L and L - [2008] FCWA 3

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: L and L [2008] FCWA 3

CORAM: THACKRAY CJ

HEARD: 12-13 JUNE 2007, WRITTEN SUBMISSIONS 29 NOVEMBER 2007 AND 9 DECEMBER 2007

DELIVERED : 11 JANUARY 2008

FILE NO/S: PT 6614 of 2004

BETWEEN: L
Applicant/Husband
AND
L
Respondent/Wife

Catchwords:

PROPERTY SETTLEMENT – earlier division of proceeds – property traceable to proceeds excluded from asset pool – contributions – s 75(2) factors – which party to receive certain asset
CHILD SUPPORT – lump sum child support – inadequate evidence in support – lump sum not appropriate

Legislation:

Family Law Act 1975, s 75(2)
Family Law Act 1975, s 79(4)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr M Rynne
Respondent: Self Represented

Solicitors:

Applicant: Leach Legal
Respondent: Self Represented

Case(s) referred to in judgment(s):

Nil

1I am required to determine applications for property settlement arising out of the breakdown of the marriage of [Mr L] and [Mrs L]. I have also been asked to determine some child support issues.

The parties and their relationship

2[Mr L] is a 37-year-old [tradesman]. [Mrs L] is 35 years of age and is a full-time homemaker. [Mrs L] and [Mr L] met in late 1996. [Mrs L] quickly fell pregnant and the parties married in January 1997.
3There are three children of the marriage, born in 1997, 2000 and 2002. The parties were previously involved in litigation concerning the children, but matters were settled in April 2007 on the basis they would continue to live with [Mrs L] and have holiday contact with [Mr L]. There was also provision for occasional visits with [Mr L]’s mother.
4[Mr L] is currently living with his de facto wife in [the North of the state]. [Mrs L] is living with the three children in [an outer metro area]. She has not re-partnered.
5There is a dispute as to when the parties separated. I do not consider much turns on this; however, [Mrs L]’s version of events seemed far more plausible. I find that separation occurred in September 2004, even though at the time [Mr L] probably thought there was a good chance they would reconcile because of the history of earlier separations. I make this finding taking into account especially:
•the way in which the proceeds of their [matrimonial home] were divided in September 2004;
•the fact [Mr L] had no idea where [Mrs L] and the children were going to live after the [matrimonial home] home was sold;
•the fact [Mrs L] arranged with [Mr L]’s family for [Mr L]’s possessions to be sent to be stored with one of his relatives; and
•the fact [Mrs L] bought a home in her own name in September 2004 without telling [Mr L].

6I accept that [Mr L] stayed with [Mrs L] overnight on occasions in the months after the separation in September 2004, but I was not persuaded this happened as often as [Mr L] claimed. In any event, I accepted [Mrs L]’s evidence that their involvement during this time was “purely of a sexual nature” – even if they did discuss reconciliation and even if [Mr L] did occasional odd-jobs around [Mrs L]’s home. I saw this period as being the playing out of the last gasps of what [Mr L]’s counsel described as the “lustful attraction of the parties, drawing them back together constantly”.

Orders sought

7The orders sought by [Mr L] were set out in a Minute attached to his Papers for the Judge. He proposes paying [Mrs L] $120,000 (part of which would be required to discharge a credit card debt), in return for which [Mrs L] would transfer to him her interest in a jointly owned block [in the hills]. Apart from a request for delivery up to him of a number of items of personal property, [Mr L] proposes that each party retain the assets and liabilities they presently have, which in [Mrs L]’s case includes the home she owns in [the outer metro area].
8The orders sought by [Mrs L] were contained in three different documents.
9In her Form 1A filed in October 2005 she set out proposed orders for property settlement, which included her retaining the [the hills property] property. She also sought a 70:30 distribution in her favour of the proceeds of sale of the former matrimonial home in [matrimonial home] (notwithstanding that these had already been distributed and the funds expended).
10In another Form 1A filed in December 2006, [Mrs L] sought an order as follows:
“Child support/maintenance for the three children be re-assessed accordingly based on evidence that the father (paying parent) has greatly altered his employment structure to not truly reflect an accurate income.”

11In the same application, she sought an order that “[t]he child support amount be approx. $2,000 per month. Therefore my Centrelink entitlements will reduce accordingly”.
12At the commencement of the hearing, [Mrs L] was also given leave to seek an order in the terms of a Form 1 filed by her shortly prior to the trial in which she proposed that [Mr L] pay her $75,000 by way of lump sum child support, or, alternatively, “the mother receive a greater share of the property of the parties taking into account the above lump sum amount”.

Background facts

13There were some discrepancies in the version of events given by each party. I found [Mrs L] to be a more accurate historian than [Mr L] and I have generally preferred her version. There were, however, a few areas of the evidence where it was difficult to obtain a clear picture – especially as the presentation of aspects of both cases left much to be desired. The various findings I make throughout these reasons are therefore nothing more than what I consider to be the most likely version of what occurred.
14The parties purchased land and built a home, [the matrimonial home] in early 1997, at around the time of their marriage. This cost $145,000 in total, of which $115,000 was borrowed. I will discuss the financial contributions made by each party to this property later in these reasons.
15In October 2003, the parties bought a block of land in [the hills property] at a cost of $96,000. The $20,000 deposit came from funds given to [Mrs L] by her family. The balance required to complete the purchase was borrowed.
16In March 2004, [Mrs L] received around $20,000 from her father, which was used to acquire a [storage unit]. This was sold after separation and [Mrs L] kept the proceeds, which apparently exceeded $22,000.
17In August 2004, [Mr L] took up work in the North-West of Western Australia. At around the same time, the parties decided to sell the [matrimonial home] property and it was agreed the proceeds of sale would be divided in equal shares between them. I accept [Mrs L]’s evidence that the parties had decided to go their separate ways. ([Mrs L] says she anticipated she ultimately would receive more than one-half of the entire asset pool and was of the view this would be achieved later by her being required to pay [Mr L] less than one-half of the value of the [the hills property] block in order to acquire full ownership of it.)
18The settlement of the sale of [the matrimonial home] occurred in late October 2004. Each party received about $57,000 from the proceeds. Although [Mr L] acknowledges that he insisted on the parties receiving separate cheques at settlement, he says his intention was to preserve sufficient funds to build a new home for the family on the [the hills property] block. His view was that [Mrs L] was likely to waste any money she received and that it was therefore important for him to control at least portion of the proceeds.
19In fact, as things panned out, [Mrs L] put her share of the money to very good effect. Unbeknown to [Mr L] at the time, she immediately used her share of the proceeds to acquire a house in [the suburbs] at a cost of $230,000. She borrowed the balance of the purchase price with assistance from her mother.
20At around this time, [Mr L] purchased an expensive [motor vehicle] for use in his employment in the North-West and returned to work there (although he came back to Perth from time to time). Most of the money spent on the vehicle was borrowed.
21The parties had negotiations in the latter part of 2004, which resulted in an agreement being reached. Regrettably, [Mr L] reneged on the agreement following an incident at [Mrs L]’s home on 26 December 2004. By this stage, [Mr L] suspected that [Mrs L] was involved in a relationship with another person. He admitted in paragraph 24 of his affidavit, sworn 9 November 2006, that he had, in effect, been spying on [Mrs L] and had seen a male, who he later ascertained was her solicitor, coming to her home with a bottle of wine. When he attended at her residence on 26 December 2004 he knew that someone else was inside because there was a strange car outside. He claims he informed [Mrs L] that he was only at the home in order to collect clothing for the children, but admitted in paragraph 45 of his affidavit that he said to [Mrs L], “is this one black or white?”. He acknowledged that [Mrs L] told him to go away, whereupon he admitted that he “kicked the door in”. He then proceeded to look into a bedroom where he discovered [Mrs L]’s solicitor naked. In his affidavit, he went on to allege that the solicitor “came at me” and grabbed hold of his shirt which ripped, whereupon [Mr L] punched the solicitor and a fight then broke out.
22Whilst [Mrs L] did not give detailed evidence of what occurred on 26 December 2004, and did not cross-examine [Mr L] on what he had to say on this subject in his lengthy affidavit, I found [Mr L] in many respects to be an unreliable witness. I had some difficulty in accepting that his version of what occurred on this occasion was the truth. In any event, even on his own version, [Mr L] was the instigator of the trouble that occurred, since it was he who kicked in the door to [Mrs L]’s own residence, after having been asked to leave, and then barged into a bedroom without permission. Given [Mr L]’s infatuation with [Mrs L] and given his prior record of misbehaviour, it seems to me far more probable that it would have been him who instigated the violence. I make these observations notwithstanding the fact that [Mr L] was ultimately acquitted when he was charged with assault and burglary.
23[Mr L] breached his bail conditions and went to gaol for three weeks in September 2005. His release was conditional upon him returning to the North-West. In September 2005, he took up full-time residence in [the North], where he has lived and worked ever since.
24The criminal charges against [Mr L] proceeded to trial in June 2006. [Mr L] was acquitted on all counts. In the process, however, he incurred significant legal costs. He now has nothing to show for his share of the proceeds of sale of the former matrimonial home. In the meantime, [Mrs L] has sold her home in [the suburbs] . It had increased in value by $160,000 in the space of only about 18 months. She used the proceeds to acquire her current residence in [the outer metro area] for $323,000.

Property settlement approach

25I am required to follow a four-step process in dealing with applications for property settlement. Those are:
•Identify and value the assets and liabilities of the parties;
•Assess the parties’ contributions to the assets;
•Assess a range of factors set out in s 75(2) and s 79(4) of the Family Law Act 1975; and
•Consider whether the order proposed is just and equitable.

The asset pool

26By the conclusion of the hearing there was little dispute in relation to the assets and liabilities, save for the value of [the hills property]. [Mr L] initially claimed that the value of that property had been agreed at $285,000, but on examination of the relevant correspondence from [Mrs L]’s former solicitors, it is apparent there was no agreement at all, since the correspondence indicated that [Mrs L]’s position was that the value would be set by the market. (In making this observation I have not overlooked the fact that at the time [Mrs L] was agitating to retain the property.)
27The way in which the parties had gone about obtaining valuation evidence was unsatisfactory and by the time of trial I had two competing valuations of [the hills property]. In one instance, the valuer was not available to be cross-examined, and in the other instance the valuation had only just been made available. In the end result, it was my determination (with the concurrence of the parties) that short of ordering a sale, the only way to satisfactorily resolve the valuation dispute was for the parties to jointly engage a single expert (presuming that a conference of experts is unable to resolve the dispute). I therefore intend to proceed on the basis that [the hills property] is worth somewhere between $285,000 and $330,000 – i.e. within the parameters of the opinions offered by the respective valuers.
28I find the value of the assets and liabilities at the time of trial to be as follows:

*DESCRIPTION*	*HUSBAND* $	*WIFE* $
[Hills property]	To be determined by expert	To be determined by expert
[Outer metro property]	357,500
[Motor vehicle]	58,000
Furniture and chattels (including jewellery)	5,000	5,000
BankWest account	323
[A shares]	5,041
[B shares]	108
Trailer	1,200
Paid legal fees added back	34,426	25,956
Total (excluding [the hills property])	104,098	388,456
Liabilities
Credit cards	7,283	11,000
Loan on [outer metro property]	110,000
Loans from parties’ mothers	75,000	70,000
Further loan from wife’s mother	17,400
Shire rates – [the hills property]	1,650	1,650
[College fees]	1,498
[Motor vehicle] finance	48,912

Chubb Security	476	476
Total	133,321	212,024

29In addition, [Mr L] has $15,234 in superannuation, whereas [Mrs L] has only $43. A significant proportion of these superannuation entitlements were accumulated during the time the parties were together.
30The net value of the parties’ assets (including superannuation assets) is therefore $162,486, plus the value of the [the hills property] property. After including [the hills property], the pool available for division is in the range of $447,486 to $492,486.
31As I have indicated, there was mostly agreement concerning the extent of assets and liabilities. In those instances where there was no agreement, I have taken the figures from the Statements of Financial Circumstances, which were not challenged. I need only make a few additional comments concerning the findings I have made.

Legal fees added back

32Counsel for [Mr L] included an add-back of paid legal fees in his schedule of assets. [Mr L] had paid his lawyers $34,426 and I find [Mrs L] had paid $25,956, even though she was frequently self-represented during the proceedings. It is appropriate these paid legal fees be included in the pool, given that I have also taken into account all of the parties’ debts (which include the liabilities each party has incurred to meet legal costs).

[Business name][Mr L] Family Trust

33I have not taken into account the $7,000 which [Mr L] acknowledged he had in the bank account of his family trust at the date of trial. [Mr L] was not cross-examined on his claim that this money was required to meet tax and GST, neither of which have been included in the schedule of liabilities.
34Although [Mrs L] was suspicious about the corporate structure that [Mr L] has created, I find that, save for the money in the trust bank account, the corporate structure has no assets of any significance and can effectively be disregarded for the purposes of these proceedings. I accept, however, that there was substance in [Mrs L]’s complaint about [Mr L]’s failure to disclose the existence of this structure at an earlier stage of the proceedings.

Boat and car

35[Mr L] has a boat in his possession that is registered in his mother’s name. Although his evidence on this topic was given in a most evasive fashion, I was not persuaded that he had contributed any funds to the acquisition of the boat. Accordingly, I have not included the boat in the asset pool and, for the same reason, have not included the car driven by [Mrs L], which I accept is owned by her mother.

Debt to [Mrs L]’s mother

36[Mrs L] indicated in her Statement of Financial Circumstances that she owed her mother $17,400, in addition to another more substantial debt. At the hearing, she suggested that the second debt had increased to $19,200, but no admissible evidence was given to support this claim. I have therefore included the liability at the lower figure.

Outline of parties’ cases

37[Mrs L]’s position was that she and [Mr L] had effected a division of property in 2004 and that the home she has acquired with her share should be treated as her sole property and not taken into account. She makes this submission in the context of the fact that [Mr L] received precisely the same amount she received from the sale of the former matrimonial home and now has nothing to show for it – as a result not only of his expenditure of those moneys defending the assault charge but also as a result of the loss of income sustained whilst defending the charge, spending time in prison etc. The legal costs relating to the criminal proceedings exceeded $36,000.
38[Mrs L] went on to argue that she made the greater contribution because she had more assets than [Mr L] at the commencement of cohabitation and she brought in lump sums of money from her family during the course of the relationship. She also says that [Mr L] wasted more funds than she did during the time they were together. She submits that contributions overall should be assessed 60:40 in her favour, by reference to an asset pool that excludes her [outer metro] home.
39[Mrs L] then argued there should be a further adjustment to the proposed 60:40 division to bring her settlement up to around 75-80% of the (reduced) pool on account of the matters set out in s 75(2) of the Act, in particular taking into account the fact that she has major responsibility for the children; has a lower income earning capacity; and because [Mr L] has the benefit of living with a woman who has a moderately good income.
40[Mr L] has a very different view of what would constitute an equitable outcome. He denies that the division of assets in 2004 was a distribution for purposes of resolution of marital problems. He says the property now owned by [Mrs L] was purchased with funds to which he had contributed during the relationship and must therefore be included in the pool to be divided. He argues that his actions in assaulting [Mrs L]’s solicitor need to be taken into account in the context of their volatile relationship. His counsel conceded that it would be appropriate, in considering contributions, to take into account the contribution [Mrs L] has made to her [outer metro] property, but in the final analysis he was only prepared to concede that contributions should be assessed at 55:45 in favour of [Mrs L]. He then proposed that there only be a 5% adjustment on account of s 75(2) factors.
41The remaining major dispute concerned what was to happen to the property in [the hills property]. [Mr L] originally proposed that [Mrs L] retain the property, but at some time during the course of negotiations he started to agitate for the property to be transferred to him. [Mrs L] has said that she always wanted to retain the property, even though the letter from her solicitors sent shortly prior to trial relating to valuation issues indicated that the value would be set upon sale. [Mr L] now says that he wants to build a home on the property so that he will have somewhere to live and take the children when he comes to Perth on contact visits. [Mrs L] says the home she has at present is only temporary accommodation and that she has always wanted to live in a rural location. She says it is only fair that she receive the [the hills property] property because:

•[Mr L] had led her to believe that she would get it;
•she has met expenses associated with the property since separation (some of the rates and firebreaks); and
•she made the greater contribution to the property, which probably would never have been acquired had it not been for the funds she received from her family.

Contributions

42I have indicated previously that [Mr L] proposes that contributions be assessed at 55:45 in his favour, whereas [Mrs L] proposes they be assessed 60:40 in her favour. Of course, the parameters of the dispute are much greater than would first appear, since [Mr L]’s proposition is based on an assumption that [Mrs L]’s home will be included in the pool of assets, whereas [Mrs L]’s submissions relate to a pool from which her home is excluded.

Initial Contributions

43[Mr L] claimed that at the commencement of cohabitation he had a [motor vehicle] worth $15,000, with an associated debt of $10,000, tools of trade and about $6,000 worth of superannuation entitlements. [Mr L]’s memory in relation to financial matters was repeatedly shown to be unreliable under cross-examination. Although he was not specifically cross-examined in relation to his assets at the commencement of cohabitation (it being noted that [Mrs L] was self-represented) I was not entirely convinced he had any significant equity in his motor vehicle and I note there was no documentary evidence to establish his claim that he had $6,000 in superannuation. Even if all of his claims are accurate, he had very modest assets at the commencement of cohabitation. He also had to find funds at around this time to pay out a liability of over $3,000, which he said had been incurred by his former wife. He denied [Mrs L]’s assertion that his own funds were used to pay out this liability and, instead, claimed that his family had paid it out for him.
44At the time the parties met, [Mrs L] was in the process of selling the home she owned in [the suburbs]. It is common ground she received approximately $10,000 from the sale of this property. She also owned what she described as a “late model [motor vehicle]” but in the chronology which she adopted as part of her evidence, [Mrs L] indicated that the vehicle had been purchased in June 1991 at a cost of $21,000. She did not give any estimate of the value of the vehicle at the time of commencement of cohabitation, but [Mr L] said the vehicle was worth about $18,000. As it had been purchased for $21,000 five years previously, this would seem to be unlikely. Furthermore, [Mrs L]’s chronology indicated that the vehicle was sold for $6,500 in May 1999.
45[Mrs L] had also received a settlement for a back injury sustained at work prior to commencement of cohabitation with [Mr L]. She believes that she received about $26,000 in January 1996. She also recalls that she invested this money.
46There was a degree of confusion about the funds [Mrs L] had available to her at the commencement of cohabitation. The only documentary evidence to assist me was Exhibit 6, which was one page of a BankWest statement. The statement period covered 13 June 1996 to 12 September 1996, but the page actually provided in evidence covered only the period from 6 September to 12 September 1996. The document nevertheless showed that from 13 June to 12 September 1996, [Mrs L] had deposited a total amount of $33,578 into her BankWest account. As at 6 September 1996, she had only $23,696 in her BankWest account. As has already been noted, [Mrs L] received approximately $10,000 on sale of her home in [the suburbs] and her evidence indicated that this property had settled on 20 August 1996. In the absence of a copy of other pages of the statement from the BankWest account and in the absence of any documentary evidence concerning the cash management account, it is difficult to conclude just how much [Mrs L] had available to her at the commencement of cohabitation. There is, however, sufficient evidence for me to conclude that [Mrs L] had in excess of $30,000 available to her at the time she commenced cohabitation with [Mr L], which was the finding she asked me to make in her closing address.
47I also accept [Mrs L]’s evidence concerning the cash gifts received by the parties as wedding presents. She gave her evidence on this subject in a very convincing fashion and there was some documentary evidence (Exhibit 7) to corroborate her recollection. I therefore find that at the wedding the parties received cash gifts from [Mrs L]’s family exceeding $6,500, whereas the cash gifts from [Mr L]’s family were only slightly in excess of $1,000.
48Overall, I find that [Mrs L] made the greater initial contribution in that she had in excess of $30,000 in the bank, had no debt associated with her motor vehicle and the parties received at the wedding more cash from [Mrs L]’s family than from [Mr L]’s family. I consider that weight should be given to this fairly significant disparity in initial contributions, particularly as I accept [Mrs L]’s evidence that it was her funds that provided the $30,000 deposit on the [matrimonial home] house and land package.
49Although [Mr L] claimed that [Mrs L] paid only $10 – 15,000 towards the purchase price of [matrimonial home] and that the balance came from a first homebuyers’ grant of $7,000 and wedding gifts of $13,000, this seems unlikely. [Mrs L] had already owned a home prior to the [matrimonial home] property being purchased and cross-examination of [Mr L] indicated he had no basis for asserting that the parties had received the first homebuyers’ grant. Furthermore, I have already found that the parties did not receive as much as $13,000 in cash gifts at the wedding and that, in any event, almost all of the cash came from [Mrs L]’s family.

Contributions during cohabitation

50This was a fairly traditional marriage in which [Mrs L] generally cared for the home and the family, whilst [Mr L] was engaged in full-time employment. For much of the time, [Mr L] was working very long hours and earning a very good income. However, the fact that [Mr L] was away from home so much meant that [Mrs L] had to carry more than the “normal” burden in relation to the care of the home and the children. I was satisfied that their respective contributions in this regard should be treated as being of equivalent value.
51[Mr L] did ask me to find that [Mrs L] had wasted family funds by frivolous expenditure on herself. I accept that she did spend money on what in many homes would be considered luxuries, but I also find that [Mr L] had a few luxuries of his own. More significantly, he also wasted some fairly large sums of money as a result of his poor driving record, involvement with the police and carelessness. The state of the evidence did not allow me to determine how much had been spent on all of the various items of expenditure about which each party complained. I was not persuaded that overall either of them had “wasted” more money than the other during the course of the marriage. (I might also observe that the nature of the parties’ relationship was such that I think it highly likely that [Mr L] took some pride in the fact that his partner was well-groomed.)
52[Mr L] particularly complained about [Mrs L] having allegedly inappropriately spent money that had been set aside to pay tax/GST commitments near the end of the marriage. I was not persuaded there was any substance in his complaint. It emerged clearly during the course of the hearing that [Mr L] had very significantly reduced his hours of work in the period leading up to his “discovery” that there was insufficient money to pay the tax bill. The income available to the family had therefore reduced substantially and in those circumstances it would not be surprising that [Mrs L] was not able to keep up the payments that had previously been made in relation to tax/GST.

Contributions after separation

53Following the separation, [Mr L] did make payments to [Mrs L] for a period of time to assist her to meet her necessary commitments; however, for a considerable period of the separation it appears that [Mr L] paid nothing other than the statutory minimum by way of child support. In the same period, [Mrs L] has been almost entirely responsible for the care of the children since [Mr L] has been living in the North-West and having fairly infrequent contact with the children.
54[Mr L] claims that in the period after the assault on [Mrs L]’s solicitor, he had great difficulty in working because of the necessity to deal with the legal proceedings and because of his emotional vulnerability. He says he became depressed and was prescribed medication. As a consequence, he says his income was not sufficient to warrant payment of child support at a rate greater than the statutory minimum. Nevertheless, it emerged during the course of the hearing that [Mr L] had earned some income from casual work. When [Mrs L] put to [Mr L] that his income had been such that he should have been paying much more than the pittance representing the statutory minimum, [Mr L] replied, “One would think so, but they require me to pay, and I pay”.
55Whilst [Mrs L]’s contributions following the separation (in the form of caring for the children) greatly exceeds any contributions made by [Mr L], it needs to be kept in mind that [Mrs L] has incurred significant debt in the period after the separation and this has been taken into account in determining the size of the asset pool. If [Mr L] had paid child support at a higher rate, the pool would be larger as [Mrs L] would not have had to incur as much debt as she has in fact incurred. In assessing contributions therefore, it is important to avoid “double dipping”.

Assessment of contributions

56I have found that:
•[Mrs L] made a significantly greater initial contribution;
•contributions during the course of the relationship were equal; and
•[Mrs L] made a somewhat greater contribution after the breakdown of the relationship.

57In addition to the contributions discussed above, however, [Mrs L] also contributed the $20,000 deposit on the [the hills property] property and her family was also the source of the $20,000 used to acquire the storage unit. The proceeds of sale of the storage unit were received by [Mrs L] after separation and would be reflected in her current financial position.
58Taking all of these matters into account I am satisfied that contributions should be assessed at 60:40 in [Mrs L]’s favour, as she proposed in her closing address.
59In coming to this assessment, I have proceeded on the basis that I accept [Mrs L]’s submission that the [outer metro] property should be excluded from the asset pool. I do so on the basis that [Mr L] received the same amount she received at the time of separation but effectively “wasted” almost all of it on legal expenses and supplementing the shortfall in income he sustained as a consequence of matters associated with his assault on [Mrs L]’s solicitor. The fact [Mr L] was acquitted of the criminal charges does not absolve him from responsibility for his own actions. [Mr L] and [Mrs L] were separated at the time of the incident and had all but concluded agreement in relation to the division of their property. It was [Mr L]’s decision to ignore [Mrs L]’s reasonable request for him to leave her property and it was his decision to kick in the front door. Had he walked away, instead of coming inside and becoming involved in an altercation with [Mrs L]’s solicitor, there would not have been the subsequent enormous cost to the family both in the expenditure of funds on lawyers and in the diminution of income. I was not persuaded that [Mrs L] should, in effect, be forced to underwrite the costs associated with the poor behaviour of her estranged husband.
60Had [Mr L] used his share of the proceeds of sale of the [matrimonial home] home to buy real estate, he too could have shared in the subsequent explosion in the value of property. In my view, it was [Mrs L]’s good fortune to have bought a property at the right time. Justice and equity do not require her to share the benefits with [Mr L] (to any greater extent than will be warranted when I come to consider the s 75(2) factors).
61In coming to my decision, I have not overlooked the fact that [Mr L]’s direct and indirect “losses” associated with the assault on [Mrs L]’s lawyer almost certainly exceed the funds he received from the sale of the [matrimonial home] home. In this regard, account must also be paid to the $75,000 he now claims to owe his mother, which cannot be attributed only to the legal costs he has incurred in this Court. The debt presumably includes funds he has needed to supplement the shortfall in his income sustained since the assault.
62I have also not overlooked [Mr L]’s evidence concerning payments he did make in the months following separation, including:
•the amounts paid for the benefit of [Mrs L] and the children;
•payments relating to the [other ] motor vehicle; and
•outstanding tax (although [Mr L]’s evidence on this point was vague, especially relating to the possibility he received a large refund).

63As I have excluded the [outer metro] property from the asset pool, I must also exclude the $110,000 mortgage and the $70,000 owed to [Mrs L]’s mother, which was borrowed to assist her to obtain the property. The pool to which the 60:40 division should be applied is therefore worth in the range of $269,986 to $314,986. Based on contributions alone, [Mrs L] would therefore receive the equity in the [outer metro] home and assets to a net value in the range of $161,992 to $188,991. [Mr L] would receive between $107,994 and $125,995. His current asset position is a deficit of $13,989 (excluding his interest in [the hills property]). If [Mrs L] were to retain [the hills property], as she proposes, she would have to pay [Mr L] an amount somewhere between $121,983 and $139,984 depending on the final value attributed to [the hills property]. If [Mr L] were to retain [the hills property], as he proposes, he would have to pay [Mrs L] between $163,017 and $190,016.

Adjustment for s 75(2) and other factors

64I turn now to consider the adjustments to be made on account of the matters set out in s 75(2).

Age and state of health of each of the parties

65Both parties are relatively young. [Mr L] appears to be in good health. [Mrs L] gave evidence (see the final paragraph of her chronology which she adopted in her oral evidence) indicating she has ongoing problems with her back, which will require further medical procedures. It was unclear to what extent this would impact on her future ability to work, but it was not suggested she was incapable of earning an income.

Income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment

66I have set out above the property and financial resources of each of the parties. [Mrs L] will have much more property than [Mr L] as a result of my decision to exclude the [outer metro] home from the asset pool and to award [Mrs L] 60% of the balance of the net assets.
67[Mrs L] presently does not have any income other than social security. I find she does have the capacity to work, subject to the limitations imposed by her back condition and her responsibilities to care for three quite young children. In this regard it is noted that [Mrs L] has little respite from the care of the children since [Mr L] works and lives so far away. (There was no evidence to corroborate or contradict [Mrs L]’s claim in her closing address that [Mr L]’s mother does not take up the contact to which she is entitled under the terms of the parenting orders.)
68[Mr L] had obtained a new contract shortly before the trial. He was receiving a gross income of $3,000 per week (from which he had to pay expenses such as his motor vehicle costs). His evidence indicated that he has one week off every 4 or 6 weeks and that he is not paid for that week. His evidence also indicates that he is required to work very long hours in order to secure such a large income. He also has income from running [a sporting club] club in [the North], from which I find he probably earns a comparatively modest income after meeting expenses.
69[Mr L] anticipates that his current lucrative contract (which will end in November 2007) will be extended and continue for some time to come.

Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years

70As already noted, there are three children ranging in age from 5 to 10 years. The parties have agreed that the children in the future will live primarily with [Mrs L] and she will therefore have the obligation to provide a permanent home for them.

Commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain

71The parties each have the normal costs of supporting themselves and the children. There are, of course, additional costs associated with [Mr L] exercising contact with the children, since he lives so far away.

The responsibilities of either party to support any other person

72Neither party has any obligation to support any other person.

Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of any such pension, allowance or benefit being paid to either party

73[Mrs L] has an entitlement to social security benefits, which will vary depending upon the extent of child support paid by [Mr L].

Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable

74It would appear that the parties enjoyed a fairly good standard of living during the course of the relationship, as [Mr L] was an above-average income earner. [Mr L] will continue to enjoy a relatively good standard of living whilst he has his current well-paid employment, particularly as he is living with a woman who also has a moderately good income. [Mrs L]’s circumstances are more difficult, as she is likely to be largely reliant upon social security and whatever child support [Mr L] may pay in the future.

The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income

75[Mrs L] mentioned in her closing address, although there was no evidence about it, that she has been undertaking a [study course]. Presumably, if [Mrs L] had greater financial resources available to her, it would make it easier to pursue a course of study as she would have the means, for example, of paying for more childcare for the children.

The effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant

76Not relevant.

The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party

77[Mr L] was able to continue his employment during the course of his marriage, as [Mrs L] was caring for the children but save to that extent, neither party has made any contribution to the income or earning capacity of the other party. Their contributions to property and financial resources have already been discussed.

The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration

78The parties lived together for about 7 years. The marriage has had no impact upon [Mr L]’s earning capacity, but the fact that [Mrs L] now has the primary responsibility for the three children means that the marriage will have a significant impact upon her ability to earn income for many years to come.

The need to protect a party who wishes to continue that party's role as a parent

79[Mrs L] does wish to be the primary caregiver to the children and she accepts that her obligation in that regard is of greater importance than obtaining full-time employment.

If either party is cohabiting with another person–the financial circumstances relating to the cohabitation

80As noted, [Mr L] is living with a woman who has a moderately good income.

The terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party

81I have indicated that based on contributions alone, [Mrs L] should receive 60% of the reduced pool of assets.

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

82[Mr L] has not paid much in the way of child support to date, but I have taken that into account already in determining the assessment of contributions.
83[Mr L] acknowledges that now he has such a well-paid job, he is going to have to pay significant amounts of child support. In the course of his closing address his counsel acknowledged that could be in the region of $14,000 per annum. This is true; however, the foreshadowed changes to the child support formula will in due course bring about a reduction in child support payments by high income earners such as [Mr L].

Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

84Counsel for [Mr L] argued that issues associated with [Mr L]’s assault on [Mrs L]’s solicitor were matters that could be taken into account under s 75(2)(o). I have already found that [Mr L] is the author of his own misfortune and that it is not appropriate that [Mrs L], in effect, subsidise his poor behaviour. I cannot, however, overlook the current disparity in the parties’ asset positions, even if it is in part attributable to [Mr L]’s behaviour.

The terms of any financial agreement that is binding on the parties

85The parties did reach an agreement at one stage but it was not a binding financial agreement.

Assessment of section 75(2) and other factors

86I consider the most important factors are the obligation [Mrs L] has to maintain and accommodate three young children and the likely significant disparity in earning capacity of the parties. The other matter of significance is the fact that [Mr L] will end up with significantly less capital than [Mrs L] as a result of my decision to exclude the [outer metro] property from the asset pool. Notwithstanding what I have already said about [Mr L] being the author of his own misfortune, it remains the case that there is a significant disparity in the capital resources of the parties. In my view, it is appropriate for this to offset to some extent the other s 75(2) factors, which strongly favour [Mrs L]. I must however, keep in mind that it is not only [Mrs L], but also the children who will suffer in the event too much weight is placed on the current disparity in the parties’ financial positions.
87Taking all of these matters into account I have determined that the appropriate adjustment on account of s 75(2) factors would be an amount equivalent to 10% of the reduced asset pool, bringing about an overall division of that pool 70:30 in favour of [Mrs L].
88I was not persuaded that any other adjustment is warranted on account of the matters mentioned in s 79(4)(d), (f) or (g) of the Act.
89After consideration of the contributions and adjustment for the s 75(2) factors, [Mr L] will receive net assets in the range of $80,995 to $94,496 depending on the value of the [the hills property] property. If she were to keep the [the hills property] property, [Mrs L] would need to pay [Mr L] an amount in the range of $94,984 to $108,485. If [Mr L] were to keep [the hills property] he would need to pay [Mrs L] between $190,016 and $221,515.

Just and equitable ?

90The final stage of the process of property adjustment is to step back and consider whether the overall outcome is just and equitable, having regard to the findings made concerning contributions and the s 75(2) adjustment.
91For the reasons I have set out, [Mrs L] made the greater contribution and she should also be entitled to an adjustment to take into account the important obligation she has in relation to the children and the difference in earning capacities. I recognise that in coming to my decision, [Mrs L] will be left with very much more capital than [Mr L], but I consider this is just and equitable because [Mr L]’s reduced capital wealth is largely the result of his own behaviour. In time, [Mr L] will have the opportunity to replenish his capital, as he is a relatively young man, with a high earning capacity and currently living with a person who has a moderately good income.
92In these circumstances, I am satisfied that the proposed division of the assets is just and equitable.

Child support

93As I have mentioned above, [Mrs L] wanted me to deal with issues concerning child support. Regrettably, the presentation of this part of the case was most unsatisfactory. Whilst I had no alternative other than to deal with the property settlement issue on the basis of the information that was provided, I did have an option when deciding whether to deal with the child support issue.
94There was oblique reference in the affidavit material to the fact that there has been a challenge to assessments of child support within the Child Support Agency. [Mrs L] has therefore had an opportunity to bring an application for a departure order, which application would have been supported by reference to all of the relevant assessments, the decisions of Review Officers and other basic information to allow the Court to exercise the powers it has under the Child Support (Assessment) Act 1989. None of this was done and, in effect, all I had presented to me was a fairly vague set of allegations and an understandable concern expressed on [Mrs L]’s behalf about the low level of child support. I have, as I have indicated in making my decision on the property settlement matter, taken into account the fact that [Mrs L] has had very little child support since separation.
95[Mr L] acknowledges that now that he has such a well-paid job, he is going to have to pay significantly greater amounts of child support. [Mr L] was to attend a meeting with the Child Support Agency in the week following the trial, at which time his child support obligations were to be reassessed. In the event that [Mrs L] is aggrieved by the outcome of that assessment, there are procedures she can follow in the Child Support Agency to review the decision – and, in the event she remains aggrieved, she has avenues of appeal available to her.
96In any event, I was not persuaded this was a case where it would be appropriate for child support to be paid in a lump sum. It appears likely that [Mr L] will have a regular ongoing source of income and I can see no reason why the Child Support Agency would not be able to enforce payment of appropriately high levels of periodic child support. Furthermore, given the substantial contributions that [Mr L] has made during the course of the parties’ relationship, I would not have been satisfied that it would have been a just outcome to strip him of most of the relatively modest capital he will retain after the property settlement.

[The hills] property

97As already noted, there is a dispute about which party should retain [the hills property]. The submissions advanced by each party in this regard were fairly evenly balanced. There was substance in most of the arguments [Mrs L] advanced as to why she should keep the property. Nevertheless, in my view, the factor that tips the balance in favour of [Mr L] is that [Mrs L] does currently have real estate. She lives in the metropolitan area and in the event she wanted to look for a similar block of land for herself, she would find it comparatively easy to do so. On the other hand, [Mr L] does not have any real estate at present and his place of residence in [the North] would make it somewhat more difficult for him to look out for a suitable block on which to build in or around Perth. I consider it is also a reasonable aspiration for [Mr L] to want to build a home on the property with a view to it being a suitable location for him to have contact with the children when he is able to get away from [the North] – and eventually as a home in which to live if he decides to stop working in the North-West.
98I also note that if [Mr L] wishes to obtain an equivalent block of land to the one at [the hills] he will have to pay stamp duty on the purchase. [Mrs L] has already outlaid two lots of stamp duty in acquiring first the [first] home and then the [outer metro] property. These funds have come from what would otherwise be the pool of assets available for division and are not reflected in the current value of the [outer metro] property.
99If [Mr L] is unable to afford to acquire [Mrs L]’s interest in the property in a reasonable time (say 30 days from the day on which the value of the property is determined either by agreement or by valuation), [Mrs L] should be given the option of acquiring [Mr L]’s interest. If she cannot afford to do so, the property can be sold.

Orders

100I do not propose to foreshadow the orders to be made in the property proceedings as this will depend first on the outcome of the valuation of the [the hills property] property and then on the parties’ intentions in relation to the acquisition of that property. I will, however, at the time of delivery of these reasons dismiss the applications insofar as they relate to child support, in case the fact that proceedings are pending is any impediment to the Child Support Agency dealing with issues associated with child support.
101I will require some brief submissions concerning the disposition of the items of chattel property mentioned in the list attached to [Mr L]’s Minute of Proposed Orders. The only evidence relating to these items was that contained in paragraph 40, 89 and 90 of [Mr L]’s first affidavit and no further mention was made of this topic in either the oral evidence or in the closing submissions.

Postscript

102This matter proceeded to trial in June 2007 and I was ready to give judgment on 3 September 2007. The reasons I proposed to deliver were those set out in the earlier paragraphs of this judgment.
103I did not deliver judgment in September 2007 because I became concerned about a possible injustice arising out of the fact that no regard had been paid during the trial to the impact of capital gains tax in relation to the [the hills property] property. The property had increased in value substantially during the time the parties have owned it and it therefore carries a large contingent capital gains tax liability. The impact of this liability would, of course, have depended on whether or not the property was to be sold or whether one of the parties still proposed to acquire it in light of the proposed division of the assets.
104I asked the Principal Registrar to write to the parties on 3 September 2007 drawing these matters to their attention and providing them with my draft reasons for judgment. The parties were given the opportunity to apply to re-open the proceedings to provide further evidence concerning the capital gains tax liability and to make submissions in relation to the way in which the liability should be taken into account (if at all).
105On 13 November 2007, the husband’s solicitor wrote to my Associate indicating that, notwithstanding the proposed division of the assets, the husband still wished to retain the [the hills property] property. The letter went on to indicate that “a capital gains tax liability will not arise at this stage”. The husband’s solicitor also informed my Associate that a conference of experts had resulted in agreement that the [the hills property] property is worth $330,000.
106The letter from the husband’s solicitor also requested that I reconsider the schedule of assets to take into account the following matters:
“1 [The motor vehicle] which is in at $58,000 is a vehicle that was purchased by my client following separation and almost completely financed. Whilst the debt has been reduced the value of the vehicle has also reduced since the purchase of the vehicle. I submit that that vehicle and the associated loan be excluded from the calculations.
2. You will note in my client’s Financial Statement that there is no reference to [B shares]. My instructions are that my client does not own these shares and did not own them at the date of the hearing. It appears that there was an error in the scheduled provided to the Court which included the [B] shares [sic].”

107On the basis of the above matters, the husband’s solicitors contended that the payment required to be made to the wife would be in an amount of $213,917.
108On 29 November 2007, my Associate received further correspondence from the husband’s solicitor, enclosing a Minute of Proposed Orders to give effect to my judgment. The Minute contained reference to eight items of chattel property which the husband proposed the wife should make available to the husband. Attached to the Minute was a series of submissions setting out why the husband claimed he should receive each of the items of chattel property.
109The wife provided further submissions dated 9 December 2007. The salient matters arising from those submissions are as follows:
•The wife accepted the value of the [the hills property] property at $330,000.
•The wife accepted that the husband was to retain the [the hills property] property pursuant to my orders, but then requested reimbursement of costs of $1,265 being contributions she made towards the property after the date of separation in anticipation of her retaining the property.
•The wife claimed the husband had previously said in a statement of financial circumstances that he owned chattel property worth $8,800 and would also have tools, plant and equipment.
•The wife made reference to how the husband had made tax effective payments from funds received from the sale of the matrimonial home which had the effect of reducing his child support assessment.
•The wife submitted that under amended legislation, her parenting payment would be reduced significantly in 2008 thereby reducing her capacity to support herself and noting she did not have the ability to work full-time.
•The wife requested a “slight further adjustment to be given in my favour” on account of the s 75(2) matters. The wife made reference to paragraph 62 of the draft judgment and noted some items of expenditure made by the husband were not solely for her benefit. The wife also made reference to matters associated with the husband’s [other motor vehicle] and his 2003/2004 tax refund.
•The wife made no reference to the husband’s assertion that he did not own the [B shares].

110The wife provided a Minute of Proposed Orders in which she sought that the payment to be made to her pursuant to the judgment be set at $237,375 and that in addition the husband reimburse her the amount of $1,275. Attached to the Minute of Proposed Orders were brief submissions concerning the chattel property. The wife concluded those submissions by saying:
“[Mr L] has several items of which were sentimental to me that belonged to my late father but I chose not to persue getting them back as he denied he had them. He also took my new flip open camera/mobile phone post separation.”

111It will be seen from the above that both parties went beyond what I had anticipated when I sought submissions in relation to the capital gains tax issue. As the proceedings have not been formally concluded I cannot, of course, prevent the parties from making further submissions; however, as there has been no application to re-open I do not intend to take into account any matters raised by the parties in their submissions unless there was evidence in support of them given at the time of trial.
112Turning first to the husband’s supplementary submissions, I will exclude from consideration the [B shares], as the wife did not dispute the husband’s assertion that an error had been made in the schedule provided to me at the of trial. In any event the amount involved is trifling.
113I do not propose to accede to the husband’s submission that I should make any changes to the schedule of assets and liabilities relating to the [motor vehicle]. The findings I have made in the earlier paragraphs reflect the evidence provided to me at trial.

114Turning now to the wife’s supplementary submissions, I do not propose to order reimbursement of the funds the wife paid on account of the [the hills property] property after separation. I was aware of those payments at the time I prepared my draft judgment (see paragraph 41) and I took those payments into account (along with myriad other matters) in determining the way in which the assets should be divided.
115I do not propose to make any adjustment to the value of chattel property as requested by the wife. The findings I made in my draft judgment were in accordance with the evidence at the time of trial.
116I also do not propose to take into account the wife’s submissions relating to possible variations in parenting payments. It is inevitably the case that social security entitlements will wax and wane during the course of the time in which the wife is caring for the children. I have already noted in my draft judgment that the husband’s child support payments are likely to be reduced as a result of legislative changes to the child support formula.
117I also do not propose to accede to the wife’s submissions in relation to the s 75(2) adjustment. I have already given that matter careful consideration. Nothing said by the wife in her supplementary submissions persuades me there should be any variation to the adjustment which I proposed.
118Nor am I persuaded to make any changes to the outcome as a result of the wife drawing attention, once again, to the fact that the payments made by the husband after separation were not entirely for her benefit. Nothing I said in paragraph 62 of my draft judgment could reasonably have been interpreted to indicate I accepted that all of the amounts the husband paid following separation were for the benefit only of the wife.
119Finally, I was not persuaded by paragraph 8 of the wife’s submissions to make any change to the draft judgment or the proposed outcome.

Chattel property

120As I have noted at paragraph 101 of my draft judgment, the only mention made of the chattel property in the evidence was that contained in paragraphs 40, 89 and 90 of the husband’s first affidavit. The contents of paragraphs 89 and 90 provided me with no assistance in dealing with the specific items the husband now seeks. Paragraph 40 read as follows:
At separation I took my boxing and gym equipment, my tools, guitars and clothes. [Mrs L] retained the rest of the assets and a number of items which I have repeatedly asked for, including some pictures, some coins, a collection of AFL cards that are framed, some stuff I had made at TAFE, a chair given to me for Father’s Day and a Gold Watch my parents gave me for Christmas 2004 which I had left there after chopping wood for [Mrs L] and she refuses to give back.

121Each of the parties purported to provide further evidence in their supplementary submissions relating to these matters. I am not prepared to take that “evidence” into

account. Neither of the statements was sworn and neither has been tested. I was not persuaded there was sufficient evidence or justification for me to make orders for the delivery to the husband of any items other than those which the wife has indicated she is prepared to make available to him, save in the case of the gold watch which I will order the wife to return to the husband if she is able to locate it.
122In her supplementary submissions the wife indicated preparedness to give the husband the Queen Anne coffee table, “some coins from my collection”, the tent and tarpaulin and “some compact discs”.

Orders

123For these reasons, I propose to make orders as set out below. The amount payable to the wife by the husband has been calculated in accordance with the following table.

*Description*	*Husband* $	*Wife* $
[The hills property]	330,000
[Outer metro] property (excluded)
[Motor vehicle]	58,000
Furniture and chattels (including jewellery)	5,000	5,000
BankWest account	323
[A shares]	5,041
[B shares](excluded)
Trailer	1,200
Paid legal fees added back	34,426	25,956
Total Assets	433,990	30,956
Credit Cards	7,283	11,000
Loan on [outer metro] property (excluded)
Loans from parties' mothers (wife's excluded)	75,000
Further loan from wife's mother	17,400
Shire rates - [the hills property]	1,650	1,650

[College fees]	1,498
[Motor vehicle] finance	48,912
Chubb Security	476	476
Total Liabilities	133,321	32,024
Net Assets	300,669	-1,068
Superannuation	15,234	43
Net Assets Including Superannuation	315,903	-1,025
Total Assets	314,878
Percentage	0.30	0.70
Asset Split	94,463	220,415
Payment to wife (asset split minus wife's net assets)	221,440
Husband to indemnify wife for liability for rates	-1,650
Payment by husband to wife	219,790

1.Within 30 days the husband shall pay to the wife $219,790.
2.Upon payment of the said sum the wife shall transfer to the husband her interest in the property at Lot 111 [address of the hills property] (Certificate of Title Volume 1111Folio 111).
3.Within 30 days the wife make available to the husband or his agent for collection the following items:
(a)Queen Anne coffee table;
(b)Some coins from the coin collection;
(c)Camping tent and tarpaulin; and
(d)Some compact discs.

4.The husband shall indemnify and keep the wife indemnified in relation to any outgoings on the [hills property] including any arrears of Shire rates.
5.The husband’s interest, if any, in the following items of property shall vest in the wife absolutely:

(a)The property at , [outer metro address];
(b)Furniture, chattels and personal effects in the wife’s possession other than the items listed in paragraph 3 above; and
(c)Funds standing to the credit of the wife in any bank accounts in her name.

6.The wife’s interest, (if any) in the following items of property vest in the husband absolutely:
(a)The husband’s [motor vehicle];
(b)The [A shares] in the name of the husband;
(c)The trailer registered in the name of the husband;
(d)Chattels, furniture, personal effects and tools in the husband’s possession;
(e)The husband’s superannuation entitlements; and
(f)Any funds standing to the husband’s credit in any bank accounts in his name.

7.The husband and the wife shall each indemnify and keep indemnified the other in relation to any liabilities in their name including any credit card liabilities (and for this purpose the GE Credit Line credit card shall be regarded as being the liability of the wife).
8.The wife shall indemnify the husband and keep the husband indemnified against any liability he may have in relation to the outstanding fees to [the College].
9.If either party intends to seek costs, they shall file and serve submissions in support of that application within 14 days.
10.The respondent to the application for costs shall file and serve submissions in response within 14 days of service of the applicant’s submissions.
11.The party applying for costs shall file and serve submissions in reply within 7 days of service of the respondent’s submissions.

I certify that the preceding [123] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate