Harps & Harps

[2008] FamCA 633

FAMILY COURT OF AUSTRALIA

HARPS & HARPS [2008] FamCA 633

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – whether wife unable to support herself – whether husband reasonably able to maintain wife – husband to pay wife maintenance until she commences her employment or final orders for property settlement are made, whichever is earlier.

FAMILY LAW – COSTS – interim costs sought by wife – where one party has access to all or most of income, assets and resources – need to ensure other party has equal or near equal opportunity to present case – order for husband to pay wife sum of $16,000 – order made pursuant to s 80(1)(h) of Family Law Act 1975 – characterisation of payment as interim property settlement or costs reserved to trial judge.

Family Law Act1975 (Cth) ss 72, 74, 75, 80(1)(h) & 117(2)

Poletti and Poletti (1990) 15 FamLR 794
Kendling and Kendling [2008] FamCAFC 70
Zschokke and Zschokke (1996) FLC 92-693

APPLICANT: Mr Harps

RESPONDENT: Ms Harps

FILE NUMBER: DNC 581 of 2007

DATE DELIVERED: 8 August 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Strickland J

HEARING DATE: 10-11 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Sivyer

SOLICITOR FOR THE APPLICANT: Withnalls

COUNSEL FOR THE RESPONDENT: Mr Sochacki

SOLICITOR FOR THE RESPONDENT: O'Reilly & Sochacki Lawyers

Orders

1. That until the date of the wife’s commencement of her employment in February 2009 at the E High School, or until final orders for property settlement are made in this case, which ever is the sooner, the husband pay to the wife towards her maintenance the sum of THREE HUNDRED AND FIFTY DOLLARS [$350.00] per week commencing on 10 June 2008.

2. That within fourteen [14] days of the date hereof the husband pay to the wife or to her solicitors on her behalf the sum of SIXTEEN THOUSAND DOLLARS [$16,000.00].

3. The determination as to whether the sum referred to in paragraph (2) hereof be treated as part of the wife’s entitlement to property settlement or in payment by the husband of the costs of and incidental to these proceedings be reserved to the trial Judge at the final hearing of this case.

4. That paragraphs (1) and (2) of the interim application made by the wife in her Response filed on 8 February 2008 be dismissed and removed from the active pending cases list.

5. That the oral application made by the wife seeking that the orders for discovery made by Justice Burr on 3 March 2008 be complied with within seven [7] days be dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 581 of 2007

MR HARPS

Applicant

And

MS HARPS

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an application by the wife for interim spousal maintenance and for interim costs.

2. The formal application is contained in the wife’s response filed on 8 February 2008.  That application was heard by Justice Burr on 3 and 4 March 2008.  His Honour made orders on both days but relevant to the application before me his Honour made the following orders by consent on 4 March 2008:

   1.     The husband shall pay to the wife within seven [7] days of the date hereof the sum of SIXTEEN THOUSAND TWO HUNDRED AND FORTY DOLLARS [$16,240].

   2.     The parties forthwith carry out all acts and sign all documents necessary to enable them to draw down the sum of THIRTY THOUSAND DOLLARS [$30,000] against the security of the following properties:-

   (a)S Street, E; and

   (b)G Street, E

   with the said funds to be paid to the wife.

   3.     The payments referred to in paragraphs 1 and 2 above be taken into account by the Trial Judge in determining the final adjustment of the wife’s claim for property settlement.

   4.     The wife’s interim application for spousal maintenance and interim costs be otherwise adjourned to 10.00 am on 10 June 2008 before the Honourable Justice Strickland during the Darwin Judicial Circuit.

   5.     The costs of both parties be reserved.

3. As can be seen his Honour despite making the orders in paragraphs 1 and 2 further adjourned the wife’s interim applications for spousal maintenance and interim costs to 10 June 2008 before me, instead of dismissing them.  Thus, the wife has been able to pursue the orders that she seeks without for example showing a change of circumstances.  Of course, I can take into account his Honour’s order but that has not prevented this matter occupying a further day of this Court’s time.

4. Although the wife in her formal application sought the sum of $1,000 per week for interim spousal maintenance, she now seeks the sum of $1,175 per week.  She still seeks the sum of $136,200 by way of interim costs.

5. The husband opposes these orders.  However, he proposes that the loan of $30,000 provided for in Justice Burr’s order be increased to $60,000.  At the time of the hearing the loan of $30,000 had not yet been settled and the wife did not indicate how that impacted on the orders that she sought.  In any event, she was not amenable to resolving this matter on the basis of increasing the amount of that loan.

6. To complete the picture, I note that the wife has used the amount of $16,240 received by her pursuant to paragraph 1 of the order made by Justice Burr in supporting herself and the children, in paying the fees for the first half of the year for the course that she is now undertaking, in purchasing one-off household items, and in meeting principal and interest payments on her credit cards.

The evidence

1. The application was heard on the papers without any oral evidence.

2. The wife relied on the following documents:

   8.1The affidavit of the wife filed on 8 February 2008.

   8.2The financial statement of the wife filed on 8 February 2008.

   8.3The affidavit of Peter Sochacki, solicitor filed on 8 February 2008.

   8.4The affidavit of the wife filed on 25 February 2008.

   8.5The affidavit of the wife filed on 10 June 2008.

   8.6The affidavit of Peter Sochacki, solicitor filed on 10 June 2008.

3. The husband relied on the following documents:

   9.1The husband’s financial statement filed on 12 October 2007.

   9.2The affidavit of the husband filed on 3 March 2008.

   9.3The affidavit of J K Sivyer, solicitor filed on 3 March 2008.

   9.4The affidavit of the husband’s father filed on 10 June 2008.

Interim spousal maintenance

1. The relevant provisions of the Family Law Act 1975 are sections 72, 74 and 75 which provide as follows:

   72Right of spouse to maintenance

   (1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

   …

   74Power of court in spousal maintenance proceedings

   (1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

   …

   75Matters to be taken into consideration in relation to spousal maintenance

   (1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

   (2)The matters to be so taken into account are:

   (a)the age and state of health of each of the parties;

   (b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

   (d)commitments of each of the parties that are necessary to enable the party to support:

   (i)himself or herself; and

   (ii)a child or another person that the party has a duty to maintain;

   (e)the responsibilities of either party to support any other person;

   (f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party;

   (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

   (h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

   (ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

   (j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

   (k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

   (l)the need to protect a party who wishes to continue that party’s role as a parent;

   (m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation;

   (n)the terms of any order made or proposed to be made under section 79 in relation to:

   (i)the property of the parties; or

   (ii)vested bankruptcy property in relation to a bankrupt party;

   (na)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; and

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)the terms of any financial agreement that is binding on the parties.

   (3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

   (4)In this section:

   party means a party to the marriage concerned.

Is the wife unable to support herself?

1. Subsequent to separation the wife sought and obtained a number of casual and part-time positions, namely at a local tourist area, at the local sporting club and as a tutor at E High School.

2. At its height the wife’s gross income from employment was $746 per week. In addition, she received and continues to receive Family Tax Benefit Part A and Part B, but pursuant to section 75(3) of the Family Law Act 1975 these amounts are to be disregarded.  She has also been receiving $130 per week child support from the husband, despite his actual liability being approximately $20 per week.

3. In any event, in February 2008 the wife chose to commence a post-graduate diploma course in teaching which has resulted in her significantly reducing her employment.  Her average income from employment is now only $114.25 per week.  The course is undertaken by correspondence through the Queensland Institute of Technology.  The wife finds that she studies “best” during the day and she reduced her employment to allow her to do this.

4. The wife will complete her course of study in February 2009 and she will then be qualified to work full-time as a teacher.  She says that she will earn $52,000 per year thereafter and she does not seek interim spousal maintenance beyond that time.

5. The wife says her expenses are now $1,361 per week on average.  She calculates the amount of $1,175 per week that she says she needs by assuming her income from employment will continue to be $114.25 per week, by adding her total Family Tax Benefits of $142.26 per week, and then by adding $70 per week to her expenses on the basis that the husband does not continue to meet her fuel expense in that sum as he currently does and as was noted in the preamble to the consent order made by Justice Burr on 3 March 2008.

6. Now, two comments about that calculation, firstly, as referred to already the Family Tax Benefit cannot be taken into account, and, secondly, there is no evidence that the husband will cease paying the wife’s fuel expenses.  Thus, using the wife’s figures the amount of the relevant shortfall is $1,246.75 per week.

7. For completeness I note that not only does the husband pay the wife’s fuel expenses but he also fully maintains her motor vehicle.

8. The husband challenges that the wife cannot support herself.  He says that she has other options in terms of her employment.  He says that she should not have unilaterally embarked on her teaching course and particularly given the state of the proceedings generally.  She could quite have easily continued her casual and part-time employment until the Court proceedings had been finalised.  Alternatively, he says that she could have obtained full-time employment in fields for which she was already qualified, namely in the public service.  Indeed, he says that she could have done either of these things and still commenced study, but on a part-time basis.

9. The husband also referred to the fact that just prior to separation the wife was provided with in excess of $80,000 by the company Harps Proprietary Limited to establish an internet business.  However, this business did not succeed and the wife has been left with stock for which she paid in excess of $60,000.

10. The issue of whether the wife is unable to support herself adequately is governed by section 72(1) of the Act. Section 72(1)(b) does not apply, but in relation to section 72(1)(a) there are two children of this marriage, M born in July 2002 and who is now aged 6 years, and S born in September 2004, and who is now aged 3 years. By agreement the children live with each parent on a week and week about basis. The wife says, and I accept, that her need to care for the children when they are with her restricts her capacity for employment, and in particular full-time employment, and thus this does affect her ability to support herself. However, it certainly did not affect her capacity to undertake substantial causal and part-time employment prior to commencing her studies. Thus, turning to section 72(1)(c), and considering whether there is any other adequate reason, the reason for her alleged inability to support herself can only be her taking on her course of study, although, there is also still a question mark as to whether she could work more than she currently does and still continue with her course of study.

11. The husband complains that the wife gave no notice of her taking up the course of study, but that is irrelevant to the issue that I have to decide. I find that although the timing was a problem in the context of these proceedings, it is reasonable for the wife to have undertaken this course of study. It will qualify her in a relatively short time frame to work as a teacher, and indeed she says that she has been promised employment at the E High School immediately upon completion of her course. Relevantly, pursuant to section 75(2)(h), the Court is obliged to take into account the extent to which the payment of maintenance by the husband would increase the earning capacity by the wife by enabling her to undertake a course of education to obtain an adequate income. However, I do not consider that it was necessary for the wife to reduce her casual and part-time employment to the extent that she has to enable her to undertake this particular course of study. I am not satisfied that she cannot manage her studies in the time that she would have had available outside of her employment.

12. The husband also challenges the extent of her alleged expenses of $1,361 per week on average.  The wife calculated that over an 84 day period from 1 March 2008 to 23 May 2008 with her total expenditure being $16,334.  For March it was $6,264, for April it was $7,204, and from 1 May 2008 to 23 May 2008 it was $2,861.  The reason for the difference between March and April on the one hand and May on the other hand is explained by the wife’s expenditure on “homewares” of $2,090 and $1,946 in March and April respectively.  These were one of purchases and her total expenditure should be discounted for that reason.  Looking then at May, there was average expenditure of $950 per week for three weeks, and that would seem to provide a more realistic calculation of the wife’s ongoing expenses.  However, significantly this expenditure also includes expenditure for the children and thus it still does not provide an accurate picture of the wife’s expenses for herself given that the application is for spousal maintenance and child support is being paid separately.

13. Bringing this together, if the wife had maintained her previous gross income from employment of $746 per week, and assessing for the moment her expenses at $950 per week, that leaves a shortfall of approximately $200 per week.  That of course is without any deduction for income tax which was approximately $130 per week.  However, some allowance needs to be made for the wife to reduce her employment slightly to ensure that she does have sufficient time to devote to her studies, and on the expenses side some allowance needs to be made on account of the expenses including expenses for the children.  Doing the best that I can on the evidence that I have, an income of about $600 would be a reasonable assessment of what the wife could earn with expenses of about $900 per week, or say $950 per week accounting for some income tax.  Accordingly that leaves a shortfall of $350 per week.

Is the husband reasonably able to maintain the wife?

1. Having found that the wife is unable to adequately support herself to the extent of approximately $350 per week, the next issue is whether the husband can pay maintenance to the wife, and if so in what sum.

2. The husband says that he receives a wage of $44,000 per year or $865 per week, and that he cannot afford to pay any maintenance to the wife.  He says his expenses are $949 per week including income tax.

3. The husband says that he is a minority shareholder in Harps Proprietary Limited which operates an electrical business in E, and that he has no control over the funds of that company.

4. Harps Proprietary Limited pays the registration, insurance, servicing and fuel expenses for the wife’s motor vehicle, on behalf of the husband, it pays the mortgage repayments in respect of the home in which the wife lives and which is jointly owned by the parties through their family trust.  In fact, the company makes all of the mortgage repayments in respect of all three properties owned by the parties in E.  These monies are debited against the joint loan account that the parties have with the company, as was the money provided to the wife for her internet business.  There was no evidence before me of the current amount of this loan account though.

5. The wife submits that “the Court should construe the husband’s financial circumstances unfavourably against the husband because of his continued chronic failure to disclose financial information”.  The wife’s counsel emphasised the husband’s alleged lack of disclosure over and over again during the hearing, and in my view this was completely overplayed.  There are orders in place as to discovery and production and yet there has been no application by the wife to enforce those orders to the extent that she says that they have not been complied with.  During the course of the hearing before me the wife’s counsel did make an oral application on behalf of the wife for an order that the existing orders be complied with within 7 days.  However I challenged the wife’s counsel as to the value of such an order given that there was already an order in place but which the wife has not previously elected to enforce.

1. The husband’s counsel submitted that the husband either has supplied or was about to supply all relevant documents to the single expert who is valuing the business, and those documents are readily available from that person.  The wife’s counsel correctly pointed out though that these documents should have also been provided to the wife in accordance with the previous order.  Apparently there were also certain authorities which the husband was to provide to allow the wife to obtain documents herself, but that went awry because the authorities were initially sent unsigned.  In any event, it seems that the documents are available and the previous orders can now be complied with.  Thus, I do not propose to make any orders about that.

2. The wife asserts that the husband has income, property and resources available to him in addition to what he discloses in his financial statement and which would enable him to pay spousal maintenance to the wife.  In this regard I consider that the wife has a justifiable case.

3. The wife claims that given the husband’s lifestyle and the properties that have been acquired it is unrealistic for the husband to suggest that he only has available a gross income of $44,000 per annum.  This was his “wage” during the marriage as well and yet he was able to sustain a high standard of living, to support his family, and purchase properties. 

4. The wife’s evidence is that the husband has been and continues to freely draw money from the company to meet whatever expense that he has.  The bases for this claim are as follows:

   32.1In his affidavit the husband deposes to how he “borrowed” money from the “family company” to establish the electrical business in E, yet there is no evidence of how that business came to be owned by the company.  This adds significant weight to the argument that the business has always been and continues to be totally under the husband’s control.

   32.2The husband had no difficulty in accessing money from the company to set up the wife’s internet business, or to meet mortgage repayments, or since separation to meet his own legal costs as well as to continue to fully maintain the wife’s motor vehicle.

   32.3The husband’s claimed expenses exceed his income by approximately $90 per week, yet on his evidence, including his financial statement, he has no money available to him apart from his wage.  The inconsistency of this position is further highlighted by the fact that in his claimed expenses he has not included the child support that he pays of $130 per week.

   32.4The husband has not explained the source of the funds he paid to meet the wife’s GST assessment of $12,000, or for the payment of the amount of $16,240 provided for in the order made on 4 March 2008.

   32.5The husband has control of the cheque account of the electrical business.  However, he has not explained the withdrawal of large amounts of money from that account and in particular a withdrawal of approximately $200,000 on 24 January 2007 just prior to separation.  In the same context the husband has failed to explain the application of the profits of the business and in particular why there has not been any dividends paid to the shareholders. 

5. In relation to the structure of the company Harps Proprietary Limited, the husband holds 4,600 shares (45.1%), his father holds the same number of shares and his aunt holds 1,000 shares (9.8%).  The husband and his father are the directors.

6. The wife claims that although the husband is a minority shareholder in the company it is in fact his alter ego.  She claims that he controls the electrical business owned by the company and has unrestricted access to its income, assets and resources.  She says that the business is highly successful, and that the husband has been “silent” on the application of the profits including the distributions from the hotel investment in Tasmania.

7. The husband’s father hurriedly prepared and filed an affidavit during the course of the hearing following my comment that there was nothing before the Court as to the position of the other shareholders.  In this affidavit he opposed any funds being drawn from the company for the purposes of paying spousal maintenance and/or interim costs to the wife.  However, he says that he has authorised the husband to pay mortgage repayments and to pay his legal expenses from the funds of the company.  He also makes the bald assertion that “the company is currently insolvent”. 

8. I consider that the contents of this affidavit are highly suspicious.  What evidence is before the Court does not support the bald statement as to insolvency, and one would have thought that some supporting documents would have been forthcoming if that was correct.  Moreover, if it is insolvent why has it not been wound up?

9. It is quite apparent that the affidavit of the husband’s father was put together at the last minute in a pathetic attempt to answer the obvious.  I attach no weight whatsoever to the contents of that affidavit.  Indeed, its lack of credibility supports the wife’s claims in this case.

10. I note incidentally that there is nothing before the Court from the husband’s aunt, yet with her support the husband would be in the majority.

11. In all the circumstances I find that the husband has the capacity to pay maintenance to the wife and certainly the capacity to pay the sum of $350 per week.

12. As to from when the payments should commence, I consider that given the orders of Justice Burr and the funds available to the wife as a result, they should commence as on and from the date of the hearing before me, namely 10 June 2008.

Interim costs

1. It was put to me by the wife’s solicitor that the loan of $30,000 provided for in the consent order of 4 March 2008 was intended to be used by the wife to meet her legal costs, but the order does not say that.  Nevertheless, the wife’s case is that even if she eventually receives that $30,000, she needs more than that, and indeed even more than the extension to $60,000 proposed by the husband.

2. The wife seeks $136,200 representing her costs and disbursements to date and the anticipated costs and disbursements to the conclusion of these proceedings.  The detail of that sum is set out in paragraph 10 of the affidavit of the wife’s solicitor filed on 8 February 2008. 

3. In his written submissions Mr Sochacki tells me that the wife’s costs as at 4 March 2008 were approximately $40,000.  He did not tell me what they were as at the date of the hearing before me, but he still maintained that by the time of the conciliation conference in August 2008 they would be $85,700 as set out in the said paragraph 10.  However, I do not accept that given that that amount includes $39,600 for “accountant’s expenses” whereas a single expert has now been appointed and nothing has been put before the Court as to the wife’s half share of that expert’s costs.  Nor am I prepared to accept at this stage that the wife’s reasonable costs to the conclusion of the proceedings will be a total of $136,200.  It seems to me that to date there has been unnecessary costs incurred on both sides, however I am not yet in a position to make a finding as to who is responsible for that.

4. For the husband’s part I was told from the bar table that his costs up to the interim hearing before me were $32,000, and it was anticipated that there would be a further $4,000 to $5,000 incurred for the purposes of the conciliation conference in August 2008.  It seems that either all of or at the very least most of these costs have been met by the husband using funds drawn from the company.

5. Both parties have costs agreements with their solicitors and the hourly rates charged appear to be roughly the same, but given the wife has had the carriage of the proceedings before Justice Burr and before me, it is understandable that her costs would be more than the husband’s, but there is no direct evidence as to precisely how much more.  On the basis though of the husband’s anticipated costs to the conciliation conference being $36,000 to $37,000, I would be prepared to accept that the wife’s costs to the same point would be the $46,000 approximately anticipated by the wife’s solicitors in the said paragraph 10 of his affidavit.  That of course excludes the joint costs to the parties for the single expert, and it also takes no account of the reasonableness or otherwise of the costs claimed.

6. The husband opposes the order for interim costs on the basis that he is not in a position to afford to pay the wife anything.

7. The authorities as to the issue of interim costs establish that in circumstances like those that apply here, namely, where one party has access to all or most of the income, assets and resources an order should be made in favour of the other party to ensure that that other party “has an equal or near equal opportunity to present his or her case” (Poletti and Poletti (1990) 15 FamLR 794, cited with approval by the Full Court in the unreported case of Kendling & Kendling [2008] FamCAFC 70). On that basis, and looking at the position up to and including the conciliation conference, the wife should have the same ability as the husband to meet her costs, ignoring for the purposes of this exercise, as I have to in the absence of any finding, the reasonableness or otherwise of the costs of each party. That said I am not prepared to look beyond the conciliation conference given the concerns that I have about the need for the wife to incur the level of costs anticipated. Thus, the wife needs to be able to meet costs of approximately $46,000. She has of course the amount of $30,000 to come from the loan provided for in the consent order of 4 March 2008, and pausing there, it is instructive that the wife at that time was prepared to consent to an order in those terms and for that amount. That leaves the sum of $16,000 though.

8. The wife still has stock purchased for $60,000 for the purposes of her internet business and thus it could be argued that she has the ability to meet her legal costs.  She says in paragraph 15 of her affidavit filed on 8 February 2008 that that stock has not been able to be sold, but in paragraph 39 of her affidavit filed on 25 February 2008 she deposed that she was “in the process of finding a “wholesale” buyer for the stock… by approaching suitable business (sic) in Darwin who would be a viable outlet for the sale of the stock”.  Nothing further has been put before the Court as to this and I am not satisfied that that stock cannot be sold to free up funds for use by the wife.  However, the wife will not only need to use those funds to meet her costs, she also has other expenses such as the balance of her course fees.  Thus, I propose to order that the husband pay to the wife’s solicitors the sum of $16,000, leaving the wife to sell the stock if she can and meet her other expenses from the proceeds of that sale.

9. As to where the husband obtains the amount of $16,000 that is a matter for him entirely.  At the very least I proceed on the basis that he can increase his loan account in the company as he has allegedly done to meet his own costs.

10. In making this order I do not propose to describe it as “by way of interim costs” as sought by the wife (i.e. pursuant to section 117(2) of the Act). Given the uncertainties surrounding the income, assets and resources of the parties, and the ultimate extent of their legal costs, I will make the order pursuant to section 80(1)(h) of the Act and leave the characterisation of this payment to the trial Judge.  This is also the favoured approach of most if not all of the relevant authorities (e.g. Zschokke & Zschokke (1996) FLC 92-693).

I certify that the preceding 50 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 8 August 2008.

Associate