Kiefer and Kiefer
[2009] FMCAfam 279
•26 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIEFER & KIEFER | [2009] FMCAfam 279 |
| FAMILY LAW – Property settlement – short marriage – contributions – losses accumulated during relationship – death of applicant – future needs of the respondent – no order as to costs. |
| Family Law Act 1975 (Cth) ss.75(2), 79, 79(4)(a)-(g), 79(8), 117(1), 117(2)(A) Evidence Act 1995 (Cth) s.191 Federal Magistrates Court Rules 2001 (Cth) r.15.06 Family Law Rules 2004 (Cth) r.15 |
| Lee Steere & Lee Steere [1985] FLC 91-626 Ferraro & Ferraro [1993] FLC 92-335 Clauson & Clauson [1995] FLC 92-595 Russell & Russell [1999] FLC 92-877 Kiefer & Kiefer [2008] FamCA FC 197 Dorney & Dorney [2007] FMCAfam 617 Crampton & Crampton (2006) FLC 93-269 D & D (2005) FamCA 35 Quinn & Quinn (1979) FLC 90-677 Norbis & Norbis (1986) 161 CLR 513 McMahon & McMahon (1995) FLC 92-606 Kowaliw & Kowaliw (1981) FLC 91-092 Tuck & Tuck (1981) FLC 91-021 Kiefer & Kiefer [2008] FMCAfam 138 Hamilton & Thomas [2008] FamCA FC 8 Pierce & Pierce [1999] FLC 92-844 Clives & Clives [2008] FamCA FC 172 Penfold v Penfold (1980) 144 CLR 311 |
| Applicant: | MS KIEFER |
| Respondent: | MR KIEFER |
| File Number: | MLM 6070 of 2006 |
| Judgment of: | O'Sullivan FM |
| Hearing dates: | 25 & 26 March 2009 |
| Date of Last Submission: | 26 March 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 26 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Skerlj |
| Solicitors for the Applicant: | Harwood Andrews |
| Counsel for the Respondent: | Ms M. L. Smallwood |
| Solicitors for the Respondent: | Pearsons Barristers & Solicitors |
ORDERS
The respondent pay to the applicant the sum of $63,350 within 90 days (“the payment”).
That upon the payment, the applicant provide to the respondent a Withdrawal of Caveat lodged over Property E (“the Property E property”).
That in the event the respondent defaults in payment by the due date then the Property E property be transferred to the applicant upon trust pending the sale and the property be sold forthwith (“the sale”).
That in the event there is a dispute in relation to the terms and conditions of the sale of the Property E property referred to in order
3 herein, such terms and conditions be determined by the President of the Real Estate Institute of Victoria or his nominees.
That the proceeds of sale of the Property E property be applied as follows:
(a)to pay costs, commissions and expenses incidental to the sale and trust transfer;
(b)to discharge any encumbrances effecting the title to the property;
(c)the applicant receive $63,350 together with interest thereon at the rate of 11% per annum adjusted monthly; and
(d)to pay the balance to the respondent.
That pending the payment or completion of the sale:
(a)The respondent have the sole right to occupy the Property E property and during such right of occupation the respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property E property as they fall due;
(b)The parties hold their respective interests in the Property E property upon trust pursuant to these orders; and
(c)Neither party encumber the Property E property without the consent in writing of the other party.
The respondent’s former solicitors, Messrs. Lou Castellano Lawyers provide to the applicant a cheque in the sum of $30,000 held in trust within 7 days of service upon them of these Orders.
That the applicant retain the net proceeds of sale of the Property S property.
The applicant retain the net proceeds of sale of the Property C property and be solely liable for and indemnify the respondent against the discharge of the RAMS home loan encumbering that property.
That each party retain their own motor vehicle.
The applicant be solely liable for the Mastercard debt approximately in the sum of $48,000.
The respondent retain the shop fitting equipment and the coffee equipment.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the respondent/applicant).
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the respondent/applicant.
(c)Insurance policies remain the sole property of the owner/beneficiary named thereon/in.
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
There be no order as to costs.
All extant applications be dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Kiefer & Kiefer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 6070 of 2006
| MS KIEFER |
Applicant
And
| MR KIEFER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an application for property settlement pursuant to section 79 of the Family Law Act 1975 (“the Act”).
The application was originally filed by the wife, Ms Kiefer (“the applicant”) on 12 July 2006. The husband, Mr Kiefer (“the respondent”) filed a response on 16 February 2007.
The current proceedings had been remitted on appeal by order made by the Full Court of the Family Court of Australia in December 2008 and listed for hearing on 19 January 2009. Sadly the applicant died on
16 January 2009. The executors of the applicant’s estate then pursued the application on her behalf.
Background to relationship
The parties met in 2003 and married [in] September 2003. At the time the applicant was 55 and the respondent was 59. Both parties had previous relationships. The parties did not cohabit until August 2004.
At or around that time the respondent moved to Geelong to reside with the applicant. Prior to this the applicant had been living in Geelong and the respondent lived in Property E. The parties separated in March 2005. The marriage was less than 2 years and there were no children of the marriage.
History of proceedings
The proceedings were commenced by the applicant in July 2006. After many adjournments that application eventually came on for final hearing on 18 October 2007. On 7 March 2008 final orders were made.[1]
[1] Kiefer & Kiefer [2008] FMCAfam 138
The respondent lodged a Notice of Appeal on 4 April 2008.
On 12 December 2008 the appeal was allowed and orders were made that the matter be remitted to the Federal Magistrates Court for re-hearing.[2][2] Kiefer & Kiefer [2008] FamCAFC 197 (anonomysed)
In doing so the Full Court[3] said inter alia:
"75.We are extremely concerned at such an outcome given the limited resources of the parties and the wife’s state of health. However we cannot see any alternative other than a new trial. It is only to be hoped that those now representing the husband may be able to assist in negotiating a settlement of the proceedings between the parties."[4] (emphasis added)
[3] Ibid
Sadly, notwithstanding both the comments made by the Full Court and the applicant’s death in January 2009 the parties were unable to negotiate a settlement and the matter proceeded to hearing.
The Interim Orders
Once the matter had been remitted it was listed for hearing on
19 January 2009. However, given the applicant’s death just days earlier, on that day the following interim orders were made by consent:
“1.That pursuant to Order 6 Rule 15 of the Family Law Rules Mr V in his capacity as executor nominated under the Will of the deceased wife (MS Kiefer) be and in hereby substituted as Applicant (“the Applicant”).
2.That the parties file and serve a statement of agreed facts not later than 21 days preceding the final date of these proceedings.
3.That the husband shall at his expense provide to the Applicant’s solicitors, Messrs Harwood Andrews 155 Mercer Street, Geelong a duly completed instrument of withdrawal of Caveat lodged on the husband’s behalf against the said property situated at and known as Property C within 7 days from the date of these Orders.
4.That the sole proceeds from the sale of the aforesaid Property C real property be disbursed as follows:
4.1.Firstly, to the payment of all direct selling costs.
4.2.Secondly, to the discharge of any mortgage and adjustable outgoing encumbering the real property.
4.3.Finally, as to the balance to be invested until furhter order into an interest bearing account managed by the solicitors of the Applicant, Messrs Harwood Andrews.
5.Reserve liberty to apply.
6.Vacate the 27 January 2009 being the next return date of the deceased wife’s application in a case filed 10 December 2008.
7.These proceedings be fixed for a trial of 2 days duration commencing on 25 March 2009.
AND THE COURT NOTES:
A.The applicant wife died on Friday 16 January 2009.
B.The deceased wife’s son Mr V is to be appointed as sole executor of the estate of the deceased wife.”
Given the provisions of s.79(8) of the Act no issue was taken with the orders set out above and given the applicant’s death the application in a case that she had filed pending the remitted hearing was abandoned.
The hearing
The final hearing commenced on 25 March 2009 and concluded with submissions on 26 March 2009. The executors of the applicant’s estate were represented by Mr Skerlj of Counsel and Ms Smallwood of Counsel appeared on behalf of the respondent.
Material relied on
The parties relied upon the following material at the final hearing:
a)The applicant:
i)the application filed 12 July 2006;
ii)financial statement filed 12 July 2006;
iii)affidavit of the applicant filed 12 October 2007;
iv)exhibits from hearing on 18 October 2007;
v)subpoenaed material from the Commonwealth Bank of Australia;
vi)the transcript of first hearing in October 2007; and
vii)outline of case filed 16 January 2009.
b)The respondent:
i)his affidavit filed 16 January 2007;
ii)his financial statement filed 16 February 2007;
iii)his affidavit filed 29 May 2007;
iv)his affidavits filed 16 October 2007;
v)his further financial statement filed 26 October 2007; and
vi)his Outline of case filed 19 January 2009.
The applicant’s documents were taken into evidence. Counsel agreed that the applicant’s material could be taken into evidence pursuant to the relevant provisions of Evidence Act 1995 and Rule 15.06 of the Federal Magistrates Court Rules 2001. In the circumstances the Court will place as much weight on the applicant’s material as is appropriate.
There was also, and pursuant to the interim orders made in January 2009, a statement of agreed facts prepared which was marked as Exhibit A1.
I will return to the details of that exhibit in setting out the necessary background for the purposes of these reasons.However, and as for reasons which will become clear presently, before doing so it is necessary to note that at the start of the hearing Counsel for the respondent told the Court (and notwithstanding the provisions of s.191 of the Evidence Act 1995 (Cth)) her client did not admit a number of the ‘agreed facts’ in Exhibit A1.
At the hearing the respondent gave evidence and was cross examined.
There was considerable divergence in the evidence on certain issues.
I wasn’t able to observe the applicant give evidence but did have the benefit of seeing the respondent in the witness box including during cross examination.
I found the respondent’s evidence at times characterised by hyperbole. One example will suffice to illustrate why the Court was left with real doubts about accepting important parts of the respondent’s evidence.
It had been the respondent’s position that he had made loans for many thousands of dollars to various people in the course of his business activities including those involved in the horse racing industry.
Leaving to one side the “Walter Mitty” nature of these claims, there was simply not enough evidence led to satisfy me that it was more likely than not this was the case. Indeed throughout the proceedings the respondent referred to his business activities but the absence of taxation returns and the diaphanously thin descriptions of what he did exactly left real questions in my mind about his bona fides and what it was he did.
At the conclusion of the evidence Counsel for each of the parties then made submissions in support of their client’s respective positions.
Applicant’s position
The applicant’s Outline of Case filed 16 January 2009 sought the following orders:
“1.That the husband pay to the wife the sum of $100,000 within 60 days.
2.That upon the payment the wife provide the husband with a withdrawal of any caveat lodged over his real estate properties.
3.That in the event that the husband default in the payment by the due date then his property situated at and known as Property E be transferred to the wife upon trust for sale and the said property be sold forthwith (“the sale”).
4.That in the event that there is a dispute in relation to the terms and conditions of the sale of the property, such terms and conditions be determined by the President of the Real Estate Institute of Victoria or his nominees.
5.That the proceeds of sale of the Property E property be applied as follows:
5.1.to pay costs, commissions and expenses incidental to the sale and trust transfer;
5.2.to discharge any encumbrances effecting the title to the property;
5.3.to pay to the wife so much of the payment as is then outstanding together with interest thereon at the rate of 11% per annum adjusted monthly;
5.4.to pay the balance to the husband.
6.That the wife be and is hereby declared the sole proprietor of the property situated at and known as Property S and the husband provide the wife with a withdrawal of any caveat he may have lodged over the said property.
7.That unless otherwise specified each party retain those items of personal property in their respective possessions.
8.That each party be solely liable for and indemnify the other in relation to the liability affecting any item of property which that party is entitled pursuant to the terms of these orders.”
In summary Counsel for the applicant told the Court that his client sought orders for a payment from the respondent of $100,000.
The Court was told this payment would be inclusive of the monies remaining in trust. Counsel for the applicant also sought orders that his client retain all of the items identified as held by the applicant in Exhibit “A2”.
Respondent’s position
In his response filed on 16 February 2007 the respondent sought:
“1.That the property situate at and known as Property S in the State of Victoria (“the premises”) be sold and the proceeds of sale be applied as follows:
(a) firstly in payment of costs and expenses of the sale and conveyance;
(b) secondly the balance to the wife.
2.That the husband be entitled to retain all plant and equipment currently used in the pizza/coffee shop business currently conducted at the premises.
3.Such further or other orders as the Court deems fit.”
In the Outline of Case filed on his behalf on 19 January 2009 the respondent sought the following orders:
“1.That the funds held in trust by Lou Castellano be forthwith released to the solicitors for the Husband Pearsons Barristers and Solicitors Pty Ltd.
2.That the Wife be declared to be the sole proprietor of the property situated at and known as Property S and the Husband shall at his own cost and expense provide to the Wife a withdrawal of any caveat lodged by him or on his behalf over the said Property S property.
3.That contemporaneously with the withdrawal of Caveat pursuant to paragraph 2. above the Wife shall at her own expense provide to the husband a withdrawal of any caveat lodged by her or on her behalf over the real property situate at and known as Property E owned by the husband.
4.That the husband remove the coffee making related items of plant and equipment situate in the Property S property and retain them for his own use absolutely and subject to any encumbrances thereon if any which shall be his sole responsibility and thereafter vacate the Property S property and give vacant possession to the Wife.
5.That unless the subject of specific orders herein, and save for the purposes of enforcement each party shall otherwise:
i.Retain the sole ownership of the real properties in respect of which he or she is a registered proprietor
ii.Retain the sole ownership of the items of personal property I(sic) his and her respective possession and control (the items of property situate both in the Wife’s place of residence being Property C and the Property S property are deemed to be in the possession of the wife save for the items “coffee making” equipment which are deemed to be in the possession of the Husband.
ii.Be solely liable for and indemnity the other in relation to the liability affecting any of the property to which that party is entitled pursuant to these orders.
6.The estate pay the respondent’s entire costs of these proceedings.” (emphasis added)
Counsel for the respondent at the hearing confirmed the last order (pursuing costs) set out above was one she was instructed to seek and acknowledged that her client had already received a costs certificate in relation to the appeal and the Court would apply the provisions of inter alia s.117(1) of the Act in considering that part of the orders sought by her client.
Interim consent orders
At the conclusion of the hearing the Court was told that the parties wanted interim orders pending the delivery of these reasons. Those orders saw the parties take steps for Property S to be sold and provided that:
“1.That not later than the 26th April 2009 the husband:
1.1.remove all coffee making equipment from the said property situate at Property S.
1.2.provide vacate possession of the Property S property to the wife’s executor by the foresaid date.
1.3.provide to the solicitors for the wife’s estate a withdrawal of the caveat lodged against the Property S property.
2.The parties reserve the liberty to apply.
AND THE COURT NOTES:
A.The Court has reserved judgment following the hearing on 25 & 26 April 2009.
B.The respondent did not oppose the above Order but did request 2 months instead 1 month.
C.The proceeds of any sale of the Property S property be held in trust pending the final orders of this Court save for selling expenses.”
The Court made the above orders given they were by consent (save as was indicated in Notation B), the time that had elapsed since the appeal, the applicant’s death and the hearing had given the respondent ample time to make arrangements to collect the equipment.
Background
Before turning to the property settlement exercise it is timely to set out the necessary background that will inform that process. The background in these proceedings is based in large part on the statement of agreed facts (Exhibit A1). In what follows a statement of fact indicates a finding of fact unless the context indicates otherwise.
The parties met in 2003 and were married [in] Victoria [in] September 2003. The parties did not cohabit until August 2004. During the period of time from the date of marriage [in] September 2003 until the parties lived together in August 2004, the applicant continued to occupy her premises in Geelong and the respondent continued to occupy his premises in Property E.
At the commencement of the relationship the respondent owned a factory in Property E with equity of $240,000. There was also an insurance claim on foot from which the respondent would receive a payment after separation. The applicant owned two properties in [G], Geelong (worth over $460,000) and had savings of approximately $180,000 in cash and investments predominately held with the Commonwealth Bank of Australia.
During their relationship the applicant provided the respondent with approximately $100,000. That money was used by the respondent.[5]
[5] Exhibit A1 set out a schedule of transactions showing monies from the applicant to the respondent. Notwithstanding the status of that document the respondent did not accept that all of those monies had been given to him. However when the respondent gave evidence he confirmed that the bank receipts January 2005 to 1 December 2005 which were Exhibit A3 show payments deposited into his bank account which correspond with those amounts.
In August 2004 the respondent moved into the applicant’s residence at her home in [G]. At or around this time the applicant purchased the property known as Property S for $95,000.The purchase price was paid by way of a loan obtained from RAMS for $156,000 secured against the applicant’s property. The loan was applied to meet the purchase of Property S, payment of incidental expenses and stamp duty with the balance of the funds being an amount of approximately $50,000 applied by the respondent for his own purposes including to the purchase of coffee brewing equipment.
Also at that time the parties commenced to operate a takeaway food outlet from the Property S premises which the applicant quickly, and in hindsight no doubt regrettably, determined was not financially viable.
The parties separated in May 2005.
After separation, the applicant sold the property at Property H, [G] for the sale price of $259,500 and purchased a property at Property C for $170,000.
In June 2006 the applicant sold the other [G] property at Property L for $209,000 and continued to reside in [C].
After separation, the respondent fell behind with the mortgage over the Property E property. As a result that property was placed on the market for sale by the mortgagee for default of the mortgage. However, the respondent was able to obtain finance, he attended the auction and re-purchased the property for the sum of $570,000 from the re-financed mortgage.
Further, following the parties separation, the respondent received net proceeds from the insurance claim over the factory in the amount of $90,000. The respondent has dispersed $60,000 of those monies and the balance was held on trust by the respondent’s former solicitor, Lou Castellano Lawyers pursuant to an Order made on 8 June 2007.
Up and until shortly before the hearing the respondent continued to reside at Property S and operate a business described, albeit loosely, as coffee brewing.
The respondent now resides in part of the Property E factory. The other part of those premises is tenanted and the respondent receives a rental income out of which he continues to meet the mortgage payments.
As is clear from the above, the applicant died before the matter could be heard once it had been remitted. The applicant’s properties at Property C and the business premises at Property S were to be sold.
The law
Section 79 of the Act defines the Court’s powers in determining applications for property settlement. It has been well established that the Court’s approach to such an application involves four steps (see Lee Steere & Lee Steere [1985] FLC 91-626, Ferraro & Ferraro [1993] FLC 92-335 (“Ferraro”) and Clauson & Clauson [1995] FLC 92-595 (“Clauson”)).
The first step involves making a finding as to the pool of assets and liabilities. The second step involves a consideration of contributions made by the parties as defined in ss.79(4)(a) to (c). The third step involves the Court having regard to the matters set out in s.79(4)(d)-(g) (“the s.75(2) factors”) of the Act.
At both the second and third steps, the Court must consider whether it is appropriate to make an adjustment of the parties’ property interests. Finally, the Court is required to step back and determine if the overall result after the first three steps is just and equitable in the particular circumstances of the case (see Russell & Russell [1999] FLC 92-877 (“Russell”)).
Whether the Court should adopt an asset by asset approach?
Counsel for the applicant urged the Court to adopt an asset by asset approach. Counsel for the respondent submitted the Court should apply a global approach to the determination of the asset pool.
The global approach involves the assessment of the parties’ overall proportionate contribution to the totality of a global view of the asset pool: Tuck and Tuck (1981) FLC 91-021. The asset by asset approach involves the determination of the parties’ respective interests in individual items or groups of property: McMahon and McMahon (1995) FLC 92-606. In Norbis and Norbis (1986) 161 CLR 513 the High Court of Australia held that either approach is legitimate but that in most cases the global approach is the more convenient; that in some cases either approach may be adopted in part or in whole.
Counsel for the applicant contended that was appropriate in the case of a short marriage that the Court adopt an approach would assist in returning each party to their original positions and whilst sharing (though not necessarily in equal shares) the wealth and losses accumulated during the marriage.
Counsel for the applicant contended this should be the approach as:
·there were no children of the marriage (the applicant had adult children from a previous relationship);
·this was a marriage of short duration;
·pre-marriage assets/contributions were easily identifiable; and
·the assets acquired during the marriage that were capable of being identified on an asset by asset approach.
It is clear from the High Court decision is Norbis & Norbis (1986) 161 CLR 513 that the Court may approach the assessment of the parties’ assets either globally or asset by asset. The global approach is generally accepted.
However there are cases where an asset by asset approach is more appropriate. I note the decision in McMahon & McMahon (1995) FLC 92-606 where the Full Court said:
“In a short relationship where the parties had kept their assets separate the parties could be given back what they had introduced and in doing so the asset by asset approach was appropriate.”
The Court accepts that in this case an approach that returns each party to their original positions given the short duration of the marriage, whilst sharing in the losses accumulated during the marriage has much to recommend it. The Court can also understand why Counsel for the applicant would urge such an approach on the Court given the assets his client had at the start of the relationship. However, in my view a global approach is not only more convenient but here the parties did not keep their assets entirely separate.
In this case it is also appropriate to approach the division of the matrimonial asset pool on a global basis for the following reasons:
i)an asset by asset approach may create distortion; and
ii)the parties financial activities during the relationship supports such an approach.
First step – Asset pool
At the commencement of the hearing the Court was told the respondent’s assets and liabilities were:[6]
[6] see exhibit “R1”
| Husband Assets | Husband’s Value | Wife’s value |
| Factory premises at Property E | $640,000 | $640,000 |
| Mercedes Benz motor vehicle | $1,000 | $4,000 |
| Shop fitting equipment | $5000 | $5,000 |
| [Hospitality] Equipment | $10,000 | $20,000 |
| Funds released to husband by way of an order | $10,000 | $10,000 |
| Trust account funds held by Lou Castellano Lawyers | $30,000 | $30,000 |
| Refund of deposit for factory | $Nil | $58,000 |
| Total assets | $696,000 | $767,000 |
| Less mortgage encumbering Property E property | -$370,000 | -$360,000 |
| Nett | $326,000 | $407,000 |
Based on the statement of agreed facts, exhibit “R1” and the position of the parties before the Court at final hearing the parties were effectively $81,000 apart on the value of the assets and liabilities of the respondent.
In relation to the respondent’s Mercedes Benz motor vehicle there were no valuations and the Court was not offered any independently documented reason for why it should accept the applicant’s figure on this matter. Accordingly, I don’t intend to do so.
The same reasoning applies in relation to the coffee making equipment and the respondent’s mortgage. As a result I will accept the values contended for by the respondent on these matters.
In relation to the issue of the refund the applicant contended the respondent received from the deposit paid when he brought back the factory premises the evidence didn’t persuade me such a payment could be established. As a result I don’t intend to include it in the list of assets and liabilities.
Turning then to the situation of the applicant the Court was told the applicant’s assets and liabilities were agreed and were as follows:[7]
[7] exhibit “A2”
| Wife’s Assets | Agreed Value |
| Anticipated proceeds of the sale of the property at Property C | (E)$155,000 |
| Shop premises at Property S | $95,000 |
| Hyundai motor vehicle | $6,000 |
| House contents | $10,000 |
| Total assets | $266,000 |
| Liabilities | |
| RAMS home loan (over Property C property) | -$27,000 |
| MasterCard | -$48,000 |
| Total liabilities | $75,000 |
| Nett | $191,000 |
Determination of asset pool
On the material before the Court, I find the net pool of assets available for distribution to be $517,000. That pool is made up as follows:
| Factory premises at Property E | $640,000 |
| Mercedes Benz motor vehicle | $1,000 |
| Shop fitting equipment | $5,000 |
| [Hospitality] Equipment | $10,000 |
| Funds released to husband by way of an order made 8 June 2007 | $10,000 |
| Trust account funds held by Lou Castellano Lawyers | $30,000 |
| Anticipated proceeds of the sale of the Property C, property | (E)$155,000 |
| Shop premises at Property S | $95,000 |
| Hyundai motor vehicle | $6,000 |
| House contents | $10,000 |
| Total assets | $962,000 |
| Less mortgage encumbering Property E property | -$370,000 |
| RAMS home loan (over C property) | -$27,000 |
| MasterCard | -$48,000 |
| Total liabilities | $445,000 |
| Nett pool | $517,000 |
Second step – Contributions
I now turn to the second step in the exercise under s.79, namely an assessment of the parties contribution within the context of s.79(4)(a) to (c).
Consideration
There were several matters relevant to this stage.
Both parties contended that they made direct and indirect contributions to the acquisition, conservation and improvement of the assets they have. At the start of the relationship the applicant had almost $650,000 in assets and the respondent around $330,000.
However, before dealing with the arguments about contributions generally it is timely to address first one of the arguments advanced by the respondent that is relevant at this stage.
Wastage argument
The respondent claimed the applicant had gambled throughout the course of the relationship. The applicant had denied these allegations.
This issue was considered by Walters FM in Dorney & Dorney [2007] FMCAfam 617 at [71] to [75] as follows:
“71.In Crampton (2006) FLC 93-269, the Full Court considered the manner in which a trial judge had dealt with a party’s gambling losses. The “essential question” was held to be “whether overall the evidence about gambling losses, including the applicant’s secretiveness, demonstrated conduct which should result in her bearing the entirety or some other proportion of the losses.”[8] (Emphasis added).
[8] At paragraph 52.
72.Crampton is not the only Full Court decision dealing with gambling losses. In De Angelis, for example, the Full Court (by a majority) said:[9]
[9] (1999) 30 FamLR 304, at paragraph 76
‘We agree that gambling is for some people a form of entertainment and that a party can be no more criticised for spending money on it than the other party can be criticised for spending money on sporting or other forms of entertainment. However every case most depend on its own particular circumstances.’ (Emphasis added)
73. In D & D (2005) FamCA 35[10], Carmody J said:
[10] Referred to with approval by the trial judge in Crampton (Coleman J). The Full Court in Crampton did not specifically approve or reject the dicta referred to from D & D.
‘The point at which the party who recklessly or wantonly incurs debts or increases unsecured liabilities may be penalised for economic fault under the Kowaliw principle is not always easy to define as a concept or identify in practice.’
74.In relation to the standard of proof required to demonstrate that allegations of wastage in the Kowaliw & Kowaliw (1981) FLC 91-092 sense have been proved, and after referring to the well known passage from Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450, Carmody J said that “…what this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it”.[11]
75. Carmody J continued as follows:[12]
‘… civil proof is not a simple matter of belief and persuasion but of “reasonable satisfaction” following a real search for the truth and evaluation the evidence adduced with regard to the matters mentioned in section 140 (2) of the Evidence Act (Cth) and other relevant variable factors, including those referred to in Briginshaw and in the light of the party’s respective power or capacity to produce or contradict it.’
The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a Court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. However, the law looks for probability not certainty. There are degrees of probability but, when the law talks about “the balance of probabilities”, it envisages a degree of probability to the point that a Court can be satisfied that the alleged fact in issue is more likely than not.
Where … proof of a fact in issue hinges on rational inferences based on circumstantial, as distinct from direct, evidence, the conclusion contended for must be rational and reasonably open. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial sense when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number competing hypothesis, the more probable that explanation becomes. (Emphasis added)
…”
[11] D & D at paragraph 146
[12] D & D, paragraphs 147-149
The respondent’s position was that:
“The wife gambled throughout the relationship and used funds from the Property S business, her savings and increases to her credit card. The wife’s gambling habit negatively contributed to the matrimonial assets and matrimonial funds were wasted by the wife to support her gambling addiction.”[13]
[13] husband’s outline of case
The respondent also relied on exhibits “R4” and “R5” which were handed to the Court. The exhibits provided were Commonwealth Bank Statements which indicated numerous banking transactions by the applicant which had taken place at gambling venues.[14]
[14] exhibit “R3” Commonwealth Bank Statements – Management Call Account from 11 August 2004 to 13 January 2005; exhibit “R8” Commonwealth Bank Statements – (business) [V] from 19 March 2002 to14 January 2003; and exhibit “R5” Commonwealth Bank Statements of wife’s account from 1 January 2003 to 30 June 2006.
Beyond this the respondent relies on an argument that an inference can be drawn from bank statements showing numerous withdrawals at gaming venues to show that the applicant’s gambling habit can be proved in the way he asks to the Court to find. In the earlier trial the applicant denied allegations of wastage and gambling.
As I understand the argument Counsel for the respondent drew there was a distinction between what the applicant spent money on and how the respondent applied his income to support the parties during the marriage. However there is also the evidence of what the applicant brought to the marriage, what she contributed and what she gave to the respondent and it can’t be ignored or minimised.
In Hamilton & Thomas [2008] FamCA FC 8 the Full Court said that gambling had been a form of entertainment for the parties and that the total losses were of a relatively modest total in the context of the pool as a whole:
“In our view, there was nothing so disproportionate in relation to the losses incurred by the parties in the lifestyle that they chose, that would make it inappropriate for there to be an adjustment of the available capital upon the breakdown of the marriage. More is required than simply the existence of gambling losses. There needs, in our view, to be some element of waste that is disproportionate to the positive contributions being made by each of the parties.”
Despite this figure being a substantial sum and whilst I take the view that it is more likely than not that at least some of these transactions occurred, I cannot be satisfied that the applicant acted recklessly, negligently or wantonly with the matrimonial assets, the overall effect of which has been to reduce the parties assets or their value.
In coming to that conclusion I have had regard to the unsatisfactory explanations the respondent gave for how he expended money advanced to him including the role he sought to invoke at various times in his evidence (which I simply don’t accept) as a money lender to various associates. I have also taken into account the applicant and the respondent gambled for enjoyment. There is nothing to persuade me that what was spent wasn’t from money the applicant brought in and I am not satisfied what was spent, (to that extent I can ascertain that) was disproportionate to what the applicant brought in.
Accordingly, I am not satisfied any adjustment at this stage should take account of any alleged wastage by the applicant.
Further consideration of contributions
The parties agree that at the commencement of the relationship they both had assets of reasonable significance.
As referred to the earlier at the commencement of the relationship the applicant had:
·the former matrimonial home at Property H, [G];
·unit at Property L, [G] (investment property);
·$131,000 by way of savings and investments; and
·$50,000 held in a term deposit with the Commonwealth Bank.
The respondent disputed at final hearing that the wife had $181,000 held in savings, investments and term deposits however I am satisfied that is the case.
It was the respondent’s position that the funds of approximately $100,000 provided by the applicant were in anticipation of a business partnership between the respondent and the applicant but he provided no evidence which could persuade me this was the case.
Aside from the argument dealt with earlier regarding wastage the respondent contended that the applicant had made a negative contribution to the marriage. In contrast he submitted that his income was utilised to support the household expenses and this income was derived by way of rental income from the Property E factory.
The applicant made several separate payments totalling $100,000 to the respondent over the course of the relationship. Whether they were loans or in contemplation of a business was not a matter pursued in argument before the Court. There was evidence the applicant advanced money to the respondent to assist him in pursuing his insurance claim over the fire at his factory prior to the relationship. There was also the pitiable evidence of attempts by the respondent to get the applicant (at his former solicitor’s (Mr Isaac Brott) offices) sign her home to him to pursue what at times appeared from his evidence to be his only obsession (the insurance claim). It also appeared from the evidence before the Court that by this time the applicant had decided there were limits to her generosity to the respondent and reservations on her part about what the respondent wanted her to do with her assets.
For a period of approximately 6 months of the 18 month marriage, the respondent resided at the applicant’s residence in Geelong. For the balance of that time being approximately 1 year the respondent resided either at his factory in Property E or elsewhere.
It is agreed that the applicant had used her property as security for the loan obtained from RAMS during the course of the marriage to enable the parties to purchase Property S.
I am satisfied the applicant made a significantly greater financial contributions than the respondent throughout the relationship. There are also initial contributions which can be quantified as at least $100,000 as well as the other properties which were used as security for the mortgages taken out during the relationship. Whether the payments that were made were made predominantly to help the respondent with his business[15] or out of misplaced (or more likely naïve) good will by the applicant it is not necessary to determine given the position of the parties before the Court. The reality is they were made.
[15] Statement of agreed facts – see exhibit “A1”
In relation to those payments it was the applicant’s position that any funds which become available to the respondent were expended by him without reference to the applicant.[16] When asked what he had done with various amounts of money he had access to the respondent asserted inter alia that various people owed him money. However there is no evidence capable of persuading me this was the case or that what was provided wasn’t prepared after the event.
[16] Wife’s outline of case
Finally, there is also the matter that since separation not only did the applicant provide the respondent with more money on occasion but the respondent continued to reside at the Property S property with his coffee making equipment until around March 2009 when he moved back into the factory in Property E.
As a result of the contributions made by the applicant to the respondent, the respondent was able to retain real estate property registered in his name alone and further the respondent was able to improve his real estate property. None of the respondent’s assets were used or offered as security for loans taken or funds extended for the benefit of the respondent.
In contrast so the submission went as made by the applicant’s Counsel the applicant’s financial position has been diminished.In Quinn & Quinn (1979) FLC 90-677 the Full Court made plain that in a short marriage, significant weight should be placed on initial financial contributions.
In Pierce & Pierce [1999] FLC 92-844 the Full Court said:
“In our opinion, it is not so much an erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to use made by the parties of that contribution. In the present case that use was a substantial contribution of the purchase of the matrimonial home.”
The weight to be attributed to initial contributions and other contributions is not required to be a mathematical or a counting exercise. In Clives & Clives [2008] FamCA FC 172, the Full Court said:
“We accept that the task to be undertaken by a trial judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise...”
Counsel for the respondent correctly conceded the Court may have reservations about the evidence before the Court regarding contributions. The respondent made much of having to move to Geelong and run the business at Property S. However the evidence, such as it is, is that the applicant and the respondent worked in the business.
Whilst I am prepared to accept the applicant disappointed the respondent when she refused to relocate from Geelong to a residence in Melbourne I don’t accept there was an agreement she do so.
Whilst the parties lived together and were as the respondent’s Counsel said in submissions, “financially melded” the respondent, made some contributions to the applicants mortgage and applied rental income from the Property E factory towards the parties living expenses.
The “nub” of the respondent’s cases as it was described by his Counsel in opening, was that whilst the relationship was short it caused him damaging loss. It was submitted that effectively this erosion of his financial position cancelled out the contributions made by the applicant. However the reality is both parties made bad decisions. I have not ignored the contributions made by the respondent but am not satisfied they are as extensive as claimed by him. I have also taken into account that decisions and actions both parties took contributed to their losses. However, I cannot ignore in such a short marriage the significant assets the applicant brought in and the use that was made of them. The difficulty with the respondent’s submissions at this stage is that the Court is asked to discount so much the significant contributions made by the applicant.
On balance and having weighed all the contributions by both parties it is appropriate to hold that the parties should share the losses incurred as a result of the relationship but given the short nature of that relationship and the applicant’s contributions it is appropriate to hold that contributions at this stage are in favour of the applicant. To effect a just and equitable division at this stage would see a 65/35% split in favour of the applicant.
Third step – Section 75(2) factors
The third step in the process is to determine whether there should be an adjustment having regard to s.79(4)(d)-(g) and the s.75(2) factors.
In relation to the s.75(2) factors in this case Counsel for the respondent correctly noted that the matter should be determined in accordance with the principals pursuant to s.79. The implication of the submission was in effect that given the unfortunate circumstances of this case there are no relevant factors in the applicant’s favour at this stage.
Finally before turning to consider the relevant factors it is important to remember the Court is not required to make an adjustment at this stage.
Consideration
I now turn to the consideration of the relevant factors in this case.
The effect of any proposed order on the earning capacity of either party to the marriage
It is difficult to ascertain the earning capacity of the respondent as he has not filed a tax return since 1995 notwithstanding that he deposed to receiving $4,000 per month from the factory by way of rent. In any event I am satisfied that any order made by the Court will not affect the respondent’s earning capacity.
Given the unfortunate circumstances of this case there are no relevant factors for the applicant at this stage and there was no submission made to the contrary.
The age and state of health of each of the parties
The respondent is 60 years of age and there was no evidence he was not in good health. Given the unfortunate circumstances of this case there are no relevant factors for the applicant at this stage and there was no submission made to the contrary.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
I accept that the respondent is in a position where he still has an earning capacity. Given his age, the respondent’s working years are limited. I will weigh this factor along with those that follow.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
This is not a relevant consideration in these proceedings.
Commitments of each of the parties that are necessary to enable the parties to support himself or herself a child or another person that the party has a duty to maintain
This is not a relevant consideration in these proceedings.
The responsibility of either party to support any other person
The respondent has not referred in his material or made any submissions that this was a relevant factor. There is no evidence before the Court that the respondent has re-partnered since the breakdown of the parties marriage.
The eligibility of either party for a pension, allowance or benefit
The respondent described himself as a self employed businessman. Given the unfortunate circumstances of this case there are no relevant factors for the applicant at this stage and there was no submission made to the contrary.
Where the parties have separated or divorced, a standard of living that in all the circumstances in reasonable
When the parties separated in May 2005, the applicant remained living in Geelong. The respondent has now moved back to Property E and lives in the factory.
The duration of the marriage and to the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
It is clear that the marriage was very short. The parties were married [in] September 2003 and separated on a final basis in May 2005. The duration of the marriage was less than 2 years.
Neither party sought a maintenance order in their respective applications.
The need to protect a party who wishes to continue that party’s role as a parent
This is not a relevant factor in the circumstances of these proceedings.
Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
This is not a relevant factor in the circumstances of these proceedings.
Any fact or circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account
It was not suggested there were any other factors that the justice of the case requires to be taken into account.
There are several factors at this stage which favour the respondent. The Court was asked to accept that his income stream from the factory was depleted and given his age he was unlikely to be able to work for much longer and the relationship has had an adverse impact on his earning capacity.
Given there are no factors relevant to the applicant at this stage however the Court will make an adjustment in favour of the respondent of 10%.
I have taken into account the size of that adjustment and considered the respondent’s age, the effect of the marriage on the respondents earning capacity and his health. In the ultimate this would adjust the pool to a 55/45% split in favour of the applicant.
Is it just and equitable?
Section 79(2) of the Act provides that:
“The Court shall not make an Order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
At this stage it is the justice and equity of the actual orders that the Court must consider.[17]
[17] see Russell [1999] FLC 92-877
The position of the applicant before the Court was that before the marriage she had assets in excess of $600,000 and after the marriage she had less than $200,000. In short the applicant’s position was her financial circumstances had been diminished by the marriage.
The advances that the applicant had made to the respondent are significant and substantial contributions. Counsel for the applicant submitted these contributions are not reflected in any of the assets which the applicant currently retains.
It was the applicant’s position that as a result of the contributions made by her the respondent was able to retain Property E factory registered in his name and to improve the value of that real estate property. It was submitted none of the respondent’s assets were used or offered as security for loans taken or funds extended for the benefit of the respondent.
In those circumstances, or so the submission went as I understood it, it was just and equitable that the applicant should receive a payment of $100,000 to reflect the contributions made by her during the relationship.In essence the respondent too claimed that the marriage had cost him financially. He acknowledged that the marriage was short but maintained it had had a negative impact on his financial future. He made much of the claim that the rent derived from the Property E factory was his only source of income.
In summary, the respondent submitted that at the commencement of the relationship he had the factory, minimal savings and a pending insurance claim. At the conclusion of the relationship the respondent submitted that he owed more than $373,000 on the factory, he has a depleted income by way of rent and given his age he is not likely to work long in the future.
Whilst critical of the applicant for seeking to recover the money she brought into the relationship the respondent effectively sought orders that he should receive in effect what he put in.
The respondent’s Counsel distinguished the state of the applicant’s contribution of $100,000 from that of the respondent bringing the factory to the relationship and noted it had held steady not because of any contribution by the applicant but by dint of an increase in market value.
Both parties lost money as a result of this relationship. The circumstances confronting these parties at the end of such a short relationship would have been distressing for all involved. That distress has no doubt been compounded by the events since separation and the path their dispute has taken. However the Court is required to make orders that are just and equitable. The applicant gave the respondent $100,000, brought significant assets to the relationship used those assets to acquire
Property S and help the respondent and whilst the respondent’s evidence was he lost money as a result of the move to Geelong where he worked in the business and fell behind in the mortgage for the factory, ultimately he was able to buy it back after separation.As the respondent’s Counsel averted to I am left with reservations (as the reasons set out earlier indicate) about her client’s evidence regarding contributions. It is clear from the material before the Court and I am satisfied that the applicant made greater contributions to the relationship. However, that is not the only factor the Court has to consider given the unfortunate circumstances of this matter.
As set out above there is also an adjustment with respect to the s.75(2) factors in the respondent’s favour (and there are no countervailing factors in the applicant’s favour such are the sad circumstances that pertained by the time of the hearing).
I have already set out the orders sought by the respondent. Ultimately the Court was told at the end of the hearing the respondent sought a 59.7% split of the assets in his favour.
The Court was also told respondent should retain the $30,000 held in trust and receive a payment from the applicant’s estate for his “entire” legal costs. I shall return to the latter issue shortly.
Turning to consider what orders would be just and equitable. In all the circumstances of this case the adjustments made for the reasons set out above would see the applicant receive:
| Trust account monies from Lou Castellano Lawyers | $30,000 |
| Payment from the respondent | $63,350 |
| Proceeds of the sale of the Property C property | (E)$155,000 |
| Proceeds of the sale of the Property S shop premises | $95,000 |
| Hyundai motor vehicle | $6,000 |
| House contents | $10,000 |
| Total assets | $359,350 |
| Liabilities | |
| RAMS home loan (over C property) | -$27,000 |
| MasterCard | -$48,000 |
| Total liabilities | $75,000 |
| Total to wife | $284,350 |
Turning then to consider whether the orders would be just and equitable in terms of the respondent. He would receive, for the reasons set out above, the following:
| Factory premises at Property E | $640,000 |
| Mercedes Benz motor vehicle | $1,000 |
| Shop fitting equipment | $5,000 |
| [Hospitality] Equipment | $10,000 |
| Funds released to husband by way of an order | $10,000 |
| Total assets | $666,000 |
| Payment to wife | -$63,350 |
| Less mortgage encumbering Property E property | -$370,000 |
| Total liabilities | $433,350 |
| Total to husband | $232,650 |
In terms of the money held in trust, despite the respondent having it appeared at times a single minded focus on retaining those monies dispersal to the applicant’s estate will minimise the amount he will be required to pay. In fashioning these orders I have taken into account that he will retain his factory. I will allow 90 days for the respondent to make the payment to the applicant. I am satisfied he will retain property as a result of these orders against which finance for that modest payment can be arranged within that time.
Conclusion
It is unfortunate to say the least that these proceedings appear to have taken on a life of their own and have been drawn out longer than the marriage.
This has been a difficult matter to determine in that there was a plethora of documents filed and before the Court. As these proceedings had been on foot since 2006 a lot of the material was unhelpful as the values of the assets had changed.
Moreover, the outlines of case filed for the respective parties, even up until the day of the hearing contained values of the assets and liabilities which were incorrect and did not reflect the current financial position of the parties. There were assets listed which had been sold prior to the date of the hearing before the Court and there was confusion and dispute as to the sale price. All of this made the matter difficult to determine as the material before the Court was not accurate and it was only with the intervention of Counsel that most of these issues evaporated.
Whilst after the matter was remitted it was concluded in a short period of time, given the unfortunate and unusual circumstances that pertained at that time, I was however left with the impression that had the respondent been capable of taking sensible legal advice the necessity for a hearing could have been obviated. Whether that is the case is not a matter that needs to be considered further.
Nonetheless upon considering and balancing the parties contributions, the relevant s.75(2) factors and given that the history of this matter a division of assets along the lines set out above accords with the results of the adjustments reached at the end of the above stages and is in my view just and equitable.
Accordingly, for all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment as I am satisfied in the particular circumstances of this case they are just and equitable.
Costs
There was also before the Court an application by the respondent for an order that the applicant pay his “entire” costs in relation to these proceedings. The thrust of the submissions by Counsel for the respondent was that the applicant has caused the proceedings to be prolonged and had put the respondent to additional expense.
The respondent claims were not quantified in accordance with the scale set out in the Federal Magistrates Court Rules 2001 and the claim for his ‘entire’ costs was made on instructions and in the face of the acknowledgement that he received a costs certificate in the Full Court of the Family Court.
The submissions made on behalf of the applicant opposing such an order were limited and pointed to the changing positions the respondent had taken and there was nothing in the conduct of the applicant’s case justifying such an order.
The normal rule in proceedings under the Act is that each party pay their own costs pursuant to s.117(1). However, the Court may make an order for costs if it is satisfied that in the particular circumstances of the case it should do so.
Section 117(2) of the Act provides that in an appropriate case the Court may make an order for costs against one or other parties notwithstanding the general rule in s.117(1). Section 117(2A) of the Act sets out the factors to which the Court shall have regard when considering an order for costs as follows:
“In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.”
The High Court in Penfold v Penfold (1980) 144 CLR 311 has said that the wording of that section does not create an onus on either of the parties. It is a matter for the Court in each case to consider, having regard to the matters in section 117(2A) of the Act, whether in a particular case to exercise discretion to order costs or not to order costs.
In summary, the effect of section 117(1) is that it abolishes the general rule in civil proceedings that costs usually follow the event. However, section 117(2) provides that the Court has a general discretion to make costs orders if there are, in its opinion, circumstances that justify it doing so.
I find in the circumstances of this case that there are not circumstances which justify a costs order. I find that is the case having considered the relevant matters, and these are:
a)the respondent has put evidence before the Court of his financial circumstances, as has the applicant. The reality is the respondent is not without financial resources and there was no evidence of how much costs he had recouped as a result of the appeal.
b)the respondent has not been assisted by any grant of Legal Aid and neither has the applicant.
c)the conduct of both parties in this case could be criticised. However, the court file makes clear the proceedings were adjourned on occasion due to the respondent’s circumstances.
d)there was no submission that the applicant failed to comply with any orders as to filing of material which caused the proceedings to be prolonged.
e)it could not be said that the respondent has been wholly successful and, equally, that he has not been wholly unsuccessful.
f)the Court has not been made aware of any offers in writing between the parties to settle the proceedings, whether filed in Court or otherwise.
I must also take into account other relevant matters. I take into account that the applicant commenced the proceedings seeking property orders, and that ultimately she died before the matter came on for hearing. Ultimately, the substantive part of the hearing relating to property occupied a relatively short time of hearing once the respondent was represented.
However for the reasons set out above there will be no order as to costs.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Associate: Rachelle Lombardo
Date: 26 June 2009
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