Larkins and Larkins - [2010] FMCAfam 646

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LARKINS & LARKINS

[2010] FMCAfam 646

FAMILY LAW – Property settlement – consideration of evidence as to contributions financial and non-financial – approach to receipt of inheritances – significant disparity in income-earning capacity – distinction in superannuation and available asset splits – costs considerations.

Family Law Act 1975 (Cth), ss.75(2), 79(2) & (4)(a)-(c), (d)-(g), 117(2)
Family Law (Superannuation) Regulations 2001

Pastrikos and Pastrikos (1980) FLC 91-987
Whitely and Whitely (1996) 92-684
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Russell and Russell (1999) FLC 92-877
Pierce & Pierce (1999) FLC 92-844

Applicant:

MR LARKINS

Respondent:

MS LARKINS

File Number:

TVC 215 of 2009

Judgment of:

Coker FM

Hearing dates:

2 & 3 February 2010

Date of Last Submission:

3 February 2010

Delivered at:

Townsville

Delivered on:

4 February 2010

REPRESENTATION

Counsel for the Applicant:

Mr Fellows

Solicitors for the Applicant:

Wilson Ryan & Grose

Counsel for the Respondent:

Mr Shoebridge

Solicitors for the Respondent:

South & Geldard

ORDERS

That the Husband, within sixty (60) days of today, transfer to the Wife his right, title and interest in the former matrimonial home described as Property B.
That in exchange for the transfer referred to in the preceding order, the Wife will, within sixty (60) days from the date of this order:
(a)cause the mortgage number [omitted] registered against the former matrimonial home in favour of the Australia and New Zealand Banking Group Limited to be refinanced so as to discharge the Husband from all liability thereunder; and
(b)will pay to the Husband the sum of $209,079.00.
That in the event that the Wife is unable to refinance the mortgage as required in order 2 herein, each of the parties shall at the expiration of the period of sixty (60) days from the date hereof do all things necessary to list the property for sale with such agents as the Husband and the Wife may agree upon at a listing price of no less than $460,000.00 or such higher listing price as the parties may agree up.
That in the event that the property has not been sold within sixty (60) days of the listing of the property for sale, the Husband and the Wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction on the following terms:
(a)The reserve price shall be as agreed between the parties or, failing agreement, shall be nominated by the auctioneer agreed to by the parties or, failing agreement, as nominated by the Chief Executive Officer for the time being of the Real Estate Institute of Queensland.
(b)The auction shall take place no later than thirty (30) days after the deadline date of the sale by private agreement or such further or other date as the parties may agree upon.
That upon the sale of the former matrimonial home, the proceeds of sale shall be applied as follows:
(a)As to such sum as is necessary to discharge all selling costs including agent’s commission, advertising including the reimbursement to either of the parties to advance monies for advertising and vendor’s legal costs.
(b)As to such sum as is necessary to discharge the mortgage to the ANZ Bank.
(c)
As to the balance to be divided between the Husband and the Wife so as to effect a distribution of matrimonial property as between the Husband and the Wife upon the distribution as to

60 percent to the Husband and 40 percent to the Wife, such calculation to include retention by the Husband of property valued at $50,991 and retention by the Wife of property valued at $27,459.
That pending the transfer to the Wife pursuant to Order 1 or sale pursuant to Orders 3 or 4 that the Wife shall be permitted to continue in occupation of the former matrimonial home provided however that the Wife shall be responsible for the payment of mortgage payments in the sum of $115.00 per week from the date of this Order until transfer and that the Wife shall be responsible for the payment of rates and insurances thereon.
That pursuant to paragraph 90MT(1)(a) of the Family Law Act whenever a splittable payment becomes payable in respect of the Husband’s interest in [Q] Superannuation Fund the Wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount, at the date of these Orders, in the sum on $92,136 and that there be a corresponding reduction to the entitlement the Husband would have had in the [Q] Superannuation Fund but for this Order.
The preceding paragraph have effect from the operative time and for the purposes of these orders the operative time shall be four days after the service of this order upon the trustee of the [Q] Superannuation Fund.
This order be binding upon the trustee of the [Q] Superannuation Fund.
That except as otherwise provided in these Orders, the Husband and the Wife shall each be entitled as the sole legal and beneficial owner of all items of property including superannuation entitlements, person effects and chattels currently in the possession, held in the name of or control of each of them respectively.
That except as otherwise provided herein, the Husband shall indemnify the Wife and keep the Wife indemnified with respect to all liabilities incurred by the Husband in his name both prior to and subsequent to the date of this Order.
That except as otherwise provided herein, the Wife shall indemnify the Husband and keep the Husband indemnified with respect to all liabilities incurred by the Wife in her name both prior to and subsequent to the date of this Order.
That each of the parties shall sign all necessary deeds or documents to give effect to the terms of this Order and in the event that either party refuses or neglects to sign (within seven days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registry Manager of the Federal Magistrates Court of Australia at Townsville is hereby appointed pursuant to the provisions of section 106A of the Family Law Act to execute such documents on behalf of such party.
That the Wife pay to the Husband her share of the costs of valuations by Mr H and [P] Superannuation and the Husband’s costs of and incidental to the application filed on 24 September 2009 fixed in a total sum of $2000, with such payment, unless otherwise agreed, to be made within 60 days of today.
That each party have liberty to apply for the purposes of clarification of the orders within 28 days of the date of this order.
That the reasons for judgment be published.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

TVC 215 of 2009

MR LARKINS

Applicant

And

MS LARKINS

Respondent

REASONS FOR JUDGMENT

This application relates to a contest between Mr Larkins, whom I shall refer to as the husband, and Ms Larkins, who I shall refer to as the wife, in relation to the distribution of property as between the husband and the wife.
On 9 March 2009, only a matter of a few days after separation, the husband filed an initiating application in which he sought orders with regard to property settlement, in very simple terms. The orders sought, at least insofar as they are directly relevant to this determination, were:
(1)That the matrimonial property of the parties be valued and divided as to 70 per cent to the applicant husband and 30 per cent to the respondent wife; and
(2)for such further or other orders as to this court seems fit.
There was also an application for an order for costs, both of the proceedings and incidental to the application.
The wife’s response in relation to the matter was filed on 14 April 2009. That response was in more detailed form and went on to set out the proposals with regard to sale of the jointly owned property situate at Property B, as well as what should then occur in the event of the property not being able to be sold immediately. In the end, the wife’s proposal was, however, that there should be a distribution of

60 per cent/40 per cent, in her favour.
The wife also sought orders in relation to the distribution of superannuation entitlements of the parties, but in that regard, at least at that time, sought a specific order that there be a superannuation split of the husband’s interest in his [Q] superannuation fund, in the sum of $113,000. Otherwise the wife proposed that the husband and wife should each be entitled to retain the property in their possession.
Other orders of a technical nature were also sought by the wife in relation to, for example, prompt attention to the signing of all documentation necessary to effect either the transfer of property or the transfer of interest or splitting of interest in the superannuation. The wife’s proposal also was to the effect that each party should bear their own costs of and incidental to the proceedings.
The wife’s position in relation to this matter, however, changed little between the filing of the response in April of 2009 and the final orders that were sought by the wife, as detailed in the case outline which was filed on 29 January 2010.
At that time, it was the wife’s position and it remains her position, that she should be given at least an opportunity to purchase the husband’s interest in and to the property at Property B. The wife proposed that that should occur and that she should pay to the husband a sum of $67,490 from funds able to be drawn by her. It was also, of course, clear that if that were to be the case, that the wife would take over liability and responsibility for the current mortgage attaching to the property, which is agreed to be in the vicinity of $105,000.
There were obviously a number of unknowns that arose in that regard, not the least of which related to the wife’s capacity to borrow funds, in order to facilitate the purchase of the husband’s interest in the property and then to service any such loans. They would be in the vicinity of $170,000 or more for the total mortgage including the existing mortgage, and that would be needed to be borrowed by the wife, in relation to her proposals.
It was acknowledged that that may not be something that can be facilitated by the wife and in that regard it was anticipated that in the alternate, it would be necessary for the property to be sold and, in the event of the property being sold, that there should be agreement as to a listing price, suggested at no less than $480,000 or such higher listing price as the parties may agree, though I note that the proceedings were conducted on the basis of the property having an agreed value of $460,000. It was then proposed that the property be sold and, if necessary, that an auction take place.
After the payment of the various outgoings that would necessarily be accumulated during the sale process as well as, the payment of agent’s commission, mortgage and any other liabilities attaching to the property, the wife’s position was then to say that she should receive

55 per cent of the proceeds of the sale of the property. The distinction between 55 per cent and 60 per cent, as sought in the orders outlined in the response, is not clearly explained though no doubt it was as a result of further negotiation and discussion as well as, advices received by the wife, in relation to this matter.
It is clear from the other proposals that were put in relation to the matter, that the wife’s suggested retention of 55 per cent, is a retention of the proceeds from the sale, taking into consideration the superannuation entitlements of the parties. I say that obviously as a result of the fact, that the outline that has been provided which now details the final orders sought by the wife, do not include any proposals in relation to a splitting order.
In other words, the wife has determined that from her perspective at least, the appropriate course to follow would be for her to receive the vast bulk of the available assets of the parties, with the husband to retain the significant superannuation entitlements that are held by him. It appears agreed that on a current valuation those superannuation entitlements are in excess of $300,000.
Of course, that flies in the face of the contemplations of the parliament and one would think the public generally, in relation to amendments to legislation which occurred, specifically providing for the splitting of superannuation because of the inequities, injustices and general complaint that arose in the past, with regard to what was, more often than not, the case of one party, usually the wife, retaining the vast bulk of the available assets for distribution and the other party, generally the husband, retaining the vast bulk of future entitlements arising, pursuant to superannuation.
It led to obvious injustices, with one party having a well-established position in relation to current circumstances but little in place for future needs and alternatively, as was often the case, leaving one party with little available funds for the re-establishment of their life, but in years to come a well-established superannuation pool for distribution. In any event, I will come to that particular aspect of the matter in due course.
Unfortunately, the situation that has arisen in relation to this matter has arisen, at least in my assessment, from a significant degree of angst that continues to exist between the husband and the wife. I gained the distinct impression when reading the material, but I must say more particularly so when seeing each of the parties in the witness box, that there was little respect that either now held for the other.
This, no doubt, has led to difficulties in relation to negotiations and to at least some degree one would think, an entrenching of each party in the position that they took with regard to the matter. It is unfortunate, of course, because of the additional expense that both, no doubt, have incurred as a result of proceeding to a hearing in relation to the proceedings and more particularly, one would think, from the general situation that arises in respect of such matters, that both parties will be, at least to some extent, dissatisfied or unhappy with what might be the final outcome in relation to the proceedings.
It is, of course, an unfortunate situation and of course also most unfortunately, a not uncommon situation that arises as between the parties to a failed relationship.
I turn obviously to the evidence of each of the parties and I must say that unfortunately, I was troubled by the evidence of both the husband and the wife, at least to varying degrees.
Insofar as the applicant husband was concerned I noted, in particular, a lack of any appreciation on his part of what existed previously as a relationship which, no doubt, was of a positive nature for a significant time, between he and the wife. The husband refused, point blank, to give any credence whatsoever to the contributions that might have properly been made by the wife, during the period of their relationship.
They were, in fact, in a relationship from the latter part of 1995, marrying in 1996 and, notwithstanding there being a brief separation in 2000, continued in their relationship until February of 2009. Therefore, they were in a relationship for a period a little in excess of 13 years. The husband, however, was adamant, that during that

13 years, his contributions, both financial and non-financial, significantly outweighed the wife’s.
It appears clear that at the commencement of the relationship and during the relationship that is a fair assessment of the position taken in relation to this matter. The husband brought in considerably more to the asset pool in late 1995, or certainly at the time of marriage, than did the wife.
There is some dispute as to the value of what assets each party brought into the marriage and that, unfortunately, has made the determination in respect of this matter a little more difficult. I would think, however, that whilst there was some dispute between the parties, an appropriate concession was made by counsel for the wife in that regard, in that it was clearly accepted that at the commencement of the relationship at the very least, if you like on a dollar-for-dollar basis, the input by the husband was approximately two times that of the wife.
The husband’s contention was that his contribution was significantly greater than that, though what was troubling in that respect, was the basis upon which the husband said that that was the case. Firstly, he contended that in 1995 the equity that he held in his property at Property L was in the vicinity of $175,000. That was assessed by him to have arisen as a result of his contention that the property at

Property L in 1995 was valued at about $185,000.
The difficulty that obviously arises in that regard is that, whilst there was some mortgage on the property, some five years later, it was sold for a sum of $164,000 or at least, as I understood the husband’s evidence, returned about $164,000, having been sold for approximately $170,000, but then being subject to commission and other withdrawals.
The husband’s only basis for suggesting that the property was worth $185,000 was to say that there had been fluctuations and variations in the market and that therefore the property was worth $185,000 at the time that they entered into the relationship.
He said that that was based on information provided by a real estate agent or other person capable or having sufficient expertise to give some valuation but, of course, no evidence was provided in that regard. The fact is, that the only evidence that could possibly be relied upon in relation to the value of the property is that which relates to the sale in the year 2000, of somewhere in the vicinity of $170,000.
The husband also contended that his contribution was significantly greater than that of the wife’s because, the property that she brought into the relationship, that property described as Property W, was worth $115,000. Of course, unknown to the husband, and I accept that it was unknown to the husband, was the fact that the property had been purchased by the wife some two years or more prior to the commencement of their relationship, for a sum of $133,000 and again, one can only assume that it was purchased for an appropriate and proper market value.
The figure that the husband put on the property was $115,000, but it would seem that that could only have come about as a result of the amount, that the husband paid to the wife when purchasing the property from her. That was done, no doubt, for appropriate reasons, particularly in respect of protecting the assets of the wife, it being clear that there was dispute between she and her former husband in relation to the issue of child support and that actions had been, at least, contemplated, if not necessarily already commenced, in relation to the recovery of what was said to be, arrears of child support.
The husband’s position was to say that the $115,000 was a combination of the mortgage attaching to the property at Property W, as well as other liabilities of the wife. It may have been what the liabilities were but it is, of course, in no way a reflection of what the value of the property was. That also is clear, when the Property W property was sold at a later stage and returned approximately $142,000. It is not clear to me, however, whether that was actually the sale price or the amount that was received by the parties, following deduction of various outgoings in relation to the sale, but in any event, it does not really affect the proceedings to a great deal.

The bottom line, if you like, is that the wife brought a property into the relationship which had an equity, as best one can assess, of somewhere in the vicinity of about $65,000. I make that assessment on the basis of the property being purchased by her in 1993 for $133,000, being sold in or about 2000 for about $140,000 and it being acknowledged that at the time of the commencement of the relationship between she and the husband, the property had a mortgage of a little in excess of $70,000. As best one can assess, if the property was worth somewhere in the vicinity of $135,000, then the equity was about $65,000.
That, of course, does not take into account the additional liabilities that the wife obviously brought into the relationship and which were accepted to have been brought into the relationship, but clearly there was an equity of about $65,000 in the property.
Just as clearly, as I have indicated, there are difficulties in the suggestion put by the husband that the property, at the time of commencement of the relationship, was valued at about $185,000 when there is no evidence whatsoever in that regard and the only evidence as to value at a later time, being the sale price in the year 2000, was in the vicinity of $170,000. If that were the case, and it was subject to a mortgage which appears to have been agreed, at least at the time of commencement of the relationship, between $10,000 and $18,000, again, that not being specifically clear, then the husband must have had some equity in the property, one would think, of at least perhaps $130,000 which gives some credence to the concession made on the part of the wife that the contributions at the beginning were perhaps appropriately apportioned, as two to one.
It is not, however, a simple exercise to do calculations at the end of the relationship upon that basis. Quite clearly there have been increases in value which have been brought about simply by inflationary pressures on property. There have also been increases in value in various homes that have been owned by the parties, both individually and jointly, brought about as a result of improvements done to the property.
That leads me, of course, into the second position or stance taken by the husband in relation to this matter which says that his contribution far outweighed that of the wife because of both financial and non‑financial contributions. Quite clearly, the husband’s employment did bring in considerably more in relation to the relationship between he and the wife, it being clear that the wife has not, it would seem at any stage during the relationship or subsequent to separation in early 2009, earning more than perhaps $35,000 or $36,000 per annum.
The husband, however, has earned considerably more than that and it appeared to be generally accepted that his current employment with [R] returned an income of somewhere in the vicinity of $97,000. Clearly, the husband brought more into the relationship, but what is also clear is that each party contributed to the best of their ability.
It is well established at law, that whilst both parties may not bring in the same amount by way of their financial contributions to a relationship during the period of cohabitation, there needs to be an appreciation of each contributing to the best of their ability, both financially and non‑financially.
Whilst I accept that there was considerably more brought in by the husband on a weekly or monthly basis because of his income, I would not find that that was simply of itself a basis upon which there could be seen to be a further addition to what might be the entitlements of the husband, as a result of that contribution.
In any event, it fails to take into consideration issues with regard to the non-financial contribution of the parties to the relationship. In that particular regard, I was troubled by the husband’s evidence in relation to this matter. He was determined to give no credit whatsoever to the wife for her contributions, either financial or more particularly, non‑financial.
During the relationship, for example, the husband’s two sons resided with them and yet the husband’s determined position in relation to that was to say that to almost 100 per cent of necessary provision for the children, he was responsible for such actions. I simply do not accept that that was the case. I am far more inclined to the view that each of the parties, during the period that they were together, contributed to the best of their abilities, in various ways.
It may be that the husband quite clearly had skills that enabled him, for example, to perform works, maintenance and rectifications to the properties which increased their value. But no doubt the wife also contributed, perhaps to a lesser extent insofar as what might be called tradesman-like work, but by the same token, there must have been responsibility taken by the wife in other respects including, not unlikely, the provision of supervision of the children when the husband was performing the many works that he provided and conducted upon the properties.
I was troubled by the husband’s failure, to in any way to concede, to any real degree, that the wife had provided assistance in relation to these matters.
I was also troubled, at least on one occasion, when there were discussions about the circumstances of the husband’s children, particularly his son [X]. [X], from the evidence that I had before me, was obviously a troubled lad. There were many instances indicated in both written and oral evidence of the behavioural difficulties that were experienced in relation to the child, not the least of which is the fact that the husband acknowledged that certainly there were still difficulties in the relationship and that communication with [X] was, if not non-existent, very limited.
And yet, when asked whether [X] had an unruly childhood, the husband’s answer was, I thought, almost flippant. He described [X] as a bit naughty. A greater minimisation I cannot imagine in light of the obvious behaviours of this child and consequently, of course, the difficulties that would have been inherent in the step‑mother’s involvement with the child.
No doubt there were problems there. No doubt it gave rise to difficulties and no doubt it made the wife’s contribution of a non‑financial nature, at least to some degree, troubling and difficult in relation to the relationship and its tenure for 13 years, or at least its tenure whilst the husband’s sons were residing within the household.
Whilst I accept and intend to take into consideration, therefore, the distinction in the contribution between the parties at the commencement of the relationship, I am not at all enamoured of the suggestion that there should be some further consideration, for example, as a result of the contribution, financial and non-financial, of the husband over that of the wife.
In fact, the position taken by the husband in that regard troubled me to a significant degree in relation to this matter because it coloured the other evidence that he gave in relation to these proceedings. If he could be, for example, so dogmatic, in relation to the failure by him to recognise, at least from his perspective, any contribution by the wife, financial or non-financial, then it threw some concern onto other evidence that arose, with regard to this particular matter.
I note also that there was evidence in relation to inheritances received by the husband and I should note that I accept his evidence in that regard. I am far more inclined to the view that, the vast proportion of contributions in that regard, the inheritances, were put toward the further improvement of the assets of the parties and that it is a matter to be considered in relation to these proceedings.
I need, when I do so, to comment upon the wife’s position in relation to the matter, because it is one of the matters from her perspective that troubled me in relation to these proceedings.
Generally, I should say, therefore, that I was impressed with the husband. His position in relation to the wife and to her contribution troubled me, but otherwise I have no doubt as to the significant contribution of the husband at the commencement of the relationship, the fact that he worked most diligently to earn income and to bring it within the household and to provide for the needs not only, of course, of himself and his sons, but also of course for the wife, and that he also, and in addition, made significant contribution through the improvements that were made to the property or properties at different times, when resided in by he and the wife.
The husband’s contribution, certainly at the commencement of the relationship and as a result of inheritances received from both his father and his mother, mean, that there is some consideration that must be given in relation to the initial contribution and continuing contribution of both of the parties.
Before dealing with those aspects, however, it is necessary, of course, for me also to consider the evidence of the wife. Generally, I was also impressed by the wife though, as I indicated before, there were certain aspects of her evidence which did trouble me.
In particular, I thought that the wife’s memory on many occasions was, selective. She was very quick to indicate a particularised and specific memory of certain instances, for example, she could recall instantly the purchase of motor vehicles which she says were excessive by the husband and which were contrary to her wishes. She could also recall very specifically their purchase price and, at least from her perspective, how they were purchased.
Yet the wife’s memory was sometimes deficient and I do not accept, genuine, in relation to issues with regard to child support and issues with regard to her employment. I gained the distinct impression that there was at least an attempt on the part of the wife, to minimise her income and therefore to contribute less than perhaps she could fully contribute in relation to the household, as a result of the liabilities and obligations that she had with regard to child support, in relation to children of a prior relationship. I was troubled in that particular aspect of the matter because it was clear that no matter how one looked at the evidence in relation to this matter, the wife had not, as fully as perhaps she could have, contributed to the day-to-day finances of the household.
At least in some part, I am satisfied that that was as a direct intention on the part of the wife to minimise income so as to reduce child support liabilities, particularly, one would think, between the period that the parties commenced to cohabit in the latter part of 1995 and toward the end of 2002 or early 2003 when child support liabilities came to an end.
That position and finding by me is, if anything, reinforced by the fact that the wife’s own evidence, as arising from her two more recent affidavits, the trial affidavit of January 2010 and an affidavit of October 2009, took different positions in relation to the matter and it was clear that the child support documentation to which much reference was made, showed that in 1995 or thereabouts the wife had indicated that she had been in a position where her employment had been reduced and yet the reasons for that seemed to vary upon the type of application or evidence that was required, in relation to proceedings.
That particular aspect of the matter troubled me somewhat and I must say, I was also troubled by issues that arose in relation to other aspects of the wife’s memory of proceedings or perhaps, appropriate behaviour in relation to the proceedings.
I say that because it is clear that since about May of 2009, shortly after the commencement of the proceedings, there were ongoing concerns expressed by the husband in relation to the disclosure of documentation and yet that disclosure continued to come, it would seem, in dribs and drabs, even it would appear, up to the hearing of the proceedings where it was very clear that a contract or transfer relating to the wife’s purchase of the property at Property W first appeared. It was also clear that other documents which were sought to be relied on were suddenly found, being bank documents and the like.
It is clear that the wife was not as determined as one properly would expect in relation to the production of documentation and that also gives rise to a concern in relation to information provided in respect of the proceedings and in particular, with regard to information relied upon by the wife, in relation to the matter.
I must say that one matter that also troubled me particularly in relation to the wife’s evidence in respect of these proceedings was the retention by her in an investment account, of an amount of money of approximately $20,000. It appears clear, that following the separation of whatever duration in the year 2000, when the parties resumed their relationship the wife was determined to retain at least some moneys, as she gave evidence, to ensure that if there was a further breakdown in the relationship, as unfortunately occurred in the early part of 2009, she would have moneys, as she said, available for her legal fees and to meet commitments such as bond, payments of that nature and otherwise to be able to meet costs that would arise following separation.
Notwithstanding that however, the wife, following separation, has remained in the former matrimonial home. The wife was complaining long and hard, both personally and through her legal representatives, of the failure by the husband to contribute to the mortgage, an amount, as best I can understand the evidence, of about $115 per week. But, of course, it was the wife who retained the benefit and the opportunity of remaining within the home and yet has failed to utilise the moneys which she gave evidence were held by her for the purposes of meeting expenses associated with her support, following a separation.
The wife’s evidence, therefore, flew in the face of the actual facts. She said that she held those moneys to ensure that certain steps could be taken by her to provide for her future and yet the very real obligation that the parties had, but which to all intents and purposes fell directly upon the wife, to maintain the mortgage payments in relation to the home, was the one thing that she immediately failed to do.
I note also that whilst it was clear from the evidence given by the wife that she had taken steps to ensure that other liabilities attaching to the property were met, there was not a step taken in that regard which would have reduced, perhaps, accrued interest and other expenses.
I was troubled by that particular aspect of the matter because, like some of the comments made in relation to the husband, it coloured my appreciation of the evidence that was given by the wife in relation to many of the other aspects of the proceedings.
Notwithstanding that however, as I say, generally the evidence that was given by both the husband and the wife was, I thought, of an honest nature, coloured, of course, by their own perceptions of what might or might not have been the appropriate course to follow in relation to the proceedings.
In the end I note, however, that the wife, through her legal representatives, did concede that a greater contribution had been made by the husband at the commencement of the relationship and it was also conceded that there were injections of capital into the relationship in the second part of the relationship as a result of inheritances received by the husband. It is clear that some adjustment needs to be made in respect of the property of the parties.
I should comment before moving to assessments of the law and its application in relation to the facts of this matter, that I was somewhat troubled by the wife’s position in relation to the property settlement. I say that for two reasons.
Firstly, because I simply did not, at any stage, gain what unfortunately would have been hoped to have been gained, an appreciation of why there should be an adjustment one way or the other in relation to the wife. It appears clear, that whilst there was some acceptance at trial of there being a more significant contribution by the husband to the matrimonial pool at the commencement of the relationship and that some adjustment might need to be made in relation to that, it was never clear to me, how that adjustment was made.
If, using very basic figures, it was suggested that the husband’s initial contribution and what should be taken into consideration was somewhere in the vicinity of two-thirds/one-third, then, on approximate figures of 65 per cent in favour of the husband, it is unclear how, in the end, it was suggested that the husband should receive 45 per cent of the matrimonial assets as contended in the outline that was proposed or put forward, on the part of the wife.
I was somewhat confused by that particular aspect of the matter and, again, will comment upon it more particularly when addressing issues that arise pursuant to the provisions of section 75(2) of the Family Law Act.
I turn now to matters of the law and for convenience indicate that I will include a brief commentary on the issues of the law in relation to this matter, including references to section 79(4), section 75(2), the well‑established authority arising pursuant to the decisions of the court in Pastrikos & Pastrikos (1980) FLC 91-987, Le Steere & Le Steere (1985) FLC 91-626, Ferraro & Ferraro (1993) FLC 92-335, Clauson & Clauson (1995) FLC 92-595, Whitely & Whitely (1996) 92-684 and of course, Russell & Russell (1999) FLC 92-877.
Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 provides that:
“The court shall not make an order under this section unless it is satisfied that in all the circumstances, it is just and equitable to make the order”
Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
a) the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b) the contribution made by a party to the welfare of the family including any contribution made in the capacity of home maker or parent;
c) the effect of any proposed order upon the earning capacity of either party;
d) the matters referred to in subsection 75(2) as far as they are relevant;
e) any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f) any child support payable.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos; In the Marriage ofLee Steere and Lee Steere; In the Marriage of Ferraro; In the Marriage of Clauson and In the Marriage of Whitely and Whitely). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.

In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable (see section 79(2)). It is the justice and equity of the actual orders that the court must consider (Russell & Russell (supra)).
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In In the Marriage of Ferraro (supra) the Full Court said:
“A now well established line of authority in this court indicates the new approach normally to be taken in the exercise of the discretion in section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider ‘contributions’ of the parties within paragraphs (a) – (c) of section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of section 75(2) which are generally referred to as the ‘Section 75 Factors’”.
The real issues are to move forward in relation to the proceedings and to follow the four-step process which is detailed in the law and in those various cases so as to lead to a just and equitable distribution of the property of the parties.
The first step then is to, as best one can do, assess the assets of the parties generally, it would seem, at the time of trial. To some extent, fortunately, there is agreement in relation to what the asset pool is. There was agreement in relation to the value of the remaining real property, the residence at Property B. That was fixed at $460,000.
There was agreement in relation to the two motor vehicles of the parties. A Lexcen motor vehicle in the possession of the wife with a value of $3300 and a Holden GTS motor vehicle with an agreed value, at this time, of $42,000.
There was also agreement in relation to the value of the wife’s jewellery in the sum of $6885 and agreement as to a necessary add‑back in relation to the wife’s legal fees of $14,300, it clearly having been moneys that were drawn down from the interest-bearing deposit held by the wife and which were funds which had been accumulated by whatever means, during the relationship.
It was also agreed that the value of the wife’s bank account in the sum of $2974, generally being accepted as the moneys remaining from that investment account, should be included. It was not agreed exactly as to what should be the husband’s bank account for inclusion in relation to this matter, it being contended that there should be some add-backs in relation to moneys which had come from the husband’s bank account. I will comment a little further in relation to that particular aspect of the matter in a moment but, suffice it to say that I am inclined more to the view that the husband’s legal fees, expended to date, should not be included as a matrimonial asset but clearly therefore, that the husband’s bank account at the time of separation, as acknowledged by the husband in the sum of $8991, should be included as part of the matrimonial pool.
The total of those various assets, therefore, is $538,450 and that is the figure that I intend to use in relation to the available pool for distribution between the parties subject, of course, to a deduction of $105,000 being the current mortgage on the property. The equity of available funds, therefore, is $433,450.
I have come to that determination following consideration of, if you like, the arguments that arose in relation to what were the contested assets of the parties. The first of those was an argument in relation to whether there should be an add-back of household contents retained by the wife in the sum of $10,000. The first difficulty that I had, of course, in that regard is that there were no valuations provided in relation to such property and of course there were, therefore, particular difficulties in relation to its inclusion.
In any event, I am far more inclined to the view that as best it could have occurred, there has been a distribution of property or furniture chattel items between the husband and the wife. The husband, to all intents and purposes, conceded, that when it was produced to him, a copy of a breakdown of chattel items which were distributed, he acknowledged, between he and the wife, though he did not acknowledge that he had received a puppy or a bracelet, which were included on that list.
Otherwise, he acknowledged that the items under his name on the list were received by him but said, in any event, that there was still some disparity in the value of assets retained and in particular outlined, for example, whitegoods, household appliances and the like.
The difficulty that I have in that regard is that it is clear from the evidence that the husband is somewhat meticulous in that respect. I struggle, therefore, with the suggestion that they would not have been taken into consideration in relation to any distribution effected between the husband and the wife, at the time of separation.
In any event, I am satisfied that each party retained various items of property and, whilst they may not have been of exactly equal value, in the final wash up there was an appropriate distribution between the husband and the wife of chattel items and that therefore it is not appropriate that there should be an inclusion of an additional amount in relation to household contents, particularly when a division had been done, no valuation of the property of either of the parties was available, and that it would lead to far greater difficulties for there to be some additional inclusion, in that regard.
By the same token, I do not intend, for example, to suggest that there should be some add-back in relation to the cash withdrawal made by the husband, in relation to furniture items. His evidence was that he, subsequent to separation, purchased approximately $13,000 or a little more in furniture and items from [omitted], a furniture and electrical dealer in Townsville though, again, no evidence was produced as to what might or might not have been purchased by the husband.
In any event, it is, on balance, clear to me that that expenditure made by the husband would have clearly occurred post-separation and more likely than not, has therefore come from income earned by the husband subsequent to separation and therefore does not form part of the matrimonial pool.
A similar assessment by me is made in relation to the issue of legal fees and the add-back that was suggested as appropriate by the wife, in relation to this matter. The only evidence that was available in that regard was the brief evidence given by the husband in relation to the payment of legal fees and in particular the indications given by him that transfers were made in various amounts, as calls were made by his solicitors, for funds to be provided on account of legal fees and again, on balance, as best one can assess, they would have come from the moneys which were received by the husband during the course of his employment, post-separation.
I am also asked, on the part of the wife, to include a significant amount by way of leave entitlements, both holiday and long-service leave available to the husband. It was suggested that that would be somewhere in the vicinity of $81,000 in total. Of course, it was open to the court to exercise a discretion in that regard and to add-back, but I do not intend to do so.
At the very best, those entitlements that the husband has are a financial resource. More particularly, I am mindful of the fact, and it was emphasised by counsel for the husband, that those entitlements have accrued over the entirety of the husband’s employment with [R], somewhere in the vicinity of 34 years. The relationship between he and the wife is of approximately 13 years’ duration and therefore to suggest that there should be an add-back in its entirety, or at all, would be far from a just or equitable position to be taken in relation to the matter, particularly as it would be, to all intents and purposes, a notional amount.
If it were to be included, it would be required to be distributed and yet, all that would be received by the husband in relation to those moneys would be their payment on a weekly or fortnightly basis, at the time that they were taken by him. There would be no other benefit received and it is, in my view, as, in fact case law indicates, a far more appropriate course to follow, to simply contend that it is a financial resource that is open to the husband.
It is a financial resource that has been accumulated over a far greater period of time than simply that of the relationship and clearly, therefore, should not be seen as a matter or fund to be added back into the pool.
For that reason, as I have already indicated, the available pool or the equity in available assets for distribution is $433,450.
Before moving on to consideration of the issue of contribution, however, I must also obviously note the issue of superannuation and entitlements of the parties.
The husband’s [Q] is a significant amount. It is acknowledged, it would seem, to be in the vicinity of $313,174. The wife has a lesser sum in relation to two superannuation policies: a [Q] policy worth $3733 and a [S] policy worth $18,836.
As I indicated earlier in these reasons, the wife does not suggest that there should be some splitting in relation to the superannuation pool but rather, seeks a far more significant immediately available entitlement, in relation to the assets of the parties, including, as I indicated, if possible, an opportunity for her to retain the interest in the former matrimonial home at Property B.
There are enormous difficulties that arise in that respect, not the least of which is the complaint that both parties could then justifiably make in relation to either their current or future financial circumstances. The husband would have little available to him in the immediate future to re-establish himself, as he quite rightly should be entitled to do, and just as clearly, the wife would have little in the way of a future benefit by way of superannuation entitlements, which would give rise to an inequity also in relation to the wife’s future circumstances.
I am far more inclined to the view that it is appropriate, as legislation contemplates, for there to be an appropriate distribution of not only the immediately available assets of the parties but also an appropriate distribution of superannuation and, if necessary, as in my view it is in this case, a splitting order to be taken out, in relation to the superannuation of the parties.
Again, I will need to comment further in relation to that particular aspect of the matter but before moving on from the issue of the assets of the parties I am, again, far more of the view that the appropriate figure to be included in relation to the husband’s superannuation entitlements is the sum of $207,841, which is the superannuation entitlements as relevant to the period of the relationship.
It would be a nonsense, for example, to suggest that there should be an inclusion of the amount of $313,000, when at least to some extent a proportion of that was accumulated a decade or more before these parties even commenced their relationship.
What is clear, however, is that if that were to be the case and there were to be an inclusion of the value of superannuation, relevant to the period of the relationship, then if that is to be calculated along with the value of the wife’s superannuation, a figure of $22,569, then a different determination as to distribution between the husband and the wife would be necessary, than that which would relate to the available assets for distribution between the parties.
For the purposes of distribution of superannuation entitlements between the husband and the wife, therefore, I find that the appropriate figure for consideration is $229,410.
I turn now to the issue of contribution of the parties. I have already spoken at some considerable length about what each party brought into the relationship at the commencement of the relationship as well as, of course, the contribution of the husband by way of the inheritances received by him during the latter part of the relationship.
As best one can calculate, they are in the vicinity of about $55,000 to $60,000 though, of course, the inheritance that has been received from the husband’s father has been one that has come in in small parcels, rather than a lump sum. I am satisfied however, that the vast majority of those small parcels as well as, of course, the more significant amount of about $25,000, received by the husband from his mother’s estate has been utilised almost exclusively for improvements to the real estate of the parties and that that is a contribution which needs to be considered, in respect of these proceedings.
I do not intend to rehash the comments I have already made in relation to the contribution by the husband and the wife during the period of the relationship. They were different contributions, but in their own capacities both the husband and the wife provided both financially and non-financially to the acquisition, improvement, and maintenance of the matrimonial assets.
It would be inappropriate, however, not to take into consideration the obviously greater contribution made by the husband at the commencement of the relationship and of course the inheritances, to which I have already referred.
It was suggested in the husband’s material, that that should be looked at on the basis of a 70/30 contribution though, the husband in fact suggested in his affidavit material that that was a conservative assessment, in relation to this matter.
That, however, is not the assessment that I would make in relation to the matter, as I have certain concerns as to the values that the husband particularly placed upon what was brought into the relationship, by both he and the wife. The distinct impression I got was that the husband was very quick to maximise the financial input at the commencement of the relationship by him and to minimise the contribution made by the wife. I am more inclined to accept the more generalised proposal put on the part of the wife through her counsel, that the contribution at the commencement of the relationship was about two to one, or two‑thirds/one-third.
I am mindful, of course, also of the fact that there was the inheritances which need to be taken into consideration, in relation to this matter.
It seems to me that when one particularly is mindful of the guidance provided by the Full Court in Pierce’s case (Pierce & Pierce (1999) FLC 92-844), that that is then a significant matter because it is, to use layman’s terms, the significant seed capital which was utilised to acquire further assets by the parties and again, in that regard, I am mindful of the fact that the wife, since about 2000, has retained the bulk of the moneys which were attributable to the sale of Property W and that therefore the husband’s contribution in that respect has, however it might have come about and whatever the agreement between the parties, and that was hotly contested, meant that the wife has significantly lesser contribution to the acquisition of assets through the buying and selling of properties of the parties.
It is always a difficult assessment to make in relation to proceedings but I must say that in the end when one looks at the initial contribution, the inheritances of the husband, notwithstanding some erosion as might occur over the effluxion of time, that there must be some benefit provided to the husband in relation to these proceedings and I am of the view that the appropriate figure therefore for contribution during the relationship, is 65 per cent to the husband and 35 per cent to the wife.
I turn, then, to those matters that must be looked at pursuant to the provisions of section 75(2). Quite clearly there are factors which need to be considered in relation to this matter. The age of the parties is relevant though it is clear that both have at least some capacity for future work. The wife is 52 years of age, the husband is 50 years of age. The wife is experiencing, she says at the present time, some difficulties in obtaining appropriate employment. The husband suggests that she is not being as determined as one would hope, in relation to obtaining employment.
I am mindful, of course, of the fact that we are in a less than stellar economic climate at the moment and that there may be justifiable and obvious reasons why the wife has not yet, been able to obtain employment, but just as clearly I accept that she has both the health and the skills, particularly with regard to [omitted] duties, to obtain employment, and that whilst she may not have employment at this time, it is clear that there would be employment opportunities available to the wife in the not too distant future.
When considering section 75(2) one must also, of course, be mindful of issues with regard to the health and wellbeing of the parties and in that regard there is evidence that gives rise to some concern in respect of the husband’s employment or at least his employability as a result of health concerns.
In that regard I note that there was evidence by way of reports prepared and provided on the part of the husband, from both Dr G and Dr H. Both of those medical practitioners indicated that there were real issues of concern in relation to the husband’s health but of course, both also went on to say that there were some opportunities and availability or capacity on the part of the husband to continue in employment, similar to that which he is currently involved in.
There is, however, a greater concern that arises in relation to the husband’s future employability and how that might affect him now and into the future. There is also the issue which arose on the first day of hearing with regard to whether, in fact, the husband may be the subject of disciplinary proceedings by [R] and whether that might or might not lead to significant effects, upon his employment.
That is, of course, a matter for consideration but it is, of course, also an issue which is highly speculative. The best that can be assessed in relation to this matter is that the husband may have some difficulties into the future in relation to his continued employment, either as a result of his physical state or as a result of concerns expressed by his employer as to disciplinary matters, but they are at the best unknowns at this time.
I am certainly of the view that on the current evidence that is before me the husband has, at least more remunerative opportunities than the wife, now and into the future and whilst one cannot crystal ball gaze and know what might be available to either the husband or the wife, it is clear that there is and always has been a significant disparity in the incomes available to the husband and the wife and that that is a factor which in the end is to be necessarily considered in relation to any adjustment, pursuant to the provisions of section 75(2).
There are no obligations, at least of a legal nature, that both the husband and the wife have, in relation to children under the age of 18 years. That is not to say, of course, that they do not have the normal societal expectations that fall upon them in relation to providing assistance and support for their children and it is clear from the husband’s own evidence that in recent times when his son, [X], had suffered an injury, that the husband has contributed significantly in that regard.

The wife also says that she has contributed in different respects and to different degrees in relation to issues with regard to her own children and no doubt, both the husband and the wife will, as they are financially able, continue to contribute in different respects to the children and to their needs.
In the end there is only that one significant matter that, in my view, needs to be considered pursuant to the provisions of section 75(2) and that is the obvious future expectations in relation to employment and therefore income to be received.
To date the husband has been significantly better off than the wife in relation to employment and whilst there are those matters to which I have referred in relation to the husband’s physical wellbeing and perhaps the consequences of disciplinary proceedings, there is a very significant difference and distinction to be drawn between the husband and the wife and their future expectations, in relation to incomes and earnings.
In my assessment there is an adjustment therefore necessary in relation to the property distribution to be effected between the husband and the wife, at least insofar as the assets for immediate distribution. In my view section 75(2) does give rise to an adjustment in favour of the wife and in my assessment it is appropriately fixed at a sum of five per cent.
Accordingly, I am of the mind that the appropriate distribution of available chattels between the husband and the wife is a 60/40 distribution in favour of the husband. If that were to be the case, then on the available assets to which I have already referred, the wife’s entitlement of 40 per cent would be $173,380 and the husband’s entitlement of available assets would be $260,070.
Before addressing how that distribution might be effected, however, it is necessary for me to also comment upon what should occur, in relation to the superannuation entitlements of the husband and the wife.
As I indicated previously, in my assessment a different approach is required in relation to the superannuation entitlements of the husband and the wife because of the fact that the husband’s superannuation was acquired over a far more significant period than that which simply constituted the relationship between he and the wife.
As best can be assessed, and of course I do not have evidence as to what the breakdown might be between accumulation during the relationship and accumulation before or after the relationship or in relation to the wife’s superannuation, the relevant figure for distribution between the parties is $229,410.
If there is to be a distribution of superannuation entitlements between the husband and the wife, and I consider that that is the appropriate course to follow, then it would not be upon a basis of a 60/40 distribution because, quite clearly, if those figures were to be utilised they were contributions or acquisitions that occurred during the relationship and as I have found, both parties contributed in different ways, but to the best of their ability during the relationship.
In my assessment, therefore, the distribution of superannuation entitlements between the husband and the wife should be an equal distribution of the sum of $229,410 and they therefore each should receive, $114,705.
As the wife, of course, retains her interest in the [Q] and [S] policies held by her which total $22,569, therefore on the figures that I have indicated, the appropriate distribution between the husband and the wife is a superannuation split from the husband’s [Q] to a fund to be operated by the wife, in the sum of $92,136.
As I have indicated, the appropriate distribution in relation to the available assets of the parties is a 60/40 distribution which would mean that the wife receive a sum of $173,380. As the wife has already received by way of the Lexcen motor vehicle, the legal fees paid and the bank account retention by her, as well as jewellery valuation - and I do not intend to attempt some further distribution of jewellery items between the parties, if the wife chooses to, she can sell certain items, she has received $27,459.
The balance to be received by her, therefore, is $145,929, assuming that the parties receive an exact amount of $460,000 from the sale of the Property B property.
Just as clearly, the husband has received through the Holden GTS motor vehicle retained by him and moneys contained within the bank account at the time of separation, an amount of $50,991 and he is therefore entitled to receive a further sum of $209,079, again, if the parties were to receive a sum of $460,000 from the sale of the

Property B property.
It is, of course, speculative in the extreme to suggest that that would be what might occur, particularly when issues are not clear as to what the property might finally sell for or what commission and other outgoings there might be. I have calculated exact figures, however, in light of the indication given that the wife might at least try to retain the interest in the Property B property. If that is to occur, then it is appropriate that a transfer be made, subject, of course, to the wife taking on full responsibility in relation to the current mortgage liability in the sum of $105,000 and effecting a payment to the husband of $209,079.
If, however, that is not able to occur, then quite clearly there should be the alternate order in relation to this matter with regard to the sale of the property and therefore after taking into consideration the current retention by the wife of $27,459-worth of property, and the retention by the husband of $50,991-worth of property, a distribution, taking into consideration whatever might be the equity in the home, to effect a 60/40 distribution between the parties.
The fourth step, of course, in relation to any property distribution to be effected between husband and wife is to determine whether in all the circumstances it is just and equitable. Each party will, no doubt, if the property is to be sold, receive a significant cash amount, though the husband’s will be greater than that of the wife, as well as far more significant entitlements than would normally have been the case for the wife, in relation to superannuation.
In my view, taking into consideration all of the circumstances relevant in relation to this particular matter, it is a just and equitable distribution of property between the parties.
Accordingly, as I say, the orders will be for a 60/40 distribution of the available assets of the parties, a superannuation split from the husband’s superannuation entitlement to a policy of the wife in the sum of $92,136, and the opportunity given to the wife over 60 days, to retain the interest in the property at Property B but otherwise that it be sold and after appropriate adjustments, that there should be a 60/40 distribution of available assets upon the figures that I have calculated.
The orders will, of course, issue in that regard in due course, along with the reasons in relation to the matter.

RECORDED : NOT TRANSCRIBED

I have now been asked to rule in relation to some specific issues with regard to costs applications brought on the part of the husband. The husband in particular seeks, through his solicitor, for there to be a payment for costs associated with the preparation of a valuation by

Mr H and a further valuation of superannuation entitlements by [P] Superannuation.
One half of those two accounts is $770. It is accepted on the part of the wife that it was a joint request for [P] to attend to the valuation of the superannuation entitlements and it is acknowledged also that it was ordered that Mr H were to prepare a report and that the parties were to be responsible.
It appears clear that that obligation arises but there is, if you like, a set‑off claimed on the part of the wife in relation to valuations of jewellery items, which have been obtained by her.
The argument in relation to that particular aspect of the matter is that the orders which were previously made and which are the subject of a further application for reserved costs, those orders being made on 2 November 2009 arising from an application in a case of 24 September 2009, were not orders that were fully complied with by the husband, for example, in relation to arranging a valuation by Mr P, a jeweller agreed between the parties, and that the wife subsequently incurred the expense of another valuation by Mr P as a result of opposition to a valuation provided by the husband.
It may be that that is the case but it is clear that there were obligations that arose in relation to the valuations of Mr H and [P] Superannuation which were to be jointly met by the parties in relation to the conduct of this matter for trial and it seems appropriate that there should be recompense to the husband, in relation to one half of the costs of same.
Similarly, it is clear that whilst there may have been some negotiation in relation to the application in a case of 24 September 2009, there were a number of significant elements of dispute in relation to disclosure and general preparedness on the part of the wife to fully facilitate the process, necessary in order to lead to a resolution in proceedings.
In my view, it is one of those cases where, pursuant to the provisions to section 117(2) of the Family Law Act, the court should exercise some discretion in that regard with regard to costs of the parties or party in relation to proceedings. I note that there is a scale provided in relation to events pursuant to the Federal Magistrates Court scale and that this does appropriately fall within an independent or separate interim application as envisaged by stage 2 of the schedule.
The amount available there for an order is $1465. However, simply perhaps for convenience in relation to final determinations by the parties, it is my view that the appropriate order made with regard to both the valuations and the costs of that application is that the wife pay to the husband her share of the costs of valuations by Mr H, valuers, and [P] Superannuation and the husband’s costs of the application filed 24 September 2009, fixed in a total sum of $2000 with such payment, unless otherwise agreed, to be made within 60 days of today.

RECORDED : NOT TRANSCRIBED

It would seem appropriate otherwise that the final order should be that there be liberty to apply for purposes of clarification or other matters that might arise in relation to the proceedings and I will grant each party liberty to apply within 28 days of the date of this order.

I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 24 June 2010