Kraus and Kraus and Meares - [2008] FMCAfam 1096

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KRAUS & KRAUS and MEARES

[2008] FMCAfam 1096

FAMILY LAW – Property dispute – spousal maintenance – consideration of size of pool, contribution and s.75(2) factors – interrelated with spousal maintenance – asserted interest of third party in property allegedly half-owned by wife.

Family Law Act 1975, s.75(2)

Ogilvie v Adams [1981] VR 1041
Gosper v Gosper (1987) FLC 91-818
Kessey v Kessey (1994) FLC 92-495

Applicant:

MS KRAUS

Respondent:

MR KRAUS

Second Respondent:

MS MEARES

File Number:

MLC 239 of 2008

Judgment of:

Burchardt FM

Hearing dates:

18 & 19 August & 5 September 2008

Date of Last Submission:

5 September 2008

Delivered at:

Melbourne

Delivered on:

31 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr D.A. Mort

Solicitors for the Applicant:

Nedovic & Co.

Counsel for the Respondent:

Mr M.I. Grant

Solicitors for the Respondent:

Pearsons Barristers & Solicitors

Counsel for the Second Respondent:

Mr D.E. Whitchurch

Solicitors for the Second Respondent:

Mills Oakley Lawyers Pty Ltd

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 239 of 2008

MS KRAUS

Applicant

And

MR KRAUS

First Respondent

MS MEARES

Second Respondent

REASONS FOR JUDGMENT

This is a property dispute. On one view, the sums in dispute are about $92,000.00. The parties inform me and I accept that they have spent between them, and perhaps even individually, well in excess of that sum.
The case was heard over three full days of hearing. Hubris between the parties and their families was as evident as the combative determination of counsel, obviously on their instructions, to leave no stone whatever uncovered. The resulting fallout makes the provision of a coherent judgment extremely difficult.
It is therefore little surprise that it is not possible, as judgment writing courses indicate is so desirable, to indicate on the first page of judgment both the core issues to be determined and the resolution thereof. It is necessary to commence with a history of the relevant events. I will endeavour to indicate my findings about the matters in dispute as I go.

The Facts

The husband was born in 1971. He is therefore 37 years old and generally in good health. He works at a [business omitted] operated by his parents at which he is paid through a family trust. He also has an interest, together with a family friend, in [[S] Pty Ltd] business situated very close to the parents' [business omitted].
The wife was born in 1970 and is 38 years old. She likewise is in good health but is not presently employed, which is not surprising given the age of her children.
The parties married in June 1998 and had not cohabited prior. They separated on 1 September 2006.
The elder child of the relationship, [K], was born in 2003 and the younger child, [L], was born in 2007.
There were spiteful interlocutory arguments over the arrangements for [L]’s baptism and the choosing of his name at an early stage in these proceedings.
In January 2008 the mother took out an intervention order against the husband.
In 1993, almost five years before the marriage, the wife purchased a unit in [T] from her parents at what she described as “the favourable price” of $75,000.00. She paid a $15,000.00 deposit and then rented the property out.
The amount of equity in the property as at the date of the marriage was in a temporal sense one of the first matters in dispute between the parties.
The wife's case was that she had reduced the mortgage with rent and other savings to about $20,000.00 at the time of the marriage. She asserted, albeit without any expert evidence to support the proposition, that the unit had increased in value to about $100,000.00 by 1998 and therefore at the time of the inception of the marriage, she contributed an $80,000.00 amount.
This history was complicated, however, by the fact that the wife was gaoled for offences involving dishonesty, including perjury, and was imprisoned for six months in 1999 to 2000. During the period of her imprisonment, she transferred the unit to the husband in an endeavour to protect the unit against third party claims.
It seems to be common cause that at or about the time of the marriage, the parties bought a dip run with [P]. The wife's case is that the cost of the truck, goodwill and the like was initially about $50,000.00, of which $30,000.00 was borrowed against the security of her parents' property in [D] and the bulk was borrowed by a redraw on the mortgage account in respect of the [T] property in the sum of approximately $20,000.00.
It is common cause that in July 2000, the husband's father advanced $37,992.24 which was the amount then outstanding in respect of the mortgage on the [T] unit.
The husband's case is that there was equity in the unit at the time of the commencement of the marriage. He put the figure at $10,000.00.
There was no methodology asserted to that figure.
The husband asserted that he paid the mortgage of approximate $450.00 per month and made minor repairs to the [T] property during the eight months that he says the parties lived in it. Those matters were in issue but in my view, the figures involved are in the scheme of this case trivial. In any event, neither side’s account was more believable as to these matters than the other’s, nor am I able to make any factual finding about it.
The husband's case was that the [T] unit was paid out after his father loaned him $40,000.00 to do so.
It is clear from the exhibit material filed that the $37,900.00 figure is the correct one.
Nonetheless, I accept that the amount advanced was $40,000.00. The husband's father who actually advanced the money has deposed that he enabled them to pay out the loan and the balance was used for their personal expenses. Notwithstanding that the paternal grandfather has not been called, it is more probable than otherwise that a round sum was advanced, and I accept the husband's evidence to this effect.
No documentary evidence has been suggested to have ever existed in relation to this alleged loan. No term as to its repayment has ever been asserted.
Whether it was advanced as a gift or a loan it is plainly, if it was a loan, a loan repayable at call. It was thus repayable within six years from the date of its advance (see Ogilvie v Adams [1981] VR 1041).
That period, the six-year limitation period in respect of that debt, has now expired and the loan is therefore not compellable to be repaid. It is, however, self-evidently an advance to the benefit of the parties.
Given that the husband has not put substantially in issue the wife's account of the purchase of the dip run business and given that therefore I find that the sum of $20,000.00 was redrawn to buy the dip run, it seems more probable than otherwise that the size of the mortgage on the [T] property was some $20,000.00 at the date of the marriage. It is reasonable to suppose that the $75,000.00 figure, asserted without significant challenge, was an undervalue and might have increased in the period prior to the marriage. Although I am not able to say precisely what the equity of the [T] property was at the date of marriage, it was clearly vastly in excess of the $10,000.00 sum asserted by the husband. It seems to me more probable than otherwise that it was of the order of $80,000.00 as the wife asserts.
That that is so tends to be confirmed by the fact that on any view, the [T] unit was sold for $135,000.00 in late 2001 (netting a figure of $128,000.00).
The only other relevant issues at the date of the commencement of the relationship was that the wife owned a car, subsequently sold for $5,000.00, and the husband had previously owned a Pontiac motor vehicle.
That Pontiac car was sold and the proceeds were used to purchase an engagement ring and wedding band for the Applicant. It was otherwise essentially dissipated by the husband.
The wife has asserted that her parents gave substantial gifts to them at the commencement of the relationship. She says that she was given a wedding present of $15,000.00 and a leather lounge suite of $5,000.00. No documentary evidence has been called to substantiate those gifts nor the bedroom suite alleged of $4,500.00.
Whether or not sums were advanced, as is highly possible, the wife did not call either of her parents to substantiate these alleged gifts and it is not possible for me to put a value on them.
I can and do accept that the wife's parents paid $7,000.00 for concrete to assist the parties because there is a receipt in that sum which, albeit somewhat rough and ready, does at least suggest that such a payment was made.
Both of the parties worked as best they were able throughout the relationship. Obviously, the wife was unable to work while she was in gaol. Nonetheless, both parties worked in the dip run business until that was ultimately sold at a loss in 2002 and from May 2001, the wife obtained part‑time work at [omitted] which appears to have continued until about 2004.
It should be noted that the husband worked long hours and hard and clearly made the bulk of the family income.
It is equally clear that the mother, from the birth of [K] onwards, made the predominant commitments as wife and mother.
Indeed the wife, as I find, did the majority of the housework and domestic contributions throughout the relationship. This was not significantly contested by the husband.
I have dealt with the contributions advanced by the wife's parents.
It has been asserted that the father's parents provided $7,500.00 for furniture also and it is conceded that the parties had a period of rent‑free accommodation in a property owned by the parents at one stage.
I am not in a position to make any findings once again as to the alleged advances for furniture because no receipts have been produced and neither of the parents have been called to give evidence.
Suffice it to say (and these were other gifts asserted that I have not dealt with specifically) that I am satisfied that both sets of parents contributed from time to time with monetary gifts to the parties, although it is not possible to say in most instances how much.
The dip run business was sold in 2002, as I have said, at a loss although the parties were able to discharge the charge on the wife's parents' home out of the proceeds of sale.
In about May 2003, the husband, together with a friend, Mr L, bought the [[S] Pty Ltd] business to which I have referred. He said that the parties paid a total of $40,000.00 each to enable them to do so and that each of them borrowed that sum from their parents.
The husband asserts that the business has a current value of approximately $120,000.00 of which his share would be $60,000.00 but that he still owes his parents $40,000.00.
The $120,000.00 figure is not the subject of any challenge but the characterisation and the amount of the advance made by the husband's father is.
I should interpolate and say that although the evidence at one time or another appeared to veer one way and the other, I have no doubt in the ultimate that the figure of $40,000.00 was advanced by the husband's father in 2003 when the business was bought. A loan agreement has been produced ostensibly dated 1 May 2003 recording a debt in that sum.
This loan purports to offer security over the business in exchange for the loan from the husband's father.
There are a number of very unsatisfactory aspects to the loan agreement. First, the security is expressed in terms that are unenforceable at law. That is not perhaps surprising as the agreement was made by a Mr S, who is the accountant for the Kraus family, as I understand it.
It emerged at trial that the agreement was in fact written in 2008.

Mr S was called to give an explanation for this postdating. The less said about his evidence the better. He was an unresponsive, unconvincing and unsatisfactory witness. I found his explanation, his purported accounting explanations for the delay in the creation of the loan document and its predating and it being dated in 2003 when it was executed in 2008, utterly unbelievable.
Another unsatisfactory aspect of the loan agreement is that it purports to have a term of five years commencing on the 1st day of May 2003 and appears to involve an interest rate of 10 per cent per annum. It is not clear whether the loan is cumulative or to be assessed in a simple way at the end of the period.
The husband has confirmed that his father has not sought repayment of the loan notwithstanding the fact that by the time of trial the period for its repayment was already three months overdue.
The father was not called to give evidence although he filed an affidavit attesting the advance and the loan.
Notwithstanding the problems with the written loan document, I have no doubt that the sum of $40,000.00, not $20,000.00 as asserted on a hearsay basis by the wife, was indeed advanced in 2003. I have no doubt that a sum was advanced out of paternal affection. All the evidence in this case suggests that both families assist one another in a very freewheeling and generous way. The husband’s evidence on this issue was given convincingly and I accept it.
Whether or not the husband will ultimately regard himself as bound to honour the terms of the loan agreement and repay his father the $40,000.00, I am satisfied that it is more probable than otherwise that the sum was advanced out of love and affection, in effect as a gift to the husband by the father. This was plainly not an advance that in any way was intended to benefit the wife, as she has no interest in the business that was bought. In any event, in the absence of evidence to the contrary, authorities suggest that an advance of this nature should be taken to have been intended to benefit only the child of the donor and not the parties to the marriage (see Gosper v Gosper (1987) FLC 91-818 and Kessey v Kessey (1994) FLC 92-495 at 81,150), or at the least should be taken to have been a contribution made directly on behalf of the child alone.
To return as best I may to the narrative, the next relevant event was that the parties, as I have said, sold the [T] unit netting $128,000.00.
They then bought vacant land at Property D (“Property D”) for $106,000.00 in late 2001.
On 16 May 2003, they purchased property at Property J, (“Property J”) for $120,000.00 as a vacant block of land. They subsequently applied the net proceeds of sale of the [T] unit that had not been spent on the Property D property of $19,000.00 towards the purchase of Property J.
In 2007 the land at Property D was sold for $147,000.00 leaving a net balance of almost $30,000.00. All the sums thereby realised were in one way or another applied to the Property J property.
In the ultimate, the Property J property has an agreed value of $350,000.00 and there is a mortgage in respect of the same of $270,000.00.
A further issue raised was the alleged gift by the wife's brother, [R], to the parties of $25,000.00. The wife attested this had indeed occurred. Although the wife's sister, Ms Meares, gave evidence which I in part ruled inadmissible because it should have been put on affidavit and was introduced as a matter of ambush, in the ultimate I am persuaded that there was an advance of this character. That is because the husband himself admitted (P-162) that the wife’s parents sold a block of land at [T] and the money was distributed to their children. Accordingly, [R] had capital available he could distribute. It seems more probable to me than otherwise that an advance of that sort did take place.
Ms Meares produced a receipt for some $16,000.00 which she said was part of a similar loan made to her knowledge at the same time to her, and in the ultimate I think it is more probable than not that the moneys were advanced. I repeat: both families of the parties to this dispute clearly advanced funds (and received in return funds on occasion) to the other family members.
The next matter to which it is necessary to turn is the interest of the parties in a property at [D] previously owned by the wife's parents. It was in this regard that Ms Meares became an intervener.
The position of the husband was that the [D] property was half owned by his wife as she was on title as to 50 per cent.
The position of the wife, strongly supported by her sister, Ms Meares, was that although she was indeed a registered owner as to half the property, this was not in fact the true state of affairs.
Although much time was spent on this aspect of the dispute, I can deal with it in the ultimate in relatively short terms. The evidence of the wife was unsatisfactory and clearly very defensive about this issue. She went to great pains to suggest that she had no interest in the property and indeed knew very little about it. This is plainly inconsistent with the close family relations that clearly obtained between her and her sister and I would regard her evidence in this respect as very unsatisfactory.
The husband's evidence was essentially that he likewise knew very little about the property and in his case I accept this was so. Whether he did, as he asserted, contribute about two and a half thousand dollars worth of labour and/or materials to the [D] property, or whether as I suspect is more likely he did not, is neither here nor there. It was a trivial amount in the scheme of things.
I found the evidence of Ms Meares entirely credible. It is consonant with commonsense and in my view is borne out by the materials filed by way of exhibits.
Her evidence was to the effect that her parents, as they approached their pensionable years, discussed with her and her sister selling the [D] property to them. The wife and Ms Meares's father had had a heart attack (P-193) and the maintenance of the property in [D] was becoming excessive for him. It was also in the back of the father's mind that his pension might be affected if the value of the [D] property went up excessively.
The father nominated a value of $90,000.00 in 2002 which it appears was very likely to have been a substantial undervalue because there were rate notices in excess of $140,000.00 at much the same time.
That was the father's privilege. The father delayed the payment of the purchase price to a time that he felt was suitable and when he ultimately asked for the money in early 2003, it was agreed that in fact $10,000.00 more should be paid because the property was likely to have gone up. I find that that increase in price was determined by

Ms Meares and her sister, Ms Kraus. Ms Kraus was still involved and was put on title at that time.
Nonetheless, it is quite apparent that for a variety of reasons (including the purchase of Property J in May 2003) Ms Kraus was not in a position to contribute her $50,000.00 share of the purchase price. It was as I find clearly agreed between the sisters that Ms Meares alone would purchase the property. While the bank records reflect an element of confusion because the account out of which the $100,000.00 was paid was used by Mr and Ms Meares for other purposes, I am quite satisfied that they paid the whole of the $100,000.00 and became the sole true owners of the property.
I accept that the transfer of title from Ms Kraus to Ms Meares was simply overlooked.
Having said that, it seems clear from the evidence that all concerned, by which I mean Mr and Ms Meares, her parents and indeed Ms Kraus, are probably likely to go on using the property as and when they wish. The tenor of the evidence is clearly that it is still regarded in effect as a family resource. Nonetheless, I am quite satisfied that notwithstanding that she is registered on title as to a half share of this property, in truth Ms Kraus has no beneficial interest in it. It should be excluded from the pool.

Likewise, I am entirely convinced that those areas explored by counsel for the wife alleged to constitute further assets for the father, such as the [A] and [M], are of no value to him. I accept that the husband provides free labour on occasion in his relative’s [A] and I also accept that the business of [M], in which he had a part interest, has well and truly lost any value.
The husband has lived with his parents rent-free for some time but has expressed an intention to move out relatively shortly. He receives the benefit of some thousands of dollars a year in food from the [business omitted] and will continue to do so. He likewise is able to purchase meat and poultry at a wholesale price which saves him some indefinable amount.
The husband bought a Harley Davidson motor cycle through his parent’s company in July 2007 for about $32,000.00. He pays the hire purchase but it is owned by the company.
I will return to the parties' current financial situations later in this judgment.
The children by virtue of consent orders will continue to spend the majority of their time with the wife for some considerable time.
Against this factual background, which I have done my best to determine on what are inadequate materials or confusing evidence, and in the absence of witnesses who perhaps one might have expected to have been called, such as the parties' parents, I turn to the conventional four‑step analysis.

The Size of the Pool

The former matrimonial home has an agreed equity of $80,000.00. Contrary to the position advanced by the husband, there is not $40,000.00 owing to his parents in respect of it.
The husband has an interest worth $60,000.00 in [S] Pty Ltd but does not owe $40,000.00 to his parents in the sense of an enforceable debt in respect of it.
The husband's Visa card debt is worth some $5,500.00.
The Harley Davidson is owned by the parents’ business. If sold, the proceeds would devolve to the business. It is not part of the pool.
The wife continues to possess her 1997 motor vehicle. Its agreed value is $5,000.00.
The wife does not have any interest as I find in the [D] property.
I accept the admission against interest contained in her own financial statement that the chattels held by the mother in the former matrimonial home are of the value of $10,000.00.
There are also at the former matrimonial home DVDs, CDs and surround sound speakers that are alleged to belong to the husband, the value of which is not known.
The wife has a Visa card debt of $11,000.00.
The husband has presently $22,000.00 in his Star Alliance superannuation and the wife's superannuation in BT and HESTA superannuation funds is in the order of $10,000.00.
There is some $23,000.00 in a trust account for [K] and a further $8,000.00 for [L], constituted by Government payments allotted to them from time to time.
I would interpolate and say that the mother's evidence about her treatment of these funds pending this proceeding was thoroughly unsatisfactory. Despite her denials, it is clear that she abstracted the funds and put them in an account owned by her parents to try to quarantine them from her husband, although they have now been put back into accounts solely in the names of the children.
Although there is a dispute as to who should control these funds, it is clear that they are funds held on trust for the children. They are not properly part of the pool as they are entitled only to be applied to the children's interests.
There is also the sum of $10,000.00 in savings that the husband has managed to acquire since separation. While these are relevant when I come to consider s.75(2) factors and the wife's claim for spousal maintenance, they do not in my view properly form part of the pool. Thus, the pool is constituted by:
Assets
Matrimonial home:  $80,000.00
The husband’s half share in a business:               $60,000.00
The wife’s car:  $5,000.00
The wife’s chattels:  $10,000.00
The husband’s superannuation:  $22,000.00
The wife’s superannuation:  $10,000.00
Liabilities
The husband's Visa debt:  $5,500.00
The wife’s Visa card debt:  $11,000.00.
Thus the nett total is $170,500.00, inclusive of superannuation.

Contribution

I have already traversed in many ways the materials that are relevant to this aspect of the controversy. Amongst the matters that are clearly relevant are the following:
(a)the wife's initial contribution, probably something of the order of $80,000.00 by way of the [T] unit;
(b)the fact that the wife worked for substantial portions of the marriage;
(c)the fact that the husband worked through the entirety of their marriage and worked long hours;
(d) the contributions made from time to time by the parties' parents;
(e)the very important advances made to assist the payment out of the [T] property and the purchase of the husband's interest in the poultry business;
(f) the role of the wife as the primary housekeeper and carer; and
(g)notwithstanding the preceding, the by no means insignificant contributions made by the husband as a father and partner.
I bear in mind the authorities to which I have been referred as to the extent to which the passage of time may erode, or perhaps more accurately put in perspective, initial contributions or indeed the sort of contributions that were made from time to time by the parties' families.
In all the circumstances, it seems to me that the contributions in this reasonably lengthy relationship ought to be assessed as equal.

The Section 75(2) Factors

The parties are of roughly commensurate age and are both to all effects and purposes in good health. Although the husband has deposed to some stress arising out of these proceedings, that stress will doubtless dissipate following their conclusion.
The mother is undoubtedly going to be the primary carer of these two young children for many years to come.
In addition to the parental responsibilities that this situation will necessarily impose, there will also be a very considerable restriction on her capacity to make any meaningful amounts of income.
Both parties will continue to receive considerable assistance from their families. Not only will the husband receive rent-free accommodation should he require it, but he will receive several thousand dollars worth a year of free groceries, together with the additional benefits of being able to buy his poultry and meat at reduced prices.
The husband's income stream, bolstered as I find it will be by family trust distributions in addition to his earnings from the family business and further his distribution of the profits of the poultry business, will be substantially greater than that of the mother.
The mother will receive assistance in sums yet to be ascertained from her sister Ms Meares and her husband and as I suspect from other members of her family also.
It is not possible to quantify these benefits but I should make it clear that they may well be substantial.
I should interpolate again and say that the criticisms made in cross‑examination and in submissions by counsel for the husband of the wife and the Meares' position in this regard are in my view misconceived. It is perfectly understandable that those parties have not turned their minds to the exact quantum of assistance to be provided in advance of any idea precisely how much might be necessary to assist the mother to retain ownership of the matrimonial home.
In all the circumstances, in my view it is appropriate that there be a 15 per cent adjustment in favour of the wife in respect of the s.75(2) factors.

Spousal Maintenance

Although spousal maintenance is a matter standing apart from the determination of property issues per se, I do not believe it is appropriate to advance to the fourth stage of looking at the overall result in the property dispute without dealing with the interrelated issue of child support.
Here, the mother's position is that she seeks $140.00 per week for the next three years.
In my view, the time sought is consistent with the well-established notions of what spousal maintenance is often supposed to be, namely an interim payment for a defined time to enable the mother, as it were, to get back on her feet.
[L] is only one year old and a period of some three years is in my view in these circumstances eminently reasonable.
The real issue is whether the husband can afford to pay $140.00 per week.
The husband has an income stream from the family business.
To this, there must be added distributions from the family trust which are made additionally. Although no doubt these are discretionary (no material has been put to me as to the precise nature of the trust or the enforceability of payments to beneficiaries) given the considerable assistance that the father's parents have given him over the years, there is no reason to suppose that distributions, at least as large as those that have been made in the past, will not continue. It is far more probable than otherwise that they will.
Thus, on past figures, and noting that distributions may have been reduced in recent times in anticipation of these proceedings or proceedings of this sort, I would say that the husband is likely to receive something of the order of $10,000.00 a year as a minimum from the trust by way of distribution in addition to his salary paid through that trust.
The figures for the poultry business show once again that a figure of some 10 to 15 thousand dollars is likely to accrue to the husband from this source also.
It is noteworthy that since separation, the husband has been able to save some $10,000.00. That is significant given that separation took place about two years ago and that he pays child support in excess of $900.00 per month.
Additionally, the husband has the benefit of the use of his Harley Davidson motorcycle which I have, for the reasons given, excised from the pool. This is a very considerable self‑indulgence. Ultimately, if he is otherwise hard pressed, he can cause the business to sell the Harley Davidson, obtain some cheaper mode of transport and discharge his obligations in that way.
When one turns to the mother's needs, there is no question but that her present circumstances are difficult. Even with the positive assistance of her family, she will obviously be hard pressed to keep the former matrimonial home. Her current expenditure as revealed by her financial statement is restricted and in no way over-generous.
In my view, the circumstances of this case are such that it is entirely appropriate that there be spousal maintenance to the wife in the sum of $140.00 per week for the next three years.

Just and Equitable

Taking the necessary further overall look at the outcome of these orders, the wife will receive approximately $110,825.00 of which $10,000.00 will be represented by superannuation. The husband will receive $59,675.00 of which about $20,000.00 will be represented by superannuation.
In my view, those sums are in all the circumstances an appropriate distribution of the proceeds of the marriage.
This outcome is just and equitable in all the circumstances of the case.

Changeover

The parties left the issue of changeover to the Court. The father's proposal is that the driving be shared and the mother's is that the father should both collect and return the children. This was expressed to be predominantly on the basis of the mother's more precarious financial position.
Neither party otherwise pointed to any factor said to be influential in the determination of this issue. Given that I accept that the mother's financial position is far more difficult than that of the father, it necessarily therefore follows that I should accede to the mother's position and order that the father perform all the driving that the orders made by consent may require.

[K] and [L]’s Funds

These should be controlled and distributed by the mother, who has day to day care of them. The relationship between the parties is so poor that joint administration will not work. The mother must provide to the father details of any such funds distributed.

Ancillary Orders

Like counsel for the husband, I retain doubts that the wife will be able to afford to purchase the husband's interest in the property. She should be given the opportunity to do so, within a reasonable time (which I am minded to fix at 60 days). The orders should provide for sale in the event that that cannot be achieved. The parties are requested to draft minutes to give effect to these reason for judgment.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 31 October 2008