G & T

[2002] FamCA 613

[2002] FamCA 613

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA  

AT MELBOURNE

No. (P) MLF 6073 of 1999

IN THE MARRIAGE OF:

G  (Husband)

and

T  (Wife)

JUDGMENT DELIVERED BY

THE HONOURABLE JUSTICE DESSAU

Dates of Hearing:         6, 7, 8 and 9 May 2002

Date of Judgment:       31 July 2002

Appearances:               Mr Young QC instructed by Messrs Holt & Macdonald, solicitors, DX38060 Ringwood appeared on behalf of the applicant wife

Mr Dickson of counsel instructed by Messrs Taussig Cherry & Associates, DX38236 Flagstaff appeared on behalf of the respondent husband

INTRODUCTION

1. Mr G and Ms T cannot agree on how to divide their property after a marriage of 24 years.   To decide the case I must:

   ·   Establish the parties’ assets and liabilities - the main issue relates to the value of royalties from the husband’s song-writing.

   ·   Determine the parties’ respective contributions - substantial issues relate to the royalties from songs written by the husband before the relationship;  inheritances from his family; whether he has contributed “special skills”; and, post-separation contributions.

   ·   Consider the parties’ future needs, means and obligations, including the s. 75(2) factors - the main issues relate to the care of the children, the parties’ income and resources, and the husband’s future income-earning capacity.

   ·   Decide a just and equitable result - in this case much turns on whether or not finality can be achieved:  whether an adequate lump-sum can be paid to the wife, or whether she should receive a share of the on-going royalties.

BACKGROUND

1. The husband is Mr G.   He is aged 55 years.   He is a song-writer and one of the founding members of a band.   The wife is Ms T.   She is aged 48 years and works part-time as a shop assistant.   The parties married in April 1974.   They have four children.   Y is aged 24, lives with her boyfriend and is in employment.   X is aged 22.   He works part-time and lives with his father.   N, aged 16, is studying VCE.   He lives with his father, and was seeing his mother on one to two nights each week, until he recently stopped.   C is aged 11.   She is in Grade 6 and lives week about with each parent.  

1. The parties separated in mid-1998 and divorced in September 1999.   The husband married Ms S in March 2000.   He supports her and her two daughters, aged 14 and 12.    They live with her and Mr G in a home, purchased in Ms S’s name in November 2000.   The wife started living in a de facto relationship with Mr J in March 1999.   They separated for a short period in December 2000, but reconciled.   Mr J has limited assets, is involved in a struggling business, and faces his own family law property proceedings.

1. When the parties married in 1974, the husband was a member of the band M.   The wife was engaged in some part-time employment.   In 1975, the band relevant to these proceedings was formed.   It was almost immediately successful, with a recording contract and extensive overseas tours between 1976 and 1979.   The lead singer was Mr SO and later (between 1982 and 1985) Mr F.   Until the band disbanded in 1985, the group enjoyed on-going success with albums and tours.  

1. In 1989, the husband re-formed the band with Mr SO.   Again they made albums, toured, and performed.   The husband left the band the following year and for the next year or two he performed solo, releasing an album and touring overseas.   Mr G has recently been involved in the reformation of a band, but it is yet to make a profit and there are some complications surrounding it, to which I shall return.

1. Prior to, throughout, and since the marriage, Mr G has continued to write songs.    He has written about 128 songs, some of which have been extremely successful, although it is many years since he has written a hit  song.   Although his income was extremely high between 1978 and 1981 (up to $780,000 in 1978), the husband’s enduring source of income has been the royalties from his song-writing.  

1. There are different classes of royalties.   “Mechanical royalties” are paid by a record company to the controlling publisher for the sale of records, CDs and videos.   The publisher in turn pays the composer a share, in Mr G’s case, a half share.   In 1982 the husband sold some publishing rights to the W Company for $270,000.   In 1991 he sold the publishing rights to his remaining published songs, to the M Company for $720,000.  

1. “Artist Royalties” are paid to the recording artist for the sale of records, CDs and videos.   This amount makes up a very small part of the income received in this case.  

1. The predominant part of Mr G’s on-going income comes from “performance royalties”.   The composer receives a half share of the royalty paid each time a song is performed (the publisher receives the other half).

1. The royalties are payable “in perpetuity”, that is, 50 years after the husband’s death.   During the last six years, the average royalties received have been $200,000 each year.   In that same timeframe, an annual average of only about $20,000 has been paid in tax.

1. This is a difficult case. Although the husband received very high income in the earlier part of the marriage, a sudden down-turn in income, the parties’ lifestyle and rising interest rates, mean they have little to show for it, apart from the on-going royalties. The husband presently has no other income. The dilemma is how to achieve a just and equitable result for the parties, whilst bearing in mind s. 81 Family Law Act and the need for finality, if practicable.

DOCUMENTS RELIED UPON AND ORDERS SOUGHT

1. The wife relied upon:

   ·   her amended application filed 16 April 2002

   ·   her affidavits filed 20 March 2002 and 16 April 2002

   ·   her financial statement filed 20 March 2002

   ·   the affidavits of Mr MS filed 20 March 2002 and 3 May 2002

   ·   the affidavit of Mr D filed 20 March 2002

   ·   the affidavit of Mr WN sworn 14 March 2002

   ·   the affidavit of Ms P filed 26 March 2002

   ·   the affidavit of Mr H filed 15 April 2002

   ·   the affidavit of Ms H filed 8 April 2002

   ·   the affidavit of Mr DN filed 20 March 2002.

1. Only the wife and Mr D were cross-examined.   The accountant Mr MS was not called.   He and the husband’s accountant prepared an Order 30A Statement of Investigative Accountants filed 5 April 2002, and a final version dated 3 May 2002.  There was a dispute as to whether the wife could rely on Mr D’s evidence.   I ruled she could and my reasons are set out below.

1. The wife had an application for maintenance which would have required leave to proceed.   It was not pursued.   At the start of the case, she sought orders for 40% of the on-going royalties, and a lump-sum payment of $100,000, to adjust various items of personal property.   In the alternative, she sought a lump-sum payment of $450,000 together with the $100,000.   By the end of the case, it was clear that provided a fair lump-sum could be paid in a timely manner (expressed as “over some years  -  not decades”) then the wife would be happy with an immediate payment of $100,000 and the balance on terms.   The receipt of a share of the on-going royalties was then put in the alternative.

1. The husband relied upon:

   ·   his amended response filed 26 March 2002

   ·   his affidavits filed 5 Marsh 2002 and 12 April 2002

   ·   his Form 17 filed 15 March 2002

   ·   the affidavit of X filed 1 May 2002

   ·   the affidavit of Ms SO filed 22 April 2002

   ·   the affidavit of Mr W filed 22 April 2002

   ·   the affidavit of Ms BP filed 10 April 2002

   ·   the affidavit of Mr SE filed 7 March 2002.

1. From the husband’s perspective, at the start of the case his preferred position was that he pay to the wife the sum of $100,000 and  transfer to her a Peugeot motor vehicle currently in her possession.   In the alternative, the wife should receive 25% of the royalty income stream.  

1. The husband’s position as to the lump-sum to be paid to the wife was slightly modified by the end of the hearing.   Although it was his case that he could only raise $100,000, he “understood” that any lump-sum figure would need to be higher.   He sought the opportunity to pay on terms.   His case was put on the basis that at its highest for the wife, she would be entitled to 40% of the value of the company (as valued by accountants).   That would be equivalent to $187,000 or $170,000 plus the car.   He would pay $100,000 soon after the orders but sought terms to pay the balance of $70,000.   If he were not able to meet any lump-sum payment, the balance could be paid via a percentage of the royalty stream.  

THE ASSETS AND LIABILITIES

1. Apart from the major issue of the value of the royalty stream, to which I shall return, there are minor issues as to:

   ·   Furniture and chattels

   ·   The sale of the Rolls Royce

   ·   The sale of shares

   ·   Treatment of Legal Fees

   ·   Treatment of the sum of $34,100 paid to the wife since separation

   ·   The O Property road widening monies.

Furniture and Chattels

1. At around the time of separation, the husband had prepared a detailed list of chattels, indicating what was retained by each party.   He had to concede that the version he attached to his affidavit had omitted the values ascribed by him at the time.   That became evident when the wife annexed the full version to her own affidavit.   Also, he had sought to reduce the value of his own chattels to allow for depreciation, but not the wife’s.   He had to concede that like his, the wife’s chattels should be depreciated.   There was little argument by the end of the case that about $60,000 should be allowed for the furniture and chattels retained by the husband and about $32,000 for those retained by the wife.  

1. A further $40,000 worth of chattels listed by the husband related to his recording equipment.   I will bear them in mind, but do not propose bringing these “tools of trade” into the pool as a discrete item.   I would make no order affecting the husband’s possession of them.   They are fundamental to his future income-earning endeavours.

The Sale of the Rolls Royce

1. In the late 1980’s, the parties bought a Rolls Royce for $140,000.   The husband sold it after separation for $60,000.   It was his case that it should not be added-back into the pool of assets as he used the sum for living expenses.   It was the wife’s case that it should be added-back.   In final submissions, counsel for the husband conceded that the amount should be added-back, but asked me to off-set it against the amount paid by him since separation (actually via his new wife’s contribution) to extinguish the parties’ respective car leases.  

1. The sum of $117,000 was owing on the cars at separation.   The husband partly reduced that from income.   He should receive no credit in that regard.   After all, he had the full use of the parties’ income (save for a small sum to which I shall return) after separation.   But the figure paid by his new wife to extinguish the existing car leases, about $88,000 it seems, should be taken into account.   I accept the submission of counsel for the husband that it would be fair to off-set the Rolls Royce sale proceeds in recognition of that outside contribution and they should not be added-back into the pool of assets.   In any event, as the pool of assets is increased by the equity in the parties’ vehicles, in that sense the monies received for the Rolls Royce have in fact been added-back.

1. I note that the parties agree that the wife shall retain her Peugeot, and the trustee company will pay stamp duty and transfer costs.   The husband shall retain his Range Rover.   The Peugeot is worth about $16,000.   The Range Rover’s present value is about $33,000.

The Sale of Shares

1. During 1996 the husband inherited the sum of $30,000 from his mother.   He invested in shares, which he sold for $45,000, after separation.   It was the wife’s case that the share sale proceeds should be added-back into the pool of assets.   It was the husband’s case that the sum was used on family expenses, but in any event it was an inheritance received very late in the marriage and should be treated separately from other assets.

1. I do not propose adding this sum back into the pool of assets.   Although I will come to the issue of contributions shortly, given that this money was received so close to separation, it is reasonable to treat it as a sum which had in no way been contributed to by the wife and for that reason it can be put to one side.   Although the husband’s use of it is of limited significance in the overall scheme of things, I will bear it in mind in terms of the various s. 75(2) factors.  

Treatment of Legal Fees

1. Both parties face substantial costs from both legal and accounting fees.  It was argued for the wife that legal fees already paid by the husband should be notionally added-back into the pool of assets, as they had come from the joint royalty stream.   For her part, she had no access to that income and the small sum of legal fees ($10,000) paid by her to date, were paid from borrowed monies.   The balance will be met from the property settlement.

1. It was argued for the husband that $38,500 in legal fees already paid was met by borrowings on credit cards and borrowings against expected royalties.   An outstanding bill, which would take his total legal fees to over $53,000, awaits payment and will soon be added to his credit card debt.  He believes there is another $30,000-$40,000 owing and up to $12,000 for the accountant.   The wife had no such reckonings but there was nothing in the evidence to suggest that her expenses would be substantially lower.   In addition, she will have to meet the actuary’s fees.

1. The Full Court considered the treatment of costs in Farnell and Farnell (1996) FLC 92-681. Legal fees may be added-back into the pool of assets, according to the circumstances of a case, particularly when met from joint monies. In this case, since separation, the husband has had the exclusive use of the income royalties, as well as borrowed monies or help, from his publishers, his new wife, and via his credit card. He points to the fact that at separation he had credit card debts of some $20,000 but they now stand at $40,000.

1. In my view the legal fees paid - $38,500 at trial, should be added back into the pool of assets.   Having received virtually all of the royalties (even drawing in excess of profits received by the Trust) it is unrealistic to separate out current debt or any increase in debt as referrable to legal fees.   Although he has borne the brunt of financial responsibility for the family, he has also made his own lifestyle choices, including his financial commitment to a new home, his wife’s family, holidays and other comforts.   The receipt of substantial royalties (however he chose to apply them), enabled a lifestyle, including payment of legal fees, an option which has not been open to the wife.

Treatment of the sum of $34,100 paid to the Wife since separation

1. Following separation, the husband paid a total of $34,100 to or on behalf of the wife.   It related largely to her rental, car expenses, and psychologist’s fees, at a time when the parties had just separated and the wife was returning to the home each day and performing household duties and caring for the children.   He otherwise enjoyed the benefits of all incoming royalties to her exclusion.   There is no basis to add this back into the pool of assets or to treat it as a partial property settlement. 

The O Property Road Widening Monies

1. Almost seventeen years ago, the parties sold a property at O.   It was a term of the contract of sale that they would receive the benefit of monies in the event of compensation for the road widening which had already taken place.   Although it is still agreed that they will share any compensation monies, the likelihood of receiving any is remote.   As such, there is nothing to include in the pool of assets, but it can be noted for the purpose of the s. 75(2) factors below.

The Valuation of the Royalty Stream

The Structure for Payment

1. Since 1974, all income from the husband’s song-writing and performing activities have been paid through the G Family Trust.   He is the appointor of the Trust.   The Trustee is a company, MW Pty Ltd, in which he and his present wife are the directors and shareholders.   Ms T resigned from her position as director in October 2000, Mr G says by choice, and she says upon his insistence that she sign the documents.   I can make no definitive findings about that.   What is clear is that there are sound taxation advantages in the company and trust structure.  

The Valuation

1. Before determining the preferred approach to valuation, there are several discrete issues which must be resolved.  

1. The first relates to over-payments received by the Trust, for publishing rights which had been sold to M Company in 1990.   The husband’s royalties in respect of those rights should have stopped when the rights were sold.   But they did not and by 30 June 2001, over-payments of $250,716 had been received.   It was the husband’s evidence that he had previously advised M Company of the recurring over-payments.   Despite that, they have been and are still received.  

1. The accountants valued the Trust excluding those over-paid royalties.   The actuary’s advice was also sought in that regard.  He concluded that excluding those over-payments, the present value of the projected income stream as otherwise calculated by him would be reduced by $67,000.   I agree that any valuation should be conservative, and should exclude these over-payments.

1. Liability for the over-paid royalties may or may not crystallise.   It was the accountant’s view that if it does not, then the royalty stream would increase by $30,000 and the value of the trust would increase by about $280,000.   The likelihood that the over-payments will continue and how the risk should be treated shall be considered below.

1. Another issue relates to the husband’s personal liability to the Trust in the sum of $148,000.   It represented his drawings from the Trust in excess of the profits generated and otherwise distributed to him, since separation.   The accountants’ joint report noted that if not repaid, the value of the equity in the Trust would be reduced by that sum.   Counsel for the wife argued that the valuation of the Trust should include this sum, a debt owed by the husband to the Trust.

1. It was the husband’s case that it made no difference whether or not that sum was reflected as an asset of the company.   If it were, then it would equally be reflected as a debt of the husband.   I agree.   And I accept that it is unlikely to be recovered by the Trust.   I do not propose bringing it into account as an asset of the Trust for valuation purposes, but will consider it below as monies used by the husband post-separation.

1. The next issue relates to “one-off” royalties received by the husband in 1997/1998 in relation to commission from his solo album.   The gross takings for that year were more than $266,000, although the figure used for calculation purposes (by both the accountants and the actuary) was about $199,000.   I conclude that, fairly, the one-off royalties were excluded for all valuation purposes.   

1. That brings me to the substantial issue of the approach to valuation.   The parties had each engaged accountants: Mr MS from Stannards for the wife and Mr SE from Ernst & Young for the husband.   Initially Mr MS valued the royalty stream at between $324,000 and $405,000, on the basis of an “orderly realisation”.   Mr SE valued the equity of the Trust between $59,000 and $81,000, on a “going concern” basis.  

1. On 27 March 2002, the accountants prepared an Order 30A certificate and the agreement between them was refined further with the preparation of a joint report on 3 May 2002.   They agreed that the G Family Trust should be valued on an “orderly realisation” basis using a future maintainable earnings approach.   By the time of the hearing, the agreed valuation was $469,000, subject to treatment of the loan to the husband (a reduction by $148,000), and the over-paid royalties (a potential increase of $280,000).

1. It was agreed that the accountants would not be called.   It was also agreed that I did not have to be bound by their evidence.   The husband urged me to accept it.   For her part, the wife relied instead on an actuarial valuation of the on-going royalty stream, prepared by Mr D of Mitchell & Co Pty Ltd and exhibited to his affidavit filed 20 March 2002.   The husband objected to the wife’s reliance upon that affidavit.

1. Mr Dickson for the husband submitted that as the wife was already relying upon an investigative accountant, she could not call another expert in relation to the same issue.  Mr Young QC for the wife submitted that the actuary performed a different task from the accountants.   The accountants had valued the Trustee company on a future maintainable earnings basis, the actuary had given what Mr Young referred to as “a long-term assessment”.   In any event, the figure arrived at by the accountants was low, not in step with reality, and special circumstances therefore existed for further expert evidence.

1. The provisions of Order 30A of the Family Law Rules are designed to ensure that a party does not waste time and costs by bolstering their case with the calling of more than one witness in relation to the same issue.   The court may permit it if satisfied that there are “special circumstances” (see r. 8).

1. Arguably, Mr D’s evidence related to a different issue to that addressed by Mr MS.   The accountant undertook the valuation of the equity in the G Family Trust.   Mr D undertook an actuarial valuation of the royalty stream.   Even if it is one and the same, simply approached via a different assessment, I am satisfied that there are special circumstances in this case, warranting admission of the evidence.  

1. The future maintainable earnings approach as settled between accountants arrived at a valuation of $469,000, the equivalent to only several years’ royalties.   When Senior Counsel for the wife made the tongue in cheek offer that for that price the wife would happily buy the royalty stream from the husband, he certainly did not take her up on the offer.   That “offer” highlighted the inadequacies in the accountants’ approach to this case.   So did the fact that the valuation would be reduced by $148,000 in relation to the husband’s excess drawings.   That reflects the past, but not the future.

1. Mr D’s assessment was that as at 1 January 2002 the value of the projected income stream of royalties, at its most conservative, (excluding the over-payments) was $1,124,675.   With average royalties of $200,000 per annum in the last six years, the accountants’ approach did not produce a result that rang true to the unique nature of these payments.   I was satisfied that special circumstances existed and I allowed that evidence.  I note that although the husband had been given ample time and opportunity, he chose not to file answering material.

1. In relying upon the accountants’ report, it was emphasised for the husband that the accountants had ultimately agreed that a discounted cash flow basis was not the basis upon which the Trust should be valued.   It was however used as a “cross-check” of the future maintainable earnings approach and corresponded with “the high fair value” of the other method.   It was the accountants’ evidence that Mr D’s calculation was unreliable in that he was predicting the future on a steady wasting rate, when it was easy to see the fluctuations if one looked at the last three rather than the last five years.   

1. Neither the accountants nor the actuary professed any particular expertise in the music industry.   Both attempted to allow for the uncertainty as to the amount of future royalties.   It is an unusual situation.   The royalties have been received for many years and are payable not only throughout the husband’s life but for fifty years beyond.   That fact alone highlights their unusual nature.   I was referred to no precedent.   There is no direct analogy, for example with a fixed annuity or pension to be paid into the future, or with the profits of work predicated on various uncertainties, including the continuation of the income-producing activity.

1. It is difficult to predict future royalty payments.   On the one hand, they have flowed steadily over many years.   The gross royalties received over the last six years have averaged $202,000 per annum.   But the figures in those years have varied markedly, the 2000 and 2001 financial years being significantly lower than previous years (at $129,000 and $157,000 respectively).   Mr G reckons that his 2002 income will be similar to the previous year.    There was no substantial explanation as to why there had been a recent change in the royalties received.   Although there has always been the potential for the royalties to subside as the time from their original release increased, they have successfully stood the test of time for up to 30 years.

1. It was the wife’s case that with Mr H’s resurrection of the band performing the “famous” songs across the United States, it is expected that the air play and thus the royalties would increase.   Mr G said that he “couldn’t say” but it “could make it worse” and he noted the substantial decline in royalties since they started.  

1. Mr G noted the “spike” in income when the band Z recently recorded his song “R”.   He said it is highly unlikely that other songs will be re-recorded.   If they were, there would be a similar increase in income.  I will return to aspects of uncertainty into the future when looking at the s. 75(2) figures below.

1. Mr D is an experienced actuary.   No evidence was called to contradict his calculation, but he was challenged in cross-examination, and three different scenarios (Exhibit H2) were put to him by Counsel for the husband.   I accept Mr D’s rejection of the scenarios as not in accordance with reality, different from the actual figures in this case, or using smoothing adjustments which, according to his professional judgment were “enormous”.

1. For the purposes of his calculation, Mr D used the figures from the last available financial year, (2001), the second lowest in existence.   I accept that he chose conservative figures and a conservative wasting rate and smoothing adjustment to calculate the present value of the projected income stream, taking into account the uncertainties set out above.   He also used figures for the 1998 year, properly reduced by “one-off” payments.   His evidence and his professional expertise were unshaken in cross-examination.   I accept his evidence. 

1. Although the accountants agreed an approach, quite simply the joint valuation did not ring true, given the likelihood that it would be fully recouped in the next two to three years of royalty payments.   Of the two approaches, the actuary’s approach strikes me as the more realistic in the peculiar circumstances of this case.  

1. I note that Mr D used the figures before taxation.   He did so on the basis that the taxation paid by the husband was so very low.   The evidence supported that through the vehicle of the Trust and his many deductions, that situation was likely to continue.   I should take taxation into account.   It has been paid consistently at the rate of approximately 10% over recent years.   Accepting Mr D’s valuation of $1,124,675, and making an approximate allowance for taxation, I propose including the net value of the royalty stream at $1,012,208, rounded down to $1,012,000.

The Pool of Assets

1. I conclude that the pool of assets is as follows:

   The royalty stream                  $1,012,000

The husband’s car                   $    33,000

The wife’s car  $    16,000

The husband’s furniture           $    60,000

The wife’s furniture                $    32,000

The husband’s legal fees

added back to the pool             $    38,500

$1,191,500

CONTRIBUTIONS

1. Although there was ultimately broad agreement that the parties contributed equally during the marriage, in terms of the husband being the primary breadwinner and the wife being the primary homemaker, there were subtle glosses on that.   At the time when the husband was writing successfully and generating a very high income as song-writer and band member, the wife was not only caring for small children, but frequently doing so in the complex circumstances of travelling with the husband.   It was properly conceded on her behalf that were also advantages in travelling, so that she was not claiming an “extra” contribution as such.   But when the pendulum swung towards the husband’s generation of substantial income, the wife’s role with the children in the unusual circumstances of being “on the road”, also had an added degree of difficulty.   When the pendulum swung away from such income, the husband was working from home, with more time for the family, and the wife’s role was balanced accordingly.  

1. The outstanding issues as to contributions were as follows:

   ·   Pre-marital contributions (particularly in relation to songs written by the husband before the relationship)

   ·   Monies inherited by the husband

   ·   Inspiration – the wife claimed credit in that regard

   ·   Special skills – the husband said that he should be given credit in that regard

   ·   Post-separation contributions.

   I will deal with each in turn.

Pre-Marital Contributions

1. At the outset of the relationship, the husband was a member of the band M.   The wife had no formal qualifications.   Each party owned vacant land, which was subsequently sold and the proceeds used towards the purchase of their first property together.

1. Prior to the relationship the husband wrote three songs for which substantial royalties are still received.   In his affidavit he reckoned that 20-30% of current royalties derived from those songs.   In cross-examination he admitted that taking the last five year average, the songs in fact accounted for 16.5%, or upon the last three year average, 17.7%, of all royalties received.  

1. It is fair to conclude that the husband brought those valuable “assets” into the marriage and he should be given some credit.   The value of pre-marital assets is usually diminished by the passage of time.   Whilst that principle should be applied, I note a distinction in this case.   The “asset” contributed by the husband 24 years ago, continues to create its own discrete income.

Monies Inherited by the Husband

1. I have already noted the small inheritance received by the husband near separation, and have treated it as a sum to which the wife made no contribution.

1. There was one other inherited sum.   In 1982, Mr G received $85,000 from his late father.   It was used towards family expenses.   It was a long time ago and a small sum compared with the family income and lifestyle of the period.   Its impact will be small in determining contributions.

The Issue of Inspiration

1. It was the wife’s case that she had been an “inspiration” to the husband in his song-writing activities, and her contribution in that regard should be recognised.   She relied on the decision of Rowlands J in Whiteley and Whiteley (1992) FLC 92-304, where his Honour held that the artist’s wife had been an inspiration to the husband’s work, meaning:

   “…she assisted in enlarging his thought or feeling and so aided and encouraged his artistic scope.” (at p. 79,299)

1. Rowlands J had described Mrs Whiteley’s contribution as “unusually helpful”, although ultimately his Honour assessed contribution substantially in the husband’s favour, on the basis of special skills.   I shall return to the issue of “special skills” below.

1. In this case, Ms T pointed towards her care of the children and running of the home, which naturally enhanced the husband’s time, space and energy to “create”, and to the fact that at his request, she frequently travelled with him on tour.   But she emphasised that the inspiration went further, in the sense that their relationship was a source of inspiration for various romantic songs written by him.   She referred to several specific songs, amongst his popular works.  

1. Mr G denied that the wife had provided any substantial inspiration for his works, beyond being one of the people around him.   He described the song-writing process as a personal one, where he was touched by something, often minor or marginal, that he had observed.   He gave the example of seeing an old movie on television in Germany, sitting on the side of the bed, and penning the successful song “MM”.  

1. The evidence did not sustain Ms T’s contribution on the level of Mrs Whiteley, who had worked as the artist’s model, been acknowledged at one time by her husband saying that all of his work had “been hinged to her”, and who had given evidence that the entire focus of their lives was geared towards painting.   In that case, the finding was that she had significant intellectual input into his work.   In this case, the evidence did not suggest that Ms T provided significant input into the husband’s work, such as to warrant a finding of additional contribution on her part.    That is not to diminish the love, support and partnership offered by her, as part of her role in the marriage and family.

Special Skills

1. It was argued for the husband that he has made an extra contribution due to his “special skills”.   It was his case that although his high income in the late 1970’s had not translated into assets for the parties, he should still receive credit for his particular talent.  

1. Mr G emphasised his unique position amongst Australian song-writers.   He said that 56 of his songs have been played a total of over eleven million times in the United States.   No other Australian writer “comes close”.   He referred to a recent press release, written and issued in January 2002, describing him as “Australia’s most successful international song-writer and a key figure in one of the world’s leading chart bands of the seventies and early eighties”.   It described his extraordinary success resulting in more than 20 million record sales, 13 American top 40 hits (six of them top 10) and five consecutive top 50 American albums, three platinum.    Although for these purposes Mr G relied upon that press release, as to his future income earning capacity, he was quick to emphasise that this being his press release, it deliberately “pumped up” his image of success.   I will return to that aspect below.  

1. The wife’s case was that no allowance should be made for special skills.   The whole picture needed to be considered.   The husband liked to live lavishly.  The family money was invested in real estate.   The monies were largely lost, with his sharp decrease in income, a down-turn in the economy, and increased interest rates, so that the parties have little property to show for their marriage.  Further, although for years the husband had tried to re-form a group, and had continued to write, he had not enjoyed the success of the early years.

1. In Ferraro and Ferraro (1993) FLC 92-335 the Full Court recognised that “special skills” may attract recognition as an extra or special contribution. They noted that Mr Ferraro, a property developer, had by his special skills and endeavour greatly increased the assets of the parties to the level of $12 million at trial, and should be recognised for that special contribution.

1. The Full Court revisited the issue in 1996 in McLay (1996) FLC 92-667. The parties had assets valued at over $8 million, acquired by property development conducted by the husband whilst also engaging in other full-time employment. The Court approved the trial Judge’s assessment, that where special skills towards the accumulation of assets was established, it may justify the court in considering the contribution “to be above the normal range”, entitling a party to recognition of an extra or special contribution. But it emphasised that expressions such as “special skills” were not terms of art. The court must do what is just and equitable in all the circumstances of each case. The Court rejected submissions that in the exercise of the discretion, a judge must favour the party directly responsible for the accumulation of wealth, or that the issue must be judged on the “financial product” of the parties.

1. The Full Court again considered the question in StayvStay (1997) FLC 92-751. It held that as the husband’s skill, ingenuity and enterprise had only produced assets ($3.7 million) in the medium rather than the high range, the trial Judge had been in error in concluding that the husband’s contribution had the quality described in the authorities as extra or special.

1. These authorities were recently considered by the Full Court in JEL and DDF (2001) FLC 93-075. The husband, a geologist, used his skill as a gold prospector and entrepreneur to establish net assets of more than $36 million. Noting a discrepancy between McLay and Stay, as to a “special contribution” being dependent upon the size of the pool, the court expressed its view (at paragraph 133):

   “The issue of a ‘special’ or  ‘extra’ contribution by the husband or wife is a question of fact.   In our view, the determination of such contribution is not necessarily dependant upon the size of the asset pool or the ‘financial product’ achieved by the parties.”

1. And (at paragraph 134):

   “…The concept of a ‘special’ or ‘extraordinary’ skill or factor cannot, without more, be rendered nugatory by the fact that the assets accumulated by the parties did not reach the magnitude of many millions.”

1. Ultimately (at paragraph 152) the Full Court summarised the general principles that arose from the previous cases.   It is helpful to repeat them in full:

   “(a)    There is no presumption of equality of contribution or ‘partnership’.

   (b)       There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife.
   (c)       Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case.
   (d)       In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them.
   (e)       The Court will recognise any such special factors as taking the contribution outside the ‘normal range’ in the sense that that phrase was understood by the Full Court in McLay (supra).
   (f)       The determination of an issue of whether or not a ‘special’ or ‘extra’ contribution is made by a party to a marriage is not necessarily dependant upon the size of the asset pool or the ‘financial product’.   When considering such an issue, care must be taken to recognise and distinguish a ‘windfall’ gain.
   (g)       Whilst decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles.
   (h)       It is ultimately the exercise of the trial Judge’s own discretion on the particular facts of the case that will regulate the outcome.

   (i)        In the exercise of that discretion, the trial Judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.”

1. In assessing the parties’ respective contributions in this case, it is fair to recognise the husband’s gift or talent as musician and song-writer.   That much is clear from his very high income in the past, the success he enjoyed, and the on-going royalties.   At the same time I am cautious not to romanticise or inflate his contribution, just because it has produced something artistic and entertaining, rather than something more prosaic.

1. The determination of a special or extra contribution is not “necessarily” dependant upon the size of the asset pool or the “financial product”.    But the Court is not precluded from taking those factors into account, as part of the exercise of its discretion.   In this case, the husband’s working life has not produced high range assets.   To the contrary, there are no substantial assets, other than the royalty stream.   Although it derives from the husband’s talent and success as a song-writer, I must look at the broader picture.   His very high income of some twenty years ago was not sustained.   It derived largely from his role in the band which disbanded in 1985 and again finally in 1990, after briefly re-forming.   The husband’s solo career was relatively short-lived in the early nineties.   He has not sold a song since 1995 and has written no hit songs for about twenty years.

1. It is clear that the parties’ lifestyle was a comfortable one, in some respects lavish, particularly when it came to the purchase and refurbishment of their homes.   After the band’s first overseas tour, the husband designed “his dream home” on land they had bought in the U rural area, and in 1978 the parties moved in.   At about that time, they also bought a city home in E suburb, and a block of flats in K suburb as an investment.   In 1981 they purchased the land adjoining their U area property.  

1. In 1983 they bought a large home in H suburb for about $1 million and borrowed for extensive renovations.   They also bought land at the O property for about $460,000.   In order to make both purchases, they sold the U area, E suburb and K suburb properties.   In 1985 they sold the O property.  In 1987 they purchased a property in the L rural area, which they sold in 1990.   At about that time they purchased a Rolls Royce for $140,000.  

1. It was apparent that such expenditure was a point of conjecture between the parties.   Ms T was concerned that Mr G spent too freely and over-extended the family finances.   I can make no definitive findings but clearly their dealings with real estate were ultimately unsuccessful  - with very high borrowings preceding a drop in income, a drop in values and an increase in interest rates.   The consensus is that the combination accounted for their serious debt by 1994.   They had to sell the H suburb property.   They also sold furniture.   Ultimately, to their credit, they discharged their debts to the bank.   They moved to rented premises and separated from there. 

1. I do not find that the husband has made a significant “extra” or “special” contribution.    I do not base my conclusion simply on the size of the asset pool or the financial product, nor am I finding “fault” on his part for the failed and costly property ventures.   But they are part of the facts peculiar to this case to be considered in the exercise of my discretion.   I agree with the final submission of Senior Counsel for the wife.   I should not ignore the husband’s special talent “in the mix” of this case, but I should allow only a small amount to his credit in that regard.

Post-separation Contributions

1. The husband has been almost exclusively responsible for the financial care of the children since separation.   His contribution in this regard has included the payment of private school fees.   That would usually require an adjustment in his favour.   However, save for the small sum paid to the wife shortly after separation at a time when she continued to effectively perform the major home-making role although living separately, Ms T has not received any of the benefit of the family wealth.   The husband has had the full use of the royalties, including excess drawings, and the advantages of a particularly favourable taxation position.   I have already taken this into account in determining the add-back of legal fees, but there are still substantial drawings that cannot be overlooked.

Conclusion re Contributions

1. It was submitted for the husband that contributions should be determined on the basis of 70% in his favour and 30% for the wife, arising from his inheritance, the songs written prior to the marriage (Mr Dickson said allow an extra 10%) and his special skills (again reckoned by Mr Dickson at an extra 10%).

1. In his closing submissions, Counsel for the wife submitted that the husband should overall receive credit of some 7.5% for his contributions, including his inheritance, pre-marriage songs, and although there should be no significant allowance  for “special skills” it could be included “in the mix”.

1. In my view the parties made equal though different contributions to their family life, although the husband’s particular skills, reaping riches in the past and the on-going royalties long into the future, warrant some recognition.   The 1982 inheritance makes little difference with the passage of time.   The pre-marital contribution of the valuable songs (now more than 16% of the royalty stream) must be recognised.   His care of the children adds more substantially to the husband’s contributions, although it is a significant balancing feature that he has had the benefits of substantial family wealth since separation.    I conclude that he should be given credit for his contributions, with a 57.5% apportionment to him and 42.5% to the wife.

THE SECTION75(2) AND OTHER MATTERS

1. The wife is aged 48 and the husband, 55.  Both appear to be in good health.  

1. Although the wife has re-partnered, it appears that it has been a rocky relationship.   Mr J is yet to conclude his own property proceedings but he stands to gain little, has a struggling business and contributes only marginally to Ms T’s household.   The parties’ eleven year old daughter C lives week about at her home.   Ms T otherwise accommodates and looks after her aged mother, who has Alzheimer’s Disease and needs care and supervision.   She pays $100 per week by way of board from her pension.

1. The husband has remarried and fully supports his new wife and her two children, all of whom have become beneficiaries under the G Family Trust.   Ms S used her property settlement to pay out the car leases and towards the purchase of the F home, which with stamp duty and other expenses was priced at just over $690,000.   A total of $570,000 was borrowed, including a sum of $30,000 for renovations and a studio for the husband.   The husband provided a guarantee and indemnity for the borrowed funds, and the mortgage payments are met from the royalties.   It was not explained why in those circumstances the property was registered in his new wife’s sole name.   It raises the suspicion that it was an attempt to quarantine it from these property proceedings.   But for these purposes I can recognise his commitment to and potential interest in the property.

1. The wife, who emerged from a 24 year marriage without qualifications or employment experience, now works part-time (27 hours one week and 32 hours in the alternate week) as a sales assistant, earning an average of $389 per week.   She has four overseas students residing with her.  Each pays $180 per week.   That covers food, telephone, electricity, gas, water and a share of the rental.   It enables her to rent premises close to the husband’s home, large enough to accommodate her mother, and C in each alternate week.   I am satisfied that the wife does not make a substantial profit from the homestay students once all their expenses are met, but it is obviously an enterprising venture, which enables her to have the required rental accommodation and to enjoy a small profit.   Overall, she is hard-working but with limited training and experience, her prospects are modest.

1. I must assess the husband’s prospects.   He has recently released a press release saying “I always feel that my career is just beginning….”.   The “positive” nature of his recent press release must be viewed in the light of its purpose, that is an attempt at self-promotion.   At the other extreme, in evidence Mr G said that he “feels that his career has ended”.  

1. Mr G continues to work as a song-writer.   That is his primary occupation and to that end he and his wife borrowed monies to add a studio to their new home, and he claims many expenses on tax, including annual family holidays in Queensland (for song-writing inspiration).   But his song-writing success was some twenty years ago and as noted, he has not sold a song since 1995 (except one jingle).   He said that it is one thing to write and produce, but a song needs marketing.   That was provided automatically when the band was performing his songs.   There is now no such vehicle and his “good name” apparently does not help. It does not auger well that he has gone for some years now without publishing songs.   His talents perhaps pertained to a particular era, although his successful songs seem to be “classics”, having stood the test of time.   It is fair to conclude that although his future prospects as a song-writer are probably not bright, it is clear that once published the rewards can be rich, as they are when a song is re-recorded, as happened recently with Z band’s re-recording of “R”.  

1. Mr G last performed in a group in the eighties and as a solo performer in the early nineties.   Overall, apart from the early years of the band, his main source of income has been from his song-writing rather than performance.   Recently, with two of the original band members (Mr B and Mr S), the husband has formed a new group.   They have had only two public performances.   One was at a private ball.   Although they were paid $35,000, they suffered a financial loss from the various expenses incurred, including extensive rehearsal time and Mr B’s airfares to and accommodation in Australia.   They played at a private birthday at Portsea on the basis of a “rehearsal-type performance”.   It does not appear that at this stage that they have on-going bookings.  

1. Performing is a potential source of income for the husband, but there are two possible obstacles.   The first is that there is nothing to suggest that as older performers, relying largely on nostalgia, there will be a big future for the group.   Several attempts at resurrecting groups have failed, both the band was re-formed in the late eighties, and when Mr G attempted to form another band thereafter.   Although I can take judicial notice that several old rock bands seem to enjoy continuing international success, there was nothing in the evidence to suggest that this band will be in that category.   They are not even operating under the well-known name of the band.   This is the second difficulty.  

1. The former members of the band, Mr H and Mr WN have registered that name, and are currently touring America.   Mr S and a company, TE Pty Ltd have commenced proceedings in the United States District Court, Orlando Division, against Mr G, the others and their manager Mr W, seeking an injunction restraining Mr G’s new band from describing itself with a similar name to the band, and for infringing the trademark.   They seek damages.   In the course of this hearing, the husband was given an as yet unfiled Federal Court document (Exhibit H7) from which it is clear that the company TE Pty Ltd seeks injunctions and damages in relation to trademark infringement, Trade Practice Act infringements, and “passing off”.

1. Although it is impossible to predict the outcome of proceedings either in America or Australia, the fact of those proceedings, combined with the uncertainties and difficulties surrounding Mr G’s attempts to re-form a band, lead me to conclude that on the balance of probabilities his chances of earning significant income from that source are limited.

1. Mr G’s prospects are shrouded by uncertainty at his age and stage.   Although he has as yet unexplored avenues for his considerable musical talent and experience, such as teaching, the richer areas of performing and writing do not look promising, based on his limited achievements over the last ten years.

1. Even if Mr G were to generate no other income, there is the on-going royalty stream.   The uncertainties as to what will be received have been taken into account for conservative valuation purposes.   The royalties have dropped in recent years but there is no reason to believe that substantial sums will not be enjoyed for many years to come.

1. The husband is likely to receive the benefit of continuing over-payments.   That is the reality, although they were excluded for valuation purposes.   In that case, it is the husband who should bear responsibility for them, in what by now must be the unlikely event that a claim will be made.

1. The husband retains the lion’s share of the responsibility for the parties’ children.   He has acted responsibly and well in that regard.   He assists the children who are over 18.   Y is financially independent although the husband assists her from time to time with rent or other expenses.   Although X works on a casual basis as a sale assistant (earning approximately $350 net per week), he does not pay board and the husband has continued to pay living expenses including food and utility costs.    He also provides a vehicle and money for petrol.   Mr G fully supports N, who is currently completing Year 11.    And although C now lives week about with her mother, he pays and will continue to pay her private school fees at her school, where she is Grade 6.   As noted, he meets any educational and associated costs for his wife’s children and the cost of all extra curricula activities for the four children N, C, SP and LY.

1. Mr G’s support of the children, and others, with the prospect of at least another six years of private school fees for C, should attract an adjustment in his favour.   However, despite uncertainties about his future, his prospects are overall brighter than those of the wife.   Success in any of his chosen endeavours, although not promising, would reap rich rewards.   The structure through which he receives the royalties has enormous taxation advantages.   Thanks to monies put forward by his new wife, he has the security of a home for which they have been able to borrow to make renovations.   He has the on-going use of the recording equipment purchased in the course of the marriage.   He faces lower legal fees than the wife, in terms of what must now be paid.  

1. In final submissions, both counsel submitted that there should be a small adjustment to the husband in relation to his on-going responsibilities, likely to be borne with little or no child support.   I propose an adjustment that when added to the adjustment for contributions, would give the husband 62.5% of the asset pool.  

THE RESULT

1. In final submissions, Mr Young conceded that although he had initially sought that the wife receive 40% of the net on-going royalties, there were benefits in receiving a lump-sum equivalent to about 40% of the actuarial valuation, or $450,000, if she could be paid “soon”, (together with a sum of $100,000 to adjust personal property).   It was suggested that the wife would be satisfied with a lump-sum payment, with a default provision that any unpaid amounts be met by a set sum each year (around $50,000 or a higher sum if the royalties were higher) or by a particular percentage of royalties over the following years, until paid in full.

1. Mr Dickson for the husband emphasised the provisions of s. 81 and the desirability of finality between the parties. It was the husband’s strong preference for a figure to be fixed. His case had been opened on the basis of a lump sum payment of $100,000, plus the car. By the end of the case, it was conceded that a payment of $100,000 was too low. His case was then put on the basis that the wife should receive 40% of the value of the Trust or $170,000, plus the car. He sought to pay $100,000 shortly, and the balance on terms, and in default by way of a percentage of royalties. He emphasised that if the wife were to retain a share of the income, she could unfairly enjoy any “spikes” in the future income stream.

1. The parties were at one that finality would be preferable.   I need no persuasion in that regard.   However, there are difficulties.   Mr G was adamant in evidence that he could only raise $100,000.   He was also adamant that it could only be raised from friends and family.

1. I accept that having borrowed substantial monies to finance the present home, Mr G is unlikely to find joy with his bank as a source of funds to pay out the wife.   He said he could not borrow more from his publishers, who had otherwise been a consistent source of “advances”.   He said that he had recently asked for an advance from W Company which he had not received, although last month he did receive $20,000.   I note in the last five years, he received respectively, $33,000, $36,000, $30,000, $34,000 and $20,000 by way of advance, from W Company alone.   Although these figures are certainly not within the “ball-park” of figures required to pay out the wife, it is probably a source that can be further explored by the husband.  

1. Mr G said he would find it very difficult to sell rights – he had done it before to support his family, he did not want to do it again.  He did not want to sell writer’s rights because his songs mean a lot to him and to lose total connection with his artistic works would be “soul-destroying”.   At the same time, he emphasised that he would prefer a capital payment to the wife, as for her to receive an on-going share of the royalties would be “like tearing my heart out” or “giving my soul away”.    I take into account Mr G’s emotional attachment to his works and to the income received from them.   However, where his emotions conflict with a just financial outcome for the wife, it is his feelings which need give way.   With respect to him, he did seem to want it both ways - to retain both the rights to his songs and the income from them, to the exclusion of the wife.

1. I am not convinced that Mr G is without options.  He may be able to prevail more upon the publishers for advances, or he may choose to sell some limited rights in return for finality in his financial dealings with his former wife.   Otherwise, the royalties provide the only source from which the wife can receive a fair settlement at the end of a 24 year marriage.   I accept the wife’s evidence that at all times in their marriage, throughout all their property dealings and their financial woes, she was reassured by the husband, and it was their common view that the royalties would be their joint superannuation.   She must now receive her fair share.  

1. The wife should receive a sum of $446,812, being 37.5% of the total asset pool.   She shall retain the Peugeot motor vehicle and her furniture, valued together at $48,000.   Accordingly, she must receive a sum of $398,812, which I shall round up to $400,000.   Counsel offered various suggestions as to how payment might be structured.   They were not particularly clear.   I say that without criticism.   It reflects the conundrum of the parties’ preference for a lump-sum payment, but the husband’s claim that he could not raise more than $100,000.  

1. I have noted that the husband may have avenues which he has not yet exhausted.   I propose giving him the option of paying $100,000 within ninety days (which he said he can raise) and the balance within ninety days thereafter.   If he is unable to meet the balance of monies due, then the wife should receive 37.5% or $50,000 (whichever is the lower amount) from the annual royalty stream net of taxation until the outstanding amount is paid in full.

1. That order gives the husband the opportunity to explore and exhaust options to raise money to achieve the finality he sought.   If he is unable to do so, then the wife has the certainty of a schemer for payment, whilst part of the stream is protected for the husband’s expenses.   In the event that the lump-sums are not met by the due dates, interest should be payable to the wife.   I did not hear submissions as to the rate of interest and propose allowing counsel to address me in relation to that.   I will also hear submissions as to when payments should be made from the Trust.

1. Otherwise, the orders I propose, subject to submissions as to form, are as follows:

   1.That the husband shall pay to the wife the following:

   (a)the sum of $100,000 (“the first payment”) within 90 days of the date of these orders;

   (b)the sum of $300,000 (“the second payment”) within 180 days of the date of these orders.

   2.That in the event that the whole or any of either payment has not been made by the respective dates in paragraph 1 of these orders, then the outstanding balance of that payment with interest shall be paid to the wife from the royalty income stream (“the royalties”) received by MW Pty Ltd as trustee for the G Family Trust (“the Trust”), by the wife receiving in any one financial year:

   (a)a sum equal to 37.5% of the royalties net of taxation received by the Trust; or

   (b)the sum of $50,000;

   whichever is the lower amount.

   3.That for the purposes of the previous paragraph, the husband shall sign all documents, do all acts and things and give all necessary and proper instructions that may be required to authorise, empower and confer the payment from the Trust to the wife.

   4.That the husband shall sign all documents, do all acts and things and give all necessary and proper instructions that may be required for himself or for the Trust to forthwith irrevocably authorise, empower and instruct:

   (a)APRA (the Australian Performing Right Association);

   (b)AMCOS (the Australian Mechanical Copyright Owners Source);

   (c)Each of the entities referred to in paragraph 2.0 of the MS Report, or from which the husband, the Trust or any associated party is entitled to receive payment, monies and all royalties;

   (d)The accountant Mr WH, (and his firm) of R Street, Toorak in the State of Victoria;

   (e)Any other party connected with the derivation by the husband, the Trust or any associated party of on-going payments, monies and all royalties;

   to do the following:

(i)to comply with these orders;

(ii)to provide to the wife and her solicitors (Holt & Macdonald) at addresses to be provided from time to time full and complete written information and particulars as to all such payments, royalties and monies paid, payable or distributed (in any way whatsoever) to or on behalf of the husband or the Trust or any associated party or any other person or entity nominated or substituted by or on behalf of the husband or the Trust;

until the first payment, the second payment and any interest payable pursuant to these orders has been paid to the wife in full.

5.That the husband shall be and remain:

(a)the sole appointor of the Trust;

(b)the Managing Director of MW Pty Ltd as trustee of the Trust;

(c)in effective control of MW Pty Ltd and the Trust;

until the first payment, the second payment and any interest payable pursuant to these orders has been paid to the wife in full.

6.That the husband, his servants and agents shall be and are hereby restrained from:

(a)appointing any other Director to MW Pty Ltd;

(b)removing MW Pty Ltd as the trustee of the Trust;

(c)removing, changing, dealing with or in any way altering the current circumstances whereby the Trust receives the royalties;

until the first payment, the second payment and any interest payable pursuant to these orders has been paid to the wife in full.

7.That the husband and the wife shall divide equally between them any payments received by them or either of them or the Trust arising from their previous ownership of the O property.

8.That the husband shall indemnify the wife in relation to all or any liability of himself or the Trust to M Company or W Company for any royalties paid to the husband, the husband and the wife or to the Trust to date or into the future to which the husband or the wife or the Trust is not entitled.

9.That the husband shall sign all documents, do all acts and things and give all necessary and proper instructions that may be required to ensure that the wife’s Peugeot motor vehicle shall be forthwith transferred from and at the expense of MW Pty Ltd into her sole name.

10.That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent orders each party shall be solely entitled to the exclusion of the other to all property (including chose-in-action) in the possession of such party as at the date of these Orders and each party shall be solely liable for and indemnify the other against any liability encumbering any property to which that party is entitled pursuant to these Orders;  and indemnify the other against any liability encumbering any property to which that party is entitled pursuant to these Orders.  

11.That all outstanding applications be otherwise dismissed and the case removed from the list of cases awaiting finalisation.

12.That pursuant to Order 38 Rule 25 of the Family Law Rules this matter reasonably required the attendance of senior counsel and counsel.

I certify that the preceding
paragraphs are a true copy of
the reasons for judgment herein
of the Honourable Justice Dessau

The        day of           2002

Associate