J and J
[2010] FCWA 85
•28 JULY 2010
[2010] FCWA 85
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : REGIONAL CENTRE | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| PUBLISHED |
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| FILE NO/S |
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| BETWEEN | : J | ||
| Applicant Wife |
AND
J
Respondent Husband
Catchwords:
FAMILY LAW - property settlement - just and equitable
Legislation:
Family Law Act 1975 (Cwth) - s 79
Category: Not Reportable
Representation:
Counsel:
| Applicant Wife | : | Mr M Berry |
| Respondent Husband | : | Self Represented Litigant |
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Solicitors:
| Applicant Wife | : | Haynes Robinson |
| Respondent Husband | : | Self Represented Litigant |
Case(s) referred to in judgment(s):
Omacini v Omacini (2005) FLC 93-218
[2010] FCWA 85
1 In this matter the Court has to determine the division of property between [Mr and Mrs J], hereinafter referred to as the wife and the husband.
2 The husband and the wife were married for nearly 50 years.
3 Upon the conclusion of the marriage the husband seeks orders that will see him
retain a farming property [in the region], half the value of the former matrimonial home in [the regional centre], and two-thirds of the proceeds of sale of the property previously held by the parties in [another town].
4 The wife seeks to retain the former matrimonial home and pay to the husband
the sum of $60,000 on the basis that he retains the farming property and other chattels
in his possession.
Background
5 The husband is now 74 years of age and the wife is 73. The parties commenced
cohabitation in or about April 1957 in [Europe]. It appears to be common ground that at that stage the husband had some accumulated savings of something in the order of 5000 deutschmarks.
6 The parties were married in Europe [in] June 1957.
7 Their first child, [John], was born [in] September 1958.
8 In May of 1960 the parties moved to reside in Australia, after spending a short
time in [the eastern states], settling in [the regional centre]. From shortly after the time that the parties moved to the region the husband obtained employment and was in employment continuously until the early 70s. The parties' second child, [Phillip] was born [in] July 1960 and [turned 50 recently]. In May 1961 the parties purchased the property at [an address in the regional centre] which became the former matrimonial home.
9 In about 1977 the husband received a lump sum of workers compensation
payment and in that same year the wife also received a lump sum. Both of the parties had been employed as their last place of employment at [the firm] and both of them had suffered injuries whilst so employed.
10 In May 1980 the parties holidayed in Europe for a period and it is alleged by the husband that whilst in Europe his mother gifted to him 21,000 deutschmarks in cash.
11 In March 1981 the husband purchased the property at [B Road] to which I have
referred to as the property or farm. The purchase price was $18,000. The husband suggests that the entire purchase price was funded by the gift he says he received from his mother. He is adamant that the wife made no contribution to the purchase of that property.
12 In about 1984 the husband's mother died. In early 1985 the husband received a small inheritance from his mother.
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13 During the course of the parties' relationship they befriended one [Mr W]. In the
course of their relationship with Mr W various arrangements were made about assisting him with accommodation. In any event, Mr W had acquired a property with other persons in [another town].
14 In 1999 it would appear the situation for Mr W had become intolerable in
[that town] and he advanced some moneys to the parties for the purpose of building what is known as a granny flat at the parties' home in the regional centre. Sadly, Mr W died before he ever moved into the home and upon his death the husband inherited Mr W's one-third interest in [his property]. That interest was transferred to him in April 2001.
15 It appears that the arrangements for the ownership of the property continued to
be problematic, with the parties having to prop up the mortgage repayments as the other parties were in default. Ultimately the husband and the wife acquired the other two-thirds of the inherited property. In negotiation with Keystart Loans they acquired the balance of the interest in the property for $100,000.
16 In 2004 the husband received $6000 in total from some lotto wins which he says
went towards the payments of [that] mortgage. In his evidence yesterday he also said
that he contributed another $29,000 towards the mortgage payments.17 In March 2006 the parties separated in distressing circumstances involving allegations of significant violence.
18 Shortly after they separated the inherited property, which had been sold, settled
on the sale with net proceeds of $220,600 being deposited into the parties' Westpac account. Without the husband's knowledge or consent the wife withdrew $150,000 from that account and subsequently the husband withdrew the balance.
19 The issues that particularly have to now be considered in the context of the
dispute between the parties relate to the interest the parties have in the proceeds of the
inherited property and the farm.20 It would appear that the husband concedes that the ownership of the matrimonial
property is equal. There are other issues that arise also about add-backs, and in particular the treatment, as I have mentioned, of the proceeds of sale of the inherited property.
Relevant principles
21 The principles that are to be applied in property matters are clearly enumerated
in the various authorities of the Full Court. There is a four-step process to be
undertaken.22 The first such step is to identify the pool of assets available for distribution
between the parties; the second is to make an assessment on contribution; the third is to make any adjustments that may be required as contemplated by s 75(2) of the Family Law Act; and finally the court is to make an assessment as to what is a just and
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equitable outcome and to determine whether the findings on contribution as adjusted,
having regard to any relevant factors under section 75(2), produce an equitable result.
The Evidence
23 I turn then to consider the evidence of the parties and their presentation. The
husband filed a trial affidavit and statement of financial circumstances, as did the wife. Additionally, there was a single expert's report prepared by a valuer, [Mr S], and his affidavit was filed and the values obtained by him were relied on for the purpose of the trial.
24 A report prepared by [Professor L], a consultant psychiatrist, was also relied
upon by the wife. That report had been prepared in support of an application brought by the husband to have a case guardian - who had previously been appointed - discharged. Both of the parties gave evidence.
25 Both of the parties were unimpressive witnesses.
26 Whilst the husband had significantly better detail, I formed the view that some
of the detail was constructed in support of a position that the husband felt was his to be rightfully maintained. The wife's evidence was vague. There is one particular issue about which I will refer later where I disbelieved her entirely. There were various claims made by each of the parties that frankly beggared belief. Again, I will deal with those later.
27 As to the pool of assets, the pool can be described essentially as this:
(i) the former matrimonial home at [the address] to the value of $320,000; (ii) the farm with a value of $275,000; (iii) husband's cash at bank $602; (iv) the wife's cash at bank $10,500; (v) the husband's motor vehicle $12,000; (vi) some jointly-held Telstra shares $1944; (vii) a holding of a similar number of Telstra shares - namely 600 - by the husband solely, $1944. (viii) minor other shareholding, of nominal value, held by the husband (ix) the wife has furnishings and effects in her possession which she estimates to have a value of $15,000.
28 The husband has some tools which he seeks, together with the contents of the shed, which the wife also estimates to be worth $15,000.
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29 (The husband has not made any estimate as to the tools or otherwise and there
has been no formal valuation. I rely, therefore, on what it would appear to be the only
evidence, which is an estimate made by the wife.)
Add backs
30 There are also assets that need to be added back into the pool of assets. I have
regard to the categories of assets that can be added back and the principles prescribed in Omacini v Omacini (2005) FLC 93-218, in considering what should be added back.
31 It is properly conceded by the wife that her legal fees which she has paid out of
the sum of $150,000 that she withdrew from the inherited property proceeds should be
added back. They amount to $46,563.32 The husband's paid legal fees, similarly paid from his share of the proceeds of
the inherited property of $9,947 should be added back. Mr Berry, for the wife, urges that I should also add back the sum of $18,240, being the difference between the purchase price of the Holden vehicle in the husband's possession and its current value, that sum having been paid from the husband's share of the proceeds of the inherited property.
33 The vehicle was purchased in April 2006. At the time of the purchase of the
vehicle the husband was driving an old Holden motorcar which had been acquired in or about late 1978. The vehicle at the time of trade-in - for which an allowance was given of $1000 - was some 28 years of age.
34 Whilst a motor vehicle is a depreciating asset, that of itself, does not
automatically mean that it should be added back at its full purchase price. Motor vehicles these days are largely necessities and treated as necessities and they are inevitably depreciating assets. I consider the acquisition to have been necessary,
35 I accept that it is not unreasonable for the husband to have acquired a motor
vehicle, particularly given the age of the vehicle he was driving at the time. Having regard to the husband's circumstances, I consider that it was reasonable for him to treat such a purchase as a necessity, and as such I am not inclined to exercise my discretion to add back the sum of $18,240 used by the husband to acquire the motor vehicle.
36 Mr Berry in my finding quite properly concedes on behalf of his client that the
husband used the balance of the moneys that he had after the payment of the motor vehicle and the payment of his legal fees for living expenses, and that his living expenses were greater than those of the wife because of the circumstances in which he found himself, having to secure accommodation whilst the wife had the benefit of the former matrimonial home with reduced Commonwealth benefits.
37 The other item to be added back is the sum of $60,000 utilised by the wife.
38 The sum of $60,000 was withdrawn from the moneys taken by the wife from the
inherited property proceeds. She says that she withdrew $60,000 and that she spent it at the Casino. Entered into evidence was a Westpac bank account headed a deeming
[2010] FCWA 85
account for the wife. It shows on 26 April 2006 a withdrawal of $60,000. The wife
says that she wasted this money at the Casino. I do not believe the wife.39 I note that the withdrawal was a staff-assisted withdrawal at the local branch.
What is suggested then by the wife - and what can only be suggested - is that she withdrew $60,000 from the bank and then travelled to the only Casino in Western Australia, which is in Perth, and expended the money. That she would carry $60,000 in cash or otherwise with her from the regional centre to Perth beggars belief, and I do not believe her. Accordingly, I do not know what has happened to the $60,000. However, it is quite properly added back.
40 Of the balance held by the wife, I accept that the moneys that were expended by
her of about $36,000 on improvements to the former matrimonial home have been
reflected in the value of the property.41 Further, the wife has expended some $4,000 or thereabouts on furnishings and
effects and they are reflected in the figure that she has nominated as a value of furnishings and effects, so I do not propose to separately add back that expenditure, nor do I propose to add back the husband's expenditure on day-to-day living expenses which were quite properly conceded to have been necessarily expended by the husband, particularly given that he lost his age pension as a result of his inability to satisfy the assets test following the parties' separation.
42 The total that is to be added back into the pool of assets is a sum of $116,510.
43 The total pool of assets then in my finding is the sum of $776,793. Any
liabilities that the parties have are minor and personal to the parties and their individual circumstances. There are no liabilities as such that remain from the acquisition of the property to be divided between the parties.
Contribution
44 I turn now to consider the question of contribution.
45 There is no doubt that at the commencement of the parties' relationship the
husband was in a superior financial position to that of the wife. It is conceded that he assisted the wife early in their relationship, no doubt with the intention of forming an enduring relationship, which indeed the parties did have for some nearly 50 years. There is no doubt that following the parties' migration to Australia in 1960 they worked very hard. Both of them undertook difficult, heavy tasks in the workforce.
46 The husband was continually in the workforce from shortly after their arrival in
Australia until the early 1970s, as I have indicated. The wife was the primary carer for the parties' two children and homemaker. As the husband put it in his evidence, "She did what she was supposed to do. She looked after us." Whilst it may have been the only concession that the husband made in favour of the wife, it really underscored what was the nature of the relationship between the parties.
47 They assumed what some would describe as a traditional marriage with the
husband undertaking more physical activities than the wife and the wife adopting the
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primary caring role insofar as the children were concerned and the household, by undertaking what may be described as the household tasks of generally cleaning, cooking, washing, and the like. More than that, when the wife was able to, she also went out and worked. Her contribution in that regard was significant.
48 The wife says that during the course of the relationship she inherited about
$1,200 in total. The husband disbelieves her and cross-examined her about it. Both the cross-examination and the answers were unimpressive. As I pointed out to the parties at the time, I did not think it was going to make a significant difference.
49 The husband, as I have remarked earlier, inherited $9,396 from his mother,
which was the amount converted from about 24,000 deutschmarks. I would make an observation at this point in my judgment that it is singularly unhelpful when solicitors use mixed currencies in affidavits without converting them to Australian dollars. This becomes of particular significance insofar as the husband's assertion that he made a contribution of a gift from his mother.
50 He variously claims it to have been 21,000 deutschmarks, although at one point
in the chronology it would seem that it was suggested to be $21,000. In the same chronology it was also suggested that the inheritance from his mother was $21,000. It is most confusing and unhelpful. Whether appropriate or not, it has been left to me to do a conversion as to the value of 21,000 deutschmarks in 1980, for if I believe the husband then he has made that contribution.
51 That sum, he says, was used to acquire, in total, the farm. The farm cost
$18,000. As best I can determine from the Reserve Bank of Australia rates and from the Federal Reserve of the United States with the appropriate conversions, if the husband received 21,000 deutschmarks from his mother, it would have had a value of about $10,000. It could not be the case, therefore, that the farm was acquired entirely with the funds provided by the husband's mother.
52 Further, I have some significant difficulty accepting the position taken by the
husband. He says that he concealed the gift from his mother because the wife - to use his words - "would want half", but I do not accept that he could have concealed the transport of that amount of cash from Europe to Australia from his wife. As she said, they were staying together, they were in the same room and they dressed together. She believed it unlikely that he would be able to conceal the money in his socks, as he claimed.
53 The other concern I have about the claim insofar as the payment from the
husband's mother is concerned, is that upon her death the estate was divided between the husband and what appears to be his siblings. It is clear from the amount received that the husband's mother was not a wealthy woman. I have difficulty reconciling the claim of a gift of 21,000 deutschmarks, or about $10,000, with what was a relatively small estate that was left to be wound up upon her death.
54 In any event, even if what the husband says is true, it does not in my finding
affect the fact that the farm is in the pool of assets for distribution between the parties and to be treated, in my finding, along with the other assets, as part of a global pool. As I have observed, if the husband was correct about the 21,000 deutschmarks, it
[2010] FCWA 85
covered slightly more than half the cost of the farm. The other half would have had to
have come from the parties' resources.55 It also ignores the fact that during the marriage the farm had to be supported
from the resources of the parties. Moneys were expended on bulldozers, for example, to help clear the property. In my finding the acquisition of the farm, if there was any significant or special contribution that came from the husband's mother, that contribution has been dissipated. In any event, as I have said, I have very significant reservations about that claim.
56 The other point is this, that if in fact the husband did receive that money from his
mother, then he kept it to himself to pursue his own hobby and interest in the farm, which was supported by the family during its continuum of some 25 years of the parties' relationship.
57 The other matter that requires specific consideration is the gift from [Mr W]. As
I have recounted earlier in these reasons, the parties acquired two-thirds of the property from the other registered proprietors for the sum of $100,000.
58 The purchase price of the property was originally $120,000 - the totality of it. It
would appear that the equity in the property had not increased significantly when the parties acquired it. Whilst Mr W was generous in making the bequest that he did to the husband, I do not accept that it was to act in isolation from the other assets of the parties as there is no doubt that the wife was involved in discussions with Mr W about providing for his care. Indeed, she had agreed to undertake various tasks for Mr W to assist him.
59 I accept the fact that Mr W and his deceased wife, during her life, were friends
of the parties and that the relationship was between the families. In any event, that becomes ultimately irrelevant as there is no doubt that the parties could not have acquired the other two-thirds interest in the property other than jointly. For as much as the husband wanted to acquire the property - it would seem - solely, he was not able to do so without the support of the wife.
60 The parties were very lucky with the acquisition of the property because it
increased in value significantly between the time they acquired it and its ultimate sale
in 2006 for some $320,000.61 The parties have had a long marriage. The parties, it is clear from their
evidence, have little or no respect for each other and are highly polarised in their attitudes towards each other. That was abundantly clear when they were giving evidence.
62 What is also abundantly clear, notwithstanding the absence of concessions made
by the parties, is that they both worked hard. Whilst there is no presumption of equality and there is no presumption of partnership under the Family Law Act, I am satisfied that there was a joint and equal effort by the parties in the acquisition and the maintenance of their several assets. I find, overall, that the contributions of the parties are equal.
[2010] FCWA 85
Section 75(2) factors
63 I now have to consider whether or not there are any factors under s 75(2) that are relevant to the circumstances of the parties.
64 The parties, as I have indicated, are both in their early 70s. They both appear to
be in reasonable health. There was nothing suggested that was of a particular indicator otherwise. The parties both struck me as being fit intellectually as well as physically, having regard obviously to their age and previous injuries.
65 But it is fair to say that neither of the parties now have an earning capacity.
Indeed, both of them are dependent upon Centrelink payments; the wife on an aged pension and the husband presently on a hardship benefit as a result of him being ineligible to receive the aged pension. As Mr Berry quite properly pointed out, it is very likely that following the conclusion of these proceedings the husband will be able to seek a reassessment of his entitlement for an aged pension.
66 Again, overnight I was able to determine that for a single non-home owner, a full pension is paid provided the assets held by that individual are less than $313,250. The difficulty that has faced the husband is that his pension has been calculated on the basis of the inclusion of the farm as an asset and one half - it would seem - of the matrimonial home, rendering him ineligible.
67 It is the husband's position that following these proceedings he wishes to acquire another property, about which I will say more later in these reasons.
68 Once he becomes a home owner and the home is excluded from inclusion in the
calculation, he is allowed to have assets of $181,000 and still receive the full pension. If the husband follows through with his plans in terms of the acquisition of a property, then it is likely that he once again will receive a full pension.
69 The only other factor under s 75(2) that is of particular relevance to these
proceedings is the effect of the orders that I propose to make. The wife wishes to retain the former matrimonial home and that is not resisted by the husband, who simply wants to be paid what he sees as being fair. I accept that the husband and I may not have a common view of what is fair in these proceedings. In any event, there is no serious objection, it would seem, to the wife retaining the home.
70 That gives to the wife, in my finding, a significant advantage about which I will
say more later, because if the husband is to rehouse himself then he is going to have to do so at some quite considerable cost. I do not propose to make the adjustment, however, under s 75(2), but I identify that as a factor.
Section 79(2) “just and equitable” considerations
71 In the final part of the analysis of proceedings such as these, I must determine what is an order that is just and equitably made.
72 I have indicated earlier that the husband wishes to acquire another property.
Indeed, Mr Berry quite properly put it was likely that he would sell the farm and
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acquire a property which was consistent with the position taken by the husband, although the husband was concerned that he would not be able to establish himself back to the level that he had previously, given his current financial circumstances.
73 There are inevitable expenses facing the husband. The wife will have the benefit
of retaining the unencumbered former matrimonial home. She will have to meet the cost of paying to the husband the sum I propose to order that she pays. As I have said, I do not know what happened to the $60,000 taken from the bank by the wife, but I do not believe her evidence that she wasted it at the Casino. In any event, the wife is confident that she can pay the husband.
74 Indeed, up until the commencement of the trial the wife proposed that she pay to
the husband the sum of $100,000 by way of settlement of property, although she
amended that position during the first day of the trial.75 Equality in this case produces a payment to the husband by the wife, having
regard to what they retain, of $65,610; that being on the basis that the wife retains assets of the pool of $454,007 and the husband would retain - and this of course includes add-backs - $322,786. So at 50 per cent there will be an adjusting payment of $65,610.
76 I am not satisfied, given the costs that the husband will face of having to realise
the farm, then having stamp duty expenses at the very least of acquiring a new property; and having to acquire then basic necessities in terms of furnishings and effects, that such an outcome is just and equitable, and I propose to adjust the percentage by 3 per cent such that the husband retains 53 per cent of the pool of assets, which will require a payment to be made to him of $88,914. I will so order shortly.
Conclusion as to form of orders
77 In making the orders, however, I have regard to the position taken in the wife's
Minute wherein she suggests that the payment be made within 30 days of the date of the orders. I propose to give her 60 days because I am satisfied that if she needs to borrow any funds then she may require more time in which to do so. However, I will make the relevant declaration as to the wife holding the property in the hope that the husband can then make an approach to Centrelink to have his position under the assets test reassessed. He may not be able to do so. I am uncertain about that.
78 Prior to the commencement of the trial the court received correspondence from
the husband's previous solicitors, Messrs O'Sullivan Davies. It appears that the Federal Attorney-General's Department to date has underwritten the costs incurred by the Public Trustee in appearing as the husband's case guardian. In those circumstances, the Attorney-General's Department may seek to recover costs.
79 In those circumstances, I am satisfied that the appropriate form of order is to
make an order that the settlement sum be paid to the trust account of O'Sullivan Davies for and on behalf of the husband pending the determination of any claim by the Federal Attorney-General for costs. I am also mindful that there is likely to be an application for costs on behalf of the wife which I also have to consider, as the same was clearly foreshadowed by Mr Berry.
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80 Additionally the parties have been able to resolve the issues of some chattels and
I have received this morning a list of chattels that are said to be in the shed at the former matrimonial home which the husband can have. Additionally the husband can also have the collection of videotapes, his records and tapes, stamp albums, and the photo albums which are said to be in a shed in the wardrobe.
81 The husband also sought an address book and a birthday book. The wife said he
could have photocopies of the address book and the birthday book. For reasons which neither party could explain, both of them wanted the originals. Therefore what I propose to do is the husband will choose which of them he would like to retain in its original form, and the wife will make a photocopy of that which he chooses. The husband will be given a photocopy of the other.
82 As inexact as it may seem, to try to do justice between the parties when there is
no evidence which really supports the position of either, and each concede that they should both have the information contained in the respective documents, I am satisfied that it is not unreasonable for each of the parties to have one of the originals. I therefore order for the reasons I have given as follows:
1. Within 60 days of these orders the wife shall pay or cause to be paid to the trust account of O’Sullivan Davies, Solicitors, whose receipt shall be a sufficient discharge for and on behalf of the husband, the sum of $88,914.
2. Henceforth, the wife is declared to be the sole owner of the property situated at the address of the matrimonial home Western Australia, more particularly described in Lot XX on Deposited Plan XXXXX X and being the whole of the land comprised in Certificate of Title Registerable Volume XXXX Folio XXX (“the matrimonial home property”).
3. The husband shall deliver up an executed memorandum of transfer in registerable form to the wife of the matrimonial home contemporaneously with the payment of the sum ordered in paragraph 1 hereof.
4.(1) Henceforth, the husband shall retain as his sole property free of
claim by the wife:
(i)
the farm property situated at B Road presently registered in the husband’s sole name;
(ii) the Holden motor vehicle registered in his sole name, (iii)
the 600 Telstra shares that the husband holds in his sole name, and any other shares that the husband holds in his sole name;
(iv)
the contents of the shed as enumerated in the attached schedule at the matrimonial home, and in addition thereto the wife shall make available for collection by the husband videotapes, records and tapes and stamp albums, noting that the photo albums claimed or sought by the husband are said to be already in the shed.
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(2) The wife shall make available to the husband, at his election, either the original of the address book or birthday book provided that the same shall be photocopied prior to delivery, and the wife will provide to the husband a photocopy of the remaining original of the address or birthday book. (3) The husband will otherwise retain any other chattels, furnishings and
effects or personal property in his possession.5. The wife shall otherwise retain, free of claim by the husband, the balance of the chattels situated at the matrimonial home and any funds standing to her credit in any bank account or financial institution.
6. The wife shall retain as her sole property the 600 jointly owned Telstra shares and the applicant husband shall execute a memorandum of transfer in her favour of his interest in such shares forthwith upon being requested to do so by the wife.
7. The parties will have liberty to apply for consequential orders.
8. Upon the receipt of the executed memorandum of transfer ordered in paragraph 3 hereof, the wife shall cause the caveat she has registered over the farm to be withdrawn
9. If either party refuses or neglects to sign any document necessary to implement these orders within 14 days of a request to do so, the Principal Registrar or a Registrar of the Family Court of Western Australia is appointed to execute such document on behalf of that party.
Costs
83 I am asked to consider an application for costs in this matter, the costs said to
have been incurred since 23 April 2009 amounting to the sum of $23,870 on scale. In support of the application the wife's case is that this matter was effectively settled during a period when the husband had a duly appointed case guardian, and but for the agitation by the husband about that appointment, which he ultimately had rescinded, the matter would have settled on more favourable terms than has been ordered today.
84 The general presumption in proceedings under the Family Law Act is that each
party bears their own costs. However, the court is able to make costs orders in circumstances where it considers that it is justified in doing so. The court has to have regard to the financial circumstances of each of the parties to the proceedings, which I have already considered in the judgment I have just done.
85 The court also has to have regard, particularly in this case, to the conduct of the
parties and whether or not there were any offers exchanged. The position taken by the wife up until the commencement of the trial and for a period now of greater than a year was that she would pay to the husband the sum of $100,000 by way of settlement of the property. The husband despite, it would seem, efforts taken on behalf of his solicitors to settle at that sum under the appointment - was then in force the case guardian, as he refused to do so, and then agitated to have the case guardian removed.
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86 One can offer no criticism of the husband's solicitors for then refusing to
complete the execution of the proposed orders when there was an issue about the ongoing appointment of the case guardian. It is difficult to be able to make a determination as to what costs should be severed from the claim for costs, given the difficulties that arose with the matter at that point over the agitation of whether or not a case guardian was appointed.
87 Quite clearly Mr J was given advice by his solicitors about the proposal
advanced by the wife, and quite clearly his solicitors considered it an appropriate settlement. I can only agree, particularly having regard to the orders that I have made today. However, the husband was determined to proceed with a position which was untenable. In making that statement I have regard to the position that the husband adopted at the pre-trial conference in terms of what he saw as an appropriate split of the parties' assets, namely 69 per cent to him and 31 per cent to the wife; a position not dissimilar from that which he advanced at trial and about which he was entirely unsuccessful.
88 This is a case where I am satisfied that there are circumstances that justify an
order for costs. Rather than have the costs assessed, I propose to fix an amount of costs. Having regard overall to the totality of the parties' financial circumstances, I am not proposing to fix them at the full amount. An analysis of the transaction involving the appointment of a case guardian and the removal of the case guardian would be time-consuming in any assessment.
89 The parties, in my view, are entitled to have this matter brought to a conclusion.
I propose to fix the costs to be paid by the business at $18,000. Those costs are to be set off against the funds payable to the husband pursuant to paragraph (1) of the orders I have made today by way of settlement of property.
I certify that the preceding [89] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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