Bayles and McCann
[2016] FCCA 2865
•7 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAYLES & MCCANN | [2016] FCCA 2865 |
| Catchwords: FAMILY LAW – Property – 9 year de facto relationship – one child of the parties – 3.5 years since separation – two pool approach to superannuation and non-superannuation assets. |
| Legislation: Family Law Act 1975 (Cth), ss.90SF(3) and 90SM |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Cabbell & Cabbell [2009] FamCAFC 205 C & C (2000) FLC 93 - 220 G & G [2000] FamCA 1075 Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143 In the Marriage of Burke (1981) FLC 91-055 Kowalski and Kowalski (1993) FLC 92-342 Mehmet & Mehmet [1986] FamCA 24 Norman & Norman [2010] FamCAFC 66 AJO & GRO [2005] FamCA 195 Pierce & Pierce (1999) FLC 92-844 Peters & Jensen [2013] FamCA 816 Stanford & Stanford [2012] HCA 52 Tomasetti & Tomasetti [2000] FamCA 314 Townsend & Townsend (1995) FLC 92-569 Williams & Williams [2007] FamCA 313 |
| Applicant: | MS BAYLES |
| Respondent: | MR MCCANN |
| File Number: | SYC 666 of 2014 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 1 and 2 August 2016 |
| Date of Last Submission: | 2 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Millar |
| Solicitors for the Applicant: | Sharon Moss Legal |
| Counsel for the Respondent: | Mr N. Jackson |
| Solicitors for the Respondent: | Hughes & Taylor |
THE COURT ORDERS THAT:
Within 7 days, the parties do all things and execute all documents to cause the monies presently held in the Controlled Monies Account by the Applicant’s solicitors with (omitted) Bank in account number (omitted) be paid to the Applicant Wife.
Within 28 days the Respondent Husband pay to the Applicant Wife the sum of $432,866.50 by way of property settlement.
Pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of Mr McCann’s interest in (omitted) Superannuation Fund, Ms Bayles shall be entitled to be paid an amount calculated in accordance with the Regulations, using a base amount, at the date of these orders, in the sum of $156,312, and that there be a corresponding reduction to the entitlement Mr McCann would have had in the (omitted) Superannuation Fund but for this Order.
The Trustee of the (omitted) Superannuation Fund do all such things and sign all such documents as may be necessary to calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement for Ms Bayles created by Order 3 above and pay the entitlement whenever the trustee makes a splittable payment out of the interest of Mr McCann in the said superannuation fund.
Orders 3 and 4 have effect from the operative time being four days after service of a copy of these Orders upon the trustee.
Having been accorded procedural fairness, Orders 3, 4 and 5 are binding on the trustee of the said superannuation fund.
Except as otherwise provided by these Orders, each of the Applicant and the Respondent is entitled to retain as against the other all items of property and superannuation entitlements presently standing in the name of or in the possession of that party.
Each party otherwise be solely liable for debts in that party’s name and indemnify and keep indemnified the other party in relation to those debts.
That in the event that either party fails to execute any Deed or Instrument necessary to give effect to these Orders within seven (7) days of being requested to do so, the Registrar of the Federal Circuit Court be appointed pursuant to Section 106A of the Family Law Act to execute such Deed or Instrument in the name of such party and do all acts and things as may be necessary to give validity to the operation of the Deed or Instrument. The cost of compliance shall be paid by the party at fault.
IT IS NOTED that publication of this judgment under the pseudonym Bayles & McCann is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 666 of 2014
| MS BAYLES |
Applicant
And
| MR MCCANN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property settlement proceedings under Part VIIIAB of the Family Law Act 1975 initiated by the Applicant former de facto Wife on 10 February 2014 (the Wife). The Respondent is the former de facto Husband (the Husband). The parties have one Child, X, aged 10 years.
Mr Millar of counsel appeared for the Wife. Mr Jackson of counsel appeared for the Husband.
Orders sought
Each party’s counsel submits that the Court should adopt the two list approach to superannuation and non-superannuation assets.
The Wife seeks 50% of the superannuation pool (40% on contributions and a 10% adjustment) and 62.5% of the non-superannuation pool. This percentage is based on 50% by way of contributions and a 12.5% adjustment for s.90SF(3) factors. Mr Millar submits that the adjustment percentage should be reconsidered if the Court does not assess each party’s non-superannuation contributions as equal.
The Husband seeks no adjustment in relation to superannuation and a 52.5/47.5% division of the non-superannuation assets in the Husband’s favour, based on 55% by way of contributions to the Husband, and a 2.5% adjustment to the Wife for s.90SF(3) factors.
Background facts
The parties commenced cohabitation in (omitted) 2004 and separated on 9 February 2013 under the one roof. X, the only child of the parties, was born on (omitted) 2006. Two weeks after separation, the Wife moved to her parents’ home with X where they lived until April 2016, when the Wife purchased her present home in Property A. X has lived primarily with the Wife since separation.
The Wife is aged 51 years. She remains employed in her own (omitted) business, (business omitted), which she established well before the parties commenced cohabitation. She has not re-partnered.
The Husband is aged 55 years, and is employed by (employer omitted) where he has worked since 1979. He is a (occupation omitted) within (employer omitted). The Husband has two adult Children from a previous relationship, Mr A aged 26 years and Mr M aged 23 years. The two boys lived primarily with the Husband after his separation from their mother in the early 2000’s, and therefore lived with the parties during cohabitation. Property proceedings in relation to the Husband’s previous relationship were finalised in February 2004, a month after the parties commenced cohabitation. While the Husband has had a girlfriend for the past 3 years, he says they do not live together and have no financial relationship. The Husband is living in rental accommodation in (omitted).
Legal principles
It is common ground that the Court has jurisdiction to determine the dispute. The parties agree that:
a)There was a de facto relationship between the parties.
b)The relationship broke down after the commencement of Part VIIIAB on 1 March 2009.
c)The de facto relationship continued for not less than two years.
d)The parties cohabited in New South Wales for the whole of the cohabitation period.
e)The Application for property adjustment was filed within two years after the parties’ separation.
Section 90SM of the Family Law Act 1975(Cth) gives the Court power to alter the interests of the parties to a de facto relationship in the property of the parties to that relationship.
Prior to the High Court’s decision of Stanford & Stanford [2012] HCA 52, it was generally accepted that the approach to the determination of an application under s.79 (or s.90SM) involved a ‘4 step process’: identification of the pool of assets, an assessment of contributions, both direct and indirect, an assessment of s.75(2)(or the equivalent s.90SF(3)) factors, and consideration of whether the actual orders are, in all the circumstances, just and equitable.[1] The principles set out in Stanford’s case[2] apply to de facto couple property disputes as well as to married couples.[3]
[1] Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93 - 143
[2] [2012] HCA 52
[3] Peters & Jensen [2013] FamCA 816 per Faulks DCJ at [31]
The Full Court in Bevan & Bevan[4] discussed the impact of the High Court’s decision in Stanford on the 4 step approach. The Full Court said that Stanford will serve as a reminder that the 4 step process “merely illuminates the path to the ultimate result”… “it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.”[5] The Full Court did not accept that s.79(2) (or s.90SM(3)), is a threshold issue or that the requirements of s.79(4) (s.90SM(4)) must be followed in a particular order, but said that the two provisions must not be conflated.
[4] [2013] FamCAFC 116
[5] Bevan & Bevan [2013] FamCAFC 116 at paragraphs 71 & 72
The first step requires identification of the existing property in which each party has a legal or equitable interest.[6] The Court may make such orders “as it considers appropriate” and shall not make any order to alter the parties’ property interests, unless it considers it is “just and equitable” to make the order.[7] The Court must then determine what orders are just and equitable by applying s.90SM(4) of the Act. The High Court explained the meaning of “just and equitable” as follows:
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[8]
[6] Bevan at paragraph 77
[7] Family Law Act 1975 (Cth), ss.90SM(1) and (3)
[8] Stanford & Stanford [2012] HCA 52 at paragraph 36
Credit
The Husband gave inaccurate sworn affidavit evidence in his original affidavit and his trial affidavit and in his Financial Statements, including exaggerating his initial contributions in his first affidavit. Some of the inaccuracies were later corrected, but in cross examination the Husband acknowledged there were a number of errors that had not been corrected and there remained omissions which potentially adversely affected the Wife. The Husband failed to include a credit union account; he failed to disclose the full extent of his inheritance; he omitted to disclose he had disposed of a motor vehicle after separation, a transaction that resulted in a reduction in asset value; he failed to disclose the purchase of a car last year, which resulted in a reduction in his asset position. He stated he had no child support liability when it was $930 a month; he overstated his mortgage repayments on his investment properties.
Mr Millar submits that the Husband is an “utterly unreliable witness.”[9] Counsel submits that the errors in evidence about his motor vehicle purchases are particularly hard to explain given the Husband’s passion for cars, yet he failed to reveal anywhere that he had purchased a car last year. While it was submitted by the Husband’s counsel that the Husband had a faulty memory, was at times careless, but never deliberately misleading, the Husband’s counsel could not identify a single error or omission made by the Husband which favoured the Wife’s interests. While I am not persuaded the Husband is fundamentally dishonest, I find he has taken a cavalier attitude to his obligations to disclose his financial circumstances honestly and diligently. I have regard to this finding when assessing each party’s evidence on any fact in dispute.
[9] At page 34 of 2 August 2016 transcript of proceedings
The Husband’s counsel submits that the Wife has not adequately explained the movement of funds between accounts during the course of cohabitation. I found the Wife a poor witness on this issue. In answer to questions in cross examination, the Wife, for the most part, could not recall any details. However, I am satisfied that the Wife had provided full disclosure as required by the Rules, and the Husband had not closely examined the material made available for inspection in advance of the trial. I am satisfied the Husband had the opportunity to clarify any questions he might have had about the Wife’s financial circumstances. I find no evidence to support a finding that the Wife has not been honest about her financial position.
Existing property interests of the parties
The parties agree on the items of property and their values held by each of them at the date of hearing, as set out here.
Assets and liabilities at the date of hearing
$
Controlled money account held by Wife’s solicitors (JT)
803,151
Property C1 & C2 (H)
880,000
Share portfolio (H)
899,035
Moneys in bank (H)
23,511
Holden (omitted) (H)
62,500
Holden (omitted) (H)
1,750
(omitted) chassis/parts (H)
27,500
Ford (Truck) (H)
4,500
Holden (omitted) (H)
58,500
Household contents (H)
2,000
Property A (W)
1,112,000
Shares (W)
14,582
Money in bank (W)
84,879
Property N (W)
235,000
(business omitted) (W)
46,588
Lexus Motor Vehicle (W)
20,000
Household contents (W)
2,000
Mortgage over Property C1 & C2 (H)
-126,733
Loan to (omitted) Credit Union (H)
-46,792
Mortgage over Property N (W)
-270,816
Mortgage over Property A (W)
-607,600
Credit card liabilities (W)
-4,354
TOTAL NET POOL (excluding superannuation)
3,221,201
Superannuation
(omitted) (H)
1,020,459
(omitted) Super (W)
419,786
Total superannuation assets
1,440,245
TOTAL NET POOL (including superannuation)
4,661,446
Balance sheet issues
On 10 March 2016, the Wife received $245,000 from the parties’ Controlled Monies Account, by way of a partial distribution of property settlement. The parties agree that the Wife applied those funds to the purchase of her property at Property A, the value of which is included in the Balance Sheet.
The only issue in dispute affecting the Balance Sheet is whether the Husband’s mortgage debt discharged at the time of sale of the former matrimonial home in October 2013, should be included in the Balance Sheet as an add back.
Mortgage debt
On 28 April 2005, the parties purchased the former matrimonial home at Property E for approximately $950,281 in joint names. The Wife contributed her half of the purchase price by way of a $428,282.33 mortgage loan from the (omitted) Bank, and applying funds from her savings and her (omitted) line of credit accounts. The Husband took out a mortgage with the (omitted) Bank for the same sum of $428,282.33, and met the balance of his share of the purchase price from personal savings. In September 2005, the Wife used the sale proceeds of her pre-cohabitation property at Property L to discharge her mortgage on the Property E property in late 2005. The Husband did not apply his pre-relationship assets in the same way. Instead he retained his mortgage loan and made the monthly repayments. On 29 October 2013, the parties’ sold the Property E property for $1,280,000. On settlement, an amount of $243,931.68[10] was paid to the (omitted) Bank to discharge the Husband’s mortgage over the property. In his affidavit sworn on 9 April 2014, and in cross examination, the Husband acknowledges that this was his debt.[11] The Wife now asks the Court to include the sum of $243,931.68 as an "add back" on the Husband’s side of the ledger.
[10] The figure in the balance sheet which differs slightly from the Wife’s affidavit sworn on 29 June 2016 at paragraph 64
[11] At paragraph 3 of Exhibit 3
The question of whether notional assets can ever be part of the existing legal or equitable interests of the parties, in light of the decision in Stanford, was addressed by the Court in Watson & Ling[12] and discussed by the Full Court in Bevan.[13] The majority of the Full Court in Bevan made these obiter remarks on the add back issue:[14]
We observe that “notional property” which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s79(4) and in particular s75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
[12] [2013] FamCA 57
[13] [2013] FamCAFC 116
[14] Ibid at paragraph 79
Her Honour Justice Finn separately commented[15] that Stanford:
…might also call into some question the current practices in relation to the treatment of property which is no longer in existence but which one party has had the use of (the so called “addbacks”…It may well be that these matters should more strictly be considered in making findings under s 79(4)(e) (i.e. s.75(2)), or in an extreme case, when considering the question under s 79(2) as to whether it is just and equitable to make any order under s 79...
[15] Ibid at paragraph 160
The authorities make clear that the question of whether or not to include a notional asset in the Balance Sheet is a discretionary one. Many authorities, including those cited above, emphasise that “not every dissipation by a party can be seen to involve an affront to justice and equity”;[16] the circumstances must be assessed in each case. The Full Court has held, however, that notional adjustments have been the exception, not the rule.
[16] Watson & Ling at paragraph 35
Mr Millar for the Wife submits that the ‘mortgage debt’ of $243,931.68 should be added back because this is the only way to reflect that the debt was the Husband’s responsibility, particularly given the emphasis that the Husband placed on separating finances during the relationship. Counsel also submits that the amount should be added back because the Wife discharged her mortgage from the proceeds of the sale of the Property L property, a property she held prior to the commencement of the relationship, whereas the Husband was able to keep his pre-relationship assets intact.
Counsel for the Husband submits that the issue should be addressed as a ‘contribution’ factor. Counsel submits that there is no question here of ‘waste’ or ‘premature distribution’ of an asset such that the Wife was disadvantaged, as in the case of Townsend[17] or subsequent authorities on premature distribution.[18] Counsel submits that the Wife wants credit for her initial contributions which includes the Property L property, but also the benefit of an addback of the Husband’s mortgage debt. Counsel questions how the Husband benefited from the Wife’s decision to discharge her mortgage debt from the sale of her pre-relationship asset, or how the Wife was disadvantaged by the Husband’s debt being discharged at the time of sale of the Property E home.
[17]Townsend & Townsend (1995) FLC 92-569
[18] AJO v GRO [2005] FamCA 195; Watson & Ling [2013] FamCA 57
I agree with the Husband’s counsel that the Husband has neither wasted an asset, nor prematurely distributed an asset. He chose to make his mortgage repayments during the course of cohabitation from his income, retain his pre-cohabitation assets, while the Wife chose to sell a pre-cohabitation asset in part to discharge her mortgage and avoid further repayments on her mortgage. Had the Husband chosen to sell one of his pre-cohabitation properties to discharge his mortgage earlier than the time of sale, that asset would not be included in the Balance Sheet of assets available for distribution now. Had the Wife chosen to retain the mortgage and pay the instalments from her income, the Property L property, or the net proceeds of sale of the Property L property would have been available to her, potentially, to acquire other assets which would now be in the Balance Sheet for this hearing. If one considers the Property E home alone, I accept that the Wife is disadvantaged by the Husband’s debt being repaid at the time of sale. But when the whole of the financial history is considered, and all the assets of each party are included in the balance sheet available for distribution, I am not satisfied that the Wife is disadvantaged. I am therefore not persuaded that the $243,931.68 should be ‘added back’ and included as part of the Husband’s entitlement.
Contributions
In accordance with s.90SM(4), the court must consider all the contributions, both financial and non-financial to the acquisition, conservation and improvement of the parties’ assets as well as to the welfare of the family during cohabitation and after separation. The Court must consider the contributions in an overall sense.[19] The Full Court has held that it is not necessary for the Court to justify its decision in property cases by reference to precise mathematical calculations, but rather a broad approach is preferred.[20] The Court is nevertheless required to undertake an evaluation of each party’s respective contributions.[21]The Court must examine what actually happened, not make assumptions about what happened. It is not sufficiently rigorous to assume that what one party did is equal to what the other party did and conclude there is no distinction to be made in relation to each party's contributions.
[19] Norman & Norman [2010] FamCAFC 66; Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143; Kowalski and Kowalski (1993) FLC 92-342; G & G [2000] FamCA 1075
[20] In the Marriage of Burke (1981) FLC 91-055
[21] JEL & DDF (2001) FLC 93,075
In its assessment of contributions, each party’s counsel supports a two pool approach to the superannuation and non-superannuation assets of the parties. Both counsel submit that the parties’ superannuation entitlements are of a different character to the other assets held by the parties. This approach is open to the Court,[22] and I am satisfied is appropriate in the circumstances of this case, given the length of time since separation, the length of time each party has contributed to superannuation and the value of the superannuation assets. The Full Court in W & W said[23]:
…it may well be useful for an asset by asset approach to be employed in cases where the parties have significant superannuation interests, particularly where there has been a relatively long period of time between separation and trial, or in a case where a significant portion of a party’s superannuation interest or of other assets has been acquired prior to the parties’ cohabitation. In such circumstances, the asset by asset approach is likely to facilitate the evaluation of the parties’ direct and indirect contributions to the acquisition, conservation and improvement of their assets (including their superannuation interests).
[22] C & C (2000) FLC 93-220
[23] [2005] FamCA 430 at paragraph 26
Financial contributions
Both parties had been in an earlier relationship and both had acquired assets over a number of years before their cohabitation commenced in early 2004. The Wife bought a car in 1987, a half interest in a property with her brother in 1990, and another property with her then husband in 1994, sold in 1999. In February 2000 the Wife purchased a duplex Property L. In May 2001, the Wife purchased a Honda motor vehicle for $35,484.00.
In 1994, the Husband purchased two properties, Property C1 & C2 for $115,000 each, with borrowings of $242,500. He retained those properties after he and his first wife finalised their property issues in February 2004. In July 2003, the Husband became entitled to an inheritance from his late father.
Initial contributions
At the commencement of cohabitation in early 2004, the Wife held the following assets:
a)A (omitted) business which she had established in (omitted) 1987 which became known as (business omitted). I accept the business was one of substance with several employees and a substantial turnover. However, there is no evidence of the value of the shares in the company at that time.
b)A 3 bedroom townhouse at Property L, with a mortgage debt of $36,798, purchased in February 2000 for $439,950 (with a borrowing of $250,000 via a (omitted) Line of Credit). While an historical valuation was not obtained, the property was sold in September 2005 for $690,000 when the Wife received net proceeds of $688,000.
c)A household of furniture and furnishings such that the Husband and his two sons moved into a fully furnished home.
d)A Honda motor vehicle purchased in May 2001 valued at approximately $27,000 – $30,000.
e)Shares with a combined value of $11,405.83.
f)Superannuation (addressed later in these Reasons)
The Husband held the following assets at the commencement of cohabitation:
a)Bank account proceeds totalling $37,885 (held in 3 accounts).
b)Two properties at Property C1 & C2 purchased in 1994 for a total of $230,000 with loans of $242,000. There was no evidence of value as at January 2004, but the loan balance at that time was $208,000.
c)An encumbered motor vehicle.
d)A share portfolio: 7,747 (omitted); 558 (omitted); 10,897 (omitted), part of an inheritance from his late father, with a value of approximately $326,348.
e)A debt of approximately $25,000 for legal fees in relation to the breakdown of his relationship with his first wife.
f)A further entitlement in his father’s estate. His father had died in (omitted) 2003 and the Husband received monies, shares and an interest in real estate at different times thereafter. In (omitted) 2005, the Husband received $354,000 as the balance of his inheritance.
g)Superannuation (addressed later in these Reasons).
The authorities require the Court to carefully assess the weight that should be given to initial contributions.[24] While the Husband’s counsel submits that the Husband had non-superannuation assets of greater value than those of the Wife at the time cohabitation commenced, I am not satisfied that such finding is open to the court on the evidence available. Critically, neither party adduced admissible evidence of the value of the Wife’s business or the value the Husband’s investment properties at the relevant time.
[24] Cabbell & Cabbell [2009] FamCAFC 205; Williams & Williams [2007] FamCA 313; Pierce & Pierce (1999) FLC 92-844
Parties’ financial arrangements during cohabitation
For the most part, the parties conducted their financial affairs separately during cohabitation. They shared the majority of expenses without owning a joint account. At the outset of the cohabitation period, the Husband and his two sons moved to the Wife’s home at Property L and remained there until the parties purchased the former matrimonial home at Property E in April 2005. The Husband paid the Wife $300 a week in board/rent. During that period, the Wife paid the bills on the Property L home and maintained it.
The Wife kept a record of expenses paid by her and by the Husband during cohabitation. While the Husband paid his older two sons’ school fees and education expenses, the Wife says the parties shared the family’s day to day expenses equally (including expenses for the Husband’s children) until 2008 when she asked the Husband to pay a greater share to accommodate his financial responsibility for his two sons. The Wife says she would pay the majority of the bills and would then ask the Husband for reimbursement. As already noted, the parties separately took out individual mortgages following the purchase of their Property E property.
Employment history
Wife. The Wife was employed by her company known as (business omitted) during cohabitation and has remained self-employed post separation. The company had approximately 6 employees when cohabitation commenced, (omitted), numerous contractors in 2006, reduced to two employees (including herself) and one contractor by the time of hearing. Although the Wife retained a manager to assist her when X was born in (omitted) 2006, she never ceased active involvement in the business.
The Wife’s taxable income from 2006 to 2011 was $67,461 in 2006, $99,382 in 2007, $108,751 in 2008, $116,333 in 2009, $95,220 in 2010 and $123,514 in 2011.[25] The Wife was not committed to meeting mortgage repayments on the parties’ home during that period because she had discharged her mortgage on the Property E property in 2005, but continued to meet the mortgage payments on her commercial premises, offset by rental income. As later addressed, the Husband raises questions about the Wife’s true income from 2005 to 2011.
[25] Exhibit 9
I am satisfied that the Wife contributed her income to reasonable and necessary expenses for herself and the family.
The Wife says that the business income has declined, particularly in the last 12 months, with sales down on previous years, because of her personal commitments, her health, X’s needs, and the economic climate. Profit and Loss statements for the company 2010-2014 support the Wife’s assertion that the business has been in decline.[26] Sales figures and company profit increased from 2010 to 2012, then decreased in the period to 2014. In the 2013 financial year, sales had reduced from the 2012 year, and only just covered expenses in that year[27]. In the 2014 financial year, the company suffered a loss of (40,496). In the 2015 year, sales were up on the 2014 year, and the company achieved a profit of $54,287. The sales were $130,000 less in the 2016 year when the company suffered a loss[28].
[26] Exhibit 8
[27] Exhibit 8
[28] Exhibit 2
The company currently employs the Wife and one other, as well as supporting one independent contractor. The Wife denies deliberately increasing salaries to reduce profit in the 2016 financial year, explaining that one of her contractors became an employee, so while the salary expenses doubled, the expense against ‘sub-contractors’ more than halved. Her position is supported by the company’s financial statements.[29]
[29] Exhibit 2 – Financial statements 2015 and 2016
Husband. The Husband started work at (employer omitted) in 1979. He deposes to earning a salary of approximately $160,000 per annum when the parties commenced cohabitation, though his income was approximately $220,000 per annum when rent from his investment properties and dividends were included. His salary has increased over time. He is now earning $299,000 a year from his salary, as well as receiving income from his properties at Property C1 & C2 and dividends on his shares. His 2015 tax return shows annual earnings of $353,082 from salary, share dividends and rental income.[30] The Husband pays the Wife child support for X, as well as half X’s expenses on request from the Wife. He paid the whole of X’s school fees until mid-late 2014 when the parties started to share the fees equally. The Husband spent substantial sums of money on cars, which he readily acknowledges, resulted in losses. He also paid for the maintenance and support of his two sons, expenses outside the relationship. I am satisfied that the Husband otherwise applied his income for his own and family purposes.
[30] Exhibit 4
Motor vehicles
The Husband has an interest in cars. He currently owns 5 vehicles including a truck and a chassis. In 2005, the Husband paid out the lease and sold his Holden (omitted), purchased for $63,000 in 2001 on a novated lease. He sold the car for approximately $15,000.
In 2006, the Husband purchased a Holden (omitted) for $60,000, without the need to borrow, registered for racing.
In 2009, the Husband purchased a (omitted) Holden chassis for $20,000, without the need to borrow, which he intends to rebuild into a racing car.
In 2014, the Husband purchased a Holden (omitted) for $60,000, with funds held in his (omitted) Bank and credit union accounts. It is not registered and he intends to restore and use it as a racing car.
In June 2015, the Husband bought an Holden (omitted) for $81,998, with finance of $57,000 from (omitted) Credit Union, trading in his Holden (omitted) for approximately $24,000. As already noted, the Husband failed to disclose this purchase in his trial affidavit.
Real estate
As already noted, on 28 April 2005 the parties purchased a 4 bedroom home at Property E for $950,281 in joint names, each party contributing equal funds to the purchase. Each borrowed funds in the sum of 428,282.33 from the (omitted) Bank, and each contributed savings to meet the balance of the purchase price. They moved into the property together with the Husband’s two sons in 2005. As already noted, when the Wife sold her property at Property L in September 2005, she repaid her loan on the property in full. The balance of the Husband’s debt was repaid at the time of sale.
On 1 June 2005, the Wife purchased a commercial office suite at Property N for $437,829 with funds borrowed from the (omitted) Bank, secured by way of mortgage. The Husband guaranteed the loan. She retains that property, for which she receives rent from her company and meets the mortgage instalments. After separation, the Bank required the Wife to secure the loan by way of a Term Deposit which, as already noted, she arranged from funds accumulated over time from the balance of sale of her Property L property in 2005.
Between May and June 2013, the parties equally shared the costs of preparing the former matrimonial home at Property E for sale. On 29 October 2013, the Property E home was sold for $1,280,000 and the whole of the net proceeds of $1,007,019.62 were placed in a Controlled Monies Account held by the Wife’s solicitors. As already noted, the Husband’s mortgage was discharged on settlement.
In April 2016, the Wife purchased a 3 bedroom townhouse in Property A in her sole name. She contributed $245,000 from the parties’ Controlled Monies Account, with the consent of the Husband, to the purchase price as well as the funds from the Term Deposit.
Other contributions
The Wife contributed the use of her Property L home to the Husband and his two sons, until it was sold in September 2005, although the Husband contributed $300 a week towards expenses.
As earlier noted, the Husband’s counsel raised questions about the accumulation of funds in the Wife’s bank accounts. In particular, counsel questioned the increase in the Wife's (omitted) account from the time of the sale of Property L in 2005 until separation. The Wife held approximately $195,000 in the account in September 2005 after the sale of Property L and the discharge of her mortgage on Property E. The balance of this (omitted) account increased over approximately 6 years to $475,000 in 2011 (this was then deposited to her (omitted) Bank account). The balance increased to $540,000 by April 2013. The Wife was unable to remember the source of the funds accumulated from September 2005, except in vague terms. The bank statements for the relevant period were not available and had not been sought. The Wife’s counsel submits that interest payments and the Wife’s savings from income would account for the increase over those years, particularly as she was not making mortgage repayments on the home. As already noted, the Husband does not adduce any evidence to suggest that funds had come to the Wife from an undisclosed source. While the statements on the Wife's (omitted) account from 2005 to 2011 were not available, neither had they been requested by the Husband.
At separation in early 2013, the Wife held $531,000 in bank accounts. It is not disputed that on 4 October 2013, the Wife withdrew $331,000 from those funds to provide the Term Deposit required by the bank for security on the loan on her business premises at Property N[31]. She later used those funds to buy the property at Property A. The Wife had originally owned two (omitted) Bank accounts referred to in her affidavit of 2013. Only one of the accounts was referred to in her Financial Statement of February 2014. Counsel for the Husband raised questions about the second (omitted) Line of Credit account. Statements for the relevant period had not been sought and were not available. The only evidence of the second account suggests that it had been closed.[32]
[31] Exhibit 10
[32] At paragraph 125 of Wife’s affidavit sworn on 29 June 2016 – September 2005 Balance $9.35
Before separation, the parties shared payment of X’s school fees equally. The Husband paid all X’s school fees after separation in February 2013 until 2014 when each party recommenced paying half. The Wife otherwise met all X’s expenses after separation including uniforms, shoes, orthotics, medical insurance, clothing and extra- curricular activities. From June 2014, Husband has paid child support to the Wife of $214 a week[33].
[33] Wife’s oral evidence
Non-financial contributions
There is no challenge to the Wife’s evidence that when the parties bought the Property E property in 2005, the Wife organised the conversion of the office area, including built in cupboards and work area, together with built in filing cabinets. These items were left in the home when it was sold.
The Husband deposes to contributing to the maintenance of the Property E property by mowing lawns, trimming hedges, cleaning windows, gutters, removing cobwebs and unblocking drains.
The Husband deposes to contributing to the Wife’s business by participating in management meetings, developing business plans and key performance indicators, developing and maintaining financial accounts, providing advice, facilitating introductions to clients including key representatives within (omitted) and (omitted), developing budgets and project managing a job with (omitted). The Husband also managed hardware and software acquisitions and upgrades and provided general maintenance and upkeep to the Wife’s office suite, including gardening and cleaning windows.
There is no dispute that between May 2013 and 11 June 2013, the Wife took time away from her work to coordinate contractors and builders to finish a pergola, organised painters for the interior and exterior of the house, window washers, carpet cleaners, gardeners, cleaners, and a house stylist. While the parties shared the costs equally, the Husband did not take time off from work and played no part in the refurbishment. With the Husband’s agreement, the Wife organised real estate appraisals and conveyancing quotations.
Contributions to welfare of family
The word “family” consists of the words “constituted by the parties to the de facto relationship, and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent.”[34] The provision therefore applies to the parties and to X and not to the Husband’s two sons[35]. I address the Wife’s contributions to the Husband’s two sons under s.90SF(3)(r).
[34] Section 90SM(4)(c)
[35] Mehmet & Mehmet [1986] FamCA 24
The Wife made the majority contributions as homemaker and parent. From the time X was born, she was his primary carer. The Husband was able to continue working full time while the Wife employed an office manager to help with the business and juggled her parenting and employment roles with help from her mother. She often worked from her home. The Wife took majority care of X, undertaking most of the tasks associated with his day to day care, with assistance from the Husband at night and on weekends from time to time. While acknowledging that the Husband shared X’s collection from pre-school, the Wife’s evidence is largely unchallenged that she did most of the feeding, bathing, cleaning, attendance at appointments, transport to and from daycare/pre-school/school, organising friends, holidays, presents and social events in relation to X.
X was 6 years of age when the parties separated in early 2013 and remained in the Wife’s primary care. In September 2013, X started spending 2 nights a fortnight with the Husband. The time increased to 3 nights in July 2015, 4 nights in September 2015 and 5 nights from November 2015 by way of trial. X spends the majority share of school holidays with the Wife and that arrangement is likely to continue. The Husband agrees he spent no holiday time with X in the 2013 term holidays, 6 days in the 2013/14 holidays and less than half of all the 2014 school holidays. The July school holidays in 2016 was the first time X spent half the holidays with the Husband. I accept the Husband’s evidence, not accepted by the Wife, that in January 2016 the Wife proposed that school holidays be shared equally[36], but I find that the Wife did not adhere to it.
[36] Exhibit 5
The Husband is entitled to 4 weeks holiday a year. While he is entitled to long service leave, he has not yet taken it. The Wife contends that it was the Husband’s habit to take holidays for the whole of January each year, but that otherwise he only took time off for (hobby omitted) and (hobby omitted). The annual leave records of the Husband[37] show that the Husband took 18 days leave in 2004; 21 days in 2005; 38 days in 2006; 38 days in 2007; 43 days in 2008; 7 days in 2009; 6 days in 2010; 8 days in 2011; and 5 days in 2012. While the Husband disputes the Wife’s contention, he does concede that from 2009 he took less leave than he was entitled to, resulting in the majority of parenting responsibilities falling on the wife. I accept that he looked after X at times in the January school holidays when the Wife was working.
[37] Exhibit 1
X is now in Year 4 and when with the Wife, is engaged in (hobbies omitted). The Wife says she helps with his homework and they read every evening he is in her care. She attends school functions, carnivals, concerts, parent/teacher interviews, school events. During 2014, she was X’s class mother. She organises his play dates, his engagement with family, and does the “running around”. Her mother is her babysitter. The Wife says that X is close to the Wife’s family, particularly his cousin A, who is the same age. The Wife is responsible for X’s haircuts, dental and medical appointments, the purchasing of uniforms and school shoes. The Husband has had much less involvement in these activities and had not met X’s teacher by May 2016. The Husband agrees that the Wife has always been the majority carer for X.
I am satisfied the Wife made the greater homemaker and parenting contribution, while also earning income from her business during cohabitation. I find the Wife made the greater parenting contribution after separation. It is acknowledged by the Husband, and I agree with his assessment, that the Wife made the greater non-financial contributions overall.
Assessment of contributions to the non-superannuation assets
Mr Millar submits that the Wife is entitled to 50% on contributions based on the period of cohabitation and the period since separation.
Mr Jackson submits for the Husband that contributions should be assessed at 55/45 in favour of the Husband, the position counsel submits pertained at the commencement of cohabitation. As noted, I did not make that finding.
Having regard to my findings, I assess the parties’ contribution entitlements as approximately equal.
Relevant Section 90SF(3) Factors
The age and state of health of each of the parties
The Wife is 51 years of age and the Husband 56 years.
The Wife injured her lower back in November 2011 and although it has improved, she says she has “continuous niggling pain”.[38] The Wife deposes to ongoing stress and anxiety following the breakdown of the relationship. In December 2015, the Wife underwent a partial hysterectomy and had two months away from work. While not adducing any medical evidence, the Wife says her working life will depend on her health.
[38] At paragraph 65 of Wife’s affidavit sworn on 29 June 2016
The Husband raises no issues in relation to his own health.
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
The Wife is self-employed and at the time of swearing her June 2016 Financial Statement, was taking a salary of approximately $52,000 a year from (business omitted) . She anticipates her taxable income will be $70,000 in the 2016 financial year, similar to the last 4-5 years. Her income in the 2016 financial year is $85,000. She has no leave entitlements and relies on her staff if she is unable to work for any reason. The company pays her rent of $461 a year for its use of her premises at Property N.[39] The Wife also receives interest payments of $145 a week and dividend income of an estimated $17 a week. She receives $214 a week in child support. The Wife is meeting mortgage payments on her home at Property A and on her business premises at Property N. The total of the Wife’s mortgage balances was $878,423 in June 2016.
[39] Financial statement sworn 29 June 2016
The Husband is a (occupation omitted) at (employer omitted) earning a salary of $303,732 a year. In addition, he receives $923 a week in dividends and $730 a week in rental income from his investment properties, a total income of $389,688 a year. The Husband has annual leave and long service leave entitlements with a gross value, at 2 August 2016, of $364,392.62 or $211,347.62 after tax.[40] This will continue to accrue until he retires.
[40] Exhibit 6
I find a significant earning disparity between the parties both at present and over the past years. I am satisfied that disparity is likely to continue into the foreseeable future and may increase if the income from the Wife’s company continues to decline. The Husband also has a significant financial resource in his long service leave entitlements. He has no plans to retire, is in secure employment, and his entitlements will continue to accrue until he does retire. I agree with the Wife’s counsel that a number of consequences flow from this: the Husband therefore has the capacity for a greater lifestyle than the Wife, including a substantial investment in his chosen hobby of motor vehicles; it gives him capacity to build superannuation into the future by making additional voluntary payments above the employer contributions; it gives him capacity to borrow and build wealth outside superannuation. Notably, the Husband has also been in a position to pay $35,000 in legal fees from his savings. On the other hand, the Wife was in a better financial position earlier in the relationship than she has been since separation. I agree with the Wife’s counsel that the Husband could not have achieved his current financial position had the Wife not been available for X and for the Husband’s sons. The Wife will continue to have majority care for X, still only 10 years of age, into the future which will continue to affect her earning capacity.
The responsibilities of either party to support any other person
The Husband pays child support liability for X in the sum of $214 a week and the parties share the school fees. The Wife otherwise bears the majority financial responsibility for X. The Husband no longer has legal liability for his sons.
The eligibility of either party for a pension or benefit under any superannuation fund or scheme and the rate being paid to either party
This factor does not apply.
A standard of living that in all the circumstances is reasonable
As already noted, the Wife’s standard of living will be lower than that of the Husband, because of his greater earnings and financial resources and her majority care of X.
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
I agree with Mr Millar that the Court should have regard to the loss incurred by the Husband of approximately $12,292 when he traded in his car last year for a new one. He owned a car with a value of at least $24,000 (the trade in value) and bought an $82,000 car with a $57,000 debt. That car now has a value of $58,500 and equity of $11,708. The Wife was not consulted about this transaction, it was not disclosed in the Husband’s material, and the Wife is adversely affected by the loss.
The Husband’s two boys were 13 and 10 years of age when the parties first lived together and they lived with the parties during their cohabitation for 8 and 9 years respectively. For the first 8 months of cohabitation, the two boys did not spend time their mother. Thereafter they spent alternate weekends with her. The Husband acknowledges the Wife’s contribution to the welfare of his boys. He says she treated them as her own, always warmly and openly. The Wife says she played a “large part in their development”,[41] attending school open nights 2-3 times, a number of school counselling sessions, Mr A’s sporting commitments, birthday parties, and facilitating Mr M’s involvement in a youth group. The Wife was working from home before and after school, and organised holidays. Mr A and Mr M were welcomed by her family, enjoyed playing in her parents’ pool, as well as being included in picnics, birthday parties and special events with the Wife’s family. The Wife’s mother cared for Mr M when he was unwell and the Wife’s father transported Mr M from his school to TAFE once a week for a full year. The Wife helped each of them to create a CV so they could find part time work, which they achieved. The Wife organised the boys’ clothing and was the adult in the home after school. She says, and I accept, that from Monday to Friday, the Wife had majority responsibility for the 3 children. In relation to general domestic tasks, the Wife says she would help prepare food for cooking which was mostly done by the Husband, and did the majority of housekeeping tasks, which was more involved because of the two boys.
[41] At paragraph 18 of Wife’s affidavit sworn on 29 June 2016
The Husband denies the extent of the Wife’s contribution to the welfare of his boys. He says they did not need supervision and that the Wife never met his sons’ teachers, and attended open nights only 2-3 times. The Husband says he was at home in the evenings and undertook all household duties for the boys including shopping, cooking, washing and ironing, a contention disputed by the Wife. The Husband says he assisted them with their education and transported them to school and non-school extra-curricular activities. He took the boys camping each year and took them (hobby omitted). He says when not with him, they stayed with their mother, also acknowledging that if on a work trip, the boys stayed home with the Wife. He says his sons helped him clean up after family meals and that most of the cleaning and gardening was done by hired help, with each party contributing to the cost equally.
I agree with Mr Millar for the Wife that the Wife’s contribution to the welfare of the Husband’s children is a matter of degree. While I accept that the Husband took the greater responsibility for the tasks associated with his sons, I am satisfied that the Wife made a significant contribution to the tasks associated with the care of the Husband’s sons, was an important presence in their lives, and because of the time she spent at the home in comparison with the Husband, played the important role of being there for them, maintaining a safe, comfortable and inclusive home environment for them.
The effect, if any, of any proposed order upon the earning capacity of each party
This is not a relevant factor.
Assessment of section 90SF(3) factors
The Court must weigh all the s.90SF(3) factors together and then make any adjustment.[42]
[42] Tomasetti & Tomasetti [2000] FamCA 314
Mr Millar for the Wife submits that in relation to non-superannuation assets, the adjustment should be 12.5%, based on equal assessment on contributions, an overall 62.5 % to the Wife (inclusive of an addback which is not included). Mr Jackson for the Husband submits that an adjustment of 2.5% should be made in the Wife’s favour.
I have decided an adjustment of 8% in favour of the Wife is appropriate in relation to non-superannuation assets.
The Wife will therefore be entitled to 58% of the non-superannuation pool, and the Husband 42%.
Superannuation
The parties’ combined superannuation entitlements have a value of $1,440,245. The Wife therefore holds approximately 29.1% of the total. The Wife seeks a splitting order in relation to the Husband’s Fund, to give her 50% of the total. Counsel for the Wife submits the Wife is entitled to 40% on contributions with a 10% adjustment. This would mean a deduction of $300,336.50 from the Husband’s entitlement to be added to the Wife’s entitlement. The Husband relies on W & W’s case when submitting that each party should retain his/her own entitlement and there should not be a splitting order.
Contributions superannuation
In June 1991, the Wife started two superannuation funds, one with the (omitted) Fund and another with (omitted). At approximately the time cohabitation commenced, the Wife had superannuation interests valued at $118,631.65. At the date of hearing, that value was $419,786, an increase of $301,155. There is no evidence of the balance at the date of separation.
At the commencement of cohabitation, the Husband had entitlements with a value of an estimated $369,326 (calculated as the midpoint between values available at 1 July 2003 and 30 June 2004). At the date of the hearing, the value was $1,020,459, an increase of $651,133. The Husband’s counsel submits that the Court should have regard to the increase in value of the Husband’s fund from the date of separation to the date of hearing. At 31 December 2012, shortly before the date of separation, the Husband held $691,221 in superannuation.[43] The value had increased to $1,020,459 at the date of hearing, an increase of $329,238 or 32% since separation.
[43] Exhibit 7
The Husband held approximately 75% of the combined value of the parties’ funds at the date of cohabitation and approximately 70% of the combined superannuation at the date of hearing.
While the Husband’s counsel submits that the superannuation should be assessed on contributions by the Wife during 9 years out of the 37 years growth in the fund[44], the Wife’s counsel submits contributions should be assessed over the 9 years plus the 3.5 years since separation because since separation, both parties have continued to earn income, and have continued parenting responsibilities.
[44] See W & W's case
I give substantial weight to the Husband’s significantly greater initial contribution.
The Wife made no direct financial contribution to the growth in the Husband’s superannuation entitlement. The Fund remained intact and the Husband and/or his employer made regular contributions to the Fund. However, the Wife made an indirect contribution to the growth in the Fund by her homemaking and parenting role. I agree with counsel for the Wife that the Wife continued to indirectly contribute to the Husband’s superannuation after separation, and therefore contributed to the growth in his entitlement for 12.5 of the 37 years the Husband had been a member of the Fund. I have regard to the increase in the Husband’s entitlement post separation, but also to the Wife’s contribution to that growth by facilitating the Husband’s continued full time employment by her primary care of X. The Husband’s superannuation increased post separation, both because he was working full time and his salary was increasing, and as time went on, and the Fund balance increased, the rate of increase was likely to be greater than when the balance was lower.
I also take into account that the Wife’s Fund increased by over $300,000 since the date of cohabitation and the Husband made an indirect contribution to that growth, particularly during the period of cohabitation as result of his assistance with her business and involvement in the home.
I assess the Wife’s contribution to the superannuation assets at 33% of the total and the Husband’s at 67%.
S.90SF(3) factors
As already noted, there is a significant earning disparity between the parties. The Husband has continued to earn a high income since separation, has retained all earnings from the Property C1 & C2 properties since separation as well as his dividend income. The Husband worked long hours, did not take many holidays, which meant the majority care of X fell to the Wife. The Wife has contributed to the Husband’s earning capacity, which flows into the superannuation contributions he has been able to make.
The Husband has the greater capacity to contribute to superannuation into the future, including the capacity to make voluntary contributions and achieve greater security in his retirement years. The Husband is 5 years older than the Wife. While the Wife has had health issues, there is no evidence of her health impacting on her capacity to earn. The Wife is likely, however, to have the ongoing primary care of X, which is likely to have an effect on her earning capacity.
As a result of these findings, I agree with counsel for the Wife that the Wife should receive an adjustment on superannuation. Mr Millar contends for a 10% adjustment. I am satisfied an adjustment to the Wife of 7% is appropriate.
Assessment. The Wife will receive 40% of the superannuation assets. This will require a transfer of $156,312 from the Husband’s to the Wife’s Fund.
Is the result just and equitable?
Section 90SM(3) provides that:
The Court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.[45]
[45] Family Law Act 1975 (Cth), s.90SM(3)
The Court was not asked to address the requirement created by s.90SM(3) of the Act as to whether any order for adjustment should be made. Both parties seek orders providing for an adjustment of property. They have sold the former matrimonial home and the net proceeds of sale are held in joint names in a Controlled Monies Account. As the plurality of the High Court said in Stanford, in many cases the just and equitable requirement is readily satisfied, because “there is not and will not … be the common use of property by the husband and wife.” In the circumstances of this case, I am satisfied that it is just and equitable for the Court to alter the parties’ existing property interests.
On the basis of a 58/42 division of the non-superannuation assets in favour of the Wife, the Wife is entitled to $1,868,296.50 in net assets. She currently has net assets (including the funds in the Controlled Monies Account) of $1,435,430. She therefore needs a payment from the Husband of $432,866.50 to receive her entitlement.
The parties will receive the following assets:
| Assets to be retained by Wife | $ |
| Controlled money account held by Wife’s solicitors | 803,151 |
| Property A (W) | 1,112,000 |
| Shares (W) | 14,582 |
| Money in bank (W) | 84,879 |
| Property N (W) | 235,000 |
| (business omitted) (W) | 46,588 |
| Lexus Motor Vehicle (W) | 20,000 |
| Household contents (W) | 2,000 |
| Mortgage over Property E (W) | -270,816 |
| Mortgage over Property A (W) | -607,600 |
| Credit card liabilities (W) | -4,354 |
| Payment to the Wife from the Husband | 432,866.50 |
| Total net non-superannuation assets | 1,868,296.50 |
| Assets to be retained by Husband | $ |
| Payment by Husband to the Wife | -432,866.50 |
| Property C1 & C2 (H) | 880,000 |
| Share portfolio (H) | 899,035 |
| Moneys in bank (H) | 23,511 |
| Holden (omitted) (H) | 62,500 |
| Holden (omitted) (H) | 1,750 |
| (omitted) chassis/parts (H) | 27,500 |
| Ford (Truck) (H) | 4,500 |
| Holden (omitted) (H) | 58,500 |
| Household contents (H) | 2,000 |
| Mortgage over Property C1 & C2 (H) | -126,733 |
| Loan to (omitted) Credit Union (H) | -46,792 |
| Total net non-superannuation assets | 1,352,904.50 |
The superannuation assets have a combined value of $1,440,245. The Wife currently holds funds of $419,786. On the basis of a 40/60 division of superannuation assets, the Wife is entitled to $576,098 in superannuation assets. This requires a splitting order providing for $156,312 to be deducted from the Husband’s superannuation entitlement and deposited to the Wife’s fund.
The splitting order the Wife seeks has been provided to the Fund and the Trustee has no objection to the form of orders sought.
Having regard to my findings in this case, I am satisfied that the orders set out at the beginning of these Reasons are just and equitable.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Date: 7 November 2016
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