COWDEN & COWDEN

[2019] FamCA 307

FAMILY COURT OF AUSTRALIA

COWDEN & COWDEN [2019] FamCA 307

FAMILY LAW – PROPERTY – Interim distribution – Where the wife seeks orders for interim distribution of property – Where the wife seeks valuation of the parties’ property – Where the parties cannot agree a value – Orders.

FAMILY LAW – SPOUSAL MAINTENANCE – Factors considered – Orders. 

Brown & Brown (2007) FLC 93-316
Hall & Hall (2016) 257 CLR 490
Maroney & Maroney [2009] FamCAFC 45
Medlow & Medlow (2016) FLC 93-692
Stanford v Stanford (2012) 247 CLR 108
Strahan v Strahan (Interim property orders) (2011) FLC 93-466

APPLICANT: Ms Cowden

RESPONDENT: Mr Cowden

FILE NUMBER: ADC 5296 of 2017

DATE DELIVERED: 15 May 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 18 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Howe Jenkin

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

Orders

1. That within twenty one (21) days of this order the husband do pay to the wife or cause to be paid to the wife the sum of EIGHTY THOUSAND DOLLARS ($80,000).

2. That the husband do all things necessary and provide all such instruction as may be required to enable the accountant for the parties to finalise the 2018 financial statements for each of the parties and the entities that comprise the Cowden Group by 31 May 2019.

3. That the husband and wife as Trustees of the Cowden Superannuation Fund do forthwith cause the property situate at B Road, Suburb O in the State of South Australia (“the B Road property”) to be placed on the market for sale by public auction or private treaty, upon such terms and conditions as the parties may agree and in the absence of agreement and in any event a Sales Agency Agreement being entered into by the parties on or before 31 May 2019 upon such terms and conditions as the Court may determine upon application of either party.

4. That the husband do pay to the wife interim spousal maintenance in the sum of ONE THOUSAND ONE HUNDRED DOLLARS ($1,100) per week, with the first payment to be made on Monday 20 May 2019 and each week thereafter with such payment to be paid into an account as may be nominated by the wife PROVIDED that this order shall be discharged upon the wife receiving a payout of her member entitlement from the Cowden Superannuation Fund NOTING that the wife shall make such an election on or before the sale and settlement of the B Road property.

5. That a valuer (other than Mr C) from D Valuers or such other valuer as the parties may agree be jointly instructed on or before 31 May 2019 to value the properties as set out in paragraph 16 and 17 of the wife’s Amended Application in a Case filed 12 April 2019, both individually and in respect of the properties set out in paragraph 17 of the said application as a “block”.

6. That on or before 31 May 2019 the parties do all such things to jointly appoint a valuer based in New South Wales to value the properties located at G Street, Town F and E Street, Sydney.

7. That the parties do jointly appoint a single expert accountant to value the business owned by H Pty Ltd as Trustee for the Cowden Family Trust No. 1 trading as Company K and Company J.

8. That the husband do pay the costs of all valuations in the first instance, with the wife to reimburse the husband for her half share of the costs in the final settlement of the matter PROVIDED that the wife will do all such things as may be required and sign all documents necessary to enable the husband to obtain finance secured over any real property of the parties or otherwise to pay the valuation disbursement costs.

9. That within twenty eight (28) days of this order the husband do cause to be forwarded to each of the parties adult children a copy of the following:-

   (a)       The wife’s Initiating Application filed 22 December 2017;

   (b)       The husband’s Affidavit filed 27 March 2019; and

   (c)       The wife's responding Affidavit filed 12 April 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cowden & Cowden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5296 of 2017

Ms Cowden

Applicant

And

Mr Cowden

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Initiating Application filed 22 December 2017, Ms Cowden (“the wife”) seeks final orders that in full and final settlement of property the assets represented by the legal and equitable interests of the parties be divided equally, that a superannuation splitting order be made so as to equalise the parties’ entitlement to superannuation.

2. By Response filed 14 March 2018 Mr Cowden (“the husband”) concedes that a superannuation splitting order should be made so as to equalise the parties’ entitlement to superannuation and that the legal and equitable interests of the parties be divided between them “in such proportion as this Honourable Court deems just and equitable”.

3. The parties have not been able to resolve property settlement and the contention appears to focus on their inability to agree the property that comprises the pool of assets available and the value of real property.

4. By Amended Application in a Case filed 12 April 2019, the wife seeks:-

   (1)An order for lump sum spousal maintenance in the sum of $50,000 or such other amount as may be determined by the Court.

   (2)In the alternative to a lump sum order of spousal maintenance, urgent periodic spousal maintenance in the sum of $1,100 per week.

   (3)The sum of $50,000 by way of partial property settlement.

   (4)The sum of $25,000 on account of the wife’s legal expenses pursuant to s 117(2) of the Family Law Act 1975 (Cth) (“the Act”).

   (5)That in the alternative to the sum sought on account of the wife’s legal expenses, the husband be subject to a “dollar for dollar” order in terms of money paid for legal services rendered by his solicitors.

   (6)That in default of payment of the lump sum payments as specified, then the former matrimonial home located at M Street, Suburb N (“M Street”) be sold.

   (7)That the husband and wife do all things necessary and sign such documents as may be required to enable the wife to access her superannuation pension from cash available in the Cowden Superannuation Fund.

   (8)That the husband provide full and frank disclosure of all documents in his possession and control.

   (9)That the husband provide to the accountant for the parties and the Cowden Group of Entities the necessary information to enable the 2018 financial statements to be completed.

   (10)That D Valuers Real Estate Valuers value the following properties:-

   (a)1 M Street, Suburb N;

   (b)2B L Street, Suburb N;

   (c)2C L Street, Suburb N;

   (d)Units 1, 2, 3 at 1 L Street, Suburb N;

   (e)Unit 1, 2 L Street, Suburb N;

   (f)Unit 2, 2 L Street, Suburb N;

   (g)Unit 3, 2 L Street, Suburb N;

   (h)Unit 4, 2 L Street, Suburb N; and

   (i)2 M Street, Suburb N;

   and that the valuation be conducted both individually as to each of the said properties and collectively as a contiguous group of properties forming a block of land.

   (11)That the parties appoint a valuer to value properties situated at G Street, Suburb F and E Street, Sydney;

   (12)That the parties appoint a single expert to value the husband’s interest in the business owned by H Pty Ltd as Trustee for the Cowden Family Trust No. 1 trading as Company K and Company J;

   (13)That the husband pay the costs of the valuations in the first instance.

5. By his Response filed 27 March 2019 the husband opposes the orders sought by the wife, but his counter proposal is that he pay to the wife the sum of $50,000 by way of partial order for settlement of property and that it “be credited against any amount payable by the husband upon determination of the parties’ respective claims for final orders for settlement of property”.

6. At the interim hearing, the husband’s counsel conceded that whilst not particularised, given that the parties were married for 41 years, the property of the parties including their superannuation interests should be adjusted to equality.

7. The wife does not seek to retain any of the properties as part of her final settlement and seeks only a cash amount. At this stage, subject to the agreement of the parties in their capacity as Trustees of the Cowden Superannuation Fund to sell the B Road property, the husband seeks to retain all of the other properties.

Background

1. The wife is 65 years of age and the husband is nearly 66 years of age.

2. The parties were married in 1975 and separated in 2016. There are three adult children namely, Mr P, Ms R and Ms Q. Prior to separation the parties lived in the former matrimonial home at M Street. Following separation the wife initially lived with Ms R, but now resides in rental accommodation.

3. The husband is craftsman and the parties operated a business under the title of H Pty Ltd. Following separation the husband continues to operate the business, whereas the wife does not engage in employment.

4. It is not controversial that the husband has effective control of the assets of the parties. Following separation the wife drew down the sum of $75,000 from an overdraft account and had a modest superannuation interest with Super Fund 1.

5. Those monies have now largely been expended. As at February 2019 the wife asserts that she holds less than $10,000 in cash and no income.

6. Monies were available to each of the parties via their interest in their self-managed superannuation fund and from the accumulated pension component each party received $23,000 in October 2018. By reference to her Affidavit of 15 February 2019, the wife asserts that her financial resources are now exhausted and that she has significant expenses including a substantial sum outstanding to her solicitors.

7. It seems that in response to the wife accessing the overdraft account, the husband withdrew $100,000 on 14 March 2018 with further amounts to follow.

8. The monies were transferred to an “Account” under the husband’s control. The husband acknowledges the transaction as alleged by the wife as being necessary to ensure that the wife would not be able to access funds other than with the husband’s consent.

9. In his affidavit filed 27 March 2019, the husband revises his assessment of the total property in the following terms:-

Personal property	$3,466,000
Trust property (net of liability)	$2,709,805
Superannuation	$2,772,678
Bank accounts (net of S Equity Account)	$72,437

1. The total of the property of the parties according to the husband is $6,582,100.

2. The assets of the parties are substantial, but the wife does not agree that the assets as particularised by the husband are comprehensive of the entirety of the property of the parties, nor does she concede the values attributed to each of the items of real estate or the husband’s interest in the business.

3. A significant point of contention is the property that the husband contends is on trust for their son Mr P comprising property at L Street and E Street, Sydney, both of a net value of $1,063,957. He has historically asserted that the property held by various trusts are held beneficially for each of the children.

Mr P’s trust

1. The husband considers that he and the wife agreed that certain property would be purchased for the benefit of their children. Although none of the property was registered in the names of the children, the husband states that the parties informed the children of their intention to hold on trust certain properties for each of them.

2. The only properties that appear now to be held on trust for any of the children are those that the husband says are held for Mr P.

3. The wife does not accept that any properties are held on trust for any of the children.

4. Notwithstanding that the proceedings commenced in December 2017, none of the children have sought to intervene in the proceedings and neither party has served their children with the substantive application, response and various affidavits of the parties.

5. I propose to order that within 28 days the husband should forward to the children a copy of the wife’s Initiating Application, the husband’s Affidavit filed 27 March 2019 and the wife’s responding Affidavit filed 12 April 2019.

Superannuation fund

1. The parties are the trustees and only members of the Cowden Superannuation Fund (“the Fund”). The Fund owns property at M Street, Suburb N valued by the husband at $1.3 million and B Road, Suburb O valued at $1.45 million.

2. There is rental income which accumulates as a cash component in the fund and available for distribution to the parties by way of a pension entitlement.

3. The wife has been seeking her current pension entitlement distribution but to date it has not been forthcoming.

4. The wife asserts that the husband has deliberately delayed in giving proper instruction to the parties’ accountant to prepare the 2018 financial statements for all of the Cowden Group of Entities including the Fund. The husband denies that he has been recalcitrant and instructed his counsel to advise the Court that the accountant is now in the final stage of preparing the 2018 financials and they will be distributed in May 2019.

5. Whilst the wife does not resile from her contention that the husband has been reluctant to make full and frank disclosure of documents that would enable the wife to understand the entire financial position of the parties, it is accepted that the 2018 financial statements will soon be finalised and at present the wife does not seek the extensive orders for discovery and production of financial records.

6. The husband now offers the wife $40,000 from his “Pension Account”. I am uncertain whether the husband’s proposal is in addition to, or includes the wife’s pension entitlement from the super fund.

7. Of greater moment however is the husband’s concession that he will do all things necessary to enable the property at B Road, Suburb O to be sold.

8. The 2017 financial statements for the super fund were not provided to the Court but by reference to the value of the wife’s member entitlement as disclosed in her Financial Statement filed 15 February 2019, her member balance as at 2017 stood at $1,142,671.

9. By reference to the husband’s Financial Statement filed 14 March 2018, his interest in the fund was represented by the self-managed fund component of $1,029,142 and the accumulation interest of $128,877.

10. Given the current position of the husband is to retain the Suburb N properties as a block, it is reasonable to assume that most of the anticipated net proceeds of sale of the B Road property would be payable to the wife as part of her member entitlement.

11. It is noted that the parties concede each of them have satisfied a condition of release and are entitled to receive a payout of their separate member’s balance.

12. The wife accepts that upon the sale and settlement of the B Road property a payout of her member entitlement is likely to be sufficient for her financial needs pending final determination of the proceedings.

13. I will make orders that provide for the parties to do all things necessary to cause the property held at B Road, Suburb O to be placed on the market for sale.

Partial settlement of property

1. There are essentially two stages to the consideration of an application for interim property orders:-

   i)The first stage is a “procedural step” which requires an analysis of whether the circumstances of the case triggers the Court’s power to invoke s 80(1)(h) to make an order for interim property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice;

   ii)The second stage is the “substantive step” where the provisions of s 79 must be considered and applied but with limitations, given that it is not a final hearing.[1]

   [1]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.

2. In Medlow & Medlow (2016) FLC 93-692 at 81,088 [69] the Full Court confirmed that the starting point in respect of any property application, including an application for interim property orders is “the identification of the parties’ property and of their interests in it”.

3. In circumstances where a party seeks interim property orders, the Full Court said at 81,090:-

   [86]The onus was clearly upon [the applicant] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent’s] property claim. The onus was not on [the respondent] to adduce such evidence.

4. The very nature of an interim hearing is such that the Court is not in a position to properly evaluate the evidence and accordingly, the Court should take a conservative approach, including in respect to determining whether there is likely to be sufficient resources of the parties available at final hearing to accommodate any “adjustment issues”.

5. In terms of the second consideration in respect of an application for interim property orders in Stanford v Stanford (2012) 247 CLR 108 at 112 [2] the High Court stated:-

   Under s 79(2) of the [Family Law Act], a court shall not make a property settlement order unless satisfied that it is “just and equitable” to do so.

6. As the Full Court said in Medlow & Medlow at 81,089 [72], in the context of considering an appeal concerning interim property orders:-

   This is not [to] be determined “by beginning from the assumption that one or other party has the right to have the parties’ property divided between them” (Stanford at [40]).

7. In evaluating the competing contentions, it is necessary to have regard to the fact that, in Family Law proceedings, one party may have the predominance of resources.

8. Whilst the majority of cases in which interim property orders have been made relate to applications to obtain funds to conduct the litigation, that is by no means the only instance where such an order has been made. Other instances include:-

   i)Situations where a party may need access to resources “to meet debts which may result in the party being pursued by creditors”. (See Strahan v Strahan (Interim property orders) (2011) FLC 93-466 at 85,643, or

   ii)The need for the parties to make payments to the benefit of children;

   iii)To take advantage of other financial opportunities; or

   iv)Where the parties consent; or

   v)Where there are urgent situations

9. Such as:-

   i)Where it is necessary to exercise its power if injustice is to be avoided. Examples include cases where it is necessary to do so to avoid an asset being eroded or lost in the intervening period; and

   ii)Cases (beyond the maintenance power) where an order in favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of children.

10. The parties by their legal and equitable interests hold substantial property. There is broad agreement that subject to a determination of the property that is available for distribution, the wife’s entitlement is significantly in excess of the sum that she seeks.

11. Whilst the wife frames part of the orders as an application for litigation funding, in reality the sum sought is not for future fees calculated to a particular court event or the conclusion of the proceedings, but rather to pay amounts outstanding to her solicitor in the sum of $34,000 as at 12 April 2019.

1. Accordingly, the amount proffered by the husband is likely to be consumed by her legal fees. The wife’s financial position is unlikely to improve until she receives her member entitlement from the super fund. Given that a payout is dependent upon the sale of the B Road property and in circumstances where the sale process has not commenced, it is reasonable to assume that any payout of the wife’s member entitlement is likely to be delayed by a number of months.

2. The wife will inevitably incur further legal fees given that she does not accept the husband’s estimate of value of the property of the parties.

3. In addition to her fixed and discretionary expenditure she has other anticipated upcoming lump sum expenses.

4. In an asset pool likely to exceed $7 million in value there would not appear to be any risk of the wife receiving more than her reasonable entitlement if she receives a modest sum in addition to the husband’s proposal.

5. Noting the husband’s proposal that the wife receive $40,000 payable from “the Pension Account”, I propose to order that the husband cause to be paid to the wife the further sum of $40,000.

6. By reference to the husband’s affidavit, I do not consider that there is any impediment to the husband accessing the resources of the parties necessary to give effect to the proposed order.

7. The husband is able to access the accumulation component of the super fund and any surplus funds that remain in the “pension account”. The husband refers to 32 accounts, some of which contain substantial funds. It is unlikely that the husband would need to draw down on various loan facilities secured by particular properties, but even if that was necessary it would not represent a significant impediment.

Urgent spousal maintenance

1. The wife seeks urgent spousal maintenance in the sum of $1,100 per week. She relies upon her Financial Statement filed 15 February 2019.

2. It is conceded that other than income (taxable or otherwise) that may be allocated from the wife’s entitlement in the super fund, she has personal expenditure totalling $1,097. Her fixed personal expenditure is as set out in Part G and is predominantly comprised of her rental commitment of $460 per week, rates and unit levies of $77 per week and her health insurance of $46 per week. In addition, she has discretionary expenditure of $486 per week.

3. It is faintly suggested by the husband that the wife’s discretionary expenditure is inflated. Even the most cursory consideration of the expenditure items in Part N would suggest that they are modest and are not dissimilar in nature or amount to those claimed by the husband in his financial statement.

4. In the decision of Hall & Hall (2016) 257 CLR 490 the High Court set out the appropriate approach in considering an application for interim spousal maintenance as follows:-

   3.…The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, the other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”.

   4.The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that “[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”.

   5.A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “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”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.

   ….

   8.Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “the evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding not set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).

   (Footnotes omitted)

5. The evidentiary burden rests with the applicant seeking orders for spousal maintenance.

6. The issues to be determined in these proceedings are therefore:-

   (1)What are the wife’s reasonable needs?

   (2)What capacity does the husband have to meet a spousal maintenance order, if such an order was to be made?

   (3)If (1) and (2) favour an order for spousal maintenance being made by the Court, what order is reasonable having regard to s 75(2) of the Act?

7. In Brown & Brown (2007) FLC 93-316 at 81,455 – 81,456 [161] the Full Court summarised the principles to be applied as follows:-

   (i)The word “adequately” is not to be determined according to any fixed or absolute standard.

   (ii)The idea that “adequate” means a subsistence level has been firmly rejected.

   (iii)Where possible both spouses should continue to live after separation at a level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.

   (iv)In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.

   (v)It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.

   (vi)However, an applicant is not entitled to live at level of considerable luxury or comfort merely because the other party is very wealthy.

8. In an application for spousal maintenance trust assets may be a financial resource for the purposes of satisfying a spousal maintenance order where a party has the “capacity to control and deal with trust property and to borrow from it”.

9. In determining the reasonable ability of a party to satisfy an order for interim spousal maintenance the Court is not confined to considering only that parties’ income, but rather:-

   Once a party…establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.[2]

   [2]Maroney & Maroney [2009] FamCAFC 45 [56].

10. The wife has no effective income and the orders that I propose to make by way of interim property settlement are unlikely to assist the wife given that the money will be consumed by outstanding and future legal fees together with outstanding and anticipated personal expenditure.

11. Taking into account the age of the wife and her history of assisting the husband in the management of the properties held jointly by the parties and by entities comprising the Cowden Group, it is reasonable to assume that she has no reasonable prospect of gainful employment.

12. It is likely that the parties lived frugally during their long marriage, but that consideration does not necessarily determine the level at which the wife is entitled to live. She should not live at subsistence level, but rather be permitted to enjoy a reasonable, but not excessive, standard of living.

13. The wife’s expenses cannot be seriously considered as excessive. She resides in rental accommodation in circumstances where the husband continues to live in the former matrimonial home and controls assets and property in excess of $7 million.

14. The amount sought by the wife is reasonable having regard to s 75(2) factors.

15. The husband continues to receive a modest income from his operation of the business. The husband places a value on the business of $118,000, but no detail is advanced as to whether the valuation is based upon an asset backing methodology or a consideration of future maintainable earnings.

16. The wife does not accept the husband’s valuation, nor his assertion as to the modest income that he derives from the business.

17. Given the extensive financial resources available to the husband, it is a matter for him as to whether he pays the wife spousal maintenance from his own income or by borrowing money against his interest in any of the properties.

18. The wife seeks urgent spousal maintenance and whilst the threshold test is necessarily lower in circumstances where the payments are to be considered as a stop-gap measure and payable for a limited period of time, I am nonetheless satisfied that an appropriate order should be made on the balance of probabilities. The wife has established that she is not able to adequately support herself, that the amount she seeks is reasonable in the circumstances of the case and that the financial resources available to the husband are easily able to satisfy the order.

19. It is conceded by the wife that once she is able to access her superannuation member entitlement there will be no need for an order for spousal maintenance. I propose to limit the husband’s obligation to pay spousal maintenance to coincide with the payment to the wife of her member entitlement.

Valuation of properties

1. The parties have had some of the properties valued by Mr C of D Valuers. The wife seeks that there be an update valuation. Without determining whether there has been resistance by the husband to the wife’s proposal, his position is now to concede that the properties will need to be valued, but he appears to have lost confidence in Mr C.

2. The extent of the property portfolio of the parties will likely incur significant valuation costs. The wife does not have the resources to contribute. The husband is able to access the property of the parties and accordingly I propose to order that the husband pay the costs of valuations at first instance.

3. There is significant contention between the parties as to the value of the properties held jointly and by the Cowden Group of Entities. Given that there is now agreement that once the pool of property has been identified it should be divided equally between them, it may well assist in a timely settlement if the parties are satisfied with the valuations.

4. I propose to order that the parties jointly instruct a valuer (but not Mr C) from D Valuers or such other valuer as the parties may agree providing that instruction is given to undertake the valuation process within 28 days of the order.

Valuation of the business

1. The parties are not agreed as to the value of the business owned by H Pty Ltd.

2. The husband places a value of $118,000 on the business (but not necessarily his interest), however the figure is not agreed.

3. It is necessary therefore that the business be the subject of valuation and I consider that a single expert valuer should be appointed jointly by the parties.

4. Again, and until the wife receives her member entitlement, she does not have the funds available to contribute towards the cost of the valuation exercise.

5. It is reasonable that the husband access funds from the property of the parties to pay for the cost of the valuation of the business at first instance.

Conclusion

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 15 May 2019.

Associate:

Date: 15 May 2019