. The wife disputed that an additional sum of $110,000 paid by the husband’s parents to the husband was a loan arguing it was actually a gift.
Counsel for the husband submitted during the course of the cross examination to the wife that that husband’s parents are owed $427,000 including in the sum the amount of $110,000 that the husband argued was paid to him by his parents as a loan as opposed to paid as a gift.
The husband had initially suggested that he owed his parents the sum of $476,384 but conceded during the hearing the amount payable included in the assets and liabilities of the parties in the proceedings should not be a figure as high in circumstances where the sum of $476,384 included funds the husband had borrowed in the amount of $25,000 that he had used to pay legal fees. Rather than including the whole of the monies owed by the husband to his parents and then treating the sum of $25,000 as an add-back it was suggested during the hearing that the amount calculated as being owed to the husband’s parents not include such sum. The court found favour with this approach.
In support of the contention with respect to the loans advanced by the husband’s parents, an affidavit was filed sworn by Ms P on 27 March 2013.
Ms P deposed she is a partner of the firm of chartered accountants (omitted) Accountants and received instructions to prepare a report as a result of receiving an email from the solicitors for the husband. Ms P attached to her affidavit a report prepared setting out details of loans made by the husband’s parents Mr K and Ms E for the period from May 2003 until the date of the report 26 March 2013. The report prepared by Ms P does not refer to a loan that is alleged to have been provided to the husband in the sum of $110,000.
Filed in support of the husband’s case was an affidavit sworn by his mother Ms E on 18 March 2013.
Ms E deposes that on or about 30 December 2002 she loaned to the husband the sum of $110,000 to purchase the property at Property V.
Ms E further deposes the monies had not been repaid and an amount remained outstanding on the loan in the sum of $110,000. It is further deposed that the “money was loaned to Mr Bauer on a principal basis only” and that the husband’s parents “have not pursued Mr Bauer for repayment of these monies as there is a Loan Agreement which is annexed to Mr Bauer’s affidavit on which we can rely”.
Annexed and marked with the letter “B” to the affidavit of the husband is a loan agreement that is dated 30 December 2002 between the husband’s parents referred to in the document as “the lender” and the husband referred to as “the borrower”.
Under the heading “Interpretation” the word “loan” is defined and refers to the “amount owing as at the date of this agreement is ONE HUNDRED AND TEN THOUSAND DOLLARS”.
Recital A of the loan agreement sets out that “the Lender and Borrower wish to record in writing in the terms and conditions on which any loan is made by the Lender to the Borrower up to and on the date of this Agreement without security”.
Clause 3.1 of the operative provisions of the agreement provide “No interest on a Loan shall be payable by the Borrower to the Lender for any period of the Income Year in which the loan is made”.
Clause 4.1 of the operative provisions of the agreement provide that “the loan is to be fully repaid on the sale of the Borrower’s House Property Property V)”.
The court notes that the document titled “Loan Agreement” does not have a stamp affixed to it evidencing that stamp duty has been paid on the agreement. It is the view of the court that it is necessary to consider whether the loan agreement was liable for stamp duty.
In some circumstances loan agreements are liable for stamp duty as loan security where they fall within the definition of "loan security" in the Stamp Duties Act 1920 (NSW) as it then existed in December of 2002 being the date of the loan agreement. The Court notes that the Stamp Duties Act was repealed by sec 4 of the State Revenue Legislation Amendment Act 2008 (NSW) with effect from 2 July 2008.
"Loan Security" is defined in section 83(1) of the Stamp Duties Act to include amongst other things, a mortgage or debenture executed in New South Wales or a mortgage that, at the time of its execution, affected property in New South Wales.
"Debenture" is defined to include (subject to certain exclusions) a document evidencing or acknowledging a debt owed by a corporation.
An agreement to create a mortgage over specific property is an equitable mortgage in accordance with the principles set out in United Kingdom Realisation Co Ltd v IRC [1899] 1 QB 361. A loan agreement or letter of offer which contains an agreement to grant a mortgage over specified property located in New South Wales is therefore a "loan security" for stamp duty purposes provided it has a relevant connection in New South Wales in terms of paragraphs (a), (c), (d) or (e) of the definition of “loan security” in section 83(1) of the Act.
If however the agreement is not one that is capable of specific performance, it will not create a mortgage (refer to Fisher and Lightwoods Law of Mortgages 10th Edition page 12).
A loan agreement which merely requires a mortgage or charge to be granted as a “condition precedent” to the availability of the loan funds is not an equitable mortgage.
Loan agreements which do not refer to specific property in New South Wales will not be a "loan security" unless it falls within the definition of "debenture". In such a case, the document must evidence a debt, acknowledge an existing debt or include a provision for the repayment of a loan to be made thereafter in accordance with the majority of the High Court in Handevel Pty Ltd v. Controller of Stamps (Vic) (1985) 157 CLR 177.
The loan agreement dated 30 December 2002 does not make provision for the granting of a mortgage or security over the property at Property V. The loan made pursuant to the agreement is expressed at recital A as being an “Agreement without security”. The agreement is not one acknowledging a debt owed by a corporation and is therefore not a debenture. The agreement is not one that proposes to grant a mortgage that is capable of specific performance. It is therefore the view of the court that ad valorem stamp duty would not have been payable on the agreement.
The husband deposes at paragraph 11(b) of his affidavit that he purchased Property V in 1997 for $130,000 but at a reduced rate from his parents. At paragraph 12(a) the husband deposes that there was a mortgage secured against the property at Property V with the (omitted) Bank in the sum of approximately $70,000 and at paragraph 12(d) that he borrowed the sum of $110,000 for the purchase of the said property.
If the court accepts that the purchase price was $130,000 and the husband had borrowed $70,000 from the (omitted) Bank and $110,000 from his parents it is not clear as to where any surplus of funds on the purchase might have been paid with the exception of course of ad valorem stamp duty.
The wife however acknowledges that the husband’s parents paid him $110,000 and the question for determination by the court is that of whether the payment of $110,000 was a loan or a gift.
Ms E was cross examined with respect to the $110,000 payment made to the husband in the proceedings. It was suggested by the wife during cross examination of Ms E that the money was a gift and not a loan. Having heard Ms E and observed her during the course of cross examination it is the view of the court that she presented and impressed the court as a forthright witness who provided what the court considered to be strong evidence as to the intention that the monies advanced in the sum of $110,000 was that relating to a loan as opposed to a gift. There was nothing in the way in which she conducted herself as a witness that gave rise to the court having doubts about her reliability or credibility.
In Pelly & Nolan [2011] FMCA 530, the court considered circumstances where a father loaned his son $250,000 to help his son buy a property. After the property was sold, the father loaned a further $70,000 which the son used to purchase a new property. The son did not pay back any of the loan nor had he been charged any interest, although the father had prepared a loan agreement. The Court found that even though no money or interest had been repaid, on the balance of probabilities, it was likely that the son would have repaid the loan. Therefore the sum of $320,000 was considered a liability of the marriage and was paid out of the matrimonial pool.
In Maddock & Maddock & Anor (No.2) [2011] FMCAfam 1340, a father gave the parties $240,000 towards the cost of buying and building a house. The Court found that there had been no formality, no term of repayment, no demand for repayment until the family law settlement and no capacity to pay. On the evidence given to the Court it was decided that if the parties had not separated, the father would never have asked for repayment of the funds. At paragraph 66 Burchardt FM stated:
“To the contrary effect, however, I do not think that the arrangements can properly be described as a loan in the ordinary sense. Loans, if nothing else, have terms as to repayment. “Loan” is defined by the Butterworth’s Australian Legal Dictionary as:
“The temporary transfer of an asset, usually funds, from a lender who controls the funds to a borrower in return for payment, usually in the form of interest. The asset must be returned either in one sum at the maturity of the loan or in periodic payments.”
In Marriage of Petersons (1981) 7 Fam LR 402 Nygh J considered the issue loans and stated at 76,669:
“What is the appropriate order? Normally this Court will distribute amongst the parties the net value of their assets after deduction of all debts. But this is not invariably the case: the Court will not normally take account of debts incurred after the separation and on some occasions has ignored debts, although incurred during the marriage, for which it felt one of the parties should bear exclusive responsibility: Antmann and Antmann (1980) FLC 90-908.”
Nygh J continued further at 76,669, stating:
“It is fairly common in this Court to meet a situation where a parent has made a loan to a child which is in all respects legally enforceable, but which is not in fact enforced and would not really be expected to be enforced. It is no doubt an “obligation” but if the obligation is not likely to have to be met, it should not be taken into account.”
In Prince and Prince (1984) FLC 91-501 at 79,076 Evatt CJ held:
“In some cases there are sufficient uncertainties as to the alleged liability to lead the Court to disregard it entirely or partly (e.g. a loan from a parent of the party not likely to be enforced; Af Petersens (1981) FLC 91-095; Quirk (1983) unreported).”
In Biltoft and Biltoft (1995) FLC 92-614 the Full Court stated:-
“There is no requirement that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making an order under s. 79, nor is there a rule of priority as between a creditor claimant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse. That was the approach adopted by the trial judge.”
It is the view of the court that agreement reached between the husband and his parents at the time they advanced him $110,000.00 was that of a loan as set out and forming annexure “B” in the husband’s affidavit. It is the view of the court that the obligation created by the loan agreement was likely and is likely to be met on the sale of Property V particularly noting the repayment by the husband of other loans to his parents. The Court further takes the view that there are not sufficient uncertainties as to the alleged liability to lead the Court to disregard it entirely or partly and while the case law makes it clear that there is no requirement that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making an order under s.79 the rights of the husband’s parents, however, cannot be ignored.
The court finds that the sum of $110,000.00 paid to the husband was that of a loan repayable to his parents rather than that of a gift.
The court will now consider the law with respect to the distribution of property pursuant to section 79 of the Family Law Act1975.
The Law
In the case of Stanford v Stanford (2012) 293 ALR 70 the High Court (at 78-79) considered the manner in which the court should embark when determining property proceedings and held that “it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equity principles, the existing legal and equitable interests of the parties in the property”.
In determining property proceedings the court is in accordance with the well established principles set out in Hickey and Hickey (2003) FLC 93-143 required to embark upon a four step process. The first step requires the court to identify and value the assets, liabilities and financial resources of the parties at the time of the hearing. The second step requires the court to consider the parties contributions and consider any adjust that should be made between the parties. The Third step requires the court to consider the actual circumstances of the parties and make adjustments for those circumstances considering a variety of factors set out at section 75(2) of the Family Law Act 1975. Lastly step four requires the court to satisfy itself that the actual effects of the orders are just and equitable.
In the recent Full Court of the Family Court decision in Bevan & Bevan [2013] FamCAFC 116 the Full Court considered the decision in Stanford and the implication of that decision when looking at the four step approach taken by the courts. Bryant CJ and Thackray J held at paragraph 59:
“Prior to Stanford, property applications were commonly dealt with by reference to what the trial Judge called “a four stage process”.
This process was described at [31] and [32] of his Honour’s reasons. The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey (2003) FLC 93-143 at [39].
60. The four stage (or step) process involves:
· identification and valuation of the property of the parties;
· identification and evaluation of contributions to the property (including property no longer owned by the parties);
· identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the matters in s 75(2);
· consideration of matters of justice and equity.
61. Although the four step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation is to alter existing interests only if it is just and equitable to do so. Thus, in Norman [2013] FamCAFC 116 Reasons Page 18 & Norman [2010] FamCAFC 66 at [60], the Full Court (Finn, May and Murphy JJ) said:It is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result. For all its usefulness and merit as a “disciplined approach” or a “structured process of reasoning” (per Fogarty, Lindenmayer, McCall JJ, N and N, unreported, 10 June 1992), the “three-step” or “four-step” approach merely illuminates the path to the ultimate result.
62. To like effect, in discussing the four step approach in our joint judgment in Martin & Newton (2011) FLC 93-490, we said (original emphasis):
305. … that approach is not legislatively mandated, and as the Full Court [in Hickey] said, is simply the preferred approach. This is because it will be sufficient, in most cases, to have regard to the overall justice and equity of the orders after determination of the asset pool, consideration of contributions and assessment of the relevant s 75(2) matters.
306. But in our view, there is no requirement that the justice and equity of the order, as prescribed by s 79(2), must only be considered at the fourth (and last) stage. In our view, the requirement to make an order that is just and equitable permeates the entire decision making process, and it is not impermissible to consider it at an earlier point if the particular case requires it. We consider this is such a case.”
The four step approach continues to be adopted by the courts when determining an application under section 79 of the Family Law Act1975 for adjustment of property interests and is well established by authority (In the marriage of Lee Steere (1985) FLC 91-626, In the marriage of Ferraro (1993) FLC 92-335, In the marriage of Clauson (1995) FLC 92-595).
When determining property proceedings (utilising a four step approach) the court will utilise the evidence of experts such as valuers, agreements reached between the parties, or make findings based upon the evidence presented in order to identify and value the property, liabilities and financial resources of the parties. The court then considers the contributions made by the parties as defined in section 79 (4)(a) to (c). Thirdly the court must consider the future needs of the parties by having regard to the provisions of section 75(2) in so far as they are relevant. Finally in determining what order the court should make the court must be satisfied in all of the circumstances that it is just and equitable to make the order as required by section 79(2). It is the justice and equity of the actual orders that the court must consider Russell and Russell [1999] FamCA 1875; (1999) FLC 92-877).
Initial Just and Equitable Consideration
This is a case where the assets of the parties are not divided evenly between them and the court takes the view that in this case the court ought to make an initial finding as to whether it is just and equitable to make an order. Accordingly when identifying, according to ordinary common law and principles of equity the existing legal and equitable interests of the parties’ in the property, the court finds that the wife’s contributions set out in the paragraphs above and discussed at paragraphs 98-109 made over a long period of time are not reflected in the way in which the parties hold their assets. In this case the real property assets are held solely in the name of the husband and it is therefore the view of the court that it is just and equitable to make a property settlement order in the proceedings.
The property of the parties
At paragraph 79 of the husband’s affidavit he deposes that on or about 24 April 2013 he and the wife obtained a joint valuation for the properties at Property D1 & D2 as a result of orders being made by the court.
The husband further deposes that he believes that the value of the properties would have “decreased significantly since the valuation given current (sic) property market”.
Having considered the husband’s evidence the court is able to find that the husband is not a person who falls within the definition of an “expert” as provided for at Regulation 15.06A of the Federal Circuit Court Rules 2001. The husband’s statement is opinion evidence, and although the wife did not seek to exclude the evidence on the basis it was inadmissible, the court gives the evidence provided by the husband with respect to the properties at Property D1 & D2 having reduced in value not weight.
The husband sets out in his outline of case document that the wife has in her possession some $5,000 in furniture. The wife deposes in her affidavit filed 21 March 2013 at paragraph 14 that she has some $2,000 worth of furniture in her possession. The court is unable to make a finding as to the value of the furniture and furnishings. The court finds from the evidence that the assets and liabilities of the parties are as follows:
| ASSETS | POSSESSION | VALUE |
| Property V | Husband | $245,000.00 |
| Bank accounts | Negligible for H & W | Nil |
| Property D1 & D2 | Husband 50% share | $500,000.00 |
| Furniture | H & W | NK |
| Boat | Negligible Husband | Nil |
| Superannuation | Wife Husband | $60,000.00 $39,663.53 |
| Ford (omitted) | H & W | $12,000.00 |
| Tools and Equipment | Husband | $1,000.00 |
| TOTAL ASSETS | $857,663.53 |
| LIABILITES | ||
| Mortgage (omitted) Property V | Husband | $245,000.00 |
| Loan from Ms E & Mr K | Husband | $110,000.00 |
| Loan from Ms E & Mr K | Husband | $317,000.00 |
| Car loan (omitted) Bank | H & W | $5,799.20 |
| (omitted) Credit Card | Husband | $5,538.00 |
| TOTAL LIABILITIES | $683,337.20 |
| TOTAL NET VALUE | $174,326.33 |
Contributions
The court now embarks on the second step in the exercise under s.79, namely an assessment of the parties contributions within the context of s.79(4)(a) to (c). These provision provide as follows:
Section 79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
At paragraphs 15 and 16 of this judgement the court has set out the assets and liabilities contended for by the husband at the commencement of the relationship. The court accepts the evidence of the husband with respect to his assets and liabilities at the commencement of the relationship. At paragraph 13 of the husband’s affidavit he deposes that he contributed net assets at the commencement of the relationship of approximately $300,000. The court accepts the husband’s evidence with respect to his initial contribution.
At paragraphs 18 and 19 of this judgement the court has set out the assets contended for by the wife at the commencement of the relationship. In the absence of supporting documentation with respect to any debts of the wife the court finds that the wife contributed $40,000 at the commencement of the relationship including superannuation a car and personal effects including furniture.
The court ascribes considerable weight to the husband’s initial contribution. The court further notes and has considered the evidence of the husband contained in his affidavit at paragraphs 58-64 with respect to what the court can describe as financial contributions post separation.
With respect to the husband’s initial contribution the court remains mindful of the decision of the Full Court of the Family Court in Pierce and Pierce (1999) FLC 92-844 at 28 as follows:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, regard must be had to the use made by the parties of that contribution.”
It is apparent that at the commencement of the relationship the parties had between them net assets worth some $360,000. The court finds that the parties have net assets between of $174,326.33. The parties have lost in the order of $185,000 from the commencement of the parties’ relationship until the date of hearing.
In the decision of Kowaliw (1981) FLC 91-092 the Full Court of the Family Court held that financial losses incurred by the parties or either of them in the course of their marriage should be shared by them (although not necessarily equally) unless one of the parties has embarked upon a course of conduct designed to reduce the value of the assets or where one of the parties has acted recklessly, negligently or wantonly with the assets causing a reduction or minimisation of their value. This is often referred to as ‘waste’.
It is the view of the court having regard to the totality of the evidence in the matter that neither party embarked upon a course of conduct designed to reduce the value of the assets of the parties nor had one or both of the parties acted recklessly, negligently or wantonly with the assets causing a reduction or minimisation of their value. The court finds the losses incurred by the parties should be shared by them equally.
Whilst the court is able to find that the husband worked longer hours and provided greater financial contributions during the course of the relationship by way of earnings contributing to the acquisition, conservation or improvement of the property of the parties it is the view of the court no great weight should be ascribed to those contributions in circumstances where the property of the parties has diminished by more than 50% from the time of commencement to the date of hearing.
There is no evidence before the court that would give rise to the court making an adjustment for non-financial contribution made by the parties to the acquisition, conservation or improvement of the parties’ property.
The court notes that there is one child of the marriage. The court has read and considered the evidence from the husband with respect to Y attending day care when she was 3 years of age and with respect to what the husband describes as mood swings at paragraph 49 of his affidavit and the state of the parties home at paragraph 50. The court has read and considered the evidence of the husband with respect to the wife’s behaviour and with respect to the wife’s medication. The court has read and considered the evidence of the wife with respect to the wife caring for the parties’ daughter Y at paragraph 20 of the mother’s affidavit filed 17 April 2012. The court has heard and considered the wife’s evidence during cross examination. The court finds that there is sufficient evidence that would allow the court to make an adjustment for contributions made by a wife to the welfare of the family in her capacity as homemaker.
Weighing up the various contributions of the parties the court finds that an adjustment ought to be made with contribution to the husband at 80% and 20% to the wife.
Section 75(2) factors
Having determined the contribution elements the court is required to have regard to the provisions of section 75(2).
The matters to be so taken into account are -
a) The age and state of health of each of the parties;
b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
c)Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years;
d)Commitments of each of the parties that are necessary to enable the parties to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
e)The responsibilities of either party to support any other person;
f)Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under
(i)any law of the Commonwealth, of a State or Territory or of any other country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
h)The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
i) The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
j)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
l)The need to protect a party who wishes to continue that party’s role as a parent;
m)If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
na)Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
p)the terms of any financial agreement that is binding on the parties.
It is apparent having considered the evidence that at the date of the hearing the husband was 44 years and the wife also 44 years.
There is no expert evidence available to the court to make a finding other than that the parties are in equally good health.
As at the date of the hearing the parties were both employed. The husband earns some $60,000 per annum and the wife some $27,000 per annum. The income of the parties while not relatively large is disproportionate in that the husband’s income is double that of the wife’s.
The court has considered the property of the parties.
The husband has available to him an interest free loan made available by his parents. While the court has found that the sum of $110,000 is a loan and a debt that should properly be taken into account when determining the net pool of assets available for distribution the court is still able to consider the terms of the loan. As set out earlier in this judgment the loan is interest free and repayable only upon the sale of the property at Property V. It is the view of the court that the husband has available to him a financial resource that is not otherwise available to the wife if the court made orders that the husband retain the property at Property V.
Despite the issues raised by the husband in his affidavit about what the court considered to be directed towards the wife’s mental health the court is satisfied that the parties have the physical and mental capacity for appropriate gainful employment.
The parties have a child Y who is under the age of 18 years born on (omitted) 2004. Final parenting orders were made by the court on 29 September 2011 that provided for the parties to have equal shared parental responsibility for Y, that Y live with the mother and spend time with the father each alternate weekend, an overnight period one night a week (amounting to 5 out of 14 nights), half the school holidays and on other special occasions.
There is no evidence before the court that would enable the court to make any finding about whether the parties had commitments that are necessary to enable the parties to support himself, herself, a child or another person that the party has a duty to maintain.
There is no evidence before the court to suggest that either party had at the time of the hearing a responsibility to support any other person;
The court takes into account the wife receives a payment of a government benefit disclosed as a “part pention (sic)” at paragraph 12 of the wife’s financial statement filed 17 April 2012. There is no evidence before the court as to the wife’s eligibility or for that matter either parties eligibility for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of any other country.
There is no evidence before the court about whether the parties have any entitlement to a pension, allowance or benefit under a superannuation fund or scheme operating within or outside of Australia.
The court notes the wife discloses that she receives a government benefit paid to her in the sum of $300 per week.
The court considers the issue of making orders for a property settlement that will provide a standard of living that in all the circumstances is reasonable. In this regard the court notes the wife receives a gross amount of $825 per week and the husband $1163.88 per week.
The court takes into account the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant.
There is insufficient evidence before the court to make a finding that the duration of the marriage and has affected the earning capacity of the wife or the husband.
While I have considered the need to protect the wife who wishes to continue in the role as parent with whom Y lives there is insufficient evidence before the court to ascribe this consideration any weight.
There is insufficient evidence before the court to make any finding or ascribe any weight to the consideration as to whether either party is cohabiting with another person and the financial circumstances relating to the cohabitation.
The court notes that the husband disclosed within his financial statement filed 27 February 2013 that he pays the wife the sum of $88 per week by way of child support. The wife does not disclose within her financial statement filed on 17 April 2012 that she was receiving a payment of child support from the husband. Tendered during the course of the proceedings forming exhibit “H” is a Child Support Account statement that evidences that the husband owes current arrears for child support in the sum of $1,277.57.
The court is able to consider any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
Contributions to the welfare of a child or children not of the relationship of parties seeking orders for a property settlement pursuant to section 79 of the Family Law Act can be taken into account pursuant to section 75(2)(o) which is incorporated by virtue of section 79(4)(e).
The Full Court of the Family Court considered such an issue in Robb and Robb (1985) FLC 92-555 and set out at 81,547 that:
“The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s.66G, a step- parent has a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those preconditions existed in this case.
Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contributions, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Up on that basis, whilst we consider the justice of the case clearly required of the husband’s contributions to be taken into account under s. 75(2)(o), the same cannot be said of the wife’s contribution.”
There is no evidence before the court to suggest that the orders or agreement that provided for X, being the daughter of the husband to a previous relationship, in any way provided for the wife to have parental responsibility for her or that the orders provided for X to spend time with the wife.
The court has considered the affidavit evidence of the wife and her cross examination and accepts the wife’s evidence as contained at paragraphs 5-7 of her affidavit filed 21 March 2013 with respect to the wife assisting in the care of X when she resided with the parties on week about basis.
The court is able to consider pursuant to section 75(2)(o) the issue of what is sometimes termed a “small asset pool” argument. Small asset pools can be problematic in property proceedings where there is insufficient assets to distribute between the parties to take into account both of their contributions and the 75(2) factors. In the case of H and T [2002] FMCA 209 Bryant CFM (now CJ) considered the issues encounter in small asset pool proceedings and held at paragraph 19:
“What then is a proper adjustment under section 75(2)? The assets of the parties are modest and so is the superannuation. In some senses the smaller the asset pool the more critical the adjustment for other factors beyond contribution may be.”
The pool of assets in this matter is one regarded by the court as small particularly in circumstances where there are insufficient assets to distribute between the parties taking into account particularly the husband’s large initial contribution and also an adjustment to be made in favour of the wife pursuant to section 75(2). For this reason the adjustment in favour of the wife for section 75(2) is all the more critical in the outcome of these proceedings.
The court notes that the parties had not entered into a binding financial agreement.
Taking into account the considerations set out at section 75(2) (a) – (p) the court finds that an adjustment should be made in the wife’s favour 80% to the wife and 20% to the husband.
Section 79(2) – just and equitable
The fourth stage of the process is to step back and assess whether in all of the circumstances it is just and equitable to make the orders as proposed.
In Esposito & Coster [2012] FamCAFC 118 the Full Court comprising Coleman, Thackray & Ainslie-Wallace JJ at paragraph 66 looked at the scope of section 79(2) and stated:
“The section does however oblige the court to “stand back” from its preliminary determination, and consider its impact. So doing may inform the terms of the orders appropriate to produce a just and equitable outcome in those terms. It may result in a re-consideration of s 79(4) and or s 75(2) factors, and a different outcome. Whatever the scope of s79(2), the court’s determination with respect to it cannot be dependent upon findings or conclusions which are irreconcilable with those recorded in the context of a consideration of s 79(4) or s 75(2)”.
If the court simply applied the adjustments to the pool of assets determinable when taking into account the parties’ contributions pursuant to section 79(4) and those factors at section 75(2) the effect of the orders would see the parties receive a settlement of 50% each. This would translate into an order whereby the wife would receive from the net all of assets available the division being $174,326.33 an amount of $87,163.16.
The court found that the wife has $60,000 superannuation, a motor vehicle worth $12,000 and furniture in her possession at a value unknown. If the wife were to receive an adjustment of the property of 50% in her favour the husband would be required to pay to her the sum of $15,163.16. The wife would then be required to vacate the former matrimonial home and start again.
The court forms the view that having regard to the section 79(2) of the Family Law Act1975 it would be fair and equitable to make a further adjustment in favour of the wife of 10% that would see the wife then receive a settlement of 60% in her favour.
At the date of the hearing the parties were both 44 years of age. The court takes judicial notice that in usual circumstances with the exception of some hardship grounds parties are unable to access their superannuation entitlements at least until the age of 55 years and in some circumstances at a higher age.
The wife has some $20,336.47 more in superannuation than that of the husband. It is neither fair nor equitable that the wife be required to retain her entitlements given the disparity in superannuation entitlements between the parties in lieu of cash in a settlement between the parties. The court considers that it would be fair and equitable to deal with the distribution of superannuation separately. The court considers it would be fair and equitable to cause some of the wife’s entitlements to be paid to the husband by way of splitting order with the effect that the wife would receive 60% of the superannuation and the husband 40%. In a total pool of superannuation worth $99,663.53 the wife would receive $59,798.11. This would require the wife to pay from her superannuation entitlements to the husband by way of splitting order a payment of $201.88. Such a payment would be so small it should properly be regarded as de minimis and the court on that basis would not require the payment to be made.
Of the then remaining non-superannuation net pool of $74,662.80 the wife would receive $44,797.68. This would translate into the wife receiving her car at $12,000 and a payment from the husband of 32,797.68.
The court is conscious that the wife will need to likely find rental accommodation upon her vacation of the former matrimonial home and on that basis will require the husband to make payment to her by way of two instalments. The first instalment will allow the wife funds from which to pay a rental bond and engage furniture removalists.
Conclusion
Having regards to the assets and liabilities of the parties, having considered each party’s contributions pursuant to section 79(4), what adjustment should be made when considering those factors at section 75(2) and making adjustments to the orders after considering whether the effect of the orders are fair and equitable in accordance with section 79 (2) the court makes the orders set out in the beginning of this judgment.
I certify that the preceding one hundred and forty seven (147) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 21 August 2013.
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