Pedace and Dettoni
[2016] FamCA 643
•9 August 2016
FAMILY COURT OF AUSTRALIA
| PEDACE & DETTONI | [2016] FamCA 643 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Final alteration of property interests – child support departure – non-periodic child support FAMILY LAW – COSTS |
| APPLICANT: | Ms Pedace |
| RESPONDENT: | Mr Dettoni |
| INTERVENOR: |
| FILE NUMBER: | MLC | 2972 | of | 2013 |
| DATE DELIVERED: | 9 August 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 11 and 12 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Potter |
| SOLICITOR FOR THE APPLICANT: | M & K Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Testart |
| SOLICITOR FOR THE RESPONDENT: | Cantwell Family Lawyers |
Orders
IT IS ORDERED THAT
Property
1.On or before 11 October 2016 (“the date”), the husband pay to the wife the payment which is calculated as follows:-
(A + G) x P - W
where:-
A = $950,459 being the total agreed value of the non-superannuation assets, described in paragraph 21 of the reasons for decision excluding the property at B Street, Suburb C.
G = the value to be attributed to the property at B Street, Suburb C as at 12 October 2016 or the date upon which the payment is made (which event first occurs) being:-(a) If the property is subject to an unconditional contract of sale, the sale proceeds inclusive of any chattels or fixtures sold with the property less conveyancing costs referrable to the sale and estate agent’s commission and advertising and agent’s other expenses associated with the sale;
(b) If the property is not subject to an unconditional contract of sale, $905,000.
P = 59 per cent being the proportion of non-superannuation assets to which the wife is entitled.
W = $875,865 being the total value of non-superannuation assets described in paragraph 21 of these reasons which are to be retained by the wife.2.In the event the payment has not been made in full by the date the parties do all acts and things and sign all documents necessary to list the real property at B Street, Suburb C in the State of Victoria title particulars Lot … on plan of subdivision … Volume … Folio … (“the Suburb C property”) for sale with an agreed selling agent, and failing agreement, with an agent appointed by the court, with the proceeds of the sale to be applied as follows:-
a)First, in payment of all costs, commissions and expenses of and adjustments on the sale;
b)Second, to discharge any encumbrance affecting the Suburb C property;
c)Third, such amount of the payment as remains outstanding as at the date plus interest calculated daily at the Victoria Penalty Interest Rate;
d)Finally, the remaining balance to the husband.
3.Pending the payment or the completion of the sale:-
a)The husband be restrained from encumbering or further drawing-down on any existing loans encumbering the Suburb C property, save for the purpose of obtaining finance with which to make the payment;
b)Subject to further order of the court, the husband will have the sole use of the Suburb C property and be responsible for all rates, taxes, utilities and other outgoings of the Suburb C property as and when they fall due;
c)The wife have conduct of the sale;
d)Each party have liberty to apply with respect to the sale including with respect to the appointment of a selling agent, conveyancer or solicitor to have conduct of the sale.
4.That the wife retain for her own use and benefit to the exclusion of the husband:-
a)Her motor vehicle 1;
b)Her Telstra shares;
c)Her Host Plus Superannuation entitlements;
d)The real property situate at and known as D Street, Suburb A in the State of Victoria.
5.The wife be fully responsible for and indemnify the husband against her litigation funding loan with E Pty Ltd.
6.The husband retain for his own use and benefit to the exclusion of the wife:-
a)B Street, Suburb C in the State of Victoria (“Suburb C property”);
b)His motor vehicle 2;
c)His motor vehicle 3 (or proceeds);
d)His APA Group shares (or the proceeds of their sale);
e)His Colonial Mutual and Plum Superannuation entitlements.
7.Contemporaneously with compliance by the husband with paragraph 1 of this Order the wife remove the caveat on the Suburb C property forthwith at her expense.
8.Both parties indemnify the other for all liabilities in their respective names including but not limited to mortgages, rates, loans, credit card debt and all taxes.
9.These orders shall be binding on the Trustee of the Company F Superannuation Fund (“the Fund”).
10.The base amount allocated to the wife out of the husband’s interest in the fund is $115,837 (“the base amount”).
11.Pursuant to s 90MT(1)(A) of the Family Law Act (Cth) 1975 (“the Act”) when a splittable payment becomes payable in respect of the interest in the Fund held by the husband:
a)The wife shall be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $115,837, provided that such base amount shall not exceed the value of interest determined under s 90MT((2) and there shall be a corresponding reduction in the entitlement that the husband would have had in the fund but for this Order;
b)The wife is entitled to be paid, and the Trustee of the Fund shall pay her, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;
c)The Order has effect from the operative time;
d)The operative time for the purpose of these Orders is the fourth business day, after the date of service of a sealed copy of these Orders on the Trustee of the Fund.
12.Having been afforded procedural fairness in relation to the making of this Order, this Order binds the Trustee of the Fund.
13.The Trustee of the Fund and the parties in accordance with the obligations set out under the Act and the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry Fund (Supervision) Act (Cth) 1993 and Superannuation Industry (Supervision) Regulations 1994 shall do all such acts and things and sign all documents that be required to calculate the entitlement of and make payment to the wife in accordance with this Order.
14.Within 7 days of this Order being made the wife shall serve a copy of this Order upon the Trustee of the Fund.
15.There be liberty to each party and the trustee of the Fund to apply regarding implementation of these orders affecting the interests of the husband and the wife in the Fund.
16.Until such time as the superannuation split with the wife pursuant to these orders can be rolled over into a separate account in the name of the wife:-
a) The husband will give to the wife written notice not less than 28 days before such time as he elects to retire from and/or take voluntary retirement and/or for any reason except to become entitled to access in whole or part his entitlement to the fund;
b) The husband will authorise the fund to communicate with the wife and/or a person nominated by her in writing;
c) To answer any reasonable inquiries made by the wife or on her behalf from time to time regarding the husband’s entitlement in the fund;
d) To give the wife and/or her authorised representative a copy of any notice or any application or request by the husband which seeks release of his entitlements in the fund insofar as that release may affect the wife’s entitlements in the fund pursuant to these orders;
e) The husband be and is restrained by himself, his servants or agents from:-
i)doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the fund to which she is entitled pursuant to these orders;
ii)executing a death benefit nomination in favour of any other person doing any other act or anything which would render any part of his interest in the fund a “non-splittable payment” within the meaning of regs 13 and 14 of the Family Law (Superannuation) Regulations 2001 and the trustee of the fund give effect to these orders.
17.In the event that the superannuation split to the wife pursuant to these orders can be rolled over into a separate account, each of the parties shall do all such things and acts and execute all such documents as may be necessary to facilitate and implement that roll over.
18.The wife’s application for lump sum spousal maintenance is dismissed.
19.If a party fails to sign any document or instrument that he or she are required to sign to give effect to this Order within 14 days of any request being made of him or her, then pursuant to s 106A a Registrar of this Court sign on behalf of the defaulting party and it is sufficient proof of non-compliance if the solicitor representing the party who requests execution pursuant to s 106A files and serves an affidavit by himself or herself describing the non-compliance.
Child support
20.Pursuant to s 117 (1) of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by Mr Dettoni to Ms Pedace (formerly known as Ms Dettoni) in respect of the children G born ... 2005 and H born … 2008 and the child support income amount of Mr Dettoni be set at $76,700 per annum in respect of the assessment period 1 August 2016 to 31 July 2019.
21.For the assessment period each party provide the other by email and by pre-paid post with:-
a) a copy of his or her Group Certificate(s) for all employment during the financial year and a copy of his or her income tax assessment, as issued by the Australian Tax Office not later than after receipt by him of the income tax assessment;
b) a copy of his or her terms of employment or notice of change of salary within seven days of receipt by him or her of the said terms or notice.
22.Pursuant to s 124 (1) of the Child Support (Assessment) Act (Cth) 1989 by Mr Dettoni pay to and reimburse Mr Pedace for:-
a) An amount equivalent to one half of recommended books, stationery, recommended equipment and compulsory school camps for the attendance of the children, or either of them, at primary and secondary school;
b) An amount equivalent to one half of all reasonable fees, levies and recommended uniforms for the attendance of the children, or either of them, at I School;
c) In respect of any child who commences secondary school, an amount equivalent to one half of all reasonable fees and levies (but not uniforms) as if the child was a student at the government high school situated closest to the residence of the wife.
23.To facilitate the reimbursement provided for in the preceding paragraph the wife provide the husband with a list of items recommended by the school and a receipt for her purchases of those items not less than one month after purchase and the husband pay the money to which the wife is entitled not less than 21 days after provision of the receipt.
24.IT IS DIRECTED that a Registrar of this Registry of the Court send a copy of these Reasons for Decision to the Proper Officer of the Child Support Agency under cover of a letter marked “Reference No. …” and requesting that the copy reasons remain on the Agency’s file.
25.Without limiting the operation of the preceding paragraph of this Order, Mr Dettoni and Ms Pedace be and are hereby each at liberty to provide the Proper Officer of the Child Support Agency with a copy of these Reasons for Decision.
26.If an application for child support is filed within 3 years of this Order it may be listed before me for directions.
Costs
27.The husband pay the wife’s costs of and incidental to her application filed 30 March 2015 and the hearing on 22 June 2015 including the costs incurred by the wife for implementation of the Order made on 22 June 2015, such costs to be assessed in accordance with the Itemised Scale of Costs (schedule 3 of the Family Law Rules 2004 (Cth) (“the FLR”)).
28.In the absence of agreement about the quantum of costs being confirmed in writing within 14 days after delivery of a bill in assessable form, such costs be assessed by a Registrar of the Court in accordance with Chapter 19 of the FLR.
29.Any party wishing to make an application for other costs of the proceedings do so in accordance with the FLR.
Generally
30.I reserve liberty to the parties to apply in relation to refinement or implementation of this Order including if the husband sells the Suburb C property for the purpose of making the payment.
31.Otherwise all extant applications be and are hereby dismissed and the matter be removed from the docket of the Honourable Justice Bennett.
32.All subpoena be returned to the party producing same at the expiration of the appeal period.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedace & Dettoni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2972 of 2013
| Ms Pedace |
Applicant
And
| Mr Dettoni |
Respondent
REASONS FOR JUDGMENT
This matter comes before me as the final hearing for the competing financial applications between applicant and the respondent for:
a)final alteration of property interests;
b)a variation of child support payable by the husband and to wife;
c)costs.
On the documents, the wife sought that the husband pay lump sum spousal maintenance. However, this was not pursued in the running of the case. The parties are no longer married but for ease of reference I will refer to the applicant as the wife and to the respondent as the husband.
The case has been completed on the second day of what was estimated to be a five to nine day hearing. On the first day, the parties and the independent children’s lawyer resolved the outstanding parenting matters and extensive final orders were made in relation to the children, who are eleven and eight years old.
To say that the parties have a highly conflictual relationship is an understatement. The conflict which was evident in the parenting proceedings is manifest in the financial relationship as well. Although there were several financial issues on which the parties, through counsel, were able to reach a common approach and they are to be commended for doing so.
Background
The applicant wife is 43 years old and is usually employed in hospitality. She concluded her employment recently and is not due to commence another casual position until August 2016. Then, she will earn approximately $31,000 per annum, on the basis that she estimates she will get some 20 hours work per week, at the rate of $31 per hour. She will also be entitled to an income tested pension or benefit and will receive child support from the husband.
The husband is 48 years old. He is employed in administration. Ultimately it was ascertained that, pursuant to a contract which commences in August 2016, his base salary will be $76,700 per annum and he will be entitled to holiday pay and public holiday loading. It is not new employment. The husband has previously been under contract by the same employer for the same job, although this is a permanent position and therefore attracts holiday and public holiday loadings.
The parties became engaged to marry in September 2001 and were married in 2002. They did not cohabit prior to marriage. They separated on 1 July 2012 under the one roof and the husband vacated the former matrimonial home on 5 May 2013. They have not reconciled.
These proceedings were initiated by the wife’s application initiating proceedings, filed on 17 April 2013 in this Court.
The parties attended a conciliation conference, within the meaning of s 79(9)(a) of the Family Law Act 1975 (Cth) (“the Act”), on 19 February 2014. The matter was not resolved. Registrar Moser transferred the proceedings to the Federal Circuit Court and in due course it was set down for hearing before Judge Hughes on 18 December 2014, estimated to take two days.
There was an interim hearing in the Federal Circuit Court, on 22 June 2015 before Judge Stewart, who had assumed conduct of Judge Hughes’ cases. The wife was wholly successful with her application to have the former matrimonial home transferred into her sole name, so she could raise mortgage finance with which to fund these proceedings. The husband had various applications before the Court with which he was unsuccessful. The question of the husband’s liability to pay the wife’s costs of that day and the amount of such costs was reserved to me at this hearing.
When the matter came before Judge Stewart, for final hearing on 7 December 2015, the practitioners for the parties estimated that the hearing would take seven to nine days instead of the two day estimate given by practitioners when it had been listed. Judge Stewart transferred the proceeding to this court. By that stage there had been three family reports, by Mr J, Clinical Psychologist.
On 18 December 2016 the wife’s lawyer sought priority for the final hearing. On 21 January 2016 I ordered an independent children’s lawyer be appointed. On 3 February 2016, the parties came before me for mention and the case was set down for hearing on 11 July 2016, still estimated to take up to nine days. I granted the divorce.
Now, the matter has been able to be concluded within two days of hearing. I compliment counsel for the parties and counsel for the independent children’s lawyer, Ms Bonney, who worked hard to contain the costs of the parties at this stage of the proceedings.
The effect of the parenting orders to which the parties agreed is that the children reside for five out of each fourteen nights, during school term, with the father and for slightly more than one half of the school vacations. They reside with the mother for the balance of the time. The mother has sole parental responsibility in relation to medical and educational matters.
Evidence and my impression of the witnesses
Pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof is to a balance of probabilities.
A statement of fact is a finding of fact.
The husband and the wife were the only witnesses. I gave leave to each party to adduce brief oral evidence and each was cross-examined.
The wife presented as a fair, reasonable and accurate witness. She gave her evidence in a considered and careful way. I found her to be genuine. I accept her evidence.
The husband was occasionally evasive in his responses in the witness box. He has a deliberate manner but was unwilling to make concessions which he perceived to be contrary to his interests. For instance, the husband’s employment contract, which he has recently negotiated and discussed with his supervisor specifies that his gross salary per year is $59,000. It also states:
You will be required to work a shift pattern and you will be paid a shift allowance of 30 percent of your salary per annum.
The husband was unwilling or unable to concede that the 30 per cent shift allowance was payable irrespective of whether he worked day or night shift. It was not until this was clarified by information received orally from his employer in open court that the husband and counsel for the husband conceded that the husband’s income, in this current position, is $76,700 per annum. My assessment is that the husband was at all times well aware of his future income being $76,700. I conclude that the husband was an unreliable witness on the topic of his remuneration. The husband was also disinclined to give the wife credit in relation to her contributions prior to or during the marriage. His affidavit evidence and presentation in the witness box under cross examination, satisfies me that since separation the husband has consistently and systematically sought to minimise or understate his income, for child support purposes. He has sought to do so to the disadvantage of the wife and, through her, the children.
Step by step process for alteration of property interests
The property aspect of this application is governed by Part VIII of the Family Law Act 1975 (“the Act”). This case calls for a five step process being:-
a)To identify the property interests of the parties or either of them;
b)To determine, prima facie, whether it is just and equitable to alter property interests and, if so
c)To assess the contributions to the welfare of the family and financially of each party;
d)To assess whether there are other factors which require that the contribution based entitlement of each party should be adjusted;
e)To determine whether the end result is appropriate.
Property interests, financial resources and superannuation of the parties
Each party made sensible concessions about the value of the assets and superannuation interests.
The non-superannuation assets of the parties total $1,855,459 and are described in the below table. None are jointly owned
OWNERSHIP DESCRIPTION VALUE ASSETS 1 Wife D Street, Suburb A $840,000
2 Husband B Street, Suburb C
$905,000 3 Wife Motor vehicle 1 – valued $15,000 less $11,800 owing to mother $3,200 4 Husband Motor vehicle 3
$3,000 5 Husband Motor vehicle 2 $45,000
Agreed6 Wife Telstra Shares (696 shares at $5.69 as at 12/7/16) $3,960 7 Husband APA Group shares (775 shares at $9.54 as at 12/7/16) $7,394 8 Wife Net proceeds of sale of K Street, L Town expended in legal fees $28,905 9 Husband Net proceeds of APA Group shares expended on legal fees $17,595 10 Husband Net proceeds of Transfield Shares $2589 less $2454 less GST and brokerage fees on all husband’s share sales $405 11 Husband Net proceeds of sale of Motor vehicle 4 $1,000 Total (non-superannuation) Assets $1,855,459
The parties have each spent a lot of money on legal fees. The husband’s expenditure on legal fees is about $275,000 and the wife’s is approximately $230,000. The significance of the legal costs is that the parties’ assets, principally the house each owns, have diminished in value by those amounts. It was agreed that, even though the legal fees are no longer available to the parties, each has had the benefit of the funds. I will add those funds back into their respective assets. Accordingly, the above values for real estate do not take into account the mortgage each has taken on their home to fund these proceedings.
The husband has had the benefit of share sales since separation. There was conflictual evidence about what the husband did with the funds but I am satisfied that he used the money to pay legal fees. Therefore I have included $18,000 as funds which he has retained.
In addition to the above assets, each party has one or more superannuation interests which are to be treated as property for the purpose of allowing an allocation of superannuation between the parties and/or for certain payments to be made. In recognition of the particular way superannuation interests are acquired and can be dealt with pursuant to Part VIIIB of the Act, I will treat them separately at this step.
The superannuation interests of the parties total $393,430, comprised as follows:
a)The husband’s interest with Colonial First State, $109,283;
b)The husband’s superannuation interest with be Company F Super, $163,705;
c)The husband’s post separation superannuation accumulated with M Superannuation, $12,024;
d)The wife’s superannuation interest with Hostplus at $108,418.
Is it just and equitable to alter property interests?
I have to determine as a jurisdictional fact whether, pursuant to s 79(2) of the Act, it is just and equitable in all the circumstances of the case to make an order altering property interests as between the husband and the wife. It is not just and equitable to alter property interests that is the end of the s 79 proceedings.
This is a marriage relationship of medium duration. Each party brought valuable financial interests and resources to the marriage and since separation the parties have separated their assets. Significantly, each party concedes that, in order to effect an appropriate alteration of property interests, the husband should pay the wife a sum of money in addition to the property interests of which she is possessed. The husband and wife do not agree on the quantum of the payment by the husband to the wife. I can, however, infer that the parties consider it just and equitable to make an order altering property interests.
Turning to whether I am satisfied that it is just and equitable to make an order, I take into account that the wife’s homemaker and parent contribution during and after the marriage exceeded that of the husband. Given how the parties hold their property interests, it is apparent to me that it would not do justice between the parties for each to merely retain that to which he or she is currently entitled. Accordingly, I am satisfied that it is just and equitable to make an order altering property interests between the parties and will proceed to do so.
The contributions of the parties
The marriage was 10 busy years.
I am required to assess the direct and indirect, financial and non-financial contributions made by each party within the meaning of s 79(4)(a) and (b) of the Act to the acquisition, conservation or improvement to the property of the parties or either of them and the contribution within the meaning of ss 79(4)(c) by each party to the welfare of the family constituted by themselves and the children.
The parties did not cohabit prior to marriage. Each party was employed and each had assets when they commenced to live together. The main area of disputation around contributions was the comparative value of the pre cohabitation contributions made by each party and the weight to be attached to those contributions. The husband displayed a steadfast resolve to concede as little as possible in favour of the wife. The wife characterised their respective contributions as more or less equivalent.
The parties agree that they each owned real estate in which they had roughly equivalent equity. The husband’s property in Suburb C was more valuable than the wife’s property at N Street, Suburb O but the husband’s property was encumbered by a mortgage securing a higher indebtedness than the monies which the wife owed her parents in relation to her property. I take into account that the equity which each had in the property, on the sums which appear below, translates to the husband introducing $212,000 in equity into the relationship and the wife introducing $200,000. The husband still owns his property.
Counsel for the husband submitted that the husband’s pre cohabitation contribution of B Street, Suburb C is to be considered more valuable than the contribution by the wife of the real property which she owned at Suburb O. In fact, the husband’s equity in real estate was only slightly more than the wife, by the small amount of $12,000 or less than .05 per cent. The wife’s property at Suburb O was improved and then sold during the marriage and the parties used the proceeds of sale to acquire the former matrimonial home at D Street, Suburb A in their joint names. Counsel for the husband submitted that, whilst the parties’ equity in their respective properties was roughly equivalent, the Suburb C property was and has remained an inherently more valuable property. The husband’s property, which the parties cleared of the original mortgage, has a current market value of $905,000, whereas the value of the former matrimonial home, purchased with the proceeds of sale of the property the wife owned prior to the marriage, has an agreed value of only $840,000.
Pre cohabitation contributions are, as a matter of fact, easier to identify and to weigh where they have been retained in specie throughout the relationship. That is significant because regard is to be had to the use the parties have made of initial contributions (Pierce v Pierce (1999) FLC 92-844). Here, the wife’s real property was sold and the entire proceeds applied towards the acquisition of the former matrimonial home, which was the choice of both parties. That does not make the wife’s original contribution of equity in real property much less valuable than that of the husband. In fact, the wife’s initial contribution has been preserved as well as providing the family with home for most of the relationship, valuable contributions indeed. I do not accept the submission of Mr Testart (for the husband) that the husband’s equity in his house should attract significantly greater weight than the wife’s equity in her property.
The husband also maintained that his direct and indirect financial contributions, by way of the invested funds, shares, employee entitlements and motor vehicles which he brought into the marriage far exceeded the value of the wife’s assets. He displayed a steadfast resolve to concede as little as possible in favour of the wife. The wife characterised their respective contributions as more or less equivalent.
The husband would not concede the wife’s contribution of invested funds at $70,982. The wife relied on documentary and oral evidence to establish those funds. Her evidence was not impugned under cross examination and I prefer her evidence. I find that the husband brought some $77,000 in shares and investments into the relationship and the wife brought in about $71,000.
The husband’s pre cohabitation contributions by way of non-superannuation assets were:
a)the property at B Street, Suburb C which it is agreed had a then market value of $320,000 and was encumbered by a mortgage of $108,000 which was redeemed during the marriage. It has a current agreed value of $905,000 and forms part of the assets divisible between the parties;
b)a motor vehicle 2, which it is agreed was worth approximately $20,000 when the parties commenced living together, is now still in the possession of the husband and has an agreed current market value of $45,000;
c)shares in his employer company, which was a public listed entity, worth approximately $20,000;
d)cash savings and investments of approximately $57,000;
e)a Motor vehicle 4 motor vehicle which had a then market value of some $12,000. It was sold post separation for $1,000.
At the commencement of cohabitation, the wife had:
a)the property at N Street, Suburb O which it is agreed had a market value of $230,000 in respect of which the wife owed her parents $30,000 which was repaid during the marriage;
b)luxury motor vehicle in which she had little, if any, equity; and
c)some $70,982 in investment accounts, being $22,000 in a bonds or stocks, approximately $43,000 in a Westpac banking account and a further $8000 in an ANZ account.
Accordingly, in liquid assets, the husband’s contribution exceeded those of the wife by about $6,000 invested funds and the value of his motor vehicle 2 and Motor vehicle 4 motor vehicle, the former of which has turned out to be a reasonable investment.
The parties had been employed for some time prior to cohabitation. Two years after the marriage each took a redundancy. At that stage the husband received some $40,000, by way of redundancy, and the wife received some $14,100, by way of redundancy. That is a significant discrepancy and attributable, in part, to employee entitlements accumulated prior to the commencement of cohabitation. I take the husband’s more valuable employee entitlements into account.
Sensibly, the parties agreed that their various contributions during cohabitation are to be treated as equal.
Counsel for the wife submitted that the wife’s post separation contributions in all capacities exceeded those of the husband. By virtue of the husband’s attempts to minimise his liability for child support the wife has been required to participate in at least three change of assessment procedures, one objection and one appeal to the Social Security Appeals Tribunal. Notwithstanding that the wife received the correct child support when the husband’s taxation refunds were intercepted by the Child Support Agency, I accept that the husband’s low estimate of income made the wife’s management of her finances and day to day provision for the children more difficult that it should have been. The post separation parenting relationship has been unpleasant and the husband has made caring for the children harder for the wife than it should have been. He has also not allowed the wife to carry more than an equitable burden for the day-to-day financial support of the children.
I recognise the wife’s greater post separation contributions but am mindful that it is a period of only three years in comparison to the ten busy years of cohabitation when the parties contributed equivalently to the acquisition, conservation and improvement of non-superannuation assets and to the welfare of the family.
I attach significantly greater weight to the husband’s more valuable contributions at the commencement of cohabitation than I do to the wife’s greater contributions post separation. I have regard to the parties’ contributions during cohabitation as being equal.
Counsel for the wife contended that contributions to non-superannuation property interests could be assessed at somewhere between 51 percent and 51.5 percent in favour of the husband. Counsel for the husband, put contributions at 55 percent in favour of the husband.
I find that the parties’ contributions to non-superannuation assets should be recognised in the proportions of 53 per cent to the husband and 47 per cent to the wife. Using the values of assets agreed between the husband and wife, including $905,000 for the husband’s Suburb C property which may be sold, the contribution based entitlement equates to a division of property interests described at [21] of these reasons $872,066 to the wife and $983,393 to the husband.
Each party had a superannuation interest when they started to live together. It was agreed that, at the time of the marriage, the husband had a superannuation interest worth approximately $60,000, whereas the wife’s superannuation interest was worth $21,000. The husband was the major breadwinner during the marriage and through continuous employment he acquired superannuation which is significantly more valuable than the wife was able to acquire. Her employment was interrupted by her predominantly home maker role and then only part time employment when she did return to work. The husband’s superannuation interests have an agreed value of $285,012 and the wife’s have an agreed value of $108,418.
The husband’s case was that his post separation superannuation entitlements could be disregarded. I am not prepared to do so. Similarly to the superannuation which he accumulated during the marriage, the husband’s ability to accumulate superannuation at a rate superior to the wife was underpinned by the fact that the wife took herself out of the full time workforce and assumed more responsibility as a homemaker and parent.
Counsel for the husband submitted that the superannuation which totals $393,430 should have subtracted from it the amount of the parties’ disparate pre-cohabitation entitlements, so the husband should be credited for $60,000 and the wife for $21,000, and then the balance of $314,000 should be divided equally between them. Doing that exercise, the husband should be left with $217,000 in superannuation interests, and the wife with $178,000 in superannuation interests. That is, on my calculation, roughly the equivalent of a 45/55 split of superannuation. In fact, that is how I would have assessed contribution independently of the circuitous route proposed by counsel for the husband. Counsel for the wife was also content with a finding of contributions to superannuation interests at 55 per cent in favour of the husband and 45 per cent to the wife.
Based on agreed values, the total value of the parties’ superannuation and non-superannuation property interests is $2,248,887. My findings in relation to contribution result in the parties having the following contribution based entitlement:-
a)the wife at $1,049,110 being $872,066 of the assets identified at paragraph 21 of these reasons and $177,044 of the superannuation interests;
b)the husband at $1,199,777 being $983,393 of the assets identified at paragraph 21 of these reasons and $216,385 of the superannuation interests.
This equates to a contribution based entitlement of 46.65 per cent to the wife and 53.35 per cent to the husband.
Do subsections 79(4)(d) to (g) require an adjustment to contribution based entitlement?
I am required to determine whether an adjustment to the parties’ respective contribution based entitlement is necessary having regard to:-
a)The effect of any proposed order on the earning capacity of either party (pursuant to s 79(4)(d)). In this case, the proposed orders do not impact on the income earning capacity of either party.
b)Any relevant s 75(2) matters which are required to be taken into account in relation to spousal maintenance, pursuant to s 79(4)(e). I will discuss these in more detail below.
c)Any other order affecting a party or a child of the marriage (pursuant to s 79(4)(f)). The husband will continue to have substantial time with the children of not less than 5 out of each 14 nights.
d)Past, present and future child support, pursuant to s 79(4)(g). Once the husband’s income was clarified, it was agreed that he would pay in accordance with the formula as well as make a contribution to the ongoing educational costs of the children.
Counsel for the husband contended that the wife would be entitled to an uplift of some 10 per cent to her contribution based entitlement. Counsel for the wife contended that his client would be entitled to an uplift of between 12.5 and 14 per cent.
Turning to the matters referred to in s 75(2) factors insofar as they are relevant, the parties are of comparable age. Each has the physical and mental capacity for appropriate gainful employment. I do not accept the husband’s assertion, unsupported by evidence, that the wife is not realising her income earning potential. The wife has historically earnt less than the husband and I am satisfied that she will continue to do so. The husband’s income is approximately $77,000 per annum, whereas the wife’s will be approximately $31,000 per annum, together with some eligibility for income tested pensions or benefits payable by the Commonwealth Government. The husband will continue in full time employment. He will continue to earn a higher income from which he will pay child support.
I have regard to the small imbalance in the parties’ respective financial interests. Both parties have superannuation interests in the accumulation phase or, in any event, non-payment stage. The husband’s superannuation is more than the superannuation of the wife. The husband will continue to have the ability to accumulate superannuation at a higher rate than the wife.
The wife has the primary care of the dependent children of the marriage and will do for the foreseeable future. The children are aged only eight and eleven years. The husband has significant care of the children and must obviously curtail his work so that he is available to care for them for the five out of 14 days that they are in his household. However, he still has less day to day care of the children than the wife.
Neither party has an obligation to support anyone other than himself or herself and the children who I have mentioned. Neither party has, to my knowledge, re-partnered.
Into the future, the wife proposes to continue to reside at the former matrimonial home. The husband would like to continue to reside in his property at Suburb C but says that he will not be able to do so if he is required to pay the wife more than $150,000 pursuant to this decision. Even if the husband is required to sell the Suburb C property to pay the wife her proper entitlement, I am satisfied that each party can have a reasonable standard of living following implementation of orders for a final alteration of property interests.
There are certain transactions which I take into account, also in the context of section 75(2)(o).
The received $19,109 termination pay, redundancy and superannuation at the cessation of his employment in 2015. Of the $19,109, something like $7,000 was attributable to one month’s salary in lieu of notice. It appeared from the documents, and was not contradicted by the husband, that he was out of employment for some three weeks. Therefore, I find that $7,000 of the $19,109 was used by him for reasonable living expenses whilst he was out of work and ought not be taken into account. However, I do take into account that he had a further $12,000 which now is no longer in existence. The wife alleged that the husband paid those funds in legal fees and that the sum of $12,000 ought to be added back into the list of assets at paragraph 21. The husband denied that this was the case. Under cross examination, that husband agreed that the record of a Child Support Officer was correct, it said:
When speaking with [Mr Dettoni] on 23 May 2014 he stated that he worked for [Company P] off and on for some years. However, he was made redundant on 31 March 2014. [Mr Dettoni] confirmed that he received $19,000 net. He stated the money was handed straight to his lawyers
Cross examination continued:
Do you agree with that?‑‑‑I – the assumption was – what I was making in – in a – in a strange, oblique, philosophical way that it would end up at the lawyers, correct.
But ‑‑?‑‑‑But in terms did it actually go, did I present someone with a $19,000 cheque or $19,000 cash, no, I didn’t.
I accept that the $12,000 does not constitute a financial interest that can be divided between the parties but I do take into account that the husband has had the use and benefit of those employee benefits which were at least in part accumulated prior to separation.
The wife’s employment ceased in early July 2016 and she received some $5,584 by way of termination pay and redundancy. I am not prepared to take that into account under s 75(2)(o) as I am satisfied that was expended on reasonable living expenses.
Counsel for the husband submitted that it would be open to me to find that the wife was entitled to a 5 per cent adjustment pursuant to ss 79(4)(d) to (g). However, his primary position was that all property interests should be divided 55 per cent to the husband and 45 per cent to the wife. Counsel for the wife sought an uplift of 12.5 per cent to 14 per cent to the wife’s contribution based entitlement based on ss 79(4)(d) to (g).
I am satisfied that the wife’s lesser income earning capacity, greater responsibility for care of the children and the increased but still relatively modest child support which she will receive require that an adjustment be made in her favour. Bearing in mind the value of the financial interests of the parties there should be an adjustment of 12 per cent in favour of the wife to her contribution based entitlement on both the superannuation and non- superannuation interests. Using the agreed values as indicative values, this will result in dollar based entitlement of:
a)to the wife, 57 per cent of superannuation interests ($224,255) and 59 per cent of non-superannuation interests ($1,094,721) is $1,318,976;
b)to the husband, 43 per cent of superannuation interests ($169,175) and 41 per cent of non-superannuation interests ($760,738) is $929,913
which, in turn, is a proportional division of 58.65 per cent to the wife and 41.35 per cent to the husband.
The husband sought an adjustment in respect of his potential liability for capital gains taxation for the Suburb C property. In the absence of any expert evidence, the husband estimated that liability at $128,000. He seeks to retain the Suburb C property. It is not appropriate to make allowance for capital gains tax liability for the husband where, as here:-
·the husband will not be required to sell the Suburb C property pursuant to this decision;
·a sale of the property is not inevitable in the near future;
·the Suburb C property is the husband’s home rather than held as an investment property;
·it is the husband’s expressed preference to keep the property if at all possible. -
(Rosati v Rosati (1998) 92-804 at 85,043). I will not make an adjustment for capital gains tax now. However, in the event that the husband sells the Suburb C property for the dominant purpose of making a payment, it is appropriate that the wife share the husband’s liability for capital gains tax. Accordingly, if the husband sells the Suburb C property pursuant to a contract of sale which becomes unconditional by mid-October for the dominant purpose of making the payment due to the wife, I will require the wife to indemnify the husband for the appropriate proportion of capital gains tax actually paid by the husband referrable to this current financial year. The parties will, thereby, bear the incidence of capital gains tax which is actually due and is actually paid by the husband in the same proportions as the non-superannuation assets are divided between them.
For the avoidance of doubt, it is not my intention that the husband be able to make the payment to the wife based on the agreed value of the Suburb C property, dispose of the Suburb C property at his leisure and then require the wife to indemnify him for her share (59 per cent) of any capital gains liability. However, if the husband elects to sell the Suburb C property promptly after this decision either because he wants to do so or because he cannot otherwise make the payment due to the wife, I have imposed a formula which entitles the wife, inter alia, to 59 per cent of the non-superannuation assets of the parties subject to reimbursing the husband an amount equivalent to 59 per cent of the capital gains tax which is actually paid by the husband or which the wife agrees will be paid by him.
Is the order appropriate within the meaning of s79(1)(a)?
In deciding whether the order which reflects my assessment of contributions and the adjustment pursuant to s75(2) is appropriate within the meaning of s 79(1)(a), I must consider the operation of the order. For this purpose I have regard to agreed values and $905,000 as the indicative value of the Suburb C property.
By way of alteration to superannuation interests the husband will receive superannuation interests to the value of $169,175 comprising:-
a)his superannuation interest with Colonial First State at $109,283;
b)his superannuation interest with be Company F Super at $163,705;
c)his post separation superannuation interest with M Superannuation at $12,024 –
less a superannuation split from Company F Super to the wife of $115,837.
By way of alteration to superannuation interests the wife will receive superannuation interests to the value of $224,255 comprising her superannuation with Hostplus at $108,418 and a superannuation split from the husband’s interest with Company F Super of $115,837.
The wife’s entitlement to non-superannuation assets will be $1,094,721, comprising:-
a)D Street, Suburb C at $840,000;
b)Motor vehicle 1 at $3,200;
c)Telstra shares at $3,960;
d)Proceeds of K Street, L Town which were paid in legal fees at $28,905; and
e)A payment from the husband of $218,656.
The husband’s entitlement to non-superannuation assets will be $760,738, comprising:-
a)B Street, Suburb C at $905,000;
b)Motor vehicle 3 at $3,000;
c)APA Group shares at $7,394;
d)Motor vehicle 2 at $45,000;
e)Proceeds on sale of Motor vehicle 4 at $1,000
f)Net proceeds of $18,000 being sale of shares in APA Group (at $17,595) and Transfield (at $405);
g)Proceeds of sale of Motor vehicle 4 at $1,000 –
less a payment to the wife of $218,656.
As mentioned previously, the parties have each borrowed against and sold property interests to pay legal fees in these proceedings. As best I understand, the husband’s house is subject to a mortgage of $252,614 which included $75,000 to run the trial of five to nine days. It is likely that the husband will get some change out of the $75,000. The wife is carrying a mortgage of $200,000 referrable to funding her legal costs. The result is that the husband may have to carry a mortgage liability of about $470,000 and the wife would hold her house free of encumbrance.
The husband gave evidence about restrictions on his borrowing capacity and, in particular, that he is likely to have to sell his house if required to pay the wife more than $150,000. The husband produced a letter dated 10 June 2016 (Exhibit “H2”) signed by an unidentified bank officer to the effect that further borrowings about which the husband enquired would, if granted, require weekly repayments of $397. Given the husband’s inability to understand his contract of employment when in the witness box, I am not confident that the husband could or would have informed the National Australia Bank of his true income position. It follows that it is not clear that the bank has advised the full extent of the husband’s capacity to borrow and/or the husband will have to sell the Suburb C property to pay the wife $218,656.
In any event, a payment by the husband to the wife of only $150,000 would effect a proportional alteration of non-superannuation property interests of 45.63 per cent to the wife and 54.37 per cent to the husband. Clearly, that is not appropriate or sustainable outcome on the facts of this case.
The husband also proposed that he and the wife swap houses and he retain the property of lesser value. It was submitted that this is a means of avoiding selling costs and triggering a liability for capital gains tax consequent sale of his Suburb C property. However, the wife does not wish to swap houses and I do not consider that she should be forced out of the residence in which she lives and, on the basis of my analysis, is appropriate that she retain. Furthermore, the capital gains tax liability would merely be deferred, not extinguished.
I am satisfied that the proposed order is appropriate within the meaning of section 79(1)(a) of the Act.
Child Support
The child support applications are twofold and are to be determined under the Child Support (Assessment) Act (Cth) 1989 (“the CSA Act”).
The husband is liable for child support for the children pursuant to an administrative assessment. He has consistently provided estimates to the Child Support Agency which have been less than the income which he went on to receive. He says that he has done so knowing that any rectification would made by interception of his income taxation refund That has been cold comfort for the wife whose expenses in respect of the children are constant.
The husband has also made multiple applications for change of assessment, lodged objections and one or two applications and had one appeal to the Social Security Appeals Tribunal. All applications were directed to a reduction of his income for child support purposes and to reduce his liability to the wife for support paid for the children. At the conclusion of these proceedings, the parties were satisfied that adjustments made by interceptions of the husband’s income tax return had effected appropriate child support payments.
On an ongoing basis, the wife seeks a departure from the administrative assessment of child support based on the fact that the husband has consistently under-estimated his income. The husband opposed the orders sought by the wife but in the running of the case the parties very largely agreed on child support into the future. This should put an end to child support applications.
The husband’s child support income will be fixed at $76,700 which is his actual income at the moment. It seems appropriate to me that to be for a period of three years. Clause 7.6 of the terms and conditions of the husband’s employment contract (Exhibit “H1”) specifies that his salary will be reviewed each year but there is no presumption that it will be increased. I am unable to put in place an estimated income for the husband for the purposes of Division 7 Sub-division C of the Child Support (Assessment) Act 1989 (“the CS(A)Act”). So, if the husband’s salary increases, child support will not be recalculated and topped up out of the husband’s income taxation refund. I was not addressed on variations being made in accordance with fluctuations to the consumer price index. However, in addition to the periodic support there is to be non-periodic support which will assist in child support keeping pace with the actual costs of the children.
I am satisfied of within the meaning of s 117(1)(b)(i) of the CS(A )Act that, in the special circumstances of this case, application of the provisions of the Act would result in an unjust and inequitable determination of child support by reason of the husband’s income being higher than stated by the husband and/or taken into account for child support purposes.
I am satisfied within the meaning of s 117(1)(b)(ii)(A) of the CS(A)Act that it is just and equitable as regards the child and each of the parties to make the order which reflects what the parties have agreed to do.
There are no adverse social security consequences which will flow from the parties’ agreement. Accordingly, I am satisfied within the meaning of section 117(1)(b)(ii)(B) of the CS(A)Act that the order is otherwise proper.
Fixing the husband’s child support income at $76,700 for four years does not preclude either party from applying for a departure order in the event of a change in income (or other relevant matters). Any application will have to be made to the court rather than administratively. If a variation is to be sought, I am content for the matter to be listed before me, at least preliminarily, if that will expedite matters. Otherwise the natural forum would be the Federal Circuit Court.
So that each parent is aware of the other’s income position, I will require both to provide to the other a copy of his or her group certificates and taxation assessment within 7 days of the taxation assessment being issued together with any written terms and conditions of employment or salary review also within 7 days of same being published. I am requiring provision of group certificates as well assessments because, if the husband does sell the Suburb C property, there will be a spike in his taxable income which is obviously not relevant for child support purposes.
It is appropriate that the Child Support Agency knows what is going on. I will direct that the Registrar send a copy of these reasons to the Agency for retention by the Agency and I will authorise each party to subsequently provide the Agency with a further copy in case it is misplaced or for ease of reference.
The parties agree that the husband will also pay one-half of school fees and expenses at primary school for the children, noting that both children currently attend I School which is a private school. He will reimburse the wife for one-half of the reasonable cost of uniforms, books, compulsory camps and school levies incurred for the children at I School. He will also pay one-half of the extracurricular activities of the children which are, at this stage, to be confined to swimming and Auskick, although they may be altered into the future with the husband’s prior written consent.
The wife prefers to pursue a private education for the children at secondary school level whereas the husband maintains that the children would be better educated at non-religious, non-fee paying, government schools. Commendably the husband wants to continue to contribute but seeks to be insulated from any liability for school fees at private schools. He will contribute an amount equivalent to one-half of the expenses that the children would incur if they attended government secondary schools.
I have recorded the agreement between the parties as being that the husband will pay one-half of the reasonable uniform costs, books, compulsory camps for the attendance of the children at secondary education. He will continue to pay one-half of the extracurricular expenses which will continue to be swimming and Auskick unless otherwise agreed between the parties. If there is a fee payable by government schools for the tuition of children at secondary school level, he would pay an amount equivalent to one-half of that. Otherwise, the wife is to be solely and totally responsible for the added expense of sending the children to religious-based schools.
The husband has historically purchased school uniforms and requisites for the children but retained them in his home. I understand that he will continue to do so but specify that those uniforms and requisites are additional to the one half of uniforms and requisites for which he is to reimburse the wife.
I am satisfied within the meaning of s124(1) of the CS(A)Act that it is just and equitable to all concerned and otherwise proper to make orders in the terms to which the parties have agreed.
Costs
The parties have spent a disproportionate amount of money on legal costs and disbursements for these proceedings even taking into account the parenting proceedings which involved private expert reports . These high legal fees may not have been incurred by the couple if they, through their practitioners, had more carefully considered the court in which they should run the proceedings. Also, whether the case needed to be prepared as a nine day case or as a two day case.
The wife’s applications for costs are to be determined under Part XV of the Act.
First, the wife seeks the reserved costs for the proceedings on 22 June 2015. In this respect, I will:-
a)determine whether I am satisfied, within the meaning of s117(2) that there are circumstances which justify my making an order for the husband to pay part or all of the wife’s costs as opposed to each party bearing their own costs which is what is provided for by s117(1) of the Act and;
b)if I am satisfied that a costs order is justified, have regard to the relevant matters in 117(2)(A) in considering what order (if any) should be made;
c)without limiting the foregoing, whether costs should be calculated on an indemnity or other basis.
The wife does not produce a memorandum of the costs she claims. She does not produce the costs agreement, as required by r 19.08(3) of the Family Law Rules 2004 (Cth) (“the FLR”). I have no estimate of indemnity costs. In any event, it does not appear to me that this case attracts indemnity costs so the wife’s omissions are not significant.
The hearing on 22 June 2015 was the return date of an application brought by the wife to have the former matrimonial home transferred to her so that she could raise mortgage finance to pay legal costs. The husband was able to borrow against the Suburb C property to pay legal costs and thereby raise funds at an interest rate of some 5.88 per cent. On the other hand, because the former matrimonial home at Suburb A was registered in the joint names of the parties, the wife could not raise mortgage finance without the cooperation of the husband and she was having to access commercial litigation funding at the relatively high rate of 18.5 per cent. In all respects the wife assumed responsibility for the borrowings she wanted to take to meet her legal costs. Still, the husband refused to transfer the Suburb A property into her sole name thereby enabling her to provide security for borrowings at the much lesser rate applicable to first mortgage finance. The wife succeeded in her application that the former matrimonial home be transferred into her sole name. The husband also had proceedings apparently also returnable that day in which he sought orders with which he did not succeed.
The general rule in relation to costs is that each party should pay their own (section 117(1) of the Act). However, where there are circumstances which justify one party being required to pay or contribute to the costs of another party, the Court can so order. Given that on 22 June 2015 the parties litigated issues on which the wife succeeded and the husband did not, I am satisfied that there are circumstances which justify an order for costs being made.
Turning to what order (if any) for costs ought be made, I take into account the matters set out in section 117(2A) of the Act. Not all of the matters are relevant and the wife is not required to make out a case under each factor.
I am aware of the financial situations of the parties to the proceedings. I am certainly satisfied that neither can afford to pay costs which are unnecessarily incurred.
Neither party is in receipt of legal assistance from Victoria Legal Aid.
The conduct of parties to the proceedings in relation to the proceedings, including without limiting the generality of this matter, the conduct of them in relation to discovery, inspection, directions to answer questions, admission of facts and production of documents and the like, is not a matter which bears directly on these proceedings. Likewise, I’m not aware that the proceedings were necessitated by the failure of a party to comply with previous orders of the Court.
It is ss 117(2A)(e) which is most relevant; that is, whether a party was wholly unsuccessful. The husband was wholly unsuccessful. The wife obtained the orders she sought. This factor provides ample support for the relief sought by the wife.
As a consequence of the hearing on 22 June 2015, the husband was required to execute documents to transfer the former matrimonial home into the sole name of the wife. However, he executed the transfer of land using a signature which was different to any signature he had used when dealing with the property. The anomaly in execution required some extra work on behalf of the wife’s legal practitioners in order to satisfy the mortgagee that the affixed signature was, in fact, the husband’s signature. The extra work meant extra expense for the wife. That extra expense is a cost of and incidental to the implementation of the order which was made on 22 June 2015 and, I am satisfied, ought to be met by the husband.
The wife should have her costs of the proceedings which were determined on 22 June 2015 together with the extra costs referrable to the anomalous signature. However, I do not find anything exceptional about the dispute which gave rise to the wife incurring costs which justifies the wife’s costs being calculated on an indemnity basis. The wife’s costs should be calculated in accordance with the Scale of Costs which appears as Schedule 3 to the FLR.
The wife’s second application for costs is that the husband pay her costs of the balance of the proceedings or the hearing. The application is premature. It is appropriate that each party be able to consider the outcome of these proceedings and my findings before pressing or responding to an application for one party to pay the other party’s costs. Apart from anything else, it is necessary for me to know about any offers to settle the proceedings and terms of any such offers before determining liability for costs (s117(2A)(g)). Any party who seeks costs against the other can do so in accordance with the FLR.
Generally
I was assisted by Counsel being prepared to adopt a hybrid of proposed orders from their respective case outlines as the form of this Order. I have been required to abandon the provision in the proposed order for the husband to make the payment to the wife within 30 days because I could not make it fit with the agreed provision about capital gains tax. In the result, the wife will receive payment by mid-October 2016 and be entitled to interest thereon. If I have missed something clearly intended, the parties have permission to come back before me to finesse the orders which I have pronounced.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.
Legal Associate:
Date: 9 August 2016.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Procedural Fairness
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Statutory Construction
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