Devlin and Mistry and Anor

[2016] FCCA 1616

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVLIN & MISTRY & ANOR [2016] FCCA 1616

Catchwords:
FAMILY LAW – Property settlement – two children – orders altering property interests – costs.

Legislation:

Family Law Act 1975, ss.75(2), 79, 79(2)(a) 79(2)(b), 79(2)(c), 79(4)(a), 79(4)(b), 79(4)(c), 79(4)(d), 79(4)(e), 79(4)(f), 117(2), 117(2)(a)

Cases cited:

Stanford v Stanford (2012) 87 ALJR 74

Jewel v Jewel [2013] FCWA 81

Applicant: MR DEVLIN

First Respondent: MS MISTRY

Second Respondent: MR WISEMAN

File Number: MLC 7748 of 2015

Judgment of: Judge McNab

Hearing date: 17 June 2016

Date of Last Submission: 17 June 2016

Delivered at: Melbourne

Delivered on: 20 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Fisken

Solicitors for the Applicant: Logie Smith Lanyon

Counsel for the First Respondent: Mr Scriva

Solicitors for the First Respondent:	Boyle Telfer & Kooblal Solicitors
The Second Respondent in Person

ORDERS

IT IS DECLARED THAT:

1. Pursuant to section 78 of the Family Law Act (Cth) that the real property situate at and known as Property H in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the (omitted) property”) is owned by the parties as follows:

   (a)The husband owns a one third interest

   (b)The wife owns a one third interest

   (c)The second named respondent owns a one third interest.

IT IS ORDERED THAT:

1. Within 60 days of the date of these Orders each party shall do all things and execute all documents necessary to cause the (omitted) property to be sold by private treaty at the earliest possible date and on the following terms and conditions:

   (a)The real estate agent appointed to act in respect of the sale shall be Mr P of (omitted) Real Estate of (omitted), unless otherwise agreed;

   (b)The conveyancing solicitor in respect of the sale shall be the wife’s lawyers, Kooblal Lawyers, unless otherwise agreed;

   (c)The reserve price for the sale of the (omitted) property shall be $380,000 unless otherwise agreed in consultation with the agent;

   (d)The property shall be listed for sale by public auction to take place on or before 12 November 2016 unless otherwise agreed; and

   (e)In the event that the property is not sold by public auction, then it shall be listed for sale by private treaty for a further period to be agreed and at an agreed listing price, and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee.

2. For the purposes of Order 2 above, the Real Estate Agent to act in respect of the sale shall be as agreed by the parties and, failing agreement within seven (7) days of the date of these Orders, then shall be a Real Estate Agent appointed by the President of the Real Estate Institute of Victoria or his/her nominee.

3. For the purposes of Order 2 above, the Solicitor to act in respect of the sale shall be as agreed by the parties and failing agreement within seven (7) days of the date of these Orders, then a Solicitor shall be appointed by the President of the Law Society of Victoria or his/her nominee.

4. That, for the purposes of Order 2 above, the listing price and sale price for the property shall be as agreed between the parties and failing agreement within seven (7) days of the date of these Orders, then the sale price shall be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and the listing price shall be in accordance with the recommendation by the real estate agent acting on the sale.

5. In the event there is not an exchanged sale still on foot of the property by private treaty pursuant to the above order within 60 days of these orders, then the parties shall forthwith do all things necessary to cause the property to be sold by public auction at the earliest possible date at a price to be agreed upon between the parties or nominated by the President of the Victorian Division of the Australian Property Institute or his/her nominee at a reserved price agreed upon between the parties and failing agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and on completion of sale the proceeds of sale shall be disbursed as provided for in order 2 above save that the parties shall, prior to distribution of proceeds to them personally equally pay and bear as and when they fall due all costs associated with the auction process.

6. In the event the property is not sold by public auction in accordance with order 6 within 90 days from the date of these orders, then the parties shall do all things forthwith to resubmit the property for sale by private treaty at the earliest possible date at a price to be agreed between the parties and failing such agreement to be determined by the President of the Victorian Division of the Australian Property Institute or his/her nominee and that the proceeds of sale be disbursed in accordance with order 2 above.

7. The proceeds of sale of the Property H property be divided as follows:

   (a)To pay the costs, commissions and expenses of the sale;

   (b)To discharge any mortgage or encumbrance registered against the title to the property;

   (c)Subject to paragraph 9 hereof, the amount of $15000 to be held on trust by the husband’s solicitor and applied to pay any CGT liability arising from the sale of the Property H property;

   (d)To reimburse the parties for any agreed costs of preparing the Property H property for sale upon the production of receipts verifying same;

   (e)To pay to the second respondent 1/3 of the balance thereafter remaining minus the sum of $9,500;

   (f)The balance thereafter remaining to be divided between the parties so as to achieve a 70%/30% split of the net non-superannuation assets taking into account paragraphs 10 to 13 hereof.

8. The parties forthwith jointly engage an accountant to calculate the CGT payable from the sale of the Property H property and the funds held pursuant to paragraph 3.3 hereof be applied to the payment of any CGT liability arising in any party’s name and any balance thereafter remaining be divided as to 1/3 to the second respondent and the balance thereafter to be divided as to 70% to the wife and 30% to the husband.

9. The wife retain to the exclusion of the husband:

   (a)$104,436.50 paid to the wife at settlement of sale of the former matrimonial home;

   (b)The sum of $38,063 paid to the wife on 12 January 2016;

   (c)The Subaru motor vehicle deemed to have a value of $8,000; and

   (d)The (omitted) shares deemed to have a value of $7,476.

10. The husband retain to the exclusion of the wife the sum of $49,310 being the moneys retained by him from the proceeds of sale of the former matrimonial home.

11. The husband be solely liable for and indemnify the wife with respect to his (country omitted) Student loan deemed to have a balance of $39,000.

12. The husband forthwith transfer the Subaru motor vehicle to the wife at her expense.

13. Other than as is specifically provided for in these orders, each party is solely responsible for any personal debts they may have incurred or will incur, including personal loans and credit card debts and each party will assume all liability for and indemnify the other in relation thereto.

14. Paragraphs 16 to 20 (inclusive) of these orders are binding on the Trustee of the (omitted) Superannuation Plan (“the Fund”).

15. The base amount of $38,414 be allocated to the wife out of the interest in the husband’s fund member number (omitted).

16. Pursuant to paragraphs 90MT(1)(a) of the Family Law Act 1975 where a splittable payment becomes payable in respect of the interest of the husband in the Fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) using the base amount allocated in order 16 and there shall be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.

17. Order 16 has effect from the operative time.

18. The operative time for the purposes of paragraph 16 of these orders is four business days after the date of service of these orders upon the Trustee of the Fund.

19. Until such time as the superannuation split to the wife pursuant to these orders can be rolled over into a separate account to the wife:

    (a)the husband provide to the wife no less than twenty-eight (28) days’ notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Fund;

    (b)the husband direct and authorise the Trustee of the Fund to communicate with the wife and/or any person authorised by her in writing;

    (i)to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlements in the Fund; and

    (ii)to provide the wife and/or her authorised representative with a copy of any notice of any application or request by the husband which seeks release of entitlements in the Fund in so far as that release may affect the wife’s entitlements in the Fund pursuant to these orders.

    (c)the husband by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife or her legal representative in accordance with section 90MZC of the Family Law Act 1975 from receiving the benefits in the Fund to which she is entitled pursuant to these orders.

20. In the event that the superannuation split to the wife pursuant to these orders can be rolled over into a separate account to the wife, each of the parties do all such acts and things and execute all such documents as may be necessary to facilitate and to implement the rollover.

21. Unless specified in these orders and save for the purpose of enforcing the payment of monies due under these or any subsequent orders:

    (a)Each party be solely entitled to the exclusion of the other to all real property and personal property (including choses-in-action) in the possession of such party as at the date of these orders;

    (b)Money standing to the credit of the parties in any joint bank account is to be divided equally between the parties and the account closed;

    (c)Each party forgoes any claim they may have and any interest in any superannuation benefits or work related benefits or entitlements belonging to or earned by the other;

    (d)Insurance policies remain the sole property of the beneficiary named therein;

    (e)Each party be solely liable for and indemnify the other against any liability encumbering any item or property to which that party is entitled pursuant to these orders; and

    (f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

22. The first respondent pay the second respondent’s costs fixed in the sum of $2,048.

23. The applicant and the first respondent have liberty to apply to make submissions in relation to costs with such submissions to be in writing and filed with the Court within 14 days of the date of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7748 of 2015

MR DEVLIN

Applicant

And

MS MISTRY

Respondent

And

MR WISEMAN

Second Respondent

REASONS FOR JUDGMENT

Background

1. These proceedings concern an application for final orders in relation to the property of the marriage pursuant to s.79 of the Family Law Act 1975 (“the Act”). The husband is 38 years old (born (omitted) 1977) and is employed as an (occupation omitted). The wife is 31 years old (born (omitted) 1985).  She is involved in home duties caring for the parties’ two young children.

2. The parties commenced cohabitation in late 2005 and married on (omitted) 2009. They have two children X born (omitted) 2011(“X”) and Y born (omitted) 2012 (“Y”) (“the children”).

3. The parties separated on 9 June 2014 and the date of divorce was

   
   

   10 November 2015.

4. The initiating application was filed by the husband on 17 August 2015 and it has been the subject of a duty list hearing on 14 October 2015, a Conciliation Conference on 4 March 2015, and an appearance before Judge Williams on 12 May 2016.  The second respondent –MR WISEMAN was joined because his interest in a property at Property H, in Victoria (“the Property H”), is affected by this application.

Documents relied upon

1. The husband relied upon the following documents:

   a)amended initiating application filed 16 June 2016;

   b)affidavit filed 17 August 2015;

   c)affidavit filed 27 May 2016;

   d)affidavit filed 16 June 2016;

   e)updated financial statement filed 16 June 2016; and

   f)Outline of case summary filed 17 June 2016.

2. The wife relied upon the following documents:

   a)response filed 5 November 2015;

   b)affidavit filed 25 September 2015;

   c)financial statement filed 25 September 2015 and

   d)outline of case summary filed 4 May 2016.

3. The second respondent relied upon the following documents:

   a)response filed 5 November 2015; and

   b)affidavit filed 5 November 2015.

Agreed facts

1. In 2007, the parties’ jointly with the second respondent purchased a property the Property H for the sum of $242,500.  The second respondent contributed only $2000 towards the deposit and the husband and the wife paid the balance of $12,000 and $11,000.  The second respondent agrees that a balance of $9,500 is owing towards the contribution to the deposit. The wife and the second respondent were recorded as joint proprietors on the certificate of title of the Property H property, however it is agreed that each of the parties to this proceeding are 1/3 owners of the property.

2. In late 2007 the husband and the wife purchased the former matrimonial home situated at Property I in Victoria (“the matrimonial home”) for $305,000.00. 

3. The matrimonial home was sold on 31 March 2015 and the net proceeds of $208,873.00 was divided equally between the husband and the wife.

4. Currently the wife lives with her parents and the children live with her and spend substantial and significant time with the father.

Distributions

1. The unchallenged evidence of the husband is that since separation, the wife has received distributions in the total sum of $142,499 made up as follows:

   a)$104,436.50 paid to the wife at settlement of the sale of the matrimonial home (representing half of the net proceeds of the former matrimonial home; and

   b)the sum of $38,063 paid to the wife on 12 January 2016 from the husband’s half share of the proceeds of the former matrimonial home.

2. In relation to the distribution of the proceeds of the family home the husband contends that he has received the sum of $49,310 calculated as follows:

   a)$104,436,50 paid to the husband at settlement minus:

   i)the payment of $10,563 to the wife’s parents on 11 May 2015;

   ii)the payment of credit card expenses referrable to the preparation of the former matrimonial home for sale in the amount of $6,500; and

   iii)the payment to the wife of $38,063 on 12 January 2016.

Approach to property proceedings

1. There is a general approach to hearing of property applications that has been established over time by the decisions in this area by the

   
   

   Full Court of the Family Court of Australia. This was refined following the High Court decision of Stanford v Stanford (2012) 87 ALJR 74.

2. I adopt the approach detailed by the Honourable Justice Walters at paragraph 72 of his decision in Jewel v Jewel [2013] FCWA 81 which provides:

   “72. Assuming a step-based approach to the determination of an application brought pursuant to the provisions of FLA s.79 is still appropriate, it is arguable that the effect of the High Court’s decision in Stanford is as follows:

   a) The first “step” in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.

   b) The second “step” involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the court that it is just and equitable to make orders altering the parties’ interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps.

   c) In the third “step”, the court should identify and assess the contributions of the parties within the meaning of

   
   ss79(4)(a)

   , (b) and (c) and determine the contribution based entitlements of the parties.

   d) In the fourth “step”, the court should identify and assess the relevant matters referred to in ss79(4)(d), (e), (f) and (g), including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established as a consequence of the previous step.

   e) Finally, the court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case.”

The Pool

Item	Ownership	Value
Assets
Proceeds of sale of FMH (minus reimbursement of preparation for sale expenses and money paid to wife’s parents) – accepted by the husband’s Counsel in closing submissions	Joint	$191,810
2/3 Interest in Property H (to be sold)   Excluding	1/3 - Husband 1/3 – Wife 1/3 – Second Respondent	$253,000
Subaru (omitted)	Husband	$8,000
(omitted) shares (1400 shares)	Wife	$7,476
Payment owing from second respondent with respect to deposit monies for Property H	Joint	$9,500
Total Assets	$469,786
Liabilities
2/3 liability for (omitted) Bank mortgage secured against Property H	($179,117)
CGT liability arising from sale	2/3 of any CGT payable	Not known
Student Loan ((country omitted))	Husband	($39,000)
Total Liabilities	($218,117)
NET ASSET POOL	$251,669
Superannuation
(omitted) Superannuation	Husband	$104,859
(omitted) Superannuation	Wife	$28,031
TOTAL SUPERANNUATION	$132,890

1. As is apparent, the pool of assets in this case is small.

Issues in dispute

1. At the commencement of the hearing of this proceeding the wife contended that the shares (amounting to $7,976.00) owned by the wife prior to cohabitation should not be included in the pool of assets and the student loan taken out by the husband prior to cohabitation should not be included as a liability in the pool[1].

   [1] See the wife’s case outline document filed 4 May 2016

2. The outline of case filed by the wife contended that the proceeds of sale of the Property H should be divided in equal 1/3 shares to each of the parties (subject to payment of $9,500) by the second respondent to equalise the payment towards the deposit at the time of purchase.

1. The wife had previously sworn an affidavit dated 25 September 2015 that asserted based on the contributions by the parties to the deposit on purchase, Mr Wiseman owned 8% of the Property H and the husband and the wife held 92%.[2]  To remove any doubt, I find that Mr Wiseman is entitled to a one third share in the proceeds of the sale of the Property H property subject to him paying to the husband and the wife the sum of $9500 (less the payment of costs referred to in the orders and to be paid by the wife to Mr Wiseman).

   [2] Paragraphs 9 and 10 of the wife’s affidavit sworn 25 September 2015

2. By the date of hearing, apparently the only issue in dispute was the matters set out in paragraph 18 above relating to the treatment of the shares, the student loan and the issue of whether the car was worth $8000 or $12,200. So much was conceded by Mr Scriva[3] at that time. When the matter was stood down at 10.14am these were the only matters in dispute in relation to the valuation of assets. It is extraordinary and disappointing that a matter such as this could not have been settled at an early date to avoid legal costs to the parties of a hearing in relation to these matters.

   [3] At line 45 (page 6) of the transcript

3. Both the husband and the wife agreed that there should be an equal division of the superannuation benefits.

Valuation of assets

1. In terms of the distribution of the proceeds of the non-superannuation assets, the wife, by her outline of case, contended that they should be distributed 67.5%/32.5% in favour of the wife. The wife sought an equal distribution of superannuation benefits. 

2. By an amended outline of case, the husband contended that the

   
   

   non-superannuation assets should be divided 57.5%/42.5% in favour of the wife and the superannuation assets be dealt with by the husband allocating from his fund the sum of $38,414 to the wife. The husband had previously proposed settlement of the non-superannuation asset pool 60%/40% in favour of the wife.

3. The matter was stood down from 10.14am to 12.08pm.  The matter could not be resolved.  When the matter was called on, the only issues in dispute was a difference in the valuation of a Subaru (omitted)

   
   

   (worth between $8,000 and $12,200 in the competing valuations) dispute, and the inclusion or non-inclusion of the student loan debt and the (omitted) shares.

4. The husband gave evidence proving payment of the sum of $10,563 on 11 May 2015 to the wife’s parents.  He had filed an affidavit deposing that payment was referred as a repayment of part of a loan from the wife’s parents to partly fund the purchase of the matrimonial home.

5. When the hearing commenced at 12.08pm, in opening for the wife, Mr Scriva contended that the non-superannuation assets should be distributed on the basis of 70%/30% in favour of the wife. 

6. In closing submissions, the wife sought a division of non-superannuation assets on the basis of 75%/25%.

Findings in relation to the asset pool

1. At trial, the wife submitted that the sum of $10,563 should not be included as an amount to be taken into account in the value of the pool of assets as the sum was paid gratuitously by the husband in circumstances where he was under no legal obligation to do so. It was submitted that the monies were simply paid out of the husband’s portion of the partial property settlement and that the pool of assets available for distribution should not be reduced by that amount.

2. I find that the husband paid the monies in order to repay what was originally a loan of $35,000 from the wife’s parents which were subsequently treated by the wife’s parents as a gift. He made the repayment on the basis set out in paragraph 10 of his affidavit sworn on 17 August 2015 where he stated:

   As disposed to above, I repaid the wife’s parents $10,563 of the $35,000 they gifted to the wife and me. This payment was calculated by taking into account the wife’s parents contribution of $35,000, less my parents’ contribution of $13,875 which totals to $21,125. Half of this balance is $10,563 being the amount I repaid to the wife’s parents which is the difference in the overall contributions by our respective parents.

3. In my opinion it is appropriate to take that payment into account as a payment reducing the value of the pool of assets. The money was paid by the husband to the wife’s parents and retained by them. He no longer retains those funds. He paid the money as a means of effectively trying to account for the benefit that he and the wife had received whether as a loan or as a gift. It is paid in circumstances where the wife has given evidence by her affidavit of 14 October 2015 that the money provided by her parents was a loan and not a gift and the balance of the loan remained outstanding. Further the money was paid following a demand by the wife that the money be paid to her parents.[4]

   [4] See transcript page 18 – line 25

4. Further I accept the husband’s evidence that the sum of $6,822 was paid by him for expenses with respect to the Property H property and the former matrimonial home. This evidence was not challenged in cross-examination. It was acknowledged that the payment was for the benefit of both parties.

5. In relation to the student loan, I think that it is appropriate to account for that as a liability in the pool of assets. The loan was obtained in order to pay for a tertiary education in (course omitted). The husband gave evidence that this education assisted him in his work (employment omitted). In my view, given the level of the husband’s income and the costs of machinery that he is selling, he would be assisted by the qualifications he has obtained and that this had an impact on the income he has earned in the course of his marriage. The issue whether that liability should be split equally is taken into account by the percentage that I have found to be the appropriate percentage split of assets between the parties.

Just and equitable to make orders

1. Each party has contended that an alteration of property interests is just and equitable and each seek these orders. Having regard to the fact that the parties have separated, and cannot agree on the division of assets themselves, I am persuaded on all of the evidence before me that it is just and equitable to make the orders altering the parties’ interests in the property.

Contributions

1. I accept that both parties came to the relationship with minimal assets. The un-contradicted evidence of the husband is that he has made significant contributions during the marriage to the acquisition and conservation of the property of the parties through his income. The husband was the primary breadwinner to a significant extent.[5]

   [5] See paragraph 15 of his affidavit filed 17 August 2015

2. The wife has been employed through the marriage. However since the birth of the children she has been principally occupied in their care. She has worked part-time and made contributions based on a part-time income or an income at a lesser rate than the husband’s.

Section 79(4)(c)

1. The wife has made significant contributions as the primary carer of the children and is a homemaker. The husband has also assisted in the day-to-day care of the children whilst working full-time. Both the husband and wife agree[6] that the respective contribution should be assessed at 50% – 50%.

   [6] In the wife’s outline of case at page 4 and the husband’s outline of case

Section 75(2)(b)

1. The husband submits in summary that the wife has capacity for work although that capacity is limited because she has full-time care of the children. The husband has a projected income of $94,000 for the year ending 30 June 2013 and his earning capacity will remain superior for the medium term. The wife gave evidence that she would seek to obtain qualifications in and subsequently work in the field of (employment omitted) which may deliver her a better level of income than she has experienced in the past.

Section 75(2)(c)

1. The husband submitted as follows:

   a.  Until February 2016, the children were living with each of the husband and wife on an equal shared care basis.

   b.  This was unilaterally ceased by the wife following the husband successfully making application to the Child Support Agency for a change of assessment.

   c.  Currently, the children live with the wife and spend substantial and significant time with the husband, pursuant to what may be colloquially described as a “9/5 arrangement”.

   d.  On 27 May 2016, the husband issued proceedings in relation to parenting matters.

   e.  The husband is seeking, on a final basis, parenting orders providing for the children to live primarily with him and spend substantial and significant time with the wife.

   f.   There are currently no formal court orders in place.

2. The wife submitted that she presently has limited capacity to earn income as the children are young and in need of her care. There is a need for a reasonable standard of living and she cannot continue to live with her parents. The net asset pool is small and she needs a greater share of that pool to cover her needs.

3. Notwithstanding the extant parenting application, each party contend that this application should proceed. I consider the question of the distribution of property on the basis of the current arrangements.

Child support

1. There is a child-support assessment in place and the husband is currently paying the sum of $915.17 per month in accordance with the administrative assessment. The husband also pays for school uniforms and for private health insurance for the children.

Just & Equitable factors

1. Having regard to the long-term earning capacity of the husband and the limited capacity for remunerative income on the part of the wife over the medium term and also having regard to the limited assets to be dealt with by these orders, I am of the view that the pool of asset should be divided 70% - 30% in favour of the wife. The effect of these orders is as follows:

Pool	$258,868
70% to the wife	$181,207.60
Less: Assets retained by the wife	$8,000	$173,207.60
30% to the husband	$77,600.40

1. The percentage division I have fixed takes into account the submissions made by the wife in relation to the inclusion or non-inclusion of the student loan and the assets owned by the wife at the commencement of the relationship.

Costs

1. In this case, an issue arose in relation to costs incurred by in the second respondent Mr Wiseman in relation to appearing and filing affidavit material. At the final hearing of the matter there was no dispute amongst the parties that subject to the payment of the sum of $9500, which would have the effect of equalising the payment towards the deposit on the purchase of the Property H property, he was entitled to 1/3 equity in the proceeds of sale.

2. This was the position contended for by the husband when proceedings were issued and subsequently the position of the wife at the time when the case outline was filed on her behalf in May 2016. However in the intervening period, Mr Wiseman had to participate in the proceedings by filing an affidavit, setting out his evidence in support of his position (which was subsequently accepted), attending the mediation and appearing at two Court dates. He tendered evidence to the Court of the costs incurred by him in preparing necessary affidavit material and sought costs in the sum of $3088.89.

3. At the hearing Mr Wiseman sought payment by the wife of the costs that he had incurred in filing a response. I sought submissions from Counsel for the wife on the issue as to why the Court should not order that the wife be responsible for payment of all or part of Mr Wiseman's costs.

4. I raised with the wife’s Counsel that, even on the morning of the hearing, it was not finally conceded that Mr Wiseman was entitled to a third share, subject to payment of the balance of the deposit. Further, the wife, by affidavit material filed on 25 September 2015, contended that Mr Wiseman was entitled to only 8% in the equity in the Property H property notwithstanding that she filed material in her statement of financial affairs stating that she was only entitled to one third of the rental income from that property. She had filed no affidavit material detailing with the substance of the evidence filed by Mr Wiseman that he contributed a third to the mortgage and the cost of maintenance and received a third of the rent. It should have been readily apparent that Mr Wiseman was entitled to a third of the net equity in the property (subject to him equalising the deposit payment which he had always agreed to do).

5. In these circumstances, I find that the wife's failure to acknowledge Mr Wiseman's interest in the property to the extent of one third (subject to his payments of $9500 which he had acknowledged that was due to be paid) was unreasonable and had led to Mr Wiseman incurring unnecessary legal costs. While it is true that the wife did not join Mr Wiseman to the proceedings, he was a necessary party to the proceeding by virtue of the fact that his interests were to be affected by the making of orders in this matter. His legal entitlement was prima facie to one half of the equity in the property by reason of his being on title to that extent.

6. Having regard to the provisions of the Act and having regard to the relevant considerations under s.117(2) of the Act in my view having regard to the financial circumstances of the parties to these proceedings, there is capacity on the part of the wife to pay the costs and there is no suggestion that Mr Wiseman was not inconvenienced and put to the unnecessary costs by reason of the wife's conduct.

7. I am of the view that had the wife or her legal representatives taken a reasonable and realistic approach to the material which had been filed on behalf the husband in relation to Mr Wiseman's involvement in the Property H rental property, material which was not the subject of any dispute at the final hearing, Mr Wiseman could have avoided incurring the legal costs that he did. I am of the view that the wife acted unreasonably by requiring him to remain an active participant at any stage of the proceeding. In these circumstances I order that the wife pay the costs of the second respondent in the sum of $2,048, being the scale costs of opposing an application.

8. I make orders reflecting these reasons for my decision. It will be noted that I have made prescriptive orders in relation to the process for the sale of the Property H property. I make these orders in circumstances where I cannot be satisfied that the parties will work cooperatively to agree on the process of sale. My concern is that in the absence of prescriptive orders of the kind that I have made, the parties will be left in a position of spending more money on legal fees where the sum of assets being dealt with is relatively small.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 20 July 2016