K and K

[2003] FamCA 756

[2003] FamCA 756

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA  No. PAF 6764 of 1996

AT PARRAMATTA

BETWEEN:  K  (Applicant/Wife)

AND:  K        (Respondent/Husband)

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN

DATE OF HEARING:        25^th & 26^th days of June 2003.
DATE OF JUDGMENT:     27^th day of June 2003.

APPEARANCES:

Mr Kearney of Counsel, instructed by Browns The Family Lawyers, (Address for Service: Level 5, 33 Moore Street, Liverpool  NSW  2170) appeared on behalf of the applicant wife.

Groun of Senior Counsel & Mr Thistleton of Counsel, instructed by Goldrick Farrell & Mullan, (Address for Service: Level 4, 85 George Street, Parramatta  NSW  2150) appeared on behalf of the respondent husband.

1. These are contested proceedings commenced by the wife, Ms K (hereinafter referred to as “the wife”), the respondent to the proceedings being Mr K (hereinafter referred to as “the husband”).

1. The application of the wife as articulated in her amended application filed 4 April 2003 seeks that leave be granted to her pursuant to s.44(3) of the Family Law Act 1975 (hereinafter referred to as “the Act”) to commence proceedings for settlement of property out of time, and that consequent upon such leave being granted the Court make a substantive order pursuant to Pt VIII of the Act for payment to the wife of the sum of $715,000, whereupon the wife transfer to the husband the whole of her interest in the former matrimonial home of the parties known as and situate at B Street, Suburb C, in the State of New South Wales (hereinafter referred to as “the matrimonial home”).

1. The wife further sought an order that the husband do all things and sign all documents necessary to irrevocably assign to the wife any interest he has or may have in the estate of the late G.  G, as I shall in these reasons refer to G, is the now deceased son of the parties.  It is apparent that the relief sought by the wife would, if granted, see her receive in total in excess of $900,000.

1. The position of the husband can most conveniently be described by reference to the outline of argument prepared by his learned Senior and Junior Counsel, and particularly by reference to page 5 paragraphs 6.1.1, 6.1.2, 6.1.3 and 6.1.4, from which, for reasons there set out, the husband seeks that the wife obtain relief inclusive of her entitlement to G's estate in a figure there expressed as $438,500, but having regard to clarification of paragraph 6.1.3 at the conclusion of the trial, to amend the figure of $45,000 there appearing, to the figure of $60,882, the total which the husband asserts that the wife should receive is some $454,382 if my maths is correct, which ought not be assumed.  It is thus apparent that the scope of the dispute in terms of money is, in round figures, $450,000 versus $900,000.  That, of course, assumes that leave is granted.

1. Some background dates and events are necessary to give context to the dispute.  It is appropriate to make reference to credit, albeit that reference will be short, as the issue of credit does not assume significance in this case.  Each party was briefly cross-examined, and with great respect to those representing each party, the cross-examination was commendably constrained, both in terms of subject matter and the delivery of such cross-examination.

1. To the extent, if any, that either party asserts the credit of the other to be in any way suspect or lacking, such challenge is not made out.  Each party impressed as a thoroughly decent and essentially honest witness.  In this dispute each party is doing what each quite properly must, seeking within the confines of the law to secure for his or her future in life the best “deal” he or she can.  In so doing, neither party has been prepared to denigrate the contributions of the other, nor seek to inflate their own contributions.  Each has been frank in relation to financial matters, and the case ultimately turns on the significance of facts and events which are really not in issue, rather than any determination of such facts or events in circumstances involving contested, inconsistent or competing testimony.  This case does not turn on credit.

Background.

1. The husband was born in 1945, which means he is 58 years of age.  The wife was born in 1951, and she is accordingly 51 years of age.  The parties married and commenced to cohabit on 15 June 1974.  There were two children of the marriage, G, who was born in 1976.  G died tragically in a motor vehicle accident in August 2002, aged about 26 years.  The second child of the parties, GA, was born in 1988.  GA is accordingly 23 years of age.

1. The parties separated on or about 1 December 1992.  Their marriage was dissolved by decree pronounced apparently in late 1996, but for present purposes the date of significance in that regard is 4 January 1997.  The wife commenced the application which gives rise to the current proceedings on 30 May 2000.  She was at that time some two years and three months, approximately, out of time within which to commence her proceedings. 

1. The former matrimonial home of the parties was purchased in about 1977.  In 1986 the wife, the Court accepts having regard to her evidence, was injured in a fall which in about 1988 gave rise to a fund of $17,500 which the wife said in oral evidence during the trial was utilised by the family for various purposes, which could be described as living expenses, personal needs and items of the like.  These were “depreciable” items or items of expenditure for which there is no tangible asset existing today or no identifiable tangible asset of value.  It does not follow, of course, that the contribution in 1988 was not tangible, the evidence suggesting that it was, particularly having regard to certain other tragic events which had by that time overcome the family.

10.  On 19 January 1988 the husband, then an owner/driver of a prime mover towing a bitumen bogie tanker as a subcontractor, it would seem for A Pty Limited, was involved in a motor vehicle accident, the cause for which was found by the Supreme Court to have been one of the breaks on the trailer locking on causing the vehicle to become uncontrollable.  The tanker then being driven by the husband left the road and broke through the barrier on the curve of the roadway over which it was then travelling.  The tanker became detached, the prime mover moved down the embankment to the side of the railway line near a bridge coming to rest at the side of the rail track.  The husband landed across the rails.  He was taken to hospital where he was treated for terrible injuries.

11.  The forgoing description is found in paragraph 19 of Dowd J.’s judgment of 17 April 2001 in proceedings between the husband as plaintiff and A Pty Limited as defendant. The husband truly was, as Dowd J. said in paragraph 1 of his judgment, thus catastrophically injured on that date.  The consequences of that accident have been dire for the husband.  There is little doubt that they were dire for the marriage and indeed Dowd J. so found.  They will continue to be dire for the husband for the balance of his lifetime.

12.  Subsequent to 19 January 1988 the husband has been a paraplegic with, Dowd J. found, no sensation below the nipple line.  The husband was hospitalised for six months following the accident, and thereafter for a period of years was engaged in the course of a rehabilitative process, the outcome of which was, sadly, necessarily limited.

13.  On 17 April 1989 the husband received $123,450 in respect of his accident.  That was applied towards the purchase of a modified VW motor vehicle, a caravan at S, and the balance of the funds were invested and later utilised by the family.  Compensation was paid in relation to the period subsequent to the husband's injury, and the family lived on that compensation whilst it continued. 

14.  The period subsequent to 19 January 1988, whilst clearly intolerable for the husband, was by virtue of his injuries and the consequences of them, difficult also for the wife.  The evidence is clear that from the time of the husband's injuries until the parties separated, the wife contributed to the fullest extent of her ability as a carer for the children, a home maker, and carer for the husband.

15.  Nothing in this case turns on it, but in this, as in most cases which this Court hears involving tragic accidents of the kind which the husband in this case sustained, the probabilities are that the end of the marriage was directly referable, if not caused by, the pressure which the husband's injuries placed upon both parties.

16.  Subsequent to the parties separating, the children of the marriage who were at that stage aged at about 16 and 12, lived with the wife and were her sole responsibility in terms of care.  That is not a finding critical of the husband, who clearly had no capacity to care for the children, but objectively is a matter of history which must be taken into account at the appropriate time.

17.  The husband commenced the action in the Supreme Court, to which reference has been made, and that case was heard by Dowd J. over a period of time commencing from December 1999 through to July 2000.  His Honour delivered judgment on 17 April 2001.  In broad terms the effect of his Honour's judgment was that the husband received a total of $4,345,711.95.  Necessarily, reference will be made to Dowd J.'s findings in due course and to the heads of damage which comprised the figure to which reference was just made.  The defendant appealed against the decision of Dowd J. and the appeal was not determined by the Court of Appeal, but was compromised for a sum of $3,900,000.  Reference will be made to the probable composition of that figure in due course.

18. As if these parties had not been sufficiently cruelly touched by the finger of fate, in August 2002 their son G died in a motor car accident. The evidence before this Court is clear that G died intestate. The laws of intestate succession in this state provide, in the circumstances, there being no eligible person within the terms of s.6 of the Family Provision Act 1982 (NSW), that G's estate pass to his parents, that being the husband and wife in these proceedings, as tenants in common in equal shares.

19.  As a reading of the transcript where learned Senior Counsel for the husband and learned Counsel for the wife clarified for the Court's assistance the status of the parties and others, vis a vie G's estate, there is on balance no prospect of the statutory provisions regarding the distribution of G's estate and the beneficial interests in it, pursuant to the Wills, Probate and Administration Act 1898 (NSW) being disturbed. The effect of that is that G's estate, which is agreed to be worth $393,000 net of costs, will, by operation of the laws of New South Wales, be shared equally by the present parties.

20.  The husband occupies the former matrimonial home of the parties.  It is common ground that he wishes to retain that property and should, on any view of it, do so.  To her credit the wife does not suggest otherwise.  The wife has for some time been in rented accommodation.  It is not entirely clear what rent if any she in fact pays, having regard to her financial statement filed 10 April 2003.  Little, if anything, turns on that in the circumstances of this case.

Leave.

21.  The question of leave must be considered.  If leave is granted then it becomes necessary to determine within the legislative framework of Pt VIII of the Act what settlement of property or alteration of interest in property as between the parties is just and equitable.  If leave is refused then no such exercise needs to be embarked upon. 

22.  In this case the wife is some two years out of time, as has been mentioned.  It has been accepted by Counsel for the parties that in order to succeed the wife must establish hardship if she is refused the opportunity to pursue the claim under Pt VIII of the Act.  It is common ground, and with respect to the authorities sensibly so, that unless hardship is established, no question of leave can arise.  If hardship is established, the granting or refusing of leave is a matter of discretion, albeit that discretion must be exercised judicially, and having regard to accepted principles.

23.  Two factors which are expressly relevant to the exercise of discretion if hardship is to be demonstrated are the adequacy of the applicant's explanation for, in this case, her delay in commencing proceedings, and secondly the prejudice, if any, which flows to the respondent, the husband in this case, if leave is granted.  As will be seen, a third matter is, in this Court's view, relevant to the exercise of discretion in this case should hardship be established.

24.  So far as hardship is concerned, the evidence of the wife frankly and readily given was that she knew at the time of the divorce between herself and her husband that there were time limits for the commencement of proceedings.  She was at all material times aware of those limits.  To the extent that she explained her failure to apply within time, the explanation proffered by her in the witness box was that she did not want to see the husband “out in the street” and withheld making an application for settlement of property until the husband was in a financial state to pay her out of the home, is credible and in the circumstances an almost compelling explanation of her failure to apply in time. 

25.  The initial question, however, is whether the wife can demonstrate hardship.  As matters stand, if the wife is refused leave to bring an application she would have an entitlement to one half of the former matrimonial home of herself and the husband.  That property has an agreed value of $200,000.  It is unencumbered.  She would thus be entitled to receive $100,000 in respect of the home, she being a joint owner of it.  That right arises by virtue of the operation of the Conveyancing Act 1919 (NSW) not by operation of any provision of the Family Law Act 1975. The wife would have an entitlement to retain some personalty, which, with respect and without in any way wishing to be patronising or demeaning, is of fairly modest proportions having regard to her financial statement filed 10 April 2003. Sensibly, none of those assets, with the possible exception of the wife’s car, has been sought to be brought into account in this case. The wife would also have her entitlement to approximately $196,500 in respect of G's estate.

26.  Hardship is variously defined in the authorities.  Two recurrent descriptions of hardship for present purposes, albeit perhaps quite different, are whether in the circumstances “hardship” in the usual sense of that term would be occasioned by refusing that person leave. The second is that hardship would be occasioned if a person with an arguable claim were refused the opportunity to litigate that claim. 

27.  In this Court's view, either of those requirements could, on the facts of this case, be satisfied.  The reasons for so concluding are brief, so far as actual hardship is concerned.  The evidence is that the former matrimonial home of the parties was worth $200,000.  If the wife is refused leave, she would, in round figures, prior to paying out or paying legal fees which she has accumulated, have $300,000.  That is to say, she would, at 51 years of age, be able to buy a home of the same value of the former matrimonial home, which was the matrimonial home of the parties for the bulk of their cohabitation, and she would have a maximum of $100,000 left.

28.  The wife is in employment, and, to her credit, makes no complaint about either the security of such employment or her capacity and intention to continue in such employment.  She would, however, given her financial circumstances as otherwise disclosed in her unchallenged financial statement, be in a very modest position so far as the future is concerned.  To refuse her the opportunity to seek significantly more than she would otherwise have can, in this Court's view, thus be described as “hardship”.

29. The right to litigate a claim for more than she would otherwise receive involves a consideration of the contribution and s.75(2) entitlements of the wife. As will be seen when contributions are considered, the wife can, in this Court's view, for reasons which will emerge, demonstrate a contribution entitlement significantly in excess of the $100,000 to which she would otherwise be entitled from the assets of the parties, other than such as are referable to the estate of their late son G.

30.  In essence, the Court comes to that conclusion by the following process, which is not in the circumstances of this case a particularly complex or involved process.  To the date of the husband's accident in 1988, the contributions of the parties could be seen as equal, albeit by virtue of the wife's contribution of $17,500 from a personal injury settlement she received prior to the husband’s injuries, the wife could assert a somewhat greater contribution than the husband.  How much greater is not particularly in point and the Court does not recollect any specific submissions in that regard.

31.  Post the husband's tragic accident, and until the parties separated, the wife's contributions to the welfare of the family, including the husband himself, albeit through no fault of the husband, render it appropriate to have her contribution entitlement heightened or increased.  In the period subsequent to separation, the wife's contributions to the welfare of the family, particularly constituted by the children of the parties, again through no fault of the husband and in circumstances involving no criticism of him, entitle the wife to have her contribution entitlement increased, at least until in about the year 1998 at which time the second child of the parties attained 18 years of age.

32.  In the circumstances as discussed, to refuse the wife the opportunity to pursue her claim would, in this Court's view, be harsh and unconscionable.  This Court is accordingly satisfied that to refuse the wife leave to pursue her claim would be to cause her hardship.  The question then becomes whether in the exercise of discretion the wife should be granted an extension of time in which to make her application.

33.  The wife's explanation of delay is a curious situation in the circumstances of this case.  Objectively, the only credible explanation proffered by her, which is not said critically of the wife, is that she did not want to apply for settlement of property until she knew the husband was in a position to pay her out of the matrimonial home.  With respect, one can only applaud that sentiment and it would be strange if, where a person frankly made that admission, the Court declined to grant leave in the exercise of discretion.  The difficulty, however, is that having stated that to be her position, the wife is in these proceedings not seeking simply to be paid her share of the former matrimonial home by the husband now that he is in a position to do so.  As the articulation of her claim in her amended application filed 4 April 2003 makes clear, the wife is seeking is many times that relief, about seven times, in fact, on the figures.  So the curious position applies that the explanation for delay on the one hand is credible, and, with respect, even commendable, but when one looks at what is sought, if leave is granted, a very different thing is sought to that which provides the explanation of delay.

34.  The wife advanced some other explanations involving less than exemplary service by members of the legal profession, none of which would be a sufficient explanation for her delay.  It is sometimes said, however inelegantly but helpfully in a practical sense, that the weaker the claim or the proposed claim, the stronger the need for an adequate explanation of delay and absence of prejudice to the respondent.  Conversely, it is similarly said that the stronger the claim, the less significant the adequacy of the explanation of delay and/or prejudice to the respondent becomes.  In the circumstances of this case, but for the strength of the wife's proposed claim, the Court would, on the evidence, essentially for the reasons just recounted, regard the adequacy or inadequacy of the wife's explanation as a compelling reason to decline to exercise the discretion to extend time.

35.  There is much in the submissions of learned Senior Counsel for the husband, further in this context, namely that had the wife applied within time, had she been 100 percent successful, as clearly she then would not have been on the evidence as it then stood, she would not and could not have obtained anything like the relief which she now seeks.  The difficulty with that proposition is ultimately that with respect, although superficially attractive, it is somewhat of an approach from the wrong end.  The question is not how much short of what she seeks can she obtain or could she have obtained, but rather how much in excess of what she could have obtained can the wife at this time realistically hope to achieve if leave is granted.

36.  The application of Pt VIII of the Act where leave is granted is not as it were retrospective.  If leave is granted, the wife's claim is assessed and determined now, rather than at the time the parties separated or when the time to apply as of right expired.  Albeit in appraising contributions, some regard must be had to the realities of the case, they being as learned Senior Counsel for the husband submitted.  This Court, however, is not disposed to refuse a grant of leave in this case, having regard to the adequacy or inadequacy of the wife's explanation for her delay.

37.  The second question then becomes whether the prejudice to the respondent is such that leave should be refused.  There is prejudice to the respondent in this case, and that is precisely the matter to which his leaned Senior Counsel so persuasively addressed the Court in oral submissions and in his written outline of contention, namely that if leave is granted now and the application is heard and determined now, the husband will have to pay to the wife much more than he would have had the proceedings been determined within time.

38. There is, with respect, and this is referred to in the submissions of learned Senior Counsel for the husband, somewhat of a fallacy in the logic underpinning that submission. Whilst it is clear that the wife could have brought an application within time, the provisions of s.79(5) render it almost certain that any such application would, in the circumstances of this case, for reasons pertaining to either or both parties, have been adjourned until the events which have in fact transpired did transpire. The crystallisation of the husband's legal rights arising out of the 1988 accident, the stabilisation of the husband's medical condition, and the ability to determine with some accuracy his future needs would have almost certainly resulted in an adjournment. Save to that extent, there is no demonstrable prejudice to the respondent in the circumstances of this case, and the Court would not decline to grant leave having regard to any such prejudice.

39.  The Court mentioned at the outset of this discussion that there was, in the circumstances of this case, a further factor relevant to the exercise of discretion, and that is essentially the following.  Clearly the husband, through his Counsel, concedes that the wife should, by whatever means it is achieved, receive more than her legal entitlement.  Reference was previously made to paragraph 6.1 and following, of the husband's Senior Counsel's outline of contention.

40.  This Court could not order the additional benefits which the husband seeks to have conferred upon the wife pursuant to paragraphs 6.13 and 6.14 by order unless leave be granted.  This Court has real doubts as to whether if leave were refused the wife could obtain those benefits from another court.  She would not be able to obtain the benefits from this Court, other than pursuant to Pt VIII, and could not access Pt VIII unless leave were granted, thereby enlivening that part of the Act.

41.  This Court has real doubts as to whether, were the wife to approach a state court, that such Court would have jurisdiction to entertain her claim for the benefits referred to in paragraphs 6.1.3 and 6.1.4, on the basis that such application would in substance be an application with respect to the property of the parties to a marriage, or either of them, which, by definition, s.4 of the Family Law Act, includes a marriage which has been dissolved. The operation of s.8 of the Act renders such proceedings, being a matrimonial cause, only able to be commenced in or continued in a Court having jurisdiction under the Family Law Act. In those circumstances it may well be, as has been the case in the s.79A authorities concluding at the present with Sommerville's[1] case that a party with merit could be left without a forum in which to have that merit recognised.

[1] In the Marriage of J A and L J Sommerville (1999) 27 FamLR 233

42. Though a minor matter, to the extent that this Court has any lingering or residual uncertainty about the fairness of granting leave, those realities alleviate such reservations. Leave will accordingly be granted. Leave having been granted, it is appropriate to consider the proceedings under Part VIII in accordance with the terms of s.79(4) and s.75(2) of the Act.

Judgment of Dowd J.

43.  Before proceeding further, it is helpful to refer to the judgment of Dowd J. in the proceedings in the Common Law division of the Supreme Court.  The wife was not a party to those proceedings, and in a technical sense, no res judicata issue estoppel arises in these proceedings, so far as either the husband's state of health is concerned or his future needs.  Sensibly, and with respect, responsibly, those representing the wife have not sought to agitate any issue with the husband in relation to either his health or the needs he has for the future.  That is a matter of significance.

44.  It is appropriate to place on the record, reading from Dowd J.'s judgment, the position of the husband.  This is particularly so, given that in this case the Court has the very considerable benefit of having a breakdown of what Senior Counsel for the husband has described as the "old verdict" and the "compromise on appeal", about which more will necessarily be said shortly.

45.  Dowd J. referred to the maximum payment able to be made under the Motor Accidents Compensation Act 1999 (NSW), s.79(3) with respect to what would once at common law have been described as the pain and suffering compensation. For reasons which his Honour gave in paragraph 99 and following of his judgment, his Honour concluded that the husband's injuries rendered it appropriate within the terms of that legislation to regard the husband's case as a "most extreme" case, thereby rendering the maximum sum permissible under the Motor Accidents Compensation Act 1999 (NSW) at the date of the proceedings before his Honour, $284,000 to be appropriate.

46.  Such sum was a component of the award his Honour made, in favour of the husband, and its appropriateness has not been challenged in these proceedings.  Such sum was not reduced for the purposes of compromise in the Court of Appeal, which led to the $4.34 million verdict being reduced by terms of settlement to $3.9 million.

47.  His Honour, in the paragraphs to which reference has been made, detailed the very real and severe implications of the husband's injuries, and whilst this Court does not read these onto the record here and now, the matters set out in paragraphs 101 - 106, are very relevant matters and are incorporated by adoption as findings of fact of this Court.  As has been observed, there has been no challenge to so doing.

48.  The relevance of many of these matters is twofold, firstly, in relation to the nature and quality of contributions post-1988, these being of particular relevance to the wife, having regard to the decision of the High Court in Mallet v Mallet (1984) FLC 91-507 at 79,110 (“Mallet”) and secondly, to the s.75(2) components of the case.

49. Under the heading "Life Expectancy", Dowd J. referred to the husband's life expectancy of 24 years in normal circumstances, and to his Honour's conclusion in paragraph 110 that for the reasons there given, which relate back to the paragraphs in the early 100s to which reference has been made, a proper reduction in life expectancy should be 12.5 percent. This has particular significance for present purposes within the context of s.75(2), when that aspect of the case is reached.

50. So far as economic loss is concerned, his Honour at paragraph 111 and following set out relevant matters in that regard, concluding in the terms appearing at paragraph 118. Importantly for the purposes of s.75(2) of the Family Law Act, his Honour concluded at paragraph 117 that:

“The plaintiff, being paraplegic, cannot return to his pre-accident employment, and his skills would make it difficult to adapt to the workplace.  His intellectual impairment would make it difficult for him to learn a more sedentiary (sic) occupation.”

51.  As has been mentioned, the position of the husband in these proceedings has been crystallised in paragraph 6.14 (page 5 of the learned Senior Counsel's outline of contention) the figure of $100,000 being advanced as a recognition of the length of the marriage, contributions made by the wife to the husband's earning capacity, by allowance from the husband's economic loss as assessed by the Supreme Court.

52.  Out of pocket expenses of $362,970.81, somehow translated as 28 cents in the calculation of verdict under "Compromise on Appeal", was allowed by Dowd J. there being no question that those were benefits which had been received by or on behalf of the husband, including a component from which the wife and the children benefited, is repayable. Also included in that category is the HIC sum of $3792.10.

53.  Under the heading "Post Gratuitous Care, Home Care", Dowd J. discussed what occurred in terms of the husband's care subsequent to his injury.  Relevantly for present purposes, until 1992 when the parties separated, the husband was assisted in his care and/or visited by the wife (paragraph 121).  At paragraph 122 his Honour referred to the gratuitous assistance provided for up to 10 hours per day.  His Honour referred at paragraph 123 to the period after the separation of the parties, and not directly relevant, what occurred after the workers compensation insurer suspended payments.

54.  Under the heading "Personal Care", Dowd J. referred to the husband's need for personal care by virtue of his capacity to provide for himself, his Honour concluding that the husband would require a full time carer from the age of 60 onwards (paragraph 125).  His Honour referred to the implications of that and rejected (paragraph 127) any suggestion that a former gratuitous carer, Ms Nadile, would in the future, on balance, be providing such care for the husband.

55.  Under the heading "Domestic Assistance", his Honour set out in some detail the husband's needs and concluded that the allowances proposed in paragraph 129 were appropriate.  His Honour then considered the husband's needs for accommodation.  He referred to the former matrimonial home, albeit not by express reference to the address of it, but clearly it must have been in paragraph 130 of his judgment a reference to the former matrimonial home to which his Honour referred.  His Honour set out, in paragraph 131, the reasonable needs of the husband and accepted expert evidence before him as to the costs which were relevant in that regard, albeit the figure of $500,000 there referred to was compromised to some extent in the Court of Appeal proceedings.  His Honour referred to rent of $43,680, which he allowed, and in the course of so doing recorded at paragraph 133:

“The separation from his wife was as a result of her inability to cope with the plaintiff's terrible injuries and the breakdown of the marriage, which was a result of the accident, and the consequent inability to perform to be a normal household”

56. Motor vehicles were referred to by his Honour (paragraphs 134 and 135), the husband's special needs there being detailed and accepted. His Honour referred to diversional therapy (paragraphs 136 and 137), and to special equipment (paragraph 138). He then, in paragraph 139 and following and 142 and following, under the heading "Recreational Household Needs and Boating", detailed a number of expenses, which were quite substantial as the reading of those paragraphs reveals, which were appropriate to be allowed for the husband in the future. Those matters assume significance, having regard to the standard of living which is reasonable in the circumstances which s.75(2) of the Act renders relevant for present purposes.

57.  His Honour then (paragraph 148) by reference to the decision of the High Court in Fox v Wood (1981) 148 CLR 438 (“Fox v Wood”) allowed $33,930.  Precisely what aspect of that derived from Fox v Wood is not entirely clear from his Honour's reasons, having regard to the judgment of Gibbs CJ., Aiken and Wilson JJ. in Fox v Wood.  Nothing turns on that for the present purposes.  Similarly, his Honour's refusal to allow a “costs fund management” component following the decision of the High Court in Nominal Defendant v Gardikiotis (1996) 186 CLR 49, is not of significance.

Assets & Liabilities of the Parties.

58.  It is necessary to identify and quantify the assets of the parties to the marriage.  The Court has the benefit of an amended schedule of assets of the parties.  That, with one exception, is not in contest.  On behalf of the wife it is asserted that the net assets of the parties total $3,288,501, inclusive of G's estate, and a small debt of the wife to AGC.

No	Description	Ownership	H’s Value	W’s Value
1	Suburb C property (unencumbered)	H + W	$200,000	$200,000
2	Suburb C property (unencumbered)	H	$190,000	$190,000
3	CBA Term Deposit	H	Transferred to Colonial Account (item 12)	Transferred to Colonial Account (item 12)
4	45% Company B	H	NIL	$106,000
5	Carribean boat, including new motor and modifications (at cost)	H	$41,000	$41,000
6	Trailer for Carribean boat	H	$500	$500
7	Fisher boat	H	$65,000	$65,000
8	Trailer for Fisher boat	H	$7,500	$7,500
9	Global positioning unit for boat navigation	H	$9,000	$9,000
10	Holden Statesman motor vehicle (including cost of modifications $52,650)	H	$32,500	$32,500
11	Deposit with CBA account number …39 (as at 17.06.03)	H	$142,667	$142,667
12	Deposit with Colonial First State Managed Investment Fund account no …91 (as at 17.06.03)	H	$1,546,440	$1,546,440
13	Husband household effects including TV and entertainment unit	H	E$2,000	$2,000
14	Money paid into solicitor’s trust account (used for costs of these proceedings)	H	$30,000	$30,000
15	Claim for costs against the defendant in the Supreme Court action	H	$309,074	$09,074
16	50% Suburb W property	H	$162,500	$162,500
17	GMC Sierra & modifications	H	$11,000	$11,000
18	AMP shares	H	$4,405	$4,405
19	Husband’s VW van	H
20	‘Nippy’ wheelchair	H	$1,500	$1,500
21	Holden commodore	H	$2,000	$2,000
22	Caravan	H	$10,000	$10,000
23	Forklift	H	$1,500	$1,500
24	Mower	H	$2,000	$2,000
25	Quadrunner	H	$2,500	$2,500
26	Add back legal fees paid by husband	H	See item 14	See item 14
27	‘Tinny’ boat	H	$1,000	$1,000
28	AMP Policy	H	$4,426	$4,426
29	Wife’s potential worker’s compensation claim	W	NIL	NIL
30	Campervan at husband’s place	H	$2,000	$2,000
31	Wife’s 1991 Laser	W	$3,800	$3,800
32	Wife’s superannuation	W	$7,772	$7,772
33	Interest in the estate of the parties’ son (net of costs)	H + W	$393,000	$393,000
34	SUB TOTAL	$3,185,084	$3,185,084
35	Wife’s AGC debt	W	$2,583	$2,583
36	NET TOTAL	$3,182,501	$3,288,501

59.  On behalf of the husband, the figure of $3,182,501 has been urged.  The difference, it is readily apparent, is in item 4, a 45 percent interest in Company B.  On behalf of the wife, a figure of $106,000 was asserted, that being the cost of the interest.  On the part of the husband a figure of nil was asserted.

60.  Without going to it in detail, objectively, the cross-examination of the husband reveals that although his motivation was commendable in going into Company B, it, with hindsight, may not have been the most prudent investment he could have made.  Objectively, the interest might be worth nothing.  It is improbable on the evidence that it is worth $106,000.

61.  The evidence of the husband has the ring of credibility.  He says that his partner in the business has no assets, is going through Family Court proceedings and that the husband has concerns that he, notwithstanding his state of health, may, by virtue of his asset position, be called upon to meet debts of the business.

62.  The evidence of the husband in relation to the state of the business also has the ring of credibility.  Their major supplier has put the business on what seems tantamount to COD (cash on delivery) for batteries.  The husband has not for five weeks been able to draw wages from the business.  He previously drew $600 per week.

63.  Objectively there is no rational basis for rejecting the husband's suggestion that he cannot get out of the business.  The husband's capacity to change the trading status or apparent trading misfortunes of the business appears limited by virtue of his state of health.  Without demeaning the duties he performs, it is clear that they are ancillary to what appears to have been the major focus of the business. 

64.  It has not been demonstrated that the husband was reckless or wanton in entering into the Company B investment.  If one applies, as the Court does, the decision of Baker J. in Kowaliw (1981) FLC 91-092, it is not, on the evidence, able to be said that the wife has discharged the onus which Kowaliw (1981) FLC 01-092 imposes upon her.

65.  In the circumstances, to the extent that it matters, and as will be seen, it ultimately matters little, the Court does not regard the inclusion of $106,000 for Company B as realistic or sustainable.  Even if, as learned Senior Counsel for the husband submitted, that money came from funds which were paid to the husband to provide for his future, to the extent that excluding the sum reduces the asset pool, that will not operate to her detriment particularly having regard to the Court's approach to the evaluation of the wife's claim in this case.

66.  Objectively, not including $106,000 or any other sum for Company B, means that at the end of the case the husband will have $106,000 or such lesser sum as Company B might be worth, of the moneys provided to him by virtue of the Supreme Court proceedings to provide for his needs in life during the balance of his life.

67.  The Court accordingly concludes that the assets of the parties are those appearing in the amended schedule of assets, and that the net value of such assets is $3,182,501. 

Contributions.

68.  It is necessary to evaluate the contributions of the parties.  Until 1988, the contributions of the parties to the assets then existing were almost equal.  The contribution entitlements of the wife exceeded those of the husband by a modest percentage.  If one were to speculate, for that is what it must be, there being no reliable evidence of values at that time, something like 55/45 would be an indication of the difference.

69.  In the post-1988, post-accident period, until separation, the contributions of the wife to the welfare of the family entitled her to have her 1988 entitlement increased.  The difficulty is, increased by what or by reference to what, given that between 1988 and 1992 there was, as the evidence clearly reveals, only the matrimonial home and some items of personalty, the value of which has not been reliably established.

70.  Ultimately, contribution entitlements are best evaluated at the date of hearing and having regard to the asset pool then existing.  Post-separation, until 1998, the wife's contributions by virtue of her contributions as homemaker and parent, greatly exceed those of the husband, albeit without being critical of the husband in that regard.

71.  In the 1988 to 1992 period, the wife's contributions were, on balance, having regard to Dowd J.'s findings and to the contents of exhibit A2, the occupational therapy assessment report on the husband, further heightened by the difficult circumstances under which she laboured in making those contributions.  It is not necessary to refer to the decision of the Full Court in Kennon v Kennon (1997) FLC 91-757 to reach that conclusion, nor is it necessary to make findings of fact about particular alleged incidents or events.

72.  Evaluating the nature and quality of the contributions, as the High Court said in Mallet was necessary, the evidence leaves little room for doubt that between 1988 and 1992 the combination of the husband's tragic medical condition and his realisation of it meant not only that he was physically greatly impaired in terms of his ability to contribute to the welfare of the family, but that he was understandably, no doubt by virtue of the realisation of his condition and the inability to do anything about it, difficult to get on with, at times argumentative, abusive, and physically excessive in his conduct to the wife.   These things are not said critically of the husband, and it is certainly not established on the evidence that these were conscious or deliberate acts on his part.  But they do, when evaluated, call for recognition in the wife's favour.

73.  The question then must be addressed of what all this ultimately means, given that at the end of the day these are proceedings for settlement of property, and however one tries to express it, the reality is that they have to be expressed in money terms.  One could adopt a number of approaches.  Counsel for the wife has urged the Court to approach the matter in terms of percentage entitlements, and has asserted, in effect by relation back, that a sum of money of a certain magnitude represents only a modest percentage of the total assets of the parties.

74.  Senior Counsel for the husband points out, correctly in this Court's view, that in the circumstances of this case, and each case turns on its own facts and circumstances, to simply apply percentages to a fund of $3,182,501, is to totally ignore the realities of life, and in particular the reality that the great bulk of such sum is referable to a tragic accident which has forever left the husband affected, and to ignore the reality that, to use Counsel's expression, there is a negative, a huge negative, in the form of provision for the husband's future needs, and that the $3,182,000 figure has no regard to that.

75. Whilst there are cases where it is convenient and appropriate to evaluate contribution and s.75(2) entitlements in percentage terms, and then apply those conclusions to the fund or funds which are to be thereby the subject of orders, in this case the realities of life render such an approach artificial and potentially, by virtue of the very arbitrariness of such approach, unjust and inequitable.

76. At the end of the day, when one takes the so-called fourth step pursuant to s.79(2), and stands back and looks at what is proposed to be awarded to one party, what is proposed to be awarded to the other, and whether, having regard to the Court's conclusions with respect to contributions and s.75(2) factors, such a sharing of the assets is just and equitable. In other words, justice and equity is ultimately determined not by reference to percentage entitlements, but by reference to what the parties actually receive. Hopefully, a simple illustration of this will be sufficient to conclude this discussion. If a Court concluded parties’ entitlements to be 70 percent to one party and 30 percent to the other, and the asset pool was $10 million, the outcome in real terms to the parties would be vastly different to the application of the same percentages to an asset pool of $100,000.

77.  Ultimately, in the circumstances of this case, other than by a process involving considerable intellectual dishonesty and artificiality, and enormous and impermissible scope for injustice, the only way the Court can properly assess and determine the entitlements of these parties is by reference to the assets, and to money and to reality.  If that ultimately translates as an overwhelmingly greater percentage for one party than the other, then so be it.  The percentages flow from the proper application of the principles which the Act says must be applied.

78.  In this case, the reality is that the great bulk of what now exists in a contribution sense derives from the husband.  The smashing of his body and the ruining of his life, albeit no doubt a contribution he would dearly like not to have ever had to make, has given rise to the great bulk of the money.  One doesn't know what might have been, but one does know that until 1988, despite a history of each contributing to the best of their respective abilities, the parties' assets were extremely modest.  There is no rational basis in the evidence for suggesting that absent the verdict the husband received, that would have materially changed.

79.  The other aspect, of course, is the great bulk of the monies received by the husband, the allocation of which has not been challenged in these proceedings, relate either to horrendous pain and suffering which he suffered, quantified at $284,000, or the enormous future needs which he will have, as found by Dowd J. and not challenged in these proceedings in the terms to which some reference has been made.

80.  A better illustration of this can perhaps be gleaned by going to the actual break-up of firstly the old verdict, and secondly the compromise on appeal.  So far as the compromise on appeal was concerned, it was submitted by learned Senior Counsel for the husband that the Court could have regard to the compromised figures for a variety of reasons, one such, although the least compelling, being that there was no opposition for a variety of reasons.

81. In the document, re-calculation of verdict, what was done was the heads of damage referable to Dowd J.s decision, under the heading "Old Verdict", were qualified where there had been, or it was clear that there must have been, some reduction. Those which were not, or could not have been, were not so reduced. The non-economic loss, that is the s.79(3) payment of $284,000 for the most extreme case of pain and suffering was not reduced. Nor was past economic loss of $323,442. That is the figure which gives rise, I apprehend, to the 6.1.4 component of the submissions on behalf of the husband. Nor was future economic loss of $168,004. The $284,000 first referred to is personal to the husband. It is inconceivable that in any system claiming to be just that the wife could or should receive any part of that, one only has to read the horrendous injuries the husband sustained, and his Honour's conclusion that this was a most extreme case for that to become utterly unarguable.

82.  Past economic loss, $100,000, has been conceded in respect of that component.  Future economic loss, $168,004, is no more and no less than money the husband will not receive in the future.  It will be taken into account for social security purposes, and it is something to which the wife can have no contribution or other entitlement.  Past care of $190,545 was not reduced, nor was the future economic loss, and it picks up the item 6.1.3 for $60,882, which the husband concedes and has been referred to throughout these proceedings as the Griffiths v Kerkemeyer (1977) 139 CLR 161 component.

83.  The future accommodation needs were found by Dowd J. in the passages to his judgment to which reference was made, quantified at $500,000, reduced notionally by pro rata application to the contentious items, or those which were not suggested to be capable of reduction on appeal or appropriate to be reduced on appeal to $387,570.  There has been no suggestion that the application of such moneys to the husband's real estate, being 1 and 3 B Street, the former matrimonial home and the property next door, is going to produce other than a reasonable standard of accommodation for him, and it is to be remembered that Dowd J. found the figure of $500,000, having regard to expert evidence of reasonable needs. 

84. House maintenance was reduced from $235,382 to $182,454. Again, that is money the husband will need in the future so that he can maintain a decent standard of living. It is not for other than the necessities of life, cleaning and washing. All the sorts of things that he would no doubt dearly love to be able to get out of his wheelchair and do, but cannot, and will never be able to do. These are personal to the husband. The accommodation is a matter relative to the wife, and when one gets to s.75(2), that will be considered. Motor vehicles of $122,770, were not disputed on appeal or in these proceedings. There has been no suggestion that such component for the future provides other than a reasonable motorcar for the husband's use. Diversional therapy, $69,990 was not reduced. There is no suggestion that this was other than a reasonable need personal to the husband over the balance of his life. The same holds with special equipment, $297,640, not reduced on appeal. Recreational/household/aviary, $75,800, was reduced on appeal to $58,756. There is no suggestion that those were other than reasonable needs of the husband. Washing, $12,464, not reduced. No suggestion that that is other than referable to the husband's inability to do those things for himself. Thankfully the wife does not have such difficulties. To her credit, the wife has at no time instructed her Counsel to challenge the $193,785 allowed on appeal in lieu of $250,000 for boating and campervan. These are reasonable expenses for the husband's future, so that he has a decent standard of living and reasonable enjoyment of life, having regard to the tragic curtailment of his capacity to enjoy life. There was no cross-examination of the husband to suggest that these were excessive, were not being used, utilised, or otherwise should be treated other than as they were treated by Dowd J. in the Supreme Court. Phone, $6800 was not reduced on appeal. Nothing needs to be said about that, other than that it is an absolute necessity for this man and will continue to be so in the future. Out of pockets, HIC and future medicals were not reduced on appeal, and future physio, the Fox v Wood and superannuation adjustments were not reduced on appeal.  These were respectively $391,063, $3792, $150,280, $65,382, $40,118, and $41,979.  With the possible exception of superannuation - and the wife does have a modest superannuation entitlement - all of these items were referable to a future need and/or payback for expenses perilously met of the husband. 

85.  Examination of this break-up is instructive.  Whilst nobody has ever suggested that there was, as it were, in any of these components "fruit for the sideboard" or anything of that kind, with great respect to Counsel for the wife to even suggest comparisons between the logic underpinning the majority decision in Farmer v Bramley (2000) FLC 93-060 and the realities of this case is unsustainable.

86.  How then, does one evaluate the wife's contributions?  The reality is that tragically there is far more there now than there would have been had her claim been determined prior to the husband's case being resolved.  The wife has an entitlement to not less than $100,000 in respect of the matrimonial home as at 1988.  The home itself is worth $200,000.

87.  In the Court's view the wife's additional contributions, howsoever categorised, particularly to the welfare of the family, subsequent to the husband's 1988 accident, entitled her to receive an additional $200,000.  That entitlement is not determined by simply, as was urged on behalf of the husband, adopting the figures appearing in 6.13 and 6.14.  Those were figures determined by another court for another purpose, albeit no doubt properly determined within the context of the proceedings with which that court was concerned. 

88.  This Court has a statutory obligation to evaluate contributions, having regard to their nature and quality, for itself.  That has been made clear by the High Court in Mallet's case.  It can be said that $200,000 or any other figure is somewhat arbitrary, and that would be correctly so stated.  Objectively, the $200,000 represents $100,000 more than the husband's equity, that is, the husband's legal entitlement, to the matrimonial home.

89.  It does, however, in the Court's view provide a realistic reflection of the contribution imbalance post-1988.  The wife should, by way of contribution entitlement, therefore, receive $300,000 from the husband in consideration of the transfer to him of her interest in the matrimonial home.

Section 75(2) Factors.

90. It is then necessary to evaluate s.75(2) of the Act, and the relevant s.75(2) factors are essentially the following. S.75(2)(a) and (b) deal with the financial resources, needs, capacities of the parties for appropriate gainful employment. In this case the wife is some seven years younger than the husband. She has a capacity to earn, and go on earning, a modest income, in round figures $376 per week. The wife does not suggest that there is any medical or other condition which limits her in that regard. The husband cannot objectively be found to have any realistic capacity to earn income from personal exertion in the future. His evidence as to the nature of the duties he has hitherto performed in Company B, combined with Dowd J.s findings, the effect of which has not been the subject of challenge in these proceedings through cross-examination of the husband, suggests that objectively the husband has a capacity to derive income only to the extent that he depletes his capital by investing that in some enterprise which in turn provides income for him.

91.  Hitherto, Company B has provided $600 per week.  Of course, if the husband's $106,000 investment in Company B is totally lost, as it conceivably may be, it would readily be apparent that he paid a high price for the capacity to generate an income of $600 per week.  Whilst the wife's capacity to derive income is modest, and no one could suggest otherwise, at least she has a capacity and that capacity will continue.  That stands in stark contrast to the husband.

92.  So far as financial resources are concerned, the wife has no capital, save that which will come to her from G's estate.  That is a sum of $196,500.  It must also be borne in mind that by virtue of the Court's contribution findings and conclusions, the wife will receive a further $300,000.  In round figures she will have, prior to discharge of her legal fees, about $500,000.

93.  For his part, the husband, on any view of it, must leave this Court with vastly more than the wife in terms of the money he has when this case concludes.  Of the $3.2 million in the pool, in round figures rounding 3.182 up to 3.2, the husband will after the wife receives her contribution entitlement and her entitlement to G's estate, have $2.7 million.  Out of that sum the husband must house himself, he must provide for himself the huge and ongoing expenses, which have been found by Dowd J. and have been only marginally reduced by compromise on appeal, to have been his reasonable needs for the future.  It is simply unrealistic and quite unjust to treat those funds as anything less than a prepayment which will not be able to be changed or indexed or increased in time, having regard to inflation or rising costs of all of the facilities and services for which they purport to provide.

94.  The Court has referred earlier to Dowd J.'s unchallenged findings as to the husband's life expectancy, and the discount to which his Honour referred.  More than two decades are to be provided for by these funds.  Objectively, it must be said that the husband will well and truly have need for the future for the items identified and quantified by Dowd J. the monies which his Honour's order provided and which the Court of Appeal by the compromise of the appeal confirmed to be appropriate.

95. The provisions of s.75(2)(d) assume some relevance and must be evaluated. That section deals with the commitments of either party to support himself or herself, s.75(2)(d)(i), and it is in that context that one can gain a better appreciation of the husband's financial resources, they are well and truly earmarked in the many ways which the heads of damage to which reference has been made, reveal, and they are a powerful s.75(2) factor. To the extent that one has to take into account that the husband after the contribution entitlements are reflected, will have $2.7 million, under s.75(2)(d)(i), one has to have regard to what has to be done with those by the husband in order to support himself.

96.  Neither party has an obligation to support any other person.  Subsection (f), superannuation, is, in the circumstances of this case, not a factor which would warrant an adjustment in favour of either party, to the extent that the husband's superannuation has materialised, as clearly it has in the compromised an unaltered figure of $41,979, that will not increase.  To the extent that the wife's has not, she has the capacity to make further contributions to superannuation and thereby enhance her position.

97.  Subsection (g) is relevant, and in this case there is some overlapping, particularly on the part of the husband of these factors, and they will certainly not be double-counted.  Objectively, a standard of living that in all the circumstances is reasonable does have application to this case.  To deal first with the wife, as has been said and is undeniable, had the wife litigated her claim against the husband and been overwhelmingly successful, the most she could have obtained, other than by virtue of the husband's accident claim being concluded, would, on today's figures, have been $200,000.  That is, the whole of the value of the matrimonial home.  The probabilities are that she may not have, notwithstanding her contributions, been awarded so much if that had been the only asset.  But it is academic to speculate about these things, the reality being that with $500,000, the wife will have sufficient money to buy a home of comparable standard to the former matrimonial home, retain a capital fund of $300,000, and her employment returning a modest $376 per week.

98.  It cannot rationally be suggested in those circumstances that she will have other than a reasonable standard of living.  Whilst the evidence is not particularly expansive as to her current standard of living, objectively one would have to say that she would probably have a better standard of living than she has had at any time since 1992.  Certainly in terms of capital such a suggestion is, on the evidence, irrefutable.

99.  The husband has an entitlement to a reasonable standard of living.  The Supreme Court of New South Wales and the Court of Appeal recognised that.  As his learned Senior Counsel so eloquently and movingly put it, he has paid the price for having what he has in his damages settlement.  Without restating it, in the circumstances of this case nothing which the husband has been allowed, by way of, for want of a better term although it be inappropriate, “creature comforts”, can possibly be said to be other than reasonable.  It is simply artificial in the extreme where a person has sustained and will, for the balance of his life, have the severe curtailment of faculties which the rest of us take for granted, to regard the vast bulk of his $2.7 million as other than necessary to provide him with a reasonable standard of living.  Nothing in this factor would persuade the Court to adjust in favour of either party. 

1. Subsection (h) is not relevant, nor is (j), nor is (k), nor (l), nor (m). Reference has been made to s.75(2)(n) earlier in these reasons, that is, the implications of the contribution entitlement which the Court has reached. There are no other facts or circumstances which the Court considers relevant to the s.75(2) determination in this case.

1. Should there be a s.75(2) adjustment at all? The Court concludes that there should not. The effect of the s.75(2) factors is that objectively, notwithstanding that the husband has and will continue to have, in capital terms, vastly more than the wife, some five times, more than five times, his needs as quantified and accepted, as clearly they have been by the absence of challenge through cross-examination of the husband of any of the items appearing in the compromise on appeal, the break up of the husband's settlement monies, are well and truly accounted for in terms of his future reasonable needs.

1. If one stands back and takes what is sometimes described as the fourth step, what flows from it is that the husband, with $2.7 million, will have to expend in order to have what is not suggested to be other than a reasonable residence within which to reside, in round figures $400,000.  That is to say, he will have $2.3 million and be in a new house.  If the wife were to purchase a home for, say, $300,000, she would have a home and a capital fund of $200,000.  She would have her future employment.  The husband does not have that benefit. 

1. It is when one looks, though, at where the balance of the husband's $2.3 million will go, that one gains a greater insight into the realities of the proposed division, and it is the Court's belief that the justice and equity of that proposed division becomes more apparent.  $284,000 of that $2.3 million is referable to the horrific injuries, pain and suffering which the husband has undergone.  No amount of money can compensate him in the true sense for that, but the law recognising compensation in monetary terms, that is the measure of it, $284,000.  Of that $2.3 million, future care, that is, somebody to do for him the things he cannot do for himself which, thankfully, the wife can do for herself, will cost $713,887.92.  There is no magic about that.  That is the figure, it has not been challenged.  It is a substantial figure, and every cent of it has been determined by the Supreme Court of New South Wales as the husband's reasonable future needs in terms of care.

1. House maintenance, $182,453.67 is necessary to enable somebody to come and do things like cutting the grass, cleaning, all the sorts of things which thankfully the wife is able to do for herself.  Diversional therapy, $69,950.  Special equipment, $297,640.  Washing, 12,464.  Future medicals, $150,280.  Future physiotherapy, $65,382.  Wherever one looks, one sees expense which the husband will have to meet.  No apparent adjustment for probable future costs of providing these things, no allowance for inflation.  He gets one settlement, and one only, and out of that $2.3 million, after he houses himself, the husband will have to provide for all of these things for the rest of his life.

1. Objectively, for the wife to depart this case with $500,000 and the husband to retain $2.7 million is, in the Court's view, just and equitable.  When one looks at the realities of life and what that $2.7 million is referable to, and what it must pay for over the next two decades or more.

Orders.

1. The orders of the Court in effect provide that the husband is to pay the wife $300,000.  It would be sensible to facilitate the payment of $196,500 by the husband assigning his interest in G's estate to the wife, and for the husband to pay the balance, which is a little over $100,000, out of other funds.

1. The orders of the Court, in short form, will in essence be:

   1.   That the wife have leave to proceed out of time for orders for settlement of property.

   2. That pursuant to s.79 of the Family Law Act 1975, the husband pay to the wife the sum of $300,00. Such payment to be made within 30 days provided that the husband shall be entitled to pay the sum of $196,500 by assigning to the wife his beneficial interest in the estate of the late G being an entitlement to receive the sum of $196,500.

   3.   That upon compliance with Order 2, the wife do all acts and things necessary to transfer to the husband absolutely and beneficially the whole of her right title and interest in the former matrimonial home of the parties known as and situate at Suburb C.

   4.   That save to the extent otherwise provided for by these orders, each party retain absolutely and beneficially all property, real or personal, possessed by either of them.

   5.   That save with respect to costs, all outstanding applications and cross-applications be and are hereby dismissed.

   6.   Costs be reserved.

   7.   The Court certifies for Counsel’s appearances on any occasion when Counsel appeared for any party and for the appearance of Senior Counsel on behalf of the husband at trial.

I certify that these 33 pages are a true copy of the Reasons for Judgment herein of
I.R. Coleman J.

Associate: