Harris and Harris

[2007] FamCA 195

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS [2007] FamCA 195

FAMILY LAW - PROPERTY - Superannuation

Family Law Act 1975 (Cth)

APPLICANT: Mrs Harris

RESPONDENT: Mr Harris

FILE NUMBER: MLF 856 of 2005

DATE DELIVERED: 14 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 5, 6, 7 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Haag

SOLICITOR FOR THE APPLICANT: Septimus Jones & Lee

COUNSEL FOR THE RESPONDENT: The husband in person

Orders

1. That all existing restraining orders between the parties shall be and are hereby discharged.

2. That the wife shall transfer to the husband her ownership of the Nissan Patrol motor vehicle, at his expense, within 21 days of these orders.

3. That the wife shall make available to the husband the furniture listed in Schedule A attached to these orders, and his personal papers, for his collection form the wife’s residence at an agreed date and time, at his expense, within 21 days of these orders.

4. That the husband shall retain the following assets to the exclusion of the wife:

   (a)Toyota Camry car;

   (b)Sundowner Caravan;

   (c)Boat; and

   (d)The furniture and effects situated at the property at S.

5. That the wife shall retain the following assets to the exclusion of the husband:

   (a)Honda car; and

   (b)The furniture and effects situated at F.

6. That the wife shall hold the two Aboriginal paintings on trust for each of the parties’ sons M and B, respectively.

7. That on 2 July 2007, the husband shall pay the sum of $166,316 (“the payment”) to the wife’s solicitors.

8. That contemporaneously with the payment:

   (a)The wife shall transfer her interest in S, to the husband at his expense;

   (b)The husband shall indemnify the wife against all taxes including capital gains tax and all outgoings with respect to the S property;

   (c)The husband shall transfer his interest in F, to the wife at her expense;

   (d)The wife shall indemnify the husband against all taxes and outgoings with respect to the F property; and

   (e)The husband shall do all acts and pay all sums necessary to discharge the NAB FlexiPlus mortgage account Number … in the parties’ joint names (“the mortgage account”) save that the parties’ shall share equally any bank fees required by the Bank to prepare and/or register the discharge documents.

9. That pending the payment:

   (a)The wife shall have the sole use and occupation of the F property;

   (b)The husband shall have the sole use and occupation of the S property; and

   (c)Each party shall be responsible for all outgoings in respect of the property they occupy.

10. That in default of the payment in full on 2 July 2007, the husband shall sign all documents and do all things to forthwith transfer his interest in the S property to the wife, to be held on trust by her to effect a sale of that property, the proceeds of sale to be distributed as follows:

    (a)To pay all costs and commissions associated with the sale;

    (b)To pay to the wife that much of the payment that is then outstanding; and

    (c)To pay any balance to the husband.

11. That the parties shall have liberty to apply in relation to the terms of the sale of the S property.

12. That in the event that the payment in full has not been met from the proceeds of sale of the S property the husband shall forthwith transfer to the wife at his expense B shares to the value of the amount then outstanding.

13. That in default of the husband complying in full with paragraph 8(e) of these orders, he shall sign all documents and do all things to forthwith transfer to the wife from his superannuation funds the sum necessary to effect the discharge of the mortgage account in accordance with that order.

14. That pending the discharge of the mortgage account in paragraph 8(e) of these orders, the husband shall by himself, his servants or agents be and is hereby restrained from disposing of, dissipating or in any way dealing with his superannuation funds in his:

    (a)T Superannuation Fund Membership number …; and

    (b)BT Lifetime Super –Personal Plan with investor code … .

15. That the wife shall serve a copy of these orders on the Trustees of the two superannuation funds referred to in paragraph 14 above, and advise them of the restraining order against the husband.

16. That in the event that he husband refuses or neglects to sign any document or to execute any instrument required to give effect to these orders, an officer of this Court shall be appointed pursuant to s 106A of the Family Law Act to do all things necessary to sign all documents and instruments required to give effect to these orders.

17. That otherwise each party shall retain their right, title and interest in any property held in their names respectively.

18. That each party shall indemnify the other in respect of all liabilities in their own name, including but not limited to personal tax and capital gains tax.

19. That the husband is restrained from attending at the F property without prior agreement of the wife and the wife is restrained from attending at the S property without the prior agreement of the husband.

20. That pending the payment the husband is restrained from:

    (a)Disposing of his shareholding in B save to the extent necessary to comply with the following paragraph of these orders; and

    (b)Encumbering or in any way diminishing the value of the S property.

21. That within seven days of these orders the husband shall pay to the National Australia Bank the sum of $7,200 to be credited to the mortgage account and failing such payment in full the husband shall forthwith transfer to the wife a sufficient number of B shares to enable the wife to pay $7,200 to the National Australia Bank on account of mortgage instalments for the period March to June 2007 inclusive.

22. That the husband shall pay the wife’s costs on a party/party basis as assessed under the Family Law Rules or as agreed.

23. That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED that for all publication and reporting purposes this case shall be known as HARRIS & HARRIS.

SCHEDULE ‘A’

FORMER MATRIMONIAL HOME CONTENTS

1.That upon making of Final Orders, the wife shall forthwith make available for collection by the husband in good condition fair wear and tear excepted:

1.1    In the dining room: dining room table plus 6 chairs, sideboard and husband’s contents including 2 porcelain figurines silverware belonging to his family and alcohol;

1.2    In the study: small desk and chair, standard lamp and shelving;

1.3    In the second bedroom: single bed;

1.4    In the store room: black cabin trunk and all memorabilia contents, marble topped sewing machine table and white bentwood chair.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: mlf 856  of 2005

Mrs Harris

Applicant

And

Mr Harris

Respondent

REASONS FOR JUDGMENT

1. The parties cannot agree on a property settlement after their 37-year marriage. 

1. There are four steps for me in a property case. 

1. First I must establish the assets and liabilities.  In this case, they are agreed except as to the value of the husband’s superannuation, whether there is a personal loan as claimed by the husband, whether there should be a small add-back for the husband’s legal fees, and how to treat chattels.

1. Secondly I must consider each party’s contributions.  Initially, through Counsel, The wife said there should be a 2.5% loading to her for various reasons.  The husband, who represented himself, said that contributions should be treated as equal.  In a spirit of compromise, the wife agreed to that approach.  But the husband then said that what he had meant was that contributions should be regarded as equal, save in relation to their S property, for which he should be credited $25,000, to take into account an inheritance contributed by him, and improvements after separation.  On that basis, the wife’s stance also changed so that she again sought a 2.5% adjustment in her favour based on an inheritance of her own and the profits ultimately gained from its investment.  It was fair to allow her to revert to that position.

1. Next I must take into account various factors under s 79(4) and s 75(2) of the Family Law Act.  The parties agree there should be no adjustment in either direction.

1. The final step for me is to stand back and examine any orders that I propose to make, to ensure that they effect a just and equitable property settlement.  The structure of most of the orders was agreed, but the sum to be paid by the husband to the wife was not.

BACKGROUND

1. The husband is Mr Harris.  He is 65 years old and is a self-funded retiree.  He lives in the parties’ property at S, in country Victoria.  The property comprises three cottages that are offered for rental.

1. The wife is Mrs Harris.  She is aged 61 and is also a self-funded retiree, as well as a post-graduate health studies student.  She lives in the parties’ property in F.

1. The parties married on 2 September 1967 and separated finally in July 2004 after short periods of separation in 1998 and again in late 2002. 

1. They have two sons, M 34 and B 31.  Both men are in employment.  The younger son lives with the wife. 

MATERIAL RELIED UPON AND ORDERS SOUGHT

1. The wife relies upon the following:

   ·Her amended application filed 15 September 2006

   ·Her affidavit filed 1 November 2006

   ·Her Form 13 filed 1 November 2006

   ·The affidavit of Ms L filed 16 November 2006

   ·Her case summary filed 5 March 2007.

2. The husband relies upon:

   ·His response to the amended application filed 21 October 2006

   ·His affidavit filed 14 November 2006

   ·His Form 13 filed 1 November 2006.

3. The wife sought orders that each party mainly retain items in their possession, that they pay debt from joint funds, that the husband retain S and that she retain F, and that the husband pay to her a sum of $210,353 so that overall she would receive 52.5% of the pool.

1. The husband largely agreed to that formulation of orders, with a few exceptions to which I will return below.  He said each party should receive 50% of the pool, but he left me to calculate the sum to be paid to the wife to achieve that division.

THE ASSETS AND LIABILITIES

1. Most assets and liabilities are agreed.  However, there are the following disputes:

   ·As to the value of the husband’s superannuation 

   ·In relation to a $35,000 loan the husband says should be included in the pool of assets

   ·As to an add-back of $12,267 of legal fees paid by the husband from joint monies

   ·How to treat chattels in the F and the S properties.

2. For completeness I note that in closing submissions the husband purported to resurrect an allegation about the wife’s dissipation of assets.  He had been given ample opportunity at the start of the case to raise that or any other issues that remained live in the proceedings.  He did not. 

1. It is relevant to refer to the husband’s background.  He has a Bachelor of Science and Graduate Diplomas in education and marketing.  He was employed by a commodities company for 23 years, rising through the ranks to General Manager Marketing.  He was Chief Executive Officer a local Small Business Centre, and then appointed by the Victorian Government to the position of Chairman of Commissioners in a local government reform program with a south eastern Shire.  He is intelligent, and capable, and I am satisfied that he was capable of understanding the proceedings.  I carefully explained the steps for the court in a property case and ensured that he was given a copy of s 79 and s 75(2) of the Family Law Act to enhance his understanding.

1. It was logical that the husband did not proceed with his arguments about the wife’s dissipation of funds after it was conceded by her Counsel at the start of the case that more than $80,000 should be notionally added back into the pool, representing amounts she had used from joint funds for her own legal costs, and educational tuition fees.  I am satisfied that it was unfair to attempt to raise an issue of dissipation again late in the case.

The Husband’s Superannuation

1. The wife provided details of both her superannuation and the husband’s superannuation entitlements.  She ascertained them from correspondence received at the home, and via telephone and internet enquiries using PIN codes also left in the home.  Her superannuation is $110,956.  The husband accepts that. 

1. The wife says that the husband’s superannuation was $983,917 as at February 2007.  In his financial statement filed on 1 November 2006, the husband included his superannuation interests at $858,238.  He gave no explanation as to how he arrived at that sum.  Then, despite it being his own superannuation, despite having many months to prepare this case, and despite the time I gave him expressly for this purpose in the course of the hearing, he provided no figures contrary to the more up to date figures provided by the wife.  Still, he stopped short of accepting her figures. 

1. The husband said that one fund, the MLC Masterkey fund of $129,999, “didn’t gel” with him, and he “could not make recognition”.  On the second day of the hearing, he conceded that although the wife’s figures given on the previous day in relation to his superannuation may have been generally correct, they were “wildly out” by that second day.  He held up the business section of The Age newspaper.  Otherwise he did not expand upon that. 

1. In cross-examination, the husband explained his inertia in ascertaining the current value of his superannuation, saying that since an order was made on 24 February 2005, restraining him from using the superannuation monies, he decided that there was no point following what was happening with his superannuation as he had no control over it.  That explanation was unimpressive.  Those orders were in fact made with his consent.  In any event, he also claimed that he had not looked at his superannuation since April 2004, as he left documents in the home that were “essential”.  He had to concede that had he wanted to make enquiries about his own superannuation, even without the requisite PIN numbers, he could have set in train the process to do so.  He was obviously aware they were needed in court.

1. It was simply inadequate for the husband to say that relevant documents were left in the home, or that he was unable to do what was necessary to establish the value of his own superannuation in more than 2½ years’ since separation, in the many months leading up to this hearing, or in the course of the hearing.  His conduct was obtuse to the point of being obstructive. 

1. I accept the wife’s version as to the value of her own superannuation at $110,956, and the husband’s at $983,917, for inclusion in the pool of assets.

The $35,000 Loan

1. The husband claims that he borrowed the sum of $35,000 from a friend, Mr D.  Although from early 2005 he did not have access to superannuation, he did have access to funds drawn against the mortgage, as did the wife, until that account could no longer be drawn against in early 2006. 

1. Mr D was not called as a witness.  His absence was not explained.  There was no independent evidence about the loan.  No formal documentation was offered.  That is noteworthy given the husband’s meticulous note-keeping about assets and liabilities.  He was meticulous to the point that it was actually one of the sources of argument between the parties during the breakdown in their relationship.  It is improbable that he would have borrowed this money without independent proof that could have been properly tendered through the lender.  I am entitled to infer that his failure to call Mr D means that Mr D would not support his case.  The husband has not always been unrepresented in these proceedings.  In the course of the case he has had two different legal firms representing him.  This is simply a gap in his case.  His evidence about it was insufficient. 

1. I am mindful that the husband says he had no funds available to him after monies were frozen, but it is probable that he has received more income from the S cottages than he has sworn.  His evidence simply did not ring true.  He said that between November 2004 and March 2005, the cottages earned $1,100 in rental and that from May 2006 to March 2007, $713.  He keeps notebooks, but there are no profit and loss accounts, no balance sheets and no tax returns.  He produced nothing beyond a few photocopied receipts.  Again, that does not sit realistically with the meticulous record-keeper, and the man with extensive business and management experience.  His evidence was not credible and leads me to infer that he has earned significantly more by way of rental from the S property. 

1. In all, the evidence fails to satisfy me of his claimed debt of $35,000. 

The add-back of the husband’s legal fees of $12,267

1. The wife concedes that $66,000-odd paid by her towards her legal fees should properly be added back into the pool. 

1. In cross-examination, the husband agreed that he had paid $12,267 in legal fees in the course of 2006.  He said he paid it from the monies he borrowed from Mr D.  As I am not satisfied that there was such a loan, I conclude that it is more probable that his legal fees were met from the parties’ resources, and like the wife’s legal fees, they should be notionally added back into the pool of assets.  In final submissions, he did seem to concede that.

The Chattels

1. The chattels in the home at F, and the chattels in the S property, have not been valued.  The wife says that she accepts the husband’s reckoning that the chattels retained in the property in which he is living are valued at about $3,000.  She says the chattels retained by her in F equal about $5,000.  The husband argues to the contrary. But he has offered no cogent evidence. 

1. The husband’s proposal is for him to pay the wife $5,000 for the furniture and chattels in the F property.  Having said that, he proposes that she retain them so long as she lives in that property.  He will pay her and take over the furniture only in the event that she moves.  With respect to him, that is not a practical order in terms of achieving finality between the parties. 

1. For the purposes of determining the pool of assets, in the absence of further evidence, I propose treating the chattels retained by the parties as roughly equal (there being some assets in the F property that the wife is willing to give to the husband and I believe he is prepared to accept).  As such, they can be left out of the equation.  They are a very tiny percentage of the overall pool in any event.

1. For completeness I note that there are two Aboriginal paintings.  The wife says she retains them on trust for the parties’ two sons.  She is prepared to have that written into the orders.  Again in the absence of cogent evidence to the contrary, I will adopt that course.

Conclusion as to the Asset Pool

1. Accordingly, the assets, liabilities, and superannuation, are as follows:

   Assets

   ·The former matrimonial home at F in which

   the wife lives  $  550,000

   ·The S property in which the husband lives  $  185,000

   ·Honda Accord motor vehicle (wife)  $     4,500

   ·Nissan motor vehicle (husband)  $     9,000

   ·Toyota motor vehicle (husband)  $     3,000

   ·Caravan (husband)  $    14,500

   ·Boat (husband)  $     6,000

   ·Wife’s savings  $     5,750

   ·Husband’s savings   $     1,394

   ·Husband’s B shares  $    89,461

   ·Husbands’ Trust funds  $     3,000

   ·Surrender value on the husband’s AMP

   Life Insurance   $    28,000

   ·Legal fees paid by the wife notionally added

   back into the pool  $     66,000

   ·University fees of the wife by way of premature

   distribution, notionally added back into the pool                  $     14,500

   ·Legal fees paid by the husband notionally added

   back into the pool  $     12,267

   $    992,372

   Liabilities

   ·National Australia Bank Flexiplus mortgage

   overdraft account secured on the F

   property  $   244,000

   Total Assets               $   748,372

   Superannuation

   ·Wife’s superannuation

   ·       V   $     77,602

   ·       MLC Masterkey  $     33,354

   $   110,956

   ·       The husband’s superannuation

   ·       MLC Rollover  $     23,296

   ·       Local Authorities Super   $   178,092

   ·       BT Financial Group  $   147,742

   ·       T Superannuation Fund  $   141,090

   ·       Colonial First State Super   $   218,044

   ·       MLC Masterkey (Australian Eligible roll-over)           $   129,999

   ·       A       $     14,800

   ·       Tower superannuation   $     24,000

   ·       Zurich Master Superannuation Fund  $     39,145

   ·       Zurich Zenith  $     67,709

   $   983,917

   Total superannuation $1,094,873

   Total assets and superannuation  $1,843,245

CONTRIBUTIONS

1. The husband says that contributions should be regarded as equal, save that he should receive an adjustment in his favour in relation to the S property.  He says that his $42,000 inheritance in 2003 was applied specifically to the purchase of the S property upon what he described as the understanding that he would be “the beneficiary of at least half of that.”  He also says that he improved the property after separation.

1. It is agreed that the S purchase price was $130,000.  It is agreed that it was purchased, and $44,000 was spent on renovations, before separation.  The husband says that his improvements after separation added to its mid-2005 valuation which was $185,000. 

1. I do not propose adjusting contributions in the husband’s favour.  First, he invested his inheritance into this jointly owned property, just as the wife invested her inheritance of $69,000 into a jointly owned property in 1994.  Moreover, his claim that he improved the property after separation does not withstand scrutiny.  He claimed he could produce numerous invoices, some of which he happened to have with him at court, to show that he had purchased items towards the property’s improvement.  Many of those invoices in fact related to the period before separation.  Those that related to the period post separation amounted to $132.30.

1. The wife gave evidence that the improvements were done to the property before separation.  I accept her version.  Not only did I find her the more reliable witness, but when she detailed the works done by her and the husband (and builders) before separation, the husband conceded that she had done some of that work at least.  I am satisfied that the substantial renovations were done before separation.

1. The question is whether there should be any adjustment in the wife’s favour.  She claims a 2.5% loading, asking me to trace through the profits derived from her 95% contribution to the purchase of a property in R in 1994, after the receipt of her inheritance. 

1. I am satisfied there should be no adjustment.  First, the wife’s Counsel’s calculation of how the wife bought the R property, traced through to its increase in value when it was sold, and through to the purchase of the F property, is not a realistic approach to an analysis of monies received earlier in a marriage and then invested in property which has enjoyed inflationary times.  There is clear precedent that both parties should enjoy the benefits of such inflation.  Moreover, when the R property was bought, a small sum of joint funds was contributed ($6,000 out of $75,000), and the property was registered in the parties’ joint names.  I accept the wife’s evidence that she was the driving force in choosing the property in that location, but she had to concede that she had sought the father’s input and that he had accompanied her to the property before she purchased it. 

1. The inheritance received by the husband, though $42,000 as compared to the wife’s $69,000, was received very close to the time of separation.  The wife’s inheritance was received some ten years before.  In the light of that and the very long marriage, and against an asset pool of almost $1,850,000, I propose treating the parties’ contributions as equal. 

SECTION 75(2) FACTORS

1. Although various factors were raised in the affidavit material, ultimately it was agreed there should be no adjustment in relation to these factors.  Both parties are retired.  They each intend to live off investments.  Although the younger son lives with his mother, he is an adult and is financially independent. 

CONCLUSION AS TO A JUST AND EQUITABLE PROPERTY SETTLEMENT

1. On my assessment each party is entitled to 50% of the asset pool.  That is a sum of $921,622 each.  It is agreed that the wife shall retain assets of $751,706 being the F property, the Honda, her savings, her superannuation, and the benefits of the educational expenses and legal costs already used from joint monies.

1. For his part, the husband shall retain assets of $1,335,539 being the S property, the Nissan and Toyota vehicles, the caravan, the boat, his savings, the B shares, the Trust funds, and the AMP life insurance as well as his superannuation and the add-back for legal fees paid by him from joint monies.

1. It is agreed that the NAB Flexiplus mortgage account will be paid from joint funds.  The husband argued against the structure of orders as proposed by the wife, whereby he will be the one responsible for the payment.  However, I agree with Counsel for the wife that the clearest and most certain approach is for the husband to pay out that sum.  The husband did raise a valid point as to the sharing of any bank fees required to effect the discharge, and the wife agreed that they should be met equally.

1. Accordingly, if the husband meets the bank liability included in the pool at $244,000, and he pays to the wife the sum of $169,916, he will retain assets of $921,623 or half the pool.  At the end of the case it was agreed that between now and settlement, he will pay the mortgage instalments of $7,200.  That sum should be met equally by the parties so that the husband shall pay the wife $166,316.

1. It was agreed between the parties that the sum to be paid over by the husband should be paid on 2 July 2007.  There are adverse tax implications for both of them in relation to their superannuation if settlement occurs before then. 

1. After this very long marriage and a lifetime of building their wealth so that each might enjoy a dignified retirement, I am satisfied that these orders are just and equitable in all the circumstances. 

THE ORDERS

1. The orders that I propose, subject to submissions as to form, are as follows:

   24.That all existing restraining orders between the parties shall be and are hereby discharged.

   25.That the wife shall transfer to the husband her ownership of the Nissan Patrol motor vehicle, at his expense, within 21 days of these orders.

   26.That the wife shall make available to the husband the furniture listed in Schedule A attached to these orders, and his personal papers, for his collection form the wife’s residence at an agreed date and time, at his expense, within 21 days of these orders.

   27.That the husband shall retain the following assets to the exclusion of the wife:

   (a)    Toyota Camry car;

   (b)    Sundowner Caravan;

   (c)    Boat; and

   (d)    The furniture and effects situated at the property at S.

   28.That the wife shall retain the following assets to the exclusion of the husband:

   (a)    Honda car; and

   (b)    The furniture and effects situated at F.

   29.That the wife shall hold the two Aboriginal paintings on trust for each of the parties’ sons M and B, respectively.

   30.That on 2 July 2007, the husband shall pay the sum of $166,316 (“the payment”) to the wife’s solicitors.

   31.That contemporaneously with the payment:

   (a)    The wife shall transfer her interest in S, to the husband at his expense;

   (b)    The husband shall indemnify the wife against all taxes including capital gains tax and all outgoings with respect to the S property;

   (c)    The husband shall transfer his interest in F, to the wife at her expense;

   (d)    The wife shall indemnify the husband against all taxes and outgoings with respect to the F property; and

   (e)    The husband shall do all acts and pay all sums necessary to discharge the NAB FlexiPlus mortgage account Number … in the parties’ joint names (“the mortgage account”) save that the parties’ shall share equally any bank fees required by the Bank to prepare and/or register the discharge documents.

   32.That pending the payment:

   (a)    The wife shall have the sole use and occupation of the F property;

   (b)    The husband shall have the sole use and occupation of the S property; and

   (c)    Each party shall be responsible for all outgoings in respect of the property they occupy.

   33.That in default of the payment in full on 2 July 2007, the husband shall sign all documents and do all things to forthwith transfer his interest in the S property to the wife, to be held on trust by her to effect a sale of that property, the proceeds of sale to be distributed as follows:

   (a)    To pay all costs and commissions associated with the sale;

   (b)    To pay to the wife that much of the payment that is then outstanding; and

   (c)    To pay any balance to the husband.

   34.That the parties shall have liberty to apply in relation to the terms of the sale of the S property.

   35.That in the event that the payment in full has not been met from the proceeds of sale of the S property the husband shall forthwith transfer to the wife at his expense B shares to the value of the amount then outstanding.

   36.That in the event that he husband refuses or neglects to sign any document or to execute any instrument required to give effect to these orders, an officer of this Court shall be appointed pursuant to s 106A of the Family Law Act to do all things necessary to sign all documents and instruments required to give effect to these orders.

   37.That otherwise each party shall retain their right, title and interest in any property held in their names respectively.

   38.That each party shall indemnify the other in respect of all liabilities in their own name, including but not limited to personal tax and capital gains tax.

   39.That the husband is restrained from attending at the F property without prior agreement of the wife and the wife is restrained from attending at the S property without the prior agreement of the husband.

   40.That pending the payment the husband is restrained from:

   (a)    Disposing of his shareholding in B save to the extent necessary to comply with the following paragraph of these orders; and

   (b)    Encumbering or in any way diminishing the value of the S property.

   41.That within seven days of these orders the husband shall pay to the National Australia Bank the sum of $7,200 to be credited to the mortgage account and failing such payment in full the husband shall forthwith transfer to the wife a sufficient number of B shares to enable the wife to pay $7,200 to the National Australia Bank on account of mortgage instalments for the period March to June 2007 inclusive.

   42.That the husband shall pay the wife’s costs on a party/party basis as assessed under the Family Law Rules or as agreed.

   43.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

SCHEDULE ‘A’

FORMER MATRIMONIAL HOME CONTENTS

2.That upon making of Final Orders, the wife shall forthwith make available for collection by the husband in good condition fair wear and tear excepted:

2.1    In the dining room: dining room table plus 6 chairs, sideboard and husband’s contents including 2 porcelain figurines silverware belonging to his family and alcohol;

2.2    In the study: small desk and chair, standard lamp and shelving;

2.3    In the second bedroom: single bed;

2.4    In the store room: black cabin trunk and all memorabilia contents, marble topped sewing machine table and white bentwood chair.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  14 March 2007