Cairns and Cairns - [2008] FMCAfam 254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAIRNS & CAIRNS

[2008] FMCAfam 254

FAMILY LAW – Property adjustments – contributions – financial resources – legacy – whether entitlement under a will is relinquished.

Family Law Act 1975 (Cth) s.79

Saunders and Vortier (1841) 41 E.R. 482
Kowaliw & Kowaliw (1981) FLC91-092

Applicant:

MR CAIRNS

Respondent:

MS CAIRNS

File Number:

SYM 3460 2006

Judgment of:

Housego FM

Hearing dates:

2, 3, 10 August 2006; 8, 28 March 2007

Date of Last Submission:

16 August 2007

Delivered at:

Newcastle

Delivered on:

1 April 2008

REPRESENTATION

Counsel for the Applicant:

Ms Lloyd

Solicitors for the Applicant:

Newnhams Solicitors

Counsel for the Respondent:

Mr S Stewart

Solicitors for the Respondent:

Ashton Stedman Solicitors

ORDERS

Property Orders are made as follows:

[R] Property

(a)That the wife do all things and sign all documents necessary to cause discharge of the First Registered Mortgage securing the two (2) loans from that Bank, to the National Australia Bank Limited registration number 6xxx, within forty two (42) days of the date of these Orders and to pay the husband the sum of $148,725.00.
(b)That, interdependent upon Order 1(a) herein, the husband forthwith do all things and sign all documents necessary to cause Transfer of all of his right title and interest in the property known as Property [R] in the State of New South Wales, being the whole of the land contained in Folio Identifier 1xxx, to the wife.

Default provision

(c)That, in the event of the wife being in default of Order 1(a) herein, then:-
(i)the husband and wife forthwith do all things and sign all documents necessary to effect a sale of the property known as Property [R] in the State of New South Wales, being the whole of the land contained in the Folio Identifier 1xxx:-
A.for the best price reasonably obtainable but for a period of three (3) months from the date of listing at a price of not less than $900,000.00;
B.that the [R] property be sold in the first instance by private treaty;
C.that the [R] property be listed for sale by the parties for an open listing with [M] Real Estate;
D.that Grogan and Webb, Solicitors, Chatswood, be appointed as Solicitor to act on the sale of the [R] property;
E.That, in the event of the [R] property not being sold by private treaty within three (3) months from the date of listing, then the [R] property shall be sold by public auction, with such real estate agent or agents as the husband and wife shall agree upon, however, failing agreement, with such agent as is nominated by the then President of the NSW Division of the Australian Property Institute or his nominee. The listing or reserve price, shall be as the parties shall agree upon, however, failing agreement, then such price shall be as is determined by the then President of the NSW Division of the Australian Property Institute or his nominee.
F.that in the event that the [R] property is not sold on its first submission for sale by public auction, then the [R] property shall be resubmitted as often as is necessary as the parties may agree, and failing agreement, then upon demand by either party, such auctions thereafter to be carried out by such agent or agents as the parties agree from time to time, and failing agreement, then by the agent by whom the most previous auction of the [R] property was conducted, at a reserve price which in the absence of other agreement between the husband and wife, is 3% less than the reserve price for the preceding auction of the [R] property, until such time as a sale is effected, provided that in between any such auctions the [R] property shall be offered for sale by private treaty through such agents and at such prices as the husband and wife may, from time to time, agree.

(ii)that upon the sale of the [R] property being effected, the husband and wife shall do all things necessary and sign all necessary documents to effect completion of such sale and to direct payment of the purchase money and adjustments receivable on settlement of such sale, as follows:-
A.in payment of:-
(i)      the mortgage or mortgages to the National Australia Bank;
(ii)     such valuation fees (if any);
(iii)     agents’ fees including advertising expenses and auction charges;
(iv)    solicitors’ conveyancing costs and disbursements and other necessary expenses associated with the sale;
B.In payment of the balance then remaining as to 70% to the wife and as to 30% to the husband.

Ford Laser Motor Vehicle

(d)that, the husband forthwith transfer all or his right title and interest both in law and in equity in the Ford Laser Motor Vehicle registration Mxxx, to the wife.

Husband’s superannuation - The [Mr Cairns] Superannuation Fund

(e)That the base amount allocated to the wife out of the interest held by the husband in the [Mr Cairns] Superannuation Fund is $77,222.00.
(f)That whenever the Trustee of The [Mr Cairns] Superannuation Fund makes a splittable payment from the interest held by the husband in the [Mr Cairns] Superannuation Fund, the Trustee shall pay to the wife the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there is a corresponding reduction in the entitlement of the husband would have had, but for these Orders.
(g)That Order 1(f) has effect from the operative time.
(h)That the operative time for these Orders is four (4) business days after the date of these Orders.
(i)That Order 1(f) binds the trustees of the [Mr Cairns] Superannuation Fund.
(j)That the husband sign all documents and do all things necessary to cause the wife to receive the base amount, as adjusted in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001.
(k)That the wife sign all documents and do all things necessary to cause the whole of the wife’s interest in the [Mr Cairns] Superannuation Fund to be transferred to another Regulated Superannuation Fund.

Officer to sign in Default

(l)That in the event that either party fails or neglects to comply with all or any of their respective obligations created by these Orders, the Registrar or other Officer of this Court at its Sydney Registry be appointed pursuant to Section 106A of the Act to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the Orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.

The Court Declares That:

Furniture and Contents at [R]

(a)As between the husband and the wife, the wife forthwith be declared the absolute owner both in law and in equity of all items of furniture and contents in the [R] property except for:-
(i) the husband’s mother’s gift of a Kauri sideboard;
(ii) Aldro figurine;
(iii) blue and white vase;
and those items to be the property of the husband.

Furniture and Contents at [W]

(b)As between the husband and the wife, the husband forthwith be declared the absolute owner both in law and in equity of all items of the parties furniture and contents at Property [W] NSW.

Wife’s Bank Account

(c)That, as between the husband and the wife, the wife forthwith be declared the absolute owner both in law and in equity of all her interest in her Westpac Banking Corporation Bank Account, Account Number 2xxx.

Husband’s Bank Account

(d)That, as between the husband and the wife, the husband forthwith be declared the absolute owner both in law and in equity of all of his interest in his Australian and New Zealand Bank Account.

Wife’s Superannuation

The [Mr Cairns] Superannuation Fund

(e)That, as between the husband and the wife, the wife forthwith be declared the absolute owner both in law and in equity of all of her past, present and future superannuation entitlements in the [Mr Cairns] Superannuation Fund.

Other Property

(f)That, as between the husband and the wife, that each party be declared the absolute owner of all other items of property not otherwise mentioned in these Orders, which are in their respective care and control as at the date of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Cairns & Cairns is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

SYM3460 of 2006

MR CAIRNS

Applicant

And

MS CAIRNS

Respondent

REASONS FOR JUDGMENT

Introductions

The parties seek orders to adjust their interests in their property. They have resolved the issues relating to the parenting of their two children; M born in 1997 (aged 10) and H born in 2001 (aged 6).
The parties lived together for approximately 13 ½ years from early 1992 until December 2005 when they separated on a final basis. They married in October 1994. During their time together there were two periods of separation: at the end of 2005 and in the early part of 2006. At the time of the hearing the husband was aged 39 and the wife 35.
On 28 March 1992 the parties commenced living together when they moved into rented premises. The wife’s father assisted them with their rent. It is common ground that this assistance was approximately $7,000.00.
In March 1993 they jointly purchased a property at Property [C] for $252,000.00 of which $160,000.00 was borrowed funds. The sources of the remainder of the monies is partly contentious, but the remainder of the monies came from the parties’ own resources and from monies provided by their families. The detail of these contributions is considered below.
In mid 1999 the parties sold their [C] unit. After payment of sale costs and discharge of the mortgage, the parties realised $265,000 from the sale.
They then purchased a home at Property [R] for $510,000 where they lived until separation.
The monies for purchase comprised the net proceeds of sale of [C] ($265,000.00), mortgage from NAB ($240,000.00) and monies from the husband’s mother ($51,000.00). The monies from Ms C were utilized for the deposit.
The parties did undertake renovations to the [R] property. To fund this the parties’ mortgage was extended until it amounted to borrowings of $315,000.00. In 2001 this loan was split into a fixed interest facility ($100,000.00) and a variable interest facility ($215,000.00).
The wife continues to live in the [R] home with the parties’ two children.
While there are issues in this case as to the assessment to be made of the parties’ respective contributions, the wife’s allegations of waste by the husband, and the wife’s future needs, this case has been dominated by the issue of whether the wife has effectively relinquished her legacy under the will of her late grandfather, Mr P who died on 9^th January 1991 and, if so, what effect this relinquishment will have on the outcome of this determination.

Issues

There are a number of factual issues to be determined although many of the facts relevant to this application are agreed.
The relevant facts in issue are:
a)The respective financial contributions of the parties to their initial purchase of the [C] property;
b)The interest of the wife, if any, in her late grandfather’s estate;
c)The circumstances in which the husband’s mother advanced monies to the husband, the characterisation of these advances as gifts or loans and whether both parties or the husband has the responsibility for any repayment of these monies;
d)The extent of the husband’s non-financial contributions and contributions as homemaker and parent and whether it was tantamount to either a negative contribution or such as to make the contributions of the wife more difficult;
e)Whether the husband’s personal debt ought be also the responsibility of the wife; and
f)Whether the husband’s expenditure on items including alcohol amounted to a waste of the parties assets and financial resources.

Assets and liabilities

The following schedule contains all those items which the parties have each identified as their assts and liabilities.

ASSETS
Property [R] (J)	$800,000.00
Funds at Bank (H)	$300.00
Ford Falcon (H)	$30,000.000
[Mr Cairns] Superannuation Fund (H)	$268,365.00
[G] Superannuation Fund (H)	$25,152.00
[1] unpaid super (H)	$2,744.00
Household contents (W)	$8,250.00
Ford Laser (W)	$5,500.00
[Mr Cairns] Superannuation Fund (W)	$52,162.00
$1,192,473.00

LIABILITIES
NAB (J)	$89,420.00
NAB (J)	$214,830.00
Citibank (H)	$22,845.00
Westpac Visa (H)	$7,577.00
HSBC Visa (H)	$3,684.00
NAB Mastercard (H)	$15,975.00
David Jones (H)	$4,774.00
ANZ Mastercard (H)	$14,193.00
Suncorp Metway (H)	$39,715.00
Debt to Ms C (J)	$51,000.00
Debt to Ms C (H)	$40,000.00
Further debt to Ms C ($60,133.00 legals) (H)	Nil
Further debt to Ms C living expenses (H)	$10,200.00
Mr W ($22,823.00 legals) (W)	Nil
Debt to Super Fund (H)	$22,118.00
$536,331.00

FINANCIAL RESOURCES
Wife’s entitlement of estate Mr P	(value ascribed by wife) $0.00 (value ascribed by husband) $742,345.00

Apart from the value to be attributed to the wife’s interest (if there be any) in her grandfather’s estate, the value of each of these various assets and liabilities is not in contention. There are, however, contentions about whether certain items should be included in the pool of assets and liabilities of the parties which will be the subject of this determination.
The items in the table which are contentious are:
a)Whether monies advanced by the husband’s mother are to be treated as loans repayable by either the parties jointly or the husband;
b)The extent to which the wife is to be jointly responsible with the husband for the personal debt, including for credit cards, in his name;
c)Whether the debt said to be owed by the husband to his superannuation fund is to be treated as a joint debt; and
d)The wife’s interest, if any, in the estate of her late grandfather.
I will now turn to these contentious matters so that the first stage in s.79 proceedings can conclude with my findings as to the assets and liabilities to be included in the pool.

Monies advanced by the husband’s mother

The parties were assisted with monies from the husband’s mother at the time they purchased the [R] property. The sum Ms C then advanced was $51,000.00.
The issue that arises from this advance is whether it was a gift to the parties or a loan.
The husband and his mother contend that the advance was a loan, to be repaid at some unspecified date. The husband’s mother says it was to be repaid whenever the house was sold or was no longer the house of the parties.[1] The husband says it was to be repaid at least by the time the wife received her inheritance from her grandfather.[2]
[1] Affidavit of Ms C sworn 25 July 2006 at paragraph 5
[2] Affidavit of Mr Cairns sworn 25 July 2006 at paragraph 22
Neither the husband nor his mother assert that there were any agreed terms or conditions for the loan other than repayment. Their evidence as to when repayment was to occur is not consistent as both give different determining events.
The evidence the husband relies upon to support his contention that the monies were advanced as a loan are conversations he had with his mother at around the time of the advance and at the time of completion of the purchase of the [R] property.
There is no documentation to evidence a conclusion that the advance was a loan. Nor is there any evidence of any attempt by the parties or the husband to repay any of the monies advanced.
Since the monies were advanced, far from requiring the repayment of any or all of the monies, the husband’s mother has advanced further monies to the husband for his use. Those further payments totalling approximately $55,000.00 are set out in her affidavit at paragraph 13.
I am not satisfied that the evidence of the husband and his mother is sufficient for me to find that the initial sum of $51,000.00 was advanced by way of loan rather than as a contribution. The lack of certainty as to terms, absence of documentation, and complete absence of any repayment or firm arrangement for repayment support a conclusion that the advance did not constitute a loan.
These monies advanced by the mother do, of course, constitute a contribution by her. I find that these monies are a contribution which she has made for her son’s benefit and I will take the monies contributed by Ms C to the acquisition of [R] into account as a contribution by or on behalf of the husband.
Similarly, the advances made by the mother which she refers to in her affidavit at paragraph 13, will be characterised as a contribution on behalf of the husband so far as the $20,000.00 advance to the superfund is concerned. But there is no cogent evidence to support a conclusion that this, or any of the other monies referred to by the husband’s mother in paragraph 13 of her affidavit, amounts to a loan.
Again, there is no documentation as evidence and there is no certainty of terms. The continued advance of monies by the mother contradicts a conclusion that any of the advances are debts which she requires to be repaid.
The monies advanced by the mother to the husband post separation are not monies which can be characterised as contributions under s.79. They have been used for the living expenses and payment of other debts of the husband (including child support) and so will not be taken into account in assessing the husband’s financial contributions.
As is agreed by the approach of each counsel, monies advanced by each of the parents for the payment of legal costs in these proceedings will not be included in the pool or as part of the contributions to be considered under s.79.

Personal debts of the husband including credit cards

The husband asks that his credit card debts and other personal liabilities (excluding monies he says are due to his mother) be treated as joint liabilities. The total sum of these debts is $69,048.00. The wife asserts such debts should be the husband’s sole responsibility and not form part of the pool. As at the date of separation the debts totalled $71,800.00[3], excluding monies owing in respect of the husband’s car.
[3] Affidavit of Mr Cairns sworn 25 July 2006 at paragraph 43
The husband asserts this high level of personal debt occurred because the parties lived beyond their means.
The wife identifies other factors, namely the high level of expenditure by the husband on alcohol and also his expenditure in the two years prior to separation on outings involving Ms M.
The husband was cross examined about some of his credit card expenditure. His evidence revealed that while some of the debts were incurred for the benefit of the children and the parties, such as children’s clothing, other items were clearly not for the benefit of the wife and children.
In 2001, at about the time the husband became unemployed, the parties’ debt level was $20,000.[4] It is likely that the debt increased during the husband’s period of unemployment in 2001/2002 because of the lack of income or other monies otherwise available to the parties.
[4] Affidavit of Mr Cairns sworn 25 July 2006 at paragraph 42
Some of the expenditure in the two years prior to separation was admitted by the husband as being for airfares and accommodation for himself and Ms M. However, there is no evidence to assist me to determine what proportion of the pre-separation debt was accumulated in the last two years for the husband and Ms M.
Some of the level of debt currently in the husband’s name is, on the evidence, attributable to expenditure enjoyed by the parties and their children. Some is clearly not. For example, the husband’s evidence is that all but $3,000.00 of the debt standing on the ANZ Mastercard is debt incurred by him subsequent to separation. Yet some of those expenses he attributes to the costs of the children.

The difficulty is in assessing what proportion of the debt is attributable to expenditure on items for the benefit only of the husband and Ms M. It is, in my view, not appropriate that such expenditure be treated as a joint liability of the parties.
While the wife’s complaint that the husband bear the cost of his alcohol purchase is understandable, the evidence does not support a conclusion that such monies were expended wastefully in the Kowaliw[5] sense, even though such activities were the subject of conflict between the parties. Indeed, the wife’s counsel concedes[6] a Kowaliw type of argument cannot be made out on this issue. There is simply insufficient evidence to support a conclusion that the husband’s expenditure on alcohol throughout the parties marriage was tantamount to a waste of the parties’ financial resources.
[5] Kowaliw & Kowaliw (1981) FLC 91-092
[6] Wife’s written submissions page 17 and 46
I propose to allow some of the debt standing in the husband’s name as at the date of separation as a joint liability. But I do not propose to allow all of it because it is, in my view, inequitable to require the wife to contribute to the costs of Ms M and the time the husband spent with her.
An amount equivalent to one third of the personal debt in the name of the husband had been incurred by September 2001. This debt level had increased at the time of the parties’ separation to a level just in excess of the current total debt. It is appropriate for me to treat some of that debt as a joint liability, but not all of it. With the limited evidence that I have I find that the husband should be solely liable for an amount which represents one quarter of the increase, that is an amount of $16,000.00. This is to take into account the additional expenditure for Ms M and expenses incurred by the husband when he was with her and which have been paid by the husband’s credit cards.
I will include the husband’s debt to Suncorp Metway in the parties’ pool of assets and liabilities as the car it was used to purchase is also included.

Debt owing to the husband’s superannuation fund

The husband contends that he has withdrawn monies from his superannuation fund and that as a consequence he owes the fund a sum of $22,118.00[7] after deposit of an anticipated taxation refund. He asks me to treat this as a liability of the parties by including it in the pool of assets and liabilities of the parties.
[7] Affidavit of Mr Cairns sworn 25 July 2006 at paragraph 51
However, the husband gives no evidence as to the detail of his withdrawals. I do not know when monies were drawn, for what purpose they were applied, and why these withdrawals would be treated as a joint loan. For the absence of such evidence I am not prepared to conclude that this amount is one which should be treated as a joint debt of the parties.

Wife’s interest in her late grandfather’s estate

The wife’s paternal grandfather died on 9 January 1991.
Under her grandfather’s will the wife and her sister were beneficiaries as to part of the estate.
The wife was left the sum of $20,000.00 by her grandfather as an absolute gift.
The wife and her sister were also left an interest in two properties owned by their grandfather which I shall refer to as the [M] and [B] properties.
The wife’s entitlement to a one half share in each of these properties was postponed, under the terms of the will, until she and her sister attained the age of 40 years. The wife’s sister, Ms K was to take the other half share.
The wife’s father was one of the trustees and executors of the will. He was also the residuary beneficiary under its provisions. He inherited all shares in a company [L] Pty Ltd, and a property at [E] together with its contents and some other items of limited value, subject to meeting the monetary legacy. A full inventory of the property of the wife’s late grandfather is set out in the list of assets and liabilities with the probate documents which are annexure “b”. The probate documents annexed to the affidavit of the wife’s father are incomplete. He also had, under the provisions of the will the right to the [B] and [M] properties until the time that the wife and her sister attained the age of forty, at which time they became entitled.
The will also conferred power on the executors and trustees “to invest and change investments freely as if they were beneficially entitled”. This power expressly confirmed the right to invest in non-income producing assets including property for occupation or use by a beneficiary.
Central to the wife’s case was her assertion that she had relinquished her interest in her late grandfather’s estate, save that she had claimed and received her monetary legacy of $20,000.00.
It was an agreed fact that the [M] and [B] properties had both been sold in 1992 and that the net proceeds of sale were $631,597.50.
A one half share in the net proceeds of sale is, relative to the overall pool of assets, a substantial sum, even before the issue of its actual current value is considered. It was not surprising then that the wife’s assertion that she had effectively relinquished her interest in her grandfather’s estate was an important issue in the wife’s case.
The wife relied upon the rule in Saunders and Vortier[8] to establish that the wife’s renunciation of her interest and that of her sister was effective.
[8] (1841) 41 E.R. 482
At the outset of the hearing the husband raised an issue as to the admissibility of the affidavit of the wife’s father, Mr W, and those parts of the affidavits of the wife and her sister Ms K which related to conversations said to have taken place with Mr W on or about early 1992.
In part the objection to this evidence was predicated on the unavailability of Mr W and Ms K to give oral evidence.
Further, there was an issue as to what weight if any, should be given to the conversations contained in the affidavit.
In particular, Counsel for the husband objected on the grounds of reference to those parts of Ms K’s affidavit which referred to her conversations with her father and which may have been relied upon as to the disposition of her own entitlement. As such it lacked any relevance or probative value in relation to the issue of whether the wife had relinquished her entitlements under the will of Mr P.
Because of the significance in relative financial terms of the wife’s entitlement under the will of her late grandfather, I determined that the proceedings ought progress in a manner whereby the unavailability of the witnesses could be met by the further hearing days being made available.
Notwithstanding the force of Ms Lloyd’s submissions I only excluded those parts of the wife and Ms K’s affidavits that recounted statements by Mr W. I did not allow the conclusion as to the effect of the conversations to be admitted. I did, however, subject to the availability of the witnesses, allow the remainder of the statements made in the early 1992 conversation to remain in evidence.
The rule in Saunders & Vortier[9] is currently stated as thus:
“The actual or possible beneficiaries of a fixed or discretionary trust may, if they are indefeasibly entitled, of full legal capacity and act unanimously, put an end to the trust by requesting the trustee to pay over their respective interests under the trust.”[10]
[9] Ibid
[10] Laws of Australia, Volume 27 [430 – 2515] at 817, 588
At the time the wife asserts that she relinquished her interest under the estate pursuant to the ruling in Saunders and Vortier[11] it is clear that she and her sister could have called for an end to the trust which postponed their taking of their interests in the two units until they attained the age of 40 years of age but only with the consent of her father whose interests under the will in the properties would be defeated. Proper application of the rule in Saunders and Vortier[12] would have allowed them to call for full title in their discrete shares in their inheritance:
“The trust device may be set aside if the beneficiaries so wish where all of them are identifiable persons having full legal capacity and hence easily recognisable as property owners within the orthodox common sense conception.”[13]
[11] Ibid
[12] Ibid
[13] G. Moffat Trusts Law 4^th Ed Cambridge PU 2005 page 59.
The real question of law as to the wife’s entitlement is not whether under Saunders and Vortier[14] she could have called for her interest but whether under any principles of law of equity she could relinquish her interest in that estate, prospective or otherwise, in the manner set out in the affidavit material relied upon in the wife’s case and, if she could, whether her actions were effective.
[14] Ibid
There is no reference in the wife’s submissions to the relevance of her father’s role as trustee in the estate. But this submission does not mean that his role and the obligation carried with it can be ignored. As trustee, the wife’s father stood charged with obligation to administer the estate in accordance with the testator’s wishes. These wishes clearly were for the granddaughters to each take a half share in the home units at [B] and [M]. The fiduciary obligations placed on an executor and trustee is strict.
The real question is whether a trustee could, in the circumstances of this case, take for himself the benefit of a trust to which he had no beneficial entitlement after his daughters reached 40 years of age.
The evidence of the wife and her sister that they had no intention to take any further steps is no answer. The fiduciary obligation under the trust imposed by the will is strict. Being a strict obligation it is not possible for the trustee to ask for and receive the benefit of the trust, that is the proceeds of sale of the [M] and [B] properties.
There is another interpretation available to the transaction which fits within much of the evidence given uncontroversially in the husband’s case. That is that the father, enjoying as he could under the provisions of the will, the properties at [B] and [M] sought permission from his daughters to sell the properties and apply the proceeds for his use as he was entitled to do under the provisions of the will until the daughters attained the age of 40 years.
Viewed in this light both the wife and her sister retained their interests in property to be traced from the original units at [M] and [B]. This interest will vest at age 40 but, in the mean time, the father has been able to deal in specie with their inheritance and without complaint with assets into a format which more suited him.
The wife did not challenge the husband’s witnesses, two of whom were solicitors, as to the occurrence of conversations in which she is alleged to have sought their advice about her future entitlements under the will.
On balance I do not accept that the evidence of the wife, her sister and her father is tantamount to evidence which would enable me to find that the wife had completely renounced her legacy under her grandfather’s will.
Rather, the interpretation which the husband’s evidence gives rise to is one in which both daughters concurred with the father’s request to have property changed into a form more readily suitable to him during the period of time which he had the right to enjoy those assets under the provisions of his father’ will.
The wife’s own evidence, and that of her sister, gave no hint of independent legal advice or any other such steps which properly ought have occurred in the event that a trustee sought to benefit from a beneficiaries entitlement.
Even the father’s argument to the effect that he needed the money to re-house himself in Queensland was at odds with the evidence. He not only inherited a company worth, on the probate documents, $1.8million but his attempts in his oral evidence to distance himself from the company by treating it as an entity separate to himself were inconsistent with his other evidence.
His evidence, then, that the proceeds of sale of the [E] property went into the company account because it was bought with company monies obfuscate rather than shed light on the truth. It also contrasts with

Mr W’s evidence, given in cross examination, that the proceeds of sale of the [M] and [B] properties were each deposited into the company (“[L] Pty Ltd”) accounts.
I do not accept the father’s evidence to the effect that he needed the monies to purchase the property for him to live in. It is clear on the face of the will that the father had an estate in the properties but is limited as to term by his daughter’s reaching their age of 40 years.
Such an interpretation makes more explicable the evidence that the wife asked two solicitors, a friend and brother-in-law of the husband quite recently as to what her interests under her grandfather’s will now was. While the wife did not accept this version of events the evidence given by the husband’s witnesses to this effect was not challenged by her and the witnesses were not required for cross examination.
There is no evidence that she has sought or obtained any formal legal advice. The only information given by a solicitor relevant to the issue is contained in annexure to the wife’s father’s affidavit from solicitors which he instructed.
I accept that the wife and her sister could under the rule in Saunders and Vortier[15] have called for the vesting of their beneficial interests in the [M] and [B] properties. I do not accept that that is what occurred in this case. Rather, I find that they each gave their approval to the father’s proposal to sell the two properties and to utilise the funds from those properties for his benefit for the period of time up until they achieved the age of 40 years of age.
[15] (1841) 41 E.R. 482.
As neither the wife or her sister have yet attained the age of 40 years and the doctrine of tracing can be employed to ascertain the quantum of their entitlements under the grandfather’s will I prefer this interpretation which sits in my assessment, more readily with the facts as they have been presented before me.
How then do I take into account the wife’s interest in her late grandfather’s estate?
She is not now beneficially entitled to any interest under his will although she will be entitled to take a half share of some monies of the estate when she attains the age of 40 years. The properties in which she will inherit a one half share have now been sold and there is no evidence before me as to any tracing of her interest in relation to those assets. It is unlikely that their value remains as it was, as at the date of sale of the two properties but there is no evidence before me to suggest how I might assess the current value of these perspective interests.
In any event the wife’s inheritance is not an asset or interest to which the husband has in any way contributed.
In these circumstances I propose to accede to the submissions of the husband and those put in the alternative by the wife’s counsel and treat this inheritance as a financial resource to be taken into account under s.75(2).

Pool of assets and liabilities

Accordingly, I find that the parties’ assets and liabilities as at the date of hearing are:

ASSETS
Property [R]	$800,000.00
Funds at Bank (H)	$300.00
Ford Falcon (H)	$30,000.000
[Mr Cairns] Superannuation Fund (H)	$268,365.00
[G] Superannuation Fund	$25,152.00
[1] unpaid super	$2,744.00
Household contents (W)	$8,250.00
Ford Laser (W)	$5,500.00
[Mr Cairns] Superannuation Fund (W)	$52,162.00
$1,192,473.00

LIABILITIES
NAB	$89,420.00
NAB	$214,830.00
Credit Card Debts of Husband	$53,048.00
Suncorp Metway	$39,715.00
$397,013.00

I find the husband to be solely responsible for the following:
a)Any liability to Ms C;
b)ANZ Mastercard;
c)Contribution to his credit card debt ($16,000.00);
d)Husband’s debt to Superannuation Fund ($22,118.00).

FINANCIAL RESOURCES

Wife’s entitlement of estate Mr P

I find the parties’ net pool of assets, liabilities and superannuation entitlements to be $795,460.00.

Financial contributions of the parties – s.79(4)(a)

The Husband had the following assets at the commencement of cohabitation:
a)Savings   $5,000.00
b)Ford Laser   $11,000.00
c)Shares   $15,000.00
d)Termination payment   $23,868.00
e)Superannuation   $16,658.00
f)Personal effects and some items of furniture   NK

This initial contribution of the husband is not contentious.
The wife had the following assets;
a)Savings   $200.00
b)Ford motor vehicle   Est. $12,000.00
c)Superannuation   $20,000.00
These values attributed by the wife to these assets are not contradicted by the husband.

Additional financial contributions

In addition to those monies which each of the parties brought into the marriage, they each received other monies during the marriage in addition to their earnings from employment.
For the husband’s part, these monies were:
a)His parents’ advance to assist with the purchase of the [C] property ($22,000.00);
b)Monies advanced by his mother, Ms C, for the purchase of the [R] property ($51,000.00);
c)An inheritance from his Great Aunt totalling $65,880.00 of which $58,000.00 was applied to reduce the parties’ mortgage over the [C] property;
d)An inheritance from his Great Uncle of $2,000.00 which was applied to the parties general expenses;
e)Termination payment of $25,259.00 from the [S] Trust;
f)Monies advanced by his mother paid into the Superannuation Fund ($20,000.00).
For the wife’s part, these monies were:
a)Gifts from her father, namely:
i)$7,000.00 towards the parties rental expenses at the outset of their cohabitation;
ii)$20,000.00 towards the purchase price of the [C] property;
iii)$25,000.00 (in kind) towards a new motor vehicle.
b)Redundancy payment of $28,000.00 contributed to the reduction of the [C] property;
c)Monetary legacy of $20,000.00 from her late grandfather’s estate contributed to the purchase of the [C] property;
d)Gifts totalling approximately $6,580.00 from her mother towards lessons for M and family holidays.
In addition there were the financial contributions of her parents and her sister in meeting expenses associated with holidays each enjoyed with the parties and their children.
The only issue concerning financial contributions which remained at the conclusion of the hearing was the parties’ contributions to the monies used to purchase the [C] property. The property was purchased for $252,000.00. Borrowings from the St George Bank account for $160,000.00. How then was the remaining $92,000.00 funded?
The husband says he contributed $54,895.00 to the balance of the monies. These monies comprised:
a)$15,000.00 realised from the sale of his shares.
b)$17,895.00 from his termination payment from the Bank of New Zealand.
c)$22,000.00 gifted by his father.
The husband, in his submissions, concedes the wife contributed $37,895.00 to the balance of the purchase monies being $20,000.00 from her father and $17,895.00 from her savings.
The wife says she contributed $50,000.00 and that the husband contributed $41,000.00.
The wife says that the husband’s monies were all a gift from his parents. The wife also contends she applied the monetary legacy of $20,000.00 she was entitled to under her late grandfather’s will, $10,000.00 from the sale of her motor vehicle and a gift from her father of $20,000.00.
The disputed facts, then, are:
a)Did the husband’s parents gift $22,000.00 or $41,000.00.
b)Did the wife contribute her legacy of $20,000.00 to the purchase.
The wife’s father did not give any evidence to confirm that he had gifted $20,000.00 towards the purchase. But this contribution was agreed.
Having considered the evidence, on this issue I prefer the evidence of the husband over that of the wife. This is not because I found the wife’s evidence untrue, I simply find there is more likelihood that the husband’s recollections on these matters are correct.

The wife’s own evidence about her redundancy payments was effectively challenged on cross examination when she conceded the matters put to her by the husband’s counsel. I am not satisfied, therefore, that she is reliable as to the detail of the separate financial components which made up the balance of the purchase price. Further, the wife’s counsel did not challenge the assertions of the husband as to the quantum of the husband’s parents’ gift. If I accept the husbands evidence in that regard, and I do, then the source of the purchase monies is explained through his version of the evidence.
It may be, however, that some additional contributions were made, through the wife, as to the costs of acquisition of the property including stamp duty. As there is, on the evidence, no likelihood that the monies came from outside the parties’ own resources, I have found the view that those additional expenditures may be an explanation for some confusion in the wife’s evidence on this issue.

Earnings of the parties

The Husband worked during the period of the relationship, although such work has not been continuously undertaken by him as he has experienced periods of unemployment, sometimes as long as months. His earnings were utilised for the parties’ joint purposes, at least until he expended monies on activities with Ms M. Although the wife contended that I ought find that the husband had depleted the parties’ financial resources by his expenditure on alcohol and at places such as the [R] Club, ultimately this waste argument was abandoned.[16]
[16] Wife’s written submissions, page 46
In any event, there was no cogent evidence from which I could draw any evidence that the husband’s activities had diminished the parties’ assets and resources.
For her part the wife, ceased full-time employment around the time of the birth of the parties first child.
In about early 2004 the wife commenced working part-time, firstly undertaking working at home and then working part-time after hours at [K]. This work also included some weekend shifts. The wife asserts all her earnings post cohabitation were applied to the parties’ joint purposes and the husband does not take issue with this assertion.

Non-financial contributions – s.79(4)(b)

Both parties made non-financial contributions to the acquisition of their properties at [C] and at [R]. In her submissions the wife asserts the parties’ contributions to the acquisition of their properties were equal. There is no evidence to suggest such a conclusion is incorrect.
The only issue as to non-financial contribution is the parties contributions to the conservation and improvement of the [R] property.
The wife asserts her contributions exceed those of the husband. Specifically she asserts that she arranged for the parties’ friend, Mr J to paint parts of the [R] property. She assisted him with the painting and provided refreshments while he undertook these tasks which the wife says occurred on approximately 10 occasions.[17]
[17] Affidavit of MS Cairns sworn 27 July 2006 at paragraph 34
The wife also asserts that she undertook the majority of care of the exterior of the homes and gardens the parties owned.
The husband asserts that he undertook minor maintenance and repairs to both the [C] unit and [R] property including painting and preparation for sanding of floors.[18] He also asserts that he did general work around the home. The husband does not assert that his non-financial contributions either exceeded or equated to those of the wife. However, he does assert that the wife does not acknowledge the extent of his contributions.
[18] Affidavit of Mr Cairns sworn 25 July 2006
Having regard to the concessions made by the husband as to the occasions on which he attended the [R] Club after work, and the husband’s employment throughout all but a short period of the parties’ cohabitation, I have formed the view that the wife’s non-financial contributions exceeded those of the husband.
However, in the absence of any documentary support, I do not accept the wife’s assertions that the husband only undertook 5% of such activities. The wife made concessions, under cross-examination that the husband’s involvement around the home, and most particularly in the care of the children, was greater then she assessed in her written evidence. Accordingly, I find that it is probable that the husband’s non-financial contributions are substantially greater then has been acknowledged by the wife.

Contributions as homemaker and parent

It is common ground that the wife has been the primary carer for the parties’ two children since their births in 1997 (M) and 2001 (H) respectively. The wife continues in that role as is recognised in the parenting orders made by consent on 14 July 2006.
It is also common ground that the wife has, over the totality of the parties cohabitation, made a significant contribution as homemaker. It may be inferred from the absence of any contrary argument in the husband’s written submissions that the wife’s contributions in that regard considerably exceeded those of the husband, particularly in the years since M’s birth.
The real issues as to the contribution as home maker and parent to be determined are:
a)Did the husband only contribute as homemaker and parent in the limited manner attributed to him by the wife?; and
b)Were there such absences of the husband from the home as to amount to a negative contribution against the husband or, alternatively, such that I would give extra weight to the wife’s contributions in this area?
Both of these assertions by the wife are predicated on the wife establishing that the husband was, as she alleges, absent from the home on most evenings for some hours after his working day concluded. The wife alleges that he spent these times at the [R] Club or some other similar establishment. During such absences the husband clearly could not be assisting with homemaker or parenting duties otherwise undertaken by the wife without his assistance.
The husband conceded in cross examination that, as a general rule, on four or five nights a week he did not come straight home from work but would go and have a drink.[19]
[19] Transcript of 10 August 2006, page 108 at 40
The husband also gave evidence that, on a regular basis, that is, an average of once a fortnight on a Friday, the wife and children would also be with him to have a meal at the [R] Club.[20]
[20] Transcript of 10 August 2006, page 111 at 20 - 40
However, the husband did not then concede that his role with the children after he returned home was limited to the extent alleged by the wife. In particular, he disagreed with the proposition that on those nights that the wife was working at [K], he had little to do with the children “other than be present with them and perhaps, put them to bed”, and perhaps the other tasks including bathing and feeding, having been attended to by the wife before she returned home.
The husband admitted the wife had sometimes attended to those matters, but other times not.[21] Nor did he concede that the wife attended to these matters in his absence on “by far the greater time”.
[21] Transcript of 10 August 2006, page 108 at 25
I find that it is most likely that the husband did, on some occasions, attend to the bathing, feeding and other matters associated with putting the children to bed, particularly as the wife’s evidence was that from April 2003 until January 2005 or 2006, she needed to leave for her work at [K] on 3 nights per week by 4.45pm. I also find that it is more likely than not that the wife attended to these tasks more frequently than the husband, having regard to the young ages of the children and the husband’s evidence that he went to the [R] Club on at least four or five times per week rather than going straight home from work.
The wife is critical of the nature of the care the husband provided to the children while she was at work on Saturdays or Sundays between 10.00am and 2.00pm during the period from April 2003 until January 2006 when she was employed by [K]. She alleges that on many of those occasions the husband took the children to the [R] Club, or that his mother cared for the children either on her own or with the husband.
While the wife asserts that a specific number of instances when the husband took the children to the [R] Club – “approximately fifty-eight (58) occasions”[22] no basis for her assertions as to the exact nature of such instances was provided.
[22] Affidavit of Ms Cairns sworn 27 July 2006 at 50.2
But the clarity of the wife’s evidence in this regard (paragraphs 50.2 – 50.3) clearly establishes that either the husband or his mother on his behalf did care for the children on most of the Saturdays when the wife was working at [K].
Notwithstanding the wife’s criticisms of the quality of the parenting provided by the husband on those Saturdays or Sundays which she worked, and her complaints that the husband was late on those occasions when she worked in the evenings or otherwise did not assist, I am satisfied that the husband did make contributions as a homemaker and parent during the period of the parties’ cohabitation.
The wife conceded in cross-examination that while she was working the husband not only cared for the children but he also played with them including taking them to the beach. She conceded he undertook their sole care on Monday, Tuesday and Wednesday nights and on the weekend days when the wife was rostered to work. She also conceded that he undertook other aspects of their care including taking M to school. These concessions do not support a conclusion that an assessment of the husband’s contributions be limited to 5%.
The wife also asserts that her parents assisted with the children and by her parents and her sister providing the means for the parties and the children to enjoy several interstate holidays.
For his part the husband asserts his mother assisted with the care of the children.
I accept that both parties were assisted in the care of the children and as a family by both the husband’s mother and family and the wife’s family.
The copy[23] of a card sent by the wife to the husband’s mother is, particularly in its use of works “all my love” indicative of a close relationship between the parties and the husband’s family. This is further evidenced by those affidavits filed in support of the husband’s case in which there are references to family gatherings with no suggestion that such occurrences were infrequent or only for particular occasions.
[23] Annexure A to affidavit of Ms C sworn 25 July 2006
For the wife’s part, the closeness of her sister’s family and her own, and the support of her father and her mother are not challenged by the husband.
It is my assessment of the evidence, particularly as to the husband’s working commitments and his attendances at the [R] Club after work, that the predominant contribution as homemaker and parent was made by the wife.

Adjustment under s.75(2) of the Family Law Act 1975 (Cth)

Both parties sought an adjustment of their contribution based entitlements under s.75(2) of the Family Law Act 1975 (Cth).
The husband sought an adjustment in his favour under s.75(2) of the Family Law Act 1975 (Cth) to take into account the following:
a)The wife’s unsatisfied legacy under the will of her late grandfather;
b)The financial support provided to the wife by her father;
c)His ongoing obligation to provide child support and meet other expenses for the children, including when they spend time with him; and
d)The greater amount of superannuation held by him such that the availability to him of a significant amount of monies under this determination will be postponed.
The obligation of the father to pay child support and otherwise meet expenses for the children while they are in his care is not contentious. Nor is the postponement of the availability of those assets which comprise the [Mr Cairns] Superannuation Fund. The money tied up in the husband’s entitlements under the fund are, relative to the other assets of the parties (except the wife’s legacy), substantial. Accordingly, I take these two matters into account.
I also, for the reasons set out above, take into account the wife’s entitlements under the estate of her late grandfather and the financial support received by her from her father.
The husband asks me to take into account as s.75(2) factor, the wife’s having greater time with the children. This is as a concession that her care for them is necessarily constrains the wife’s income. The consequence is that the husband earns a considerably greater income although he says his current earnings fall well below his proper level of remuneration.
As to the likelihood of ongoing support of the husband by his mother, I find that both parties have enjoyed financial, as well as other support from their parents, principally the husband’s mother and the wife’s father.
This support has been provided to the parties since shortly after the commencement of their cohabitation. It has been given freely in circumstances where such support enabled the parties to achieve financial benefits such as the acquisition of property, that would otherwise not be available to them. There is no evidence of repayment of any of the sums advanced nor is there evidence of any determined efforts by either parent to recover the monies advanced. The sums advanced by the husband’s mother have been characterised by her and by him as a loan. However, the reality of the transactions is that the husband’s mother has been content to postpone the recovery of such monies.
Repayment, even in part, has not yet occurred and, with the financial demand posed by the dissolution of the household and its reformation into two households, together with legal costs for litigating both parenting and property issues, it is unlikely that such situation of surplus will occur in the near future.
Rather the husband and the wife have both, even in the face of these proceedings, continued to enjoy financial support from their parents. I find this is likely to continue into the future at least to the extent necessary to enable them to each “get on their feet.” As this issue was not tested by the evidence, I have inferred this outcome from the past patterns and stated intentions of each of the parents.
In assessing the husband’s s.75(2) factors I also take into account the support, including accommodation, the husband has received from his mother to date. For the reasons set out below, I do not, however take into account any potential support or financial assistance provided to him by Ms M. While the evidence already indicates that the husband and Ms M had enjoyed a relationship for some time there is no evidence of their financial intermingling nor of the financial position of Ms M. In any event, the husband and Ms M were not cohabitating notwithstanding that they have spent short periods of time together including a period of a couple of months at the [H] Apartments in mid 2006.
The wife sought an adjustment in her favour because of:
a)The need to provide accommodation for herself and the two relatively young children of the marriage;
b)Her limited capacity to earn an income, demonstrated by the disruption to her full-time work by the birth of the children and the low rates of pay received by her for the relatively low skilled work she undertook during the marriage;
c)The greater income earning capacity of the husband and, with that, an ability to obtain accommodation and provide for his needs and, to a lesser extent that the wife, those of the children; and
d)The likelihood that the financial assistance the husband had received from his mother would be ongoing.
I accept the wife’s assertions in relation to the above four matters although I have formed the view that other factors also are to be taken into account. The first of these factors relied upon by the wife are demonstrated by the evidence and are, in substance non-contentious.
As to the likelihood of ongoing support of the husband by his mother, I find that both parties have enjoyed financial, as well as other support from their parents, principally the husband’s mother and the wife’s father.
In assessing the wife’s s.75(2) factors I have taken into account two further matters including the nature of ongoing support provided to her by her father and her inheritance from her grandfather
The wife enjoys access to a Visa card which she utilizes for her own expenses and those of the children. This expenditure is not limited to necessities. The Visa card is paid for and supplied by the wife’s father. He meets ongoing expenses for the wife, and is meeting her legal costs. Neither the wife nor her father have kept any detailed accounting of the assistance from her father.
I do not, however, accept that this support will amount, as the husband asks me to accept, to a payment of monies owing in respect of the [R] property such that the wife could retain it at the conclusion of these proceedings. There is no evidence to support the inference that such an expansion of support is likely. The wife’s own father expressly rejected this proposition.
The remaining relevant issue to take into account in the assessment of any adjustment in favour of the wife is her entitlement under the will of her late grandfather.
Because of the findings I have made as to the nature of the wife’s continuing entitlement as a beneficiary under her grandfather’s will, it follows that the wife will be entitled to take her own half interest when she or her sister first attains 40 years of age. This will happen in the next few years, exigencies of life permitting. It is not possible for me to determine what the quantum of the wife’s interest will be.
It is appropriate for me to consider this entitlement as a financial resource rather than otherwise include it as an asset to be considered in the context of ss.79(4)(a) – (c). This approach is proposed by the husband and, as an alternative to my excluding the entitlement altogether, by the wife. This also allows some accommodation for the lack of evidence as to the value of the estate, delays in monies being received and other exigencies which may, with a prospective entitlement occur.
The original properties have been sold and no tracing exercise has been undertaken such that I can now put a likely value on the wife’s perspective inheritance. But I do not accept that the calculations proposed by the husband provide an alternative means by which value can be ascertained, even approximately. The proper approach will be a tracing exercise particularly as it may be that all profit from the sale of the properties will have to be disgorged.
However, even the value of one half of the two properties at the time of the probate is, relative to the asset pool in this case, a significant sum.
Accordingly, I conclude that the wife’s future needs, as set out by her, can be met in the not too far future from her entitlements and that, from that time, her financial resources will be greater, perhaps considerably greater than those of the husband.
However, she has present needs including the provision of accommodation for herself and the children. Further, she only works part-time for a relatively low wage. This is unlikely to change in the immediate future.
Accordingly, I find that the imbalance between the parties on an assessment of the s.75(2) factors which would absent the wife’s inheritance, clearly favours the wife, is more finely balanced when I take into account the likelihood that the wife will, in a few years, receive her inheritance.

Spousal maintenance

The wife has foreshadowed that she may bring an application for spousal maintenance after she has had the opportunity to consider the outcome of these proceedings.
I have not taken into account this potential application in reaching this assessment of the wife’s s.75(2) factors, nor have I determined this application. This is in reliance on counsel’s written submissions to the effect that the wife will not determine whether she will proceed with the spousal application or not.

Accordingly I will not deal with the wife’s spousal maintenance application unless either party seeks to have that application re-listed.

Conclusion

It is clear from the evidence that the parties were experiencing periods of conflict and unhappiness in the later part of their marriage. Yet there is no evidence to suggest this significantly flavoured the earlier part of their time together. It is my assessment of the evidence that the parties co-operated for their mutual benefit and that of the children until the last few years of their marriage and that until then they each worked in their respective ways towards their joint goals.
I have identified the net pool of assets as being $397,013.00. The detail of the assets and liabilities which make up the pool is as set out in paragraph 84.
The husband has made financial contributions to the parties’ assets which are superior to those of the wife particularly when I have regard to those monies largely attributable to his family’s gifts and those inheritances received by him.
The wife clearly made a superior contribution as home-maker and parent and that contribution well exceeded that of the husband. She also made, in my assessment, a superior contribution of a non-financial kind to the conservation and improvement of the parties’ assets, namely the [R] property. I have found that the husband’s relevant contributions (other than financial) do not equate to those of the wife. However, I do not accept the wife’s contentions as to the relative extent of her contributions in these two areas. I do not find the husband’s contributions were as limited as the wife contends, particularly when I have regard to those concessions as to his involvement with the children which she made under cross examination albeit (in my assessment) reluctantly.
Accordingly, I do not find, as the wife asks me to, that her contributions overall, are superior to those of the husband.
Having examined the respective contributions of each of the parties I assess the overall contribution as 55% in favour of the husband. In coming to this assessment I have accepted the parties’ approach as to the treatment of the wife’s interest in the late grandfather’s estate. The husband has clearly made no contribution to that interest and he does not allege that he has done so. Accordingly, I have not included this interest in my determination of the parties’ respective contributions.
Accordingly I make a further adjustment pursuant to s.75(2) of 7% in the wife’s favour.
The wife asks that she have the opportunity to remain in the former matrimonial home. In the event that she cannot payout its encumbrances within a period of 42 days she is then prepared to have the property sold.
There is no evidence to suggest how the wife would be able to take over the loans secured on the home. However there is no evidence to suggest she cannot.
As the wife has the care of the parties’ two children and as the children have lived in the [R] property for much of their lives, it is my view that it is just and equitable to allow the wife a brief period in which to attend to refinancing of the property. In the event she cannot, the Orders I propose to make will then require sale of the property.
While the agreed value of the [R] home is $800,000.00 each of the parties proposes a figure as the listing price in the event the home is to be sold. The wife proposes $900,000.00 and the husband $1,000,000.00. There is no evidence to assist. As the agreed value is lower than either figure, it is appropriate in my view to include the lower sum in the sale Orders.

I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Housego FM

Associate: K Abbiss

Date: 3 April 2008