ENGELBRECHT and MOSS

[2015] FCWA 19

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ENGELBRECHT and MOSS [2015] FCWA 19

CORAM: WALTERS J

HEARD: 22-23 OCTOBER & 3 DECEMBER 2013 & 14 JANUARY & 14 APRIL & 26 MAY 2014

DELIVERED : 24 FEBRUARY 2015

FILE NO/S: PTW 6805 of 2010

BETWEEN: MR ENGELBRECHT

Applicant

AND

MS MOSS
Respondent

Catchwords:

FAMILY LAW – PROPERTY SETTLEMENT – alteration of property interests under the Family Law Act (1975) (Cth) – Where parties agree their respective contributions from the commencement of cohabitation to date of trial should be treated as equal – Comparatively modest pool of property available for distribution between the parties – Where significant proportion of property pool comprises superannuation entitlements – Where wife suffers from major depressive illness regarded as chronic and treatment resistant – Where very significant imbalance between parties' incomes and earning capacities – Where assessment of s 75(2) factors favours wife to significant extent – Where neither party wishes to retain a disproportionate share of property in the form of superannuation entitlements – Superannuation split ordered – Structure of superannuation split

FAMILY LAW – SPOUSAL MAINTENANCE – Where wife seeks spousal maintenance for three years in addition to her property settlement entitlement – Spousal maintenance ordered

Legislation:

Family Law Act 1975 (Cth), s 72, s 75(2), s 79, s 80

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Hedges

Respondent: Mr M Berry (now of Senior Counsel)

Solicitors:

Applicant: Birman & Ride

Respondent: DeJure Barristers and Solicitors

Case(s) referred to in judgment(s):

Anast & Anastopolous (1982) FLC 91-201

B & B [2006] FamCA 883

Bevan & Bevan (1995) FLC 92-600

Bevan & Bevan [2013] FamCAFC 116

Bevan & Bevan [2014] FamCAFC 19

Bolger & Headon [2014] FamCAFC 27

Bonacci & Bonacci [2012] FamCAFC 15

Chapman & Chapman [2014] FamCAFC 91

Chemaisse & The Commission of Taxation & Ors (1990) FLC 92-133

Clauson & Clauson (1995) FLC 92-595

Dekker & Dekker [2014] FCWA 61

Dickons & Dickons [2012] FamCAFC 154

Dow-Sainter & Dow-Sainter (1980) FLC 90-890

Fielding & Nichol [2014] FCWA 77

Fullgrabe & Fullgrabe [2015] FCWA 9

G & G [2004] FamCA 1179

Hayton & Bendle (2010) 43 Fam LR 602

Herridge & Handerson and Ors [2011] FamCAFC 156

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Line & Line (1997) FLC 92-729

McMahon & McMahon (1995) FLC 92-606

Mitchell & Mitchell (1995) FLC 92-601

NHC & RCH (2004) FLC 93-204

Norbis v Norbis (1986) 161 CLR 513

OSF & OJK (2004) FLC 93-191

Rollings & Rollings [2009] FamCAFC 87

Russell v Russell (1999) FLC 92-877

Scott & Danton [2014] FamCAFC 203

Stanford v Stanford (2012) 87 ALJR 74

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Vautin & Vautin (1998) FLC 92-827

Waters & Jurek (1995) FLC 92-635

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

Preamble

1These proceedings relate to competing applications for property settlement and the wife’s claim for spousal maintenance. The parties married in 1994 and separated in 2010. It follows that their marriage was of 16 years duration (although they lived together for a total of some 19 years). The parties have two children.

2The husband is a very senior [Medical Practitioner]. The wife holds professional qualifications in [physiotherapy], but has not worked in that field for many years. She developed postnatal depression following the birth of the parties' first child and has continued to suffer from symptoms of a major depressive illness since that time. Her depressive illness was described in evidence as chronic and treatment-resistant. The prognosis for the improvement of her disorder was described as "guarded at best".

3Notwithstanding her depressive illness, the wife was primarily responsible for the care and supervision of the children during the relationship. She has continued to be primarily responsible for these tasks subsequent to separation.

4By the completion of the trial, a concession had been made that the parties' contributions (in all their various guises) should be regarded as equal from the commencement of the relationship to the present time. The parties disagreed, however, about a number of other issues, including the manner in which their property should be divided between them. A complicating factor was the comparatively modest value of that property and the fact that something in the order of one third of it comprises the husband's superannuation entitlements. Given their ages (both parties are in their mid-40s), the wife's mental health issues, the very significant imbalance in their respective earning capacities and the desire of each party to have as much available "capital" as possible with which to approach the task of finding suitable accommodation, neither the husband nor the wife wished to receive or retain what he or she perceived would be a disproportionate share of the superannuation entitlements.

5The parties also disagreed as to whether it was appropriate for the wife to receive spousal maintenance after the making of property settlement orders.

6The trial commenced on 22 October 2013 and ran for two days, after which I reserved my decision.

7Although the formal stages of the trial had been concluded, inquiries were later made (at the Court's request) regarding the possibility of the wife gaining early access to superannuation benefits to which she may become entitled. Had the wife been able to access benefits in this way, the options available to the Court regarding the manner in which to divide the parties' property between them would have expanded. It transpired, however, that the wife could not gain early access to such benefits. The Court was left to do the best it could on the basis of the composition and structure of the parties' property at the completion of the trial.

Background and financial history

8In these Reasons, and unless otherwise indicated:

a)all statements of fact comprise findings of fact;

b)although I am aware that they are now divorced, I have referred to the parties as the husband and the wife (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;

c)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;

d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm"); and

e)unless otherwise indicated, references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as "the Act" or the "FLA".

9The husband was born in South Africa in September 1968. The wife was born in Zimbabwe in May 1969. It follows that they are now in their mid-40s. They commenced living together in early 1991 and married in, South Africa [in] 1994. They separated on or about 1 June 2010.

10There are two children of the marriage:[Child A] (born in April 2001) and [Child B] (born in December 2008). The [children] are aged 13 and 6 respectively.

11The husband is a well-qualified Medical practitioner. He is currently a Medical practitioner at [Hospital A] in Perth. He is a Head of Department. Although the wife has not worked in her profession for many years, she has qualifications in physiotherapy. Both parties completed their tertiary education in South Africa.

12The parties purchased and commenced living in a property at [Suburb C], South Africa ("[Property C]") in November 1994. As will become apparent, they retained Property C until the second half of 2011.

13The parties left South Africa for England in early 1996. After working as locums in their respective specialties, they settled in (Suburb L] in 1998. Their first child, Child A, was born in Suburb L.

14The wife was diagnosed with postnatal depression within a year of giving birth to Child A. The depression proved to be serious and persistent.

15The husband continued his training [as a Medical Practitioner], including advanced training, while the parties lived in Suburb L.

16The parties moved from England to Australia in the first half of 2005, after selling their home in Suburb L. Shortly after their arrival in Perth, they purchased a house [in Suburb K] ("[Property K]"). In order to do so, they used the net proceeds of sale of their house in Suburb L and borrowed the balance (secured by a mortgage).

17The husband continued his training as a Medical Practitioner after the family's arrival in Perth.

18The next few years were difficult for the parties for various reasons. Nevertheless, the husband was able to advance in his career and, after considerable study, became a Fellow of [College A] in early 2008. Shortly afterwards, he was appointed a Consultant Medical Practitioner at Hospital A.

19The parties' second daughter, Child B, was born in Perth in December 2008.

20Some 10 months after Child B’s birth, the wife was admitted to hospital for approximately four weeks for postnatal respite.

21As indicated above, the parties separated on or about 1 June 2010. The husband continued to live in Property K until 19 June 2010, when he moved to a rental property. The wife remained living in Property K with the girls.

22The parties had various disputes regarding parenting issues during the second half of 2010. On 3 December 2010, the husband filed an initiating application in this Court. His application related to parenting issues only. The wife filed a response at the end of February 2011.

23Various interim orders were made on 29 March 2011. The wife had discomfort with the orders and filed an appeal from them on 21 April 2011. A stay of the interim orders was granted on 29 June 2011. The wife eventually discontinued the appeal on 31 October 2011.

24Meanwhile, the parties had agreed to sell Property C, which they had purchased at the commencement of their relationship. The sale was finalised in late September 2011. The net proceeds of sale were held in a trust account in South Africa ("the [Property C] funds").

25On 6 February 2012, the wife was ordered to pay the husband's costs of her discontinued appeal (with payment to be stayed pending resolution of the issue of property settlement). This issue was ultimately resolved by orders dated 3 December 2013, pursuant to which the husband received $3000 from the Property C funds in full and final satisfaction of the outstanding costs order.

26The parties were divorced on 8 March 2012.

27On 29 May 2012, the wife filed an amended response dealing with financial issues.

28On 26 June 2012, orders were made providing for the wife to receive 30% of the Property C funds. Further interim financial orders were made on 6 August 2012.

29On 26 July 2012, the husband filed a reply dealing with parenting and property issues.

30On 6 February 2013, the wife amended her response to define the property orders sought.

31An interim hearing in relation to an application by the wife for spousal maintenance was dealt with on 14 February 2013.

32The parties attended a conciliation conference on 8 March 2013.

33On 20 and 25 March 2013, orders were made in relation to the wife's interim application for spousal maintenance and the release of some of the Property C funds. One of the orders made was that the husband was to pay interim spousal maintenance to the wife at the rate of $800 per week.

34Disputes between the parties in relation to financial matters continued on and off from mid-2010. On 29 July 2013, the parties attended a Judicial Conference, but they were unable to settle the proceedings.

35The trial commenced on 22 October 2013. Mr Hedges appeared for the husband, and Mr Berry (now of Senior Counsel) appeared for the wife.

General observations

36I am painfully aware of the very lengthy delay between the completion of the hearing and the delivery of these Reasons. In Rollings & Rollings [2009] FamCAFC 87, the Full Court said at [67]

The authorities … establish that if there is a delay between the conclusion of the hearing and judgment, presumably with contemporaneity of reasons, the delay is not in itself a ground of appeal and it is not … a denial of a fair trial and/or a miscarriage of justice. However the delay does mean that on appeal there has to be greater scrutiny of the findings made by the trial judge. As Giles JA said in Monie v the Commonwealth (2005) 63 NSWLR 729 at [3]: “extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge’s findings or whether the trial judge’s reasons are adequate”.

37Similarly, the Full Court in Herridge & Handerson and Ors [2011] FamCAFC 156 said that the "real issue" may be –

… whether material findings of fact made by the trial Judge, and/or conclusions reached by him in reliance upon them, could be unsafe by virtue of the time which elapsed between the conclusion of the evidence and the delivery of judgment. That in turn is more referable to a consideration of contested findings or conclusions, and the evidence upon which they were, or could be based, or its absence. If those challenges were made out, the fact that the trial Judge’s delay in delivery of judgment may have caused, or contributed to his error(s) is irrelevant. If they are not, it is difficult to see how his delay could change anything.

38Their Honours added at [22]-[23]:

If … findings of fact made by the trial Judge were not reasonably open to him, it does not matter whether that occurred because of the time his Honour took to deliver his judgment or for some other reason. That is also the case if such findings are shown to have been “unsafe”... If it is demonstrated that his Honour’s discretion was exercised in reliance upon material errors of fact, appellate intervention is likely to be enlivened. …

What we have said ought not be misconstrued, however. It is regrettable that judgment was not delivered more expeditiously than it was in this case. In a case where impressions of parties and witnesses clearly assumed considerable significance, a delay of eight months had the potential to diminish the clarity of the trial Judge’s recollection of their evidence, and his assessment of its reliability. We shall subject the trial Judge’s judgment to closer than usual scrutiny …

39The delay between the conclusion of the hearing and judgment in this case is longer than the delay with which the Full Court was concerned in Herridge & Handerson and Ors (supra). The parties, let alone the Full Court, are perfectly entitled to subject these Reasons to "closer than usual scrutiny". Having said that, I would record the following:

a)The delay in the delivery of these Reasons arises from workload issues affecting the trial judge. It is not the fault of the parties or their legal advisers, who have taken appropriate steps to inquire as to the progress of the judgment.

b)Notwithstanding the lengthy delay that has occurred since the completion of the hearing, none of the parties has applied to reopen; nor has any party applied for contested interim or interlocutory orders.

c)My recollection of the parties' evidence (and that of their witnesses) has not been affected by the delay for two reasons: firstly, I made full notes of all relevant evidence and submissions during the trial; and secondly, I have had the opportunity to listen to the audio recording of the evidence and submissions where I felt that my notes or my recollection may have been insufficient.

Abbreviated (and selective) procedural history of the proceedings subsequent to the trial

40As indicated above, the trial commenced on 22 October 2013.

41The trial continued on 23 October 2013. That afternoon, consent orders were made adjourning the proceedings to 3 December 2013. The orders are self‑explanatory. They provided for the parties to file additional evidence and submissions regarding (in particular) the possibility of the wife gaining access to her superannuation entitlements prior to retirement ("the superannuation issue").

42On 30 October 2013, and as envisaged in the orders of 23 October 2013, the wife filed an affidavit to which she annexed copies of documents comprising the Retail Employees Superannuation Trust ("REST") trust deed and rules.

43On 2 December 2013, the husband's legal representatives filed submissions dealing with the superannuation issue.

44A short hearing took place on 3 December 2013. At the conclusion of the hearing, consent orders were made and the proceedings were otherwise adjourned to 14 January 2014. The consent orders varied the orders of 23 October 2013 to some extent. The orders made on 3 December 2013 also included an order to the effect that the parties were to deal with the remainder of the Property C funds in the following manner:

a)$3000 was to be paid to the husband's solicitors to discharge the pre-existing order for costs (from 6 February 2012); and

b)the balance was to be paid to the wife (and characterised as partial property settlement).

45Further consent orders of a procedural nature were made on 14 January 2014. The proceedings were otherwise adjourned to 10 February 2014.

46The hearing on 10 February 2014 was vacated by agreement between the parties and a new hearing date (14 April 2014) was fixed.

47The proceedings came back before the Court on 14 April 2014. The husband was represented on that day, but there was no appearance for the wife. Orders were made adjourning the matter to 26 May 2014 and reserving the husband's costs thrown away.

48On 22 April 2014, the wife filed a further affidavit dealing with a claim she had made to REST Superannuation Fund for total and permanent disablement. The application was rejected.

49The proceedings returned to Court on 26 May 2014. Both parties were represented. The only order made on that day required the wife to pay the husband's costs thrown away in respect of the hearing on 14 April 2014 (which the wife failed to attend). The quantum of the husband's costs was fixed at $690.

The superannuation issue

50At the completion of the trial, I raised with counsel the question of whether the wife might be able to gain access to her superannuation entitlements prior to retirement. If it transpired that she was able to do so, the Court would clearly have had more flexibility in relation to potential property settlement orders. For example, one option could have involved the wife being allocated a significant proportion of the husband's superannuation entitlements, which she could then access. As a consequence, the husband might have been entitled to a greater proportion of what could be regarded as the parties' "realisable" property (see my explanation of this term below) than would otherwise be the case.

51The superannuation issue became relevant because of the wife's health. If she were to be regarded as "totally and permanently disabled" as a consequence of her mental health issues, then there was a possibility that she could access Total and Permanent Disablement ("TPD") benefits under the rules of her superannuation fund. Importantly, she could also access such benefits following a superannuation split, at a time when her superannuation entitlements may have been bolstered by a payment from the husband's fund.

52Before dealing further with the superannuation issue, therefore, it is helpful to summarise the evidence regarding the wife's mental health.

The wife's mental health

53There was no clear or engaged challenge to the evidence relating to the wife's mental health. I propose to summarise that evidence at this stage of my Reasons because it relates directly to the procedural steps taken subsequent to trial. I shall also comment on the wife's capacity for employment.

Dr Lutton's evidence

54Dr Lutton is a Consultant Psychiatrist. Her qualifications were not in dispute.

55Dr Lutton swore an affidavit on 12 February 2013, to which she attached her report dated 31 August 2012. She provided additional information in a letter dated 9 October 2013: see Exhibit W2.

56Dr Lutton was not required for cross-examination.

57Dr Lutton's report dated 31 August 2012 is as follows:

[The wife] was referred to me as a Consultant Psychiatrist in 2007. At the time of referral she had a diagnosis of postnatal depression following the birth of her first daughter four years previously. She had been treated in the United Kingdom and after a complicated management stabilised on medication.

[The wife] has subsequently continued to suffer from symptoms of a major depressive illness and that remains her current diagnosis.…

[The wife] has continued to suffer from symptoms of persistent major depression and it has been difficult to obtain full remission. This is despite her active involvement in managing her illness and high levels of compliance, which reflects the severity of her illness. Whilst I tend not to specifically indicate prognosis, especially with an illness of remission and relapsing potential, it is clear that her depression has been complex in nature and of ongoing severity.…

Currently, [the wife] attends Consultant Psychiatrist Dr Nick De Felice for the medication management of her depression whilst I continue to see [her] in regular, ongoing, long-term personal psychotherapy.

It is anticipated this management plan will be maintained for the foreseeable future.

58In relation to the wife's ability to work in paid employment, Dr Lutton wrote:

… [The wife'] management of her depression encompasses both a medication-based approach and psychological. Whilst I am in no doubt that [the wife] is currently unable to work in paid employment, this formal assessment is not an aspect of my management of her disorder and it is more appropriate that this opinion be sought from Dr De Felice…

59Dr Lutton's letter of 9 October 2013 records that she continued to see the wife on a weekly basis after 31 August 2012. Each appointment occupied 1.5 hours. In other words, she had seen the wife on 52 occasions between the dates of her two letters. In her opinion, the wife's overall condition has "remained unchanged". The management of the wife's depressive illness has "remained both biological and psychological". Dr Lutton wrote:

Over the last 12 months, whilst [the wife] has made significant progress in her individual therapy, the persistence of depressive symptoms has been marked. In particular debilitating lethargy, and slowed cognition have remained ongoing. This has required a continued review of medications and combination and psychopharmacology.

All of [the wife's] own coping resources have been directed to the day-to-day care of her children which has been excellent and never of concern. However, I am in no doubt from my psychological work with [the wife] that she does not have the capacity to engage in or maintain any form of paid employment.

I consider this impairment to employment is as a consequence of her major depressive illness…

Dr De Felice's evidence

60Dr De Felice is also a Consultant Psychiatrist. His qualifications were not in dispute.

61Dr De Felice swore an affidavit on 13 May 2013, to which he attached his report dated 15 January 2013. He provided additional information in a letter dated 8 October 2013: see Exhibit W5.

62Unlike Dr Lutton, Dr De Felice was required for cross-examination. He gave evidence on 23 October 2013. He was an impressive witness.

63Dr De Felice first saw the wife in November 2010. He has been her treating psychiatrist since that time. In his opinion, the wife "is suffering from a chronic, treatment-resistant Major Depressive Disorder".

64Dealing with the wife's mental health history, Dr De Felice wrote in his report dated 15 January 2013:

I note the history of the first episode of depression occurring in the context of the postpartum period after the birth of her first child… This was associated with Obsessive Compulsive Disorder. After a series of treatments which included a month hospital admission in the UK, [the wife] improved when Lithium was added to the Fluoxetine that she had been taking for some time. With the plan to have another child, [the wife] ceased her medication in mid-2005 after having been well for some time, and then relapsed into depression in early 2006. She has continued to suffer from the same episode since then, despite the various efforts that have been made in her treatment.

65The wife has received a wide variety of treatments, including antidepressants in conjunction with mood stabilisers, major tranquillisers, stimulants and electroconvulsive therapy – but the symptoms associated with her Major Depressive Disorder have continued.

66Dr De Felice continued:

Given the chronicity of this history, and given [the wife's] ongoing depressive symptoms in the wake of extensive psychiatric treatment, I consider that the prognosis for the improvement of her Major Depression is guarded at least.

67In his oral evidence, however, Dr De Felice indicated that he had the intended to write that the improvement of the wife's Major Depression "is guarded at best".

68In relation to the wife's capacity to work in paid employment, Dr De Felice wrote:

… Because of the poor prognosis, I think that [the wife] will continue to remain unfit to pursue her work as a [physiotherapist]. I also think that she is not fit to work at all because of her symptoms. That is, the low mood, reduced confidence in her capacity to work, her lack of energy, her poor concentration and memory, her sense that she would be overwhelmed if there were too many demands at once, all lead to her being unfit to work.

69Dr De Felice's letter of 8 October 2013 added little to the above, as he had only seen her on one occasion since writing his report in January 2013. He was of the view, however, that her depressive symptoms "had not responded, despite the substantial pharmacological treatment that she was receiving". Overall, his opinion was unchanged from that expressed in his early report.

70In his oral evidence, Dr De Felice said:

a)The wife has treatment-resistant depression.

b)It is hoped that that the wife's mental health might improve after these proceedings have been completed, but that can fairly be regarded as the most "optimistic outcome". The stressors of the legal process are significant, but even after the proceedings have been concluded the wife will have to confront "the grief of what has happened" – in terms of the breakdown of her marriage and the many consequences flowing from that. These consequences are the wife's "lot in life" and she must struggle to find a way to live with them.

c)He is not confident that things will "settle" after the proceedings; the prognosis is "guarded at best".

d)Getting the wife back into the workforce is unrealistic, given that her treating psychiatrists are struggling to treat her present condition effectively.

e)There are a number of "common sense" steps that sufferers of mental health problems can take to try to ameliorate their symptoms, such as embarking upon and maintaining an exercise regime – but, unfortunately, people who suffer from chronic depression find such steps extremely difficult.

f)There can be no doubt that if a person can get back to some sort of work, he or she can develop a sense of "efficacy" from that. Workplaces are often the places where people interact with others; similarly, people can "identify themselves" by reference to their work, and give themselves "value". Such observations can lead to improvement in a depressed person's self-esteem. On the other hand, if one is depressed, one should only pursue things that one has a good chance of succeeding at. If a person suffering from depression attempts to succeed at a task that is beyond what is appropriate for that person, then he or she will be set up to fail. This, in turn, will lead to a worsening of the person's depressive symptoms.

g)It is not advisable for the wife to attempt to pursue employment opportunities, or to obtain employment, at the present time because she is doomed to fail in such an enterprise. She is simply not well enough to succeed at work. Regrettably, the likely consequence of embarking upon such a course of action is that the wife will "go downhill" as a result of failing in her efforts.

h)Clearly, the overall aim of the wife's therapy or treatment is to assist her "to return to normal function". It needs to be understood, however, that such an aim has to be tempered by the therapist's understanding of the wife's capacity to engage in the processes in which she is or may in the future be involved (such as employment roles). Indeed, the wife's "capacity to engage in the process" is the first thing that needs to be addressed. It will not assist the wife's mental health for her to be unable to succeed in such processes, or to fail at tasks which may be perceived to be unrealistic for someone with her mental health issues.

i)Although motherhood and the tasks associated with it are probably among the most difficult challenges that can be confronted by anyone, and although the wife has done extremely well to cope successfully with those challenges, it is difficult to understand (and even more difficult to explain) how the wife has been able to do that. In meeting such challenges, she has (in one sense) "exceeded her capacity". It is apparent, however, that the motivation of caring for one's children is a very powerful one and often sufficient to enable clinically depressed people to rise to the occasion, as it were.

j)Further disputes (in particular, in relation to parenting issues) will constitute an ongoing and "enormous" stressor for the wife, particularly when regard is had to the fact that parenting is one of the few areas in which the wife might be perceived as having been successful – in the past and up to the present.

k)Notwithstanding the wife's success in carrying out her role as a parent, she remains unfit for gainful employment. Discharging her role as a parent seems to have exhausted all her reserves of energy. It follows that it is unrealistic to expect the wife to succeed in obtaining and maintaining employment in the same way as she has succeeded in performing her role as a parent.

Conclusion regarding the wife's mental health and her capacity for appropriate paid employment

71The evidence presented at trial makes it abundantly clear that the wife's mental health is poor, and that she is likely to struggle with tasks not directly related to her role as a parent for some time to come. On the basis of the evidence presented at trial there is no real likelihood of the wife being able to obtain or maintain paid employment for the foreseeable future.

72I am aware, however, that the wife was hopeful at trial that she would be able to return to work, in some capacity, within approximately three years. The spousal maintenance order which she sought (see below) was expressed to run for that period because of the wife's hopes in this regard. Having regard to the evidence of the two psychiatrists presented at trial, however, and having regard to my observation of the wife as she gave evidence, I have concluded that the wife's cautious expectation to be able to return to the workforce within approximately three years is highly optimistic. I am well aware that litigation can be a stressful experience for a litigant, who can experience nervousness or anxiety in the course of giving evidence. I could not help noticing, however, that the wife's anxiety and apprehension in the witness box were excessive and pervasive. Still, I accept that the distress the wife has obviously felt as a result of being involved in contested family law proceedings, and the worry that has accompanied that distress, are likely to be less of an impairment for the wife as these proceedings draw to a close. In other words, I can only hope that the wife's reserves of positive energy (to use a term similar to one employed by Dr De Felice) will gradually be replenished after final orders have been made.

The outcome of the superannuation issue

73In their submissions filed 5 December 2013, the husband's solicitors confirmed that the husband sought superannuation splitting orders at trial, pursuant to which a portion of his GESB entitlements would be transferred to the wife. Ordinarily, the splittable payment from the husband's GESB fund would be paid into a superannuation fund nominated by the wife.

74As discussed elsewhere in these Reasons, the wife is a member of the Retail Employees Superannuation Trust superannuation fund ("REST"). It was assumed that the splittable payment from the husband's GESB fund would be paid into the wife's REST fund.

75In paragraph 7 of the submissions, the husband's solicitors wrote:

Having regard to the rules of the REST fund, the relevant superannuation laws and the circumstances of the parties, the parties agree that the wife will not be able to gain access to her superannuation entitlements to any meaningful extent under the provisions relating to financial hardship. (Emphasis added.)

76The husband's solicitors argued, however, that, having regard to the evidence of the wife's mental health (and, in particular, the evidence of Dr Lutton and Dr De Felice), the trustee of the REST fund "could be reasonably satisfied that the wife is unlikely at the present time, because of ill health, to engage in gainful employment as a physiotherapist – that being employment for which she is reasonably qualified by education, training or experience". In those circumstances, they submitted that the wife could fall within the TPD rules of the REST fund.

77If the wife were to be deemed "totally and permanently disabled" pursuant to the rules of the REST fund, then she could gain immediate access to her entitlements.

78The submissions continued:

[14]The husband wishes to make it clear that in making the above submission he is not seeking to dilute or cast any shadow over the evidence or submissions he made at the trial regarding the wife's health or earning capacity. The husband's submission is that the wife is not totally and permanently disabled as one might understand the natural meaning of that phrase.

[15]The husband's submission is simply that, in her current circumstances, the wife appears to meet the specific definition of "totally and permanently disabled" in the rules constituting the REST fund and therefore the trustee of the REST fund may give the wife access to superannuation in the REST fund prior to normal retirement age.

79The submissions reveal that the husband had suggested that the wife should "test the waters", as it were, by applying to the trustee of the REST fund for the payment to her of "the approximately $1000 of benefits in her superannuation account". The trustee's response could have given an indication of its attitude to the broader issue of TPD. However, the wife declined to make the application.

80In the wife's submissions in response (which were filed on 31 December 2013), it was argued that the husband had misinterpreted the TPD criteria in the REST fund rules. It was also argued that the expert medical evidence given a trial "does not support a finding that the wife will be 'totally and permanently disabled' according to the natural meaning of those words".

81The submissions continued at [3]:

While the evidence at trial might describe the wife, with reference to her "own occupation" (or indeed with reference to "any occupation"), as being "totally and temporarily disabled", the wife does not view herself as being permanently disabled. Her evidence is that she hopes to be well enough to participate in paid employment in future. (Emphasis added.)

82The thrust of the wife's submissions was that, upon a proper construction of the rules of the REST fund, and taking into account the evidence presented at trial, she is not eligible to receive TPD benefits.

83In relation to the husband's suggestion that she should "test the waters" by applying to the trustee of the REST fund for the payment of certain limited benefits, the wife argued that "she should not be put to further cost, inconvenience and delay to answer an issue not raised by the husband nor answer a case not run by the husband, after the evidence (including expert evidence) is completed and after the parties have closed their cases". Among other things, it was submitted that "the most procedurally fair manner to deal with the issue raised by the Court" would be for the Court to rule on the question of whether, upon a proper construction of the rules of the REST fund, and taking into account the evidence before the Court, the wife is eligible to receive the TPD benefit. It was also submitted that, depending on the Court's ruling, directions may be required permitting the wife to reopen her case.

84Notwithstanding the unhelpful and unnecessarily combative approach adopted by the wife in her submissions, she ultimately agreed to apply to the REST fund for a TPD payment. The result of that application is described in the wife's affidavit sworn 17 April 2014.

85The wife filed a TPD claim form on 16 December 2013. The claim form includes a medical statement signed by Dr Lutton on 10 December 2013. The medical statement at [6] reads as follows:

In superannuation legislation, permanent incapacity, in relation to a member, means ill-health (whether physical or mental), where the trustee is reasonably satisfied that the member is unlikely, because of the hill-health, to engage in gainful employment for which the member is reasonably qualified by education, training or experience.

In your opinion, given the members present disability, is the member permanently incapacitated, as per the above definition?

86Dr Lutton's answer to the above question was: "No". She added:

It is anticipated with ongoing treatment for a gradual and graded return to employment either in the previous occupation or to undertake new learning and skills in a related activity.

87The claim form also includes a medical statement signed by a General Practitioner, Dr [S], on 16 December 2013. Although Dr S is a GP at the medical practice customarily attended by the wife, he is not the GP she usually sees. The wife consulted him because her usual GP was on leave. Dr S had access to the wife's medical files when he provided the medical statement.

88Like Dr Lutton, Dr S wrote that the wife was not permanently incapacitated in accordance with the definition appearing in the form. He added:

This person should be capable of normal employment.

89An officer of the REST fund wrote to the wife on 9 April 2014, responding to the TPD claim. Not surprisingly, the letter includes the following:

The purpose of this letter is to advise the outcome of REST's consideration of your request for release of Account Balance due to being TPD. If such a claim is to be successful REST must be satisfied that a member has satisfied the requirements which apply to "total and permanent disablement" as defined in REST's Trust Deed.

We advise that after considering all the evidence and information relevant to your claim REST is not satisfied that you meet the requirements which apply to TPD and so it has decided to decline your claim for the release of the Account Balance.

The state of the medical evidence after the superannuation issue

90It is immediately apparent that the statements made by Dr Lutton in Exhibit W2 do not sit comfortably with the comments in the medical statement which she signed on 10 December 2013. For example, in Exhibit W2 she wrote that she was "in no doubt" that the wife "is currently unable to work in paid employment" and "does not have the capacity to engage in or maintain any form of paid employment". She also wrote:

I consider this impairment to employment is as a consequence of her major depressive illness…

91In the medical statement, Dr Lutton certified that the wife was not "permanently incapacitated" and that "it is anticipated with ongoing treatment for a gradual and graded return to employment either in the previous occupation or to undertake new learning and skills in a related activity".

92Dr S was clearly of the opinion that the wife "should be capable of normal employment".

93For reasons of which I am unaware, the wife did not obtain a TPD medical statement from Dr De Felice. As indicated above, he had written that, because of the wife's poor mental health prognosis, she "will continue to remain unfit to pursue her work as a [physiotherapist]" and that "she is not fit to work at all because of her symptoms". In his oral evidence, Dr De Felice said that it was not advisable for the wife to attempt to pursue employment opportunities, or to obtain employment, at the present time because she is doomed to fail in such an enterprise. He conceded that she was simply not well enough to succeed at work.

94It follows that the state of the evidence after the clarification of the superannuation issue is that there is much merit in both the husband's submission to the effect that "the wife is not totally and permanently disabled as one might understand the natural meaning of that phrase" and the wife's submission to the effect that she should be regarded as being "totally and temporarily disabled", but not permanently disabled.

95The wife clearly hopes to be able to return to paid employment in the future.

96I shall return to this subject later in these Reasons.

Orders sought

97The husband sought orders in the terms of a minute of final orders attached to his papers for the judge. In broad terms, he sought the transfer to him of the wife's interest in Property K on the basis that he should pay to the wife such moneys as are necessary to cause the "pool" of property available for distribution between the parties to be divided on the basis of 65% to the wife and 35% to him.

98The husband also sought –

a)orders that the wife pay to him the sum of $6000 "being his costs thrown away as a result of the abandoned appeal" (although this issue has now been resolved);

b)an order relating to the delivery up to him of certain chattels; and

c)a superannuation spitting order.

99The wife sought orders as contained in her amended initiating application filed 6 February 2013. In broad terms, she sought a sale of Property K (although she also sought alternative orders that would enable the husband to retain Property K in certain circumstances).

100The wife's proposal was the effect that the "pool" of property available for distribution between the parties should be divided on the basis of 75% to her and 25% the husband.

101In addition, the wife sought an order to the effect that the husband pay her periodic spousal maintenance at the rate of $1013 per week for three years from the date of any relevant orders. By the concluding stages of the trial, however, the quantum of spousal maintenance sought by the wife had been reduced to $875 per week.

Property Settlement

102The following generic summary of the law relating to property settlement is substantially reproduced from my decisions in Dekker & Dekker [2014] FCWA 61 and Fullgrabe & Fullgrabe [2015] FCWA 9. I note, however, Thackray CJ's references to the former decision in Fielding & Nichol [2014] FCWA 77.

Approach prior to the decision of the High Court in Stanford v Stanford (2012) 87 ALJR 74

103Subject to what I have written below regarding the effect of the decisions of the High Court in Stanford v Stanford (2012) 87 ALJR 74 and the Full Court in Bevan & Bevan [2013] FamCAFC 116, Bevan & Bevan [2014] FamCAFC 19 and Chapman & Chapman [2014] FamCAFC 91, it is fair to say that, until the publication of those decisions, the Full Court had consistently ruled that the general approach to a property settlement application was settled. The first "step" or "stage" was for the court to identify the property of the parties. It was then required to attribute a value to each item of property – usually as at the date of the hearing. Thereafter, it assessed the extent of each party's contributions under the various sub-headings described in s 79(4). Finally, the Court considered the financial resources, means and needs of the parties, and the other matters set out in s 75(2) so far as they were relevant. An adjustment of the amount due to each party by way of contribution was then made by reference to the s 75(2) factors. It was not essential, however, that such an adjustment take place. Generally speaking, an adjustment was made because one party had greater needs and the other had stronger means.

104In relation to the contributions of the parties under s 79(4) generally, it had been held that a "global" approach would usually be more convenient than an "asset by asset" approach – although the application of an asset by asset approach does not (of itself) amount to an error of law: see Norbis v Norbis (1986) 161 CLR 513.

105The s 75(2) factors were considered to be directly or indirectly related to the process of arriving at a just and equitable result. It followed that there could be circumstances in which the justice and equity of the case, and the specific provisions of s 75(2), supported an adjustment in a party's favour for matters which could not be described comfortably as being of financial or economic significance: see McMahon & McMahon (1995) FLC 92-606 at page 82,043.

106It had also been held that, under s 79(2), the Court was required to be satisfied that the property settlement orders that it proposed to make were just and equitable – and not simply that the underlying percentage division of the net value of the parties' property was appropriate. In other words, in the consideration of whether the overall result of property settlement proceedings was just and equitable, it was the justice and equity of the actual orders, and not of the percentage distribution, which had to be considered: see Russell v Russell (1999) FLC 92-877.

107The overall process to be applied in property settlement cases was summarised by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143, where their Honours said at [39]:

The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), including, because of s.79(4)(e), the matters referred to in section 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 at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case…

108My view was that the testing of any proposed orders by reference to s 79(2) was never a fourth substantive step (properly so called) in the property settlement exercise: see OSF & OJK (2004) FLC 93-191; see also B & B [2006] FamCA 883 at [105] and [106] and Bonacci & Bonacci [2012] FamCAFC 15, where the Full Court said at [61]:

…[The] Full Court has said on a number of occasions the so-called fourth step is not an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, a just and equitable order might be achieved based on the circumstances of the case before him or her ... (References omitted).

109At the end of the day, though, and in the majority of cases, the precise nature of the final "step" or "stage" in the property settlement exercise may not have been of any real significance. It is enough to record that the process involved the Court metaphorically "stepping back" to consider whether the proposed orders (arrived at after the application of the first three steps described in Hickey (supra)) were just and equitable.

Stanford v Stanford (2012) 87 ALJR 74

110In Stanford v Stanford (supra) (“Stanford”), the High Court challenged the validity of approach described above.

111The High Court emphasised that the provisions of s 79 empower the Court to make orders "altering the interests of the parties to the marriage in [their] property" (although the proceedings are described as relating to "property settlement"). As a result, it is essential to begin consideration of whether it is just and equitable to make a property settlement order "by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in [the property available for distribution between them]": see Stanford at [37].

112Of particular importance are [35] to [46] of the plurality decision in Stanford (under the heading The operation of section 79), in which it was emphasised that:

... the requirements of [s 79(2) and s 79(4)] are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

113The plurality then spoke of "three fundamental propositions" that adhere to the power to make property orders under s 79:

a)The first "step" (as was previously the case) is to identify "... according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property." The interest of parties in property cannot be altered unless their existing legal and equitable interests in the property can be identified.

b)Although the court has a very broad power to make orders in relation to property, "it is not a power that is to be exercised according to an unguided judicial discretion". The judicial discretion must be exercised in accordance with legal principles – including the principles which appear within the Family Law Act itself. Further, "because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is 'just and equitable' to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist": see Stanford at [39].

c)The question presented by s 79 is whether those rights and interests should be altered.

114The consideration of the various factors in s 79(4) (including the parties' contributions in all their various guises) does not give rise automatically to a right on the part of one or other of the parties to have the property divided between them by reference to those factors. The just and equitable requirement in s 79(2) must also be considered and applied. Thus: "to conclude that making an order is 'just and equitable' only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the [FLA]".

115I note that the third of the above propositions endorses indirectly pre-existing dicta to the effect that a party to a marriage does not effectively build up an interest in the patrimony of the parties over the duration of the marriage, such that the party may be regarded as having "a presently vested interest of an 'inchoate' kind which exists prior to the institution of proceedings under s 79 or the making of an order under that section": see Chemaisse & The Commission of Taxation & Ors (1990) FLC 92-133 at 77,915. The law in Australia is to the effect that rights arising under s 79 "come into existence when an order is made under that section" and that neither s 79 nor the other provisions of the [FLA] "establish rights, however described, in a party to a marriage over the property of the other spouse either arising from the existence of the marriage or the activities of the parties during that marriage or the institution of proceedings under s 79, where those rights do not otherwise exist under the laws in Australia": see Chemaisse (supra) at 77,915.

116After referring to the above three propositions, the plurality in Stanford explained at [42] that – in the vast majority of cases – the requirements of s 79(2) are fairly easily satisfied:

In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

Bevan & Bevan [2013] FamCAFC 116

117In Bevan & Bevan [2013] FamCAFC 116, ("Bevan #1") the Full Court took the opportunity to discuss the decision in Stanford and what had previously been described as "the four step process" (or, perhaps, "the three step process").

118The plurality in Bevan #1 (Bryant CJ and Thackray J) emphasised that what has been described as "the four step process" is "no more than a means to an end, since the statutory obligation is to alter the existing interests [of the parties in their property] only if it is just and equitable to do so": see [61]. Their Honours added that "any further restatement of ["the four step process"] should incorporate acceptance of the fact that the power to make any order adjusting property interests is conditioned upon the court finding that it is just and equitable to make an order": see [71].

119The plurality also said, at [72]:

... [Judges] would be well advised to avoid what we consider to be arid discussion of the "stage in the process" at which "adjustments" are permissible. Such discussion tends to elevate the four step process to the status of a statutory edict, when in fact it is no more than a shorthand distillation of the words of a statute which has but one ultimate requirement, namely not to make an order unless it is just and equitable to do so.

120The plurality continued (references omitted):

[84]Just as the expression "just and equitable" does not admit of exhaustive definition, it is not possible to catalogue the "range of potentially competing considerations" that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering "what order (if any)" to make, the court must take into account the matters referred to in that subsection (emphasis added).

[85]This requirement to consider the s 79(4) matters in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the "just and equitable" requirement being "readily satisfied". ...

[86]We do not consider it helpful, and indeed it is misleading, to describe this separate enquiry as a "threshold" issue. We say this for two reasons. First, as was emphasised in Stanford, the initial enquiry is to determine the existing legal and equitable interests of the parties. Secondly, although s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such order itself must be just and equitable: ... The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process.

[87]It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the [FLA] links them. ... (Emphasis added.)

121The Full Court in Bevan #1 did not discuss directly the statement in the final sentence of [42] of Stanford which – as I have indicated above – confirms that the considerations in s 79(4) should be considered after the court has concluded that it is just and equitable to make a property settlement order. Indeed, the plurality quoted [42] of Stanford in [69] of the judgment in Bevan #1 but omitted the final sentence of that paragraph because it had no bearing on the point then being addressed: see Fielding & Nichol [2014] FCWA 77 at [13]. For ease of reference, it is appropriate to repeat [42] of Stanford:

In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4). (Emphasis added.)

268If the wife purchases a home for herself and the children (which, of necessity, is likely to be more modest than she had hoped for prior to the commencement of these proceedings), then she will be unable to draw down on any of the funds she may receive from the property settlement in order to support herself. On the basis of the evidence currently before the Court, I am satisfied that this is what is likely to occur.

269I am fully cognisant of the fact that there is no fettering principle that pre‑separation standard of living must automatically be awarded where the respondent’s means permit: see Bevan& Bevan (supra). I do not regard myself as being bound by any presumption, rule or principle to such an effect. Nevertheless, in the circumstances of this case, I find that it is unreasonable to expect the wife to reduce her standard of living, at this stage, to the extent reflected in any proposal that she should receive no or minimal spousal maintenance over the relevant three-year period. I am of this view because I am satisfied that the husband has the ability to pay the quantum of spousal maintenance sought by the wife and because the wife is lacking the job security, significant income, comparatively good health and emotional resources that are currently enjoyed by the husband. She is financially and emotionally vulnerable, and the making of orders that will have the effect of enabling her to continue to live at a reasonable standard of living for the next three years is unlikely to cause the husband significant financial discomfort in the short or long term. I would not think it proper or reasonable — in the circumstances of the case now before me — for the wife to have to reduce her standard of living in the short term. She seems confident that she will be able to return to the workforce within the next three years. That I am less confident matters little when regard is had to the actual spousal maintenance orders she seeks. Whether one refers to justice and equity or to the concept of what might be "proper" when considering whether to make an order for spousal maintenance (and, if so, what that order should be), I am satisfied that the wife needs the maintenance she seeks for the time she seeks and that to refuse to order it would be unprincipled.

Conclusion in relation to spousal maintenance

270I have already observed that the wife has passed the threshold test imposed by s 72. I have also considered (directly or indirectly) the provisions of ss 74 and 75(2) and borne in mind that there is no fettering principle to the effect that pre-separation standard of living must automatically be awarded to the wife where the husband’s means permit. Further, I understand that any order for spousal maintenance that the Court may be minded to make must be reasonable in all the circumstances of the case, and proper within the meaning and contemplation of s 74.

271I am satisfied that a reasonable allowance for the wife's necessary commitments after the making of the property settlement orders is $875 per week as submitted by Mr Berry.

272I am satisfied that the husband is reasonably able to pay this amount for the relevant three-year period. That is not to say that the husband would not prefer to be able to use the funds to re-accommodate and re-establish himself. I am sure that he would, but he has a very significant income and his outgoings in respect of legal fees should now be beginning to reduce. And, after all, he has paid significant spousal maintenance and provided other benefits for the wife until now. I find that he has the capacity to continue to do so for a further three years whilst, at the same time, being able to maintain a standard of living that is reasonable in the circumstances.

273When I have regard to all the matters to which I have referred in these Reasons (and, in particular, the s 75(2) factors), I am conscious of the lack of precision which is often inherent within the determination of spousal maintenance issues under the Act. Such imprecision, inevitably and perhaps necessarily, infects the reasoning supporting awards of spousal maintenance at all levels. If an example is required, then (with the greatest of respect to their Honours comprising the Full Court) the process by which a shortfall of $30.00 per week was converted to an award of spousal maintenance of $50.00 per week in Bevan & Bevan (supra) at 81,980 would suffice.

274Taking into account all of the factors discussed above, I conclude that an appropriate award of spousal maintenance is $875 per week for three years.

Orders

275I have already indicated that I propose to hear the parties' legal representatives in relation to the precise property orders necessary to give effect to these Reasons. I shall also hear them in relation to the precise form of the spousal maintenance order.

I certify that the preceding [275] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate