FOWLIE and FOWLIE

[2013] FCWA 82

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: FOWLIE and FOWLIE [2013] FCWA 82

CORAM: THACKRAY CJ

HEARD: 10 JUNE 2013

DELIVERED : 8 AUGUST 2013

FILE NO/S: PTW 5179 of 2012

BETWEEN: Mrs Fowlie

Applicant

AND

Mr Fowlie
Respondent

Catchwords:

PROPERTY SETTLEMENT – Wife’s application heard undefended with submissions from the husband – Husband made large financial contributions – Husband received an inheritance post-separation – Wife is unemployed, has care of three young children and receives no support from the husband – Discussion of Stanford – Orders just and equitable in the circumstances.

COSTS – Costs sought on an indemnity basis – Husband’s conduct caused the wife to incur unnecessary legal costs – Costs sought are no more than costs at scale – Husband to contribute fixed sum.

Legislation:

Family Law Act 1975 (Cth), s 75(2), s 79, s 79(4)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms A Wroth

Respondent: Self Represented Litigant

Solicitors:

Applicant: Ball & Co.

Respondent: Self Represented Litigant

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

Ferguson and Ferguson (1978) FLC 90-500

Hickey & Hickey and Attorney-General of Australia (2003) FLC 93-143

Martin & Newton (2011) FLC 93-490

Norman & Norman [2010] FamCAFC 66

Stanford & Stanford (2012) 87 ALJR 74

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

1I am required to determine an application for division of the modest assets of the husband and wife following their short marriage.

The parties and their relationship

2The wife is 24 years of age and is engaged full-time with home duties.

3The husband is 37 years of age. Although he is a [machinist], he failed to provide evidence and it is unclear to what extent he is presently working.

4The husband and wife commenced living together in about February 2007. They had three children between 2008 and 2010. The youngest is now two years old and the oldest is nearly five.

5The husband and wife were married in May 2010 and separated in July 2011. The children have remained with the wife since the separation.

Financial history of the relationship

6The wife had no assets at the start of the relationship. The husband had received a settlement of about $100,000 from a previous relationship, but then did not work for seven months. He was not working at the time the parties commenced their relationship and the parties lived off the money from his settlement and income the wife received from her work. Upon returning to work, the husband remained in employment for most of the remainder of the relationship.

7The husband and wife initially lived on a farm owned by the husband’s parents. In about January 2008, the husband and wife bought a home at [U town] in the husband’s name. The purchase price was $312,000, of which the husband borrowed $300,000. The husband provided the small deposit and presumably the costs associated with the acquisition of the property.

8The wife left the U town home at the time of separation and went to live with her parents. She took nothing with her except an old car, which she sold for a $1,000 and another vehicle, which I will mention shortly, together with some of the children’s bedroom furniture.

9About a month after the separation, the husband received an inheritance of about $140,000 from the estate of his father. The husband gave the wife $9,000 and paid off a debt of $11,857 on the car she had taken. The husband also used funds from the inheritance to acquire a custom built [car], a [camper] and a [motorbike]. The wife used her $9,000 to buy furniture and to pay bond for a home away from her parents’ home.

10In July 2012, the wife commenced these proceedings after she learned that the husband intended to sell the U town property. She thought there was equity in the home, believing it to be worth $340,000, with a mortgage of $280,000. The husband was proposing to pay her $20,000 from the proceeds.

11As soon as the wife commenced these proceedings the husband gave up his employment. He had been paying child support of about $150 a fortnight, but has provided no support for the children since about August 2012.

12Having given up work, the husband was unable to meet the mortgage payments on the U town property. He voluntarily vacated the home and “handed it back to the bank”. The husband told the wife that the mortgage was about $10,000 in arrears at the time he surrendered the property.

13At the time of trial, the property had been on the market for more than four months. The asking price was $319,000 and there was about $300,000 owing on the mortgage. It is common ground there will be no proceeds to distribute after the sale of the property and payment of the agent’s commission.

Short procedural history

14The wife filed her application for property settlement on 25 July 2012, seeking such orders as would bring about a division of “the net matrimonial assets” in proportions 60:40 in her favour.

15Thereafter, the husband was ordered to file a response and a financial statement, but repeatedly failed to do so. He did attend two of three interim hearings. He also attended the conciliation conference, but this went nowhere, given the husband had provided no information about his finances.

16Ultimately, on 30 April 2013, the wife was given leave to proceed with her application on an undefended basis. At that stage, she had not quantified her claim, although she had sought spousal maintenance of $600 per week. The wife finally quantified her claim on the eve of the trial. Although the matter was proceeding undefended, the husband nevertheless attended the trial. I explained to him that, given his failure to comply with earlier orders, he had forfeited his right to adduce any evidence, but I allowed him to cross-examine the wife and make submissions.

17At the conclusion of the short trial, I made an order restraining the husband from disposing of the camper and [his car] pending judgment. By consent, I made an order for the husband to transfer to the wife his interest in the [her car].

Property settlement approach

18Section 79 of the Family Law Act 1975 (Cth), which governs these proceedings, relevantly provides that:

79Alteration of property interests

(1)In property settlement proceedings, the court may make such order as it considers appropriate:

(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them — altering the interests of the parties to the marriage in the property; or

(b)…

including:

(c)…

(d)an order requiring:

(i)either or both of the parties to the marriage; or

(ii)…

to make, for the benefit of either or both of the parties to the marriage … such settlement or transfer of property as the court determines.

…

(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e)the matters referred to in subsection 75(2) so far as they are relevant; and

(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

19It will be noted that s 79(4)(e) incorporates by reference the factors in s 75(2) “so far as they are relevant”. It is unnecessary to set out all of the factors here, but later in these reasons I will refer to those that are relevant.

20Prior to the decision of the High Court in Stanford & Stanford (2012) 87 ALJR 74 (“Stanford”), applications for property settlement were commonly dealt with by reference to what was called a four step process. These steps required the trial Judge to:

•identify and value the assets and liabilities of the parties;

•assess each party’s contributions to the assets;

•assess a range of factors set out in s 79(4)(d) to (g) of the Act;

•consider whether the proposed orders are just and equitable.

21The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey and Attorney-General of Australia (2003) FLC 93-143 at [39].

22Although the four step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation permits alteration of existing interests only when it is just and equitable to do so. See Norman & Norman [2010] FamCAFC 66 at [60] and Martin & Newton (2011) FLC 93-490 at [305] and [306].

23Although the High Court did not disapprove the four step process in Stanford, it was not approved either. Given the way the matter was resolved, there was no requirement for a pronouncement either way. However, the decision serves to refocus attention on the obligation imposed by s 79(2) not to make an order adjusting property interests unless it is just and equitable to do so.

24In many cases it will be readily established that it is just and equitable to make an order adjusting interests. The reasons for this appear from the following paragraph in Stanford:

42.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 …

25The High Court in Stanford also laid down three “fundamental propositions” to guide judges in approaching the task under s 79. These can be summarised as follows:

1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);

2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;

3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.

26The third “fundamental proposition” demands separate consideration of the preliminary question of whether it is just and equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done. However, in my 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 makes clear that in considering “what order (if any)” to make, the court must take into account the matters referred to in that subsection.

27Although the issues arising under s 79(2) and s 79(4) must not be conflated, they are intertwined because the text of the Act links them. This was recognised in Ferguson and Ferguson (1978) FLC 90-500 at 77,615, where Strauss J said that s 79(2) “is directed to both the questions whether an order should be made at all, and what the order should be, if one is made”.

28This understanding of the interplay between ss 79(2) and 79(4) accords with the analysis of Martin Bartfeld QC in his paper entitled “Stanford and Stanford – Lots of Questions – Very Few Answers” where it was said that:

49… there is scope for taking into account the factors under s 79(4) in the exercise of the [s 79(2)] discretion. This can be accomplished, it is submitted, by treating the contribution factors and the factors under s 75(2) as having two simultaneous characteristics;

a.A discretionary characteristic, which is used to identify those matters which are relevant to enliven the exercise of the discretion. Thus the fact that a party has made substantial contributions, over a long period of time, which are not reflected in their asset holdings but which are reflected in the other party’s assets may found a basis for finding that it is just and equitable for an order to be made; and

b.An evaluative characteristic, which is used to measure the weight or to quantify the effect of a particular contribution.

29As Mr Bartfeld said in his paper, “the problem of conflation can easily be overcome by clearly identifying the use to which a factor is being put”.

What are the existing interests in the property?

30As the determination of every property settlement application requires identification of existing property interests, I will deal with that issue first. There are difficulties in doing so here, given that most of the assets were acquired by the husband after separation, and he gave no evidence.

31The husband is the sole proprietor of the property at U town, albeit it was acquired as a home in which the husband and wife would live together. It is subject to a mortgage.

32The husband was (at the time of the trial) the registered owner of the wife’s car, which the wife has in her possession. The wife says it is worth $6,000, whereas the husband suggested it was worth $7,000. I accept the wife’s evidence that the vehicle is in poor condition. In the absence of reliable evidence of value, I am not prepared to accept it is worth more than $6,000.

33The husband had no objection to the wife having her car transferred into her name. In fact, he came to trial with the transfer papers, which I understand he handed to the wife following the conclusion of the hearing.

34The husband did not dispute he is the owner of his car, which is unregistered and now parked at his girlfriend’s home. The husband is apparently not using the vehicle because he has lost his driver’s licence.

35The wife claimed the husband’s car was worth $60,000, but there was no reliable evidence of the value. The wife asserted in her affidavit that the vehicle had cost $50,000 but accepted in cross-examination it may have cost only $40,500. She understood that the husband had spent additional money on the vehicle. The husband should have provided evidence of the value of the vehicle in his possession. Given his failure to do so, I intend to include it in the list of assets as being worth $40,500, although I recognise that probably exceeds its market value.

36The camper is also owned by the husband. It cost around $24,000 or $25,000; however, the wife accepted in cross-examination it was now probably worth somewhere between $17,500 and $19,000. The husband informed the wife in cross-examination that the camper is also parked at his girlfriend’s home.

37The husband has told the wife that he has sold the motorbike and spent the proceeds. The wife does not know how much the motorbike cost, nor does she know how much the husband received on sale. The husband said in his closing submissions that he had sold it for $19,000.

38The husband has superannuation entitlements. He claimed, when cross-examining the wife, that these had been accumulating since he was 18. I accept this, but it is impossible for me to determine precisely when the entitlements accrued. Documents produced under subpoena from [a superannuation fund] indicated that the husband now has one fund with a balance of $1,888 and another with a balance of $47,918. During the course of cross-examination, it emerged that he has a third entitlement, relating to what was called the [another superannuation fund]. There was $9,500 in this fund in 2010, which it was agreed had been built up during the relationship.

39The only other evidence about the superannuation was the wife’s assertion that there was nearly $30,000 in one fund after she had arranged for six funds to be rolled into one a few years into the relationship. I accept this assertion, which presumably relates to the fund that now has a balance of $47,918.

40The wife’s solicitor submitted that the entire $140,000 received from the husband’s inheritance should be “added back” into the “pool of assets” because the husband had wasted the money by acquiring the assets mentioned above. Given that the discretion conferred by s 79 is to alter the interests of parties in property to which one or both are presently entitled, I do not propose to consider this argument at this point in my reasons where I am doing no more than identifying the assets to which the husband and wife are presently entitled.

41The existing property interests of the parties are therefore as follows:

Asset	Value	Ownership
U town property	$319,000 or less	Husband
Wife’s car	$6,000	Wife
Husband’s car	$40,500	Husband
Camper	$18,250	Husband
Total assets	$383,750
Mortgage	($300,000)	Husband
Anticipated costs of sale	($15,000)	Husband
Net assets	$68,750
Superannuation
[Husband’s super fund 1]	$47,918	Husband
[Husband’s super fund 2]	$1,888	Husband
[Husband’s super fund 3]	$9,500	Husband

42I have not included in the table the value of the wife’s furniture ($10,000), since no evidence has been provided of the value of the husband’s furniture. I have also excluded her modest bank account ($183) and her superannuation ($40).

Is it just and equitable to make an order?

43I am satisfied it is just and equitable to make an order adjusting existing interests in property, notwithstanding that the assets have largely been acquired using funds received by the husband by inheritance after the date of separation.

44My reasons for so concluding are as follows:

•the husband has refused to comply with orders requiring him to disclose his financial position and it is therefore impossible to determine what assets he presently has, or what income he presently earns;

•the wife has three young children to support, but is unable to obtain proper financial support for them and herself because the husband appears to have given up work voluntarily;

•the husband’s decision to give up work has led to the mortgagee sale of the parties’ home, which in turn is likely to have led to them not receiving the modest equity which both anticipated would be available if it had been sold in an orderly fashion; and

•to use the words of the High Court in Stanford, the “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 [was] brought to an end with the ending of the marital relationship”.

What were the contributions made by each party?

45The wife’s contributions were made in the form of her income up until the time she started a family, and thereafter in looking after the home and the children. She has continued to provide the full-time care of the children following separation.

46The husband’s first major contribution was in the form of the $100,000 he introduced near the start of the relationship, which was all expended. His further contribution was the $140,000 inheritance received after the separation. In addition, apart from the first seven months, the husband appears to have been in fairly well paid employment for most of the relationship.

47The husband’s post-separation contributions (save for the inheritance) have been negligible, particularly since the wife commenced proceedings.

48The wife’s solicitor submitted that contributions should be assessed somewhere between 40% to 50% to the wife and 50% to 60% to the husband. In my view, however, the husband’s contribution to the current assets (excluding the superannuation) has to be seen as much greater than 50% to 60%, given the assets were acquired with the funds he provided.

49The contributions to the superannuation are more difficult to assess, given the husband’s failure to provide evidence. All that can be confidently said is that some of the husband’s entitlements were built up during the time the parties were together. The husband was able to work and build up those entitlements because the wife was at home looking after the children.

50Adopting a broad brush approach, doing the best I can with the quite inadequate evidence, I would assess contributions to the current assets and superannuation at around 80:20 in the husband’s favour.

What effect should the factors in s 75(2) have on the outcome?

51The findings set out below address the various matters referred to in s 75(2) of the Act, to the extent they are relevant.

52The wife is 24 years of age and in apparently good health.

53The husband is 37 years of age. The wife’s evidence suggests he has had drug and alcohol problems.

54The wife is entirely dependent upon social security and the assistance of her parents and is likely to be so dependent for a long time. She was unable to afford to continue to pay the rent on the accommodation she obtained after separation and has now been living with her parents again for more than a year.

55It is unclear to what extent the husband is working, but he has a trade and is able to earn an income. It is unclear whether he receives social security.

56As previously mentioned, the wife has full-time responsibility for three very young children and has all of the usual commitments in supporting them and herself. The husband has no commitments to support any person, other than himself. He spends only limited time with the children.

57Whilst it would be desirable for the parties to have a decent standard of living this is not likely to be practicable until such time as the husband returns to full-time employment and commences making some contribution to the support of himself, the wife and their young children. Even then, the wife and children will only be able to have an acceptable standard of living because of the support they receive from the wife’s family.

58The wife did not press her application for spousal maintenance for obvious reasons. She gave no evidence of undertaking a course of education or training, which would probably be impracticable in any event given the responsibility she has for the children. She completed Year 12 at school and later attended TAFE, undertaking a bridging course in the hope of becoming a nurse. These studies were not continued when she fell pregnant with the eldest child.

59There was no evidence of any liabilities of either party, other than the mortgage which will hopefully be paid out from the sale of the U town property. To the extent there is a shortfall the husband should be responsible for it, given his conduct in allowing the property to be sold by the mortgagee.

60Neither party has contributed to the income earning capacity and financial resources of the other party and the extent to which they have contributed to the assets has already been discussed.

61The relationship was of short duration, but has had a major impact on the wife’s earning capacity. The wife originally had plans to obtain a qualification but these were put on hold when she became pregnant with the first child.

62The wife wishes to continue for the time being in her role as a full-time parent.

63The wife is not cohabiting with any other person. The husband appears to be living with his girlfriend in Augusta, having ceased camping at [R town].

64If the assets were to be divided in accordance with the contribution findings that I have made, the husband would receive the bulk of the assets.

65I have mentioned already that the husband originally paid modest child support but has paid none since the commencement of these proceedings, when he voluntarily gave up his employment.

66There was no binding financial agreement.

67In considering any other factors that may be relevant under s 75(2)(o), I note that the parties may have had some equity in the U town home if the husband had not left his job and handed the home back to the mortgagee. There was insufficient evidence to determine what equity there might have been, other than that it would have been modest given the short period in which it was held.

68I do not propose to take account of the husband’s wastage of his inheritance. Although the funds could have been much better spent securing the future for his young family, the money was his and the wife made no contribution to it.

69The s 75(2) factors overwhelmingly favour the wife, given her responsibilities to house and maintain herself and the children with the likelihood of little assistance from the husband.

70I consider an adjustment of somewhere around 40% in favour of the wife would be appropriate, bringing about an overall 60:40 division. I note this is the outcome the wife sought to achieve when she filed her application.

The outcome

71The husband’s conduct almost defies belief. Having fathered three children in the space of three years, he then inherited $140,000 which he then proceeded to spend on what could only be regarded as “toys”.

72The $140,000 is now represented by assets that are worth very significantly less than what they cost, although it is impossible to determine what they are really worth.

73Whilst I accept there is some merit in the wife’s argument that she should receive almost all of the assets, I cannot overlook the fact that the assets were largely funded by monies contributed by the husband. Furthermore, if the husband was left without even a vehicle, his prospects of returning to employment, which would hopefully lead to payment of some child support, would be likely to be significantly diminished.

74In my view, the just and equitable outcome is for the wife to retain her car and for the husband to transfer to her the camper, which she can then sell in order to provide a small fund to assist her and the children during the hard financial times ahead. I accept there is a possibility the wife will have to use some of this money to reimburse her father who has paid at least $4,807 toward the costs of these proceedings, which have been unnecessarily prolonged by the husband’s failure to comply with orders.

75It is also just and equitable for the wife to obtain a share of the husband’s superannuation. His failure to be frank by making a full disclosure to the Court of his financial position makes it impossible to determine what would be a fair split of the superannuation. However, taking into account all of the matters referred to above, I consider the wife should receive $35,000 from the husband’s superannuation. I recognise this is more than she sought ($28,750), but she quantified her claim before learning the husband had another $9,500 in superannuation and she also sought more of the other assets than I have awarded to her.

76The wife will therefore receive assets worth $24,250. The husband will be left with his car, of indeterminate value but probably worth less than $40,500. The wife will also receive $35,000 by way of superannuation, while the husband will be left with about $24,000 in superannuation.

77I consider this to be a just and equitable outcome.

Costs

78At the conclusion of the trial, the wife’s solicitor sought costs against the husband in the sum of $8,800 which she said had been calculated on an indemnity basis.

79Having viewed the Court file, noting the number of times the matter has had to come back before the Court and the documents that had to be filed, I consider that a sum of $8,800 is entirely reasonable.

80The wife’s solicitor advised that her costs agreement with the wife involved payment on an hourly basis of $352 which is in accordance with the Legal Practitioners (Family Court of Western Australia) Determination 2012. Thus, whilst costs are sought on an indemnity basis, I consider the amount sought is no more than costs at scale, and probably represents less than the full costs that could have been charged.

81This litigation was entirely unnecessary. The husband failed to comply with court orders. The matter should have not proceeded to a trial, but this was inevitable, given the stance adopted by the husband.

82The husband should therefore contribute to the wife’s costs fixed at $8,800. The chances of the husband complying with that order would appear remote. If the husband does not pay within 90 days, the wife can apply to have the superannuation splitting order amended to increase the amount payable to her by $8,800.

Orders

83I propose to make the following orders:

1.The husband shall transfer and assign to the wife the camper and shall deliver up the camper to the wife or her nominated agent in good order and condition within seven (7) days of receipt by him of written notice of the date and time at which the wife or her agent proposes to collect the camper.

2.Upon the wife giving notice of these orders to the trustee of the husband’s super fund 1 and 2:

a.In accordance with s 90MT(4) of the Family Law Act 1975 (Cth) (“the Act”) a base amount of $35,000 is allocated to the wife out of the husband’s interest in that super fund.

b.In accordance with s 90MT(1)(a) of the Act the wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount calculated in paragraph 2(a) of these orders, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and the entitlement of the husband (or the entitlement of such other person who becomes entitled to receive a payment out of the husband’s interest) in that super fund is correspondingly reduced by the force of this order.

c.The trustee of the husband’s super fund 1 and 2 shall do all such acts and things and sign all such documents as may be necessary to calculate, in accordance with the requirements in the Act, the entitlement awarded to the wife in paragraph 2(a) of these orders and pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in that fund.

d.The parties, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994, shall do all such things and sign all such documents as may be necessary, including, but not limited to, exercising the request in accordance with the Superannuation Industry (Supervision) Regulations 1994, for the payment of the non-member spouse interest by way of a lump sum entitlement in accordance with the Superannuation Industry (Supervision) Regulations 1994.

3.Paragraph 2 of these orders has effect from the operative time and the operative time is four (4) days after service of this order on the trustee of the husband’s super fund 1 and 2.

4.The parties have liberty to apply in relation to paragraphs 2 and 3 of these orders, including to seek amendments to satisfy any requirement of the trustee to give effect to the orders.

5.The wife shall retain all other property in her possession or control and any interest the husband may have in such property shall vest in the wife and the wife indemnify the husband and keep him indemnified against any liability in relation to that property.

6.The husband shall retain all other property in his possession or control and any interest the wife may have in such property shall vest in the husband and the husband indemnify the wife and keep her indemnified against any liability in relation to that property, including any shortfall in relation to the sale of the U town property.

7.The husband pay the wife’s costs fixed in the sum of $8,800, payable within 90 days. In the event the husband does not pay within the specified time, the wife be at liberty to make application by way of enforcement of this order including for the variation of paragraph 2(a) of these orders to increase the amount of $35,000 to $43,800.

8.Paragraph 2 of the orders made on 10 June 2013 be discharged upon compliance by the husband with paragraph 7 of these orders (or upon variation of paragraph 2(a) of these orders as proposed in paragraph 7 of these orders)

9.The wife’s application otherwise be dismissed.

I certify that the preceding [83] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate