Rao and Abidi
[2008] FamCA 1280
•7 March 2008
FAMILY COURT OF AUSTRALIA
| RAO & ABIDI | [2008] FamCA 1280 |
| FAMILY LAW - PROPERTY SETTLEMENT – Pool of assets – Contributions. |
| Family Law Act 1975 (Cth) Sections 75 and 79 |
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Omacini (2005) 33 Fam LR 134
In the Marriage of Browne and Green (1999) 25 Fam LR 482; (1999) FLC 92-873
In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97
| APPLICANT: | Ms Rao |
| RESPONDENT: | Mr Abidi |
| FILE NUMBER: | NCF | 532 | of | 2006 |
| DATE DELIVERED: | 7 March 2008 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Loughnan JR |
PLACE HEARD: Newcastle
| HEARING DATE: | 31 January and 1 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT WIFE: | Ms S Christie |
SOLICITOR FOR THE APPLICANT WIFE: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT HUSBAND | Mr C Boyd |
| SOLICITOR FOR THE RESPONDENT HUSBAND | Rankin Nathan Lawyers |
Orders
1.That within forty two (42) days from the date of this Order, each party shall do all things necessary, sign all documents, deeds and instruments and provide all necessary consents to cause the following simultaneously:
1.1. Transfer of the property situate at and known as K Street, Suburb X in the Australian Capital Territory, being the whole of the land contained within Certificate of Title Block … Section … (“the X property”) to the sole name of the Wife at the Wife’s cost, such that the Husband shall sign all documents presented to him by the Wife and the Wife shall do all other things necessary to cause such transfer;
1.2. Discharge of all mortgages and encumbrances registered on title to the X property at the cost of the Wife, including the registered mortgage to the Commonwealth Bank of Australia, such that the Husband shall sign all documents presented to him by the Wife and the Wife shall do all other things necessary to cause such discharge;
1.3. Transfer of the property situate at and known as G Street, Town Y in the State of New South Wales, being the whole of the land contained within Folio Identifier … (“the Y property”), to the sole name of the Husband at the Husband’s cost, such that the Wife shall sign all documents presented to her by the Husband and the Husband shall do all other things necessary to cause such transfer;
1.4. Discharge of all mortgages and encumbrances registered on title to the Y property at the cost of the Husband, including the registered mortgage to the Commonwealth Bank of Australia, such that the Wife shall sign all documents presented to her by the Husband and the Husband shall do all other things necessary to cause such discharge;
1.5. The Husband shall pay to the Wife’s solicitors, Watts McCray Lawyers of Level 4, 17‑21 Macquarie Street, Parramatta in the State of New South Wales on the Wife’s behalf a bank cheque in the sum of $200,000;
1.6. Discharge of the Commonwealth Bank of Australia loan account number …104 in the name of the Wife, Husband and L Abidi at the cost of the Wife, such that the Husband shall sign all documents presented to him by the Wife and the Wife shall do all other things necessary to cause such discharge.
1.7. AND the Wife shall indemnify and keep indemnified the Husband in respect of all liabilities in relation to the X property whenever and however arising.
1.8. AND the Husband shall indemnify and keep indemnified the Wife in respect of all liabilities in relation to the Y property whenever and however arising.
2.That both parties forthwith do all things and sign all documents necessary to authorise Colquhoun Murphy Solicitors to pay the monies held in Trust following the sale of the property situate at and known as J Street, Suburb U in the Australian Capital Territory, to the Wife.
3.In the event that payment has not been made to the Wife in compliance with paragraph 1.5 of this Order then within a further fourteen (14) days each party shall do all things necessary, sign all documents, deeds and instruments and provide all necessary consents to cause the Y property to be listed for sale by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement for a period of seven (7) days or more to be determined by the President of the Australian Institute of Valuers and Land Economists (NSW) or his/her nominee and that upon completion of sale of each property the proceeds of sale of the Y property shall be applied in the following manner and priority:
3.1.In payment of agent’s commission, advertising expenses and legal expenses of the sale;
3.2. In payment of costs incurred to the nomination of a real estate agent (if any) and in payment of costs in relation to determination of value or selling price by the President of the Australian Institute of Valuers and Land Economists (NSW) or his/her nominee;
3.3. In an amount sufficient to discharge in full all mortgages registered on title to the Y property at the time of sale of each property;
3.4. In payment to the Wife of the sum of $200,000 together with interest on that sum calculated in accordance with the Family Law Rules from the date of these Orders until the date of receipt of such money by the Wife; and
3.5.In payment of the balance then remaining to the Husband.
4.That for the purposes of effecting a sale of the Y property pursuant to paragraph 3 of this Order, the following will apply:-
4.1. Neither party may confer on any agent without the written consent of the other party first obtained any right to any sole or exclusive agency in respect of the Y property, or either of them, or as to any commission payable to any agent upon sale of the Y property, or either of them.
4.2.The Solicitor to be engaged by the parties shall be as agreed between them.
5.That within twenty eight (28) days from the date of this Order, the parties shall do all things necessary at the Wife’s cost to close their jointly held Commonwealth Bank of Australia account, being account number …042 and the Wife shall retain to the exclusion of the Husband all remaining funds standing in that account at the time of closure of the account.
6.That within twenty eight days (28) from the date of this Order, the parties shall do all things necessary to cause the jointly held Commonwealth Bank of Australia shares to be transferred to the sole name of the Wife at the Wife’s costs and the Wife shall indemnify and keep indemnified the Husband in relation to all liabilities in respect of the shares whenever and however arising.
7.That, as between the parties, the Wife shall be solely responsible for and shall pay the following loans and/or liabilities in her sole name, and the Wife shall indemnify and keep indemnified the Husband in respect of same however and whenever arising:
7.1.The Wife’s HECS debt;
7.2.The parties joint debt to Centrelink (Family Tax Benefit);
7.3.The Wife’s Westpac Mastercard Credit Card;
7.4.The Wife’s Commonwealth Bank of Australia Mastercard Credit Card;
7.5.The Wife’s Citibank Visa Credit Card;
7.6.The Wife’s Bankwest Mastercard Credit Card; and
7.7.The Wife’s HSBC Credit Card.
8.That, as between the parties, the Husband shall be solely responsible for and shall pay the following loans and/or liabilities in his sole name, and the Husband shall indemnify and keep indemnified the Wife in respect of same however and whenever arising:
8.1.The Husband’s Commonwealth Bank of Australia Visa Credit Card; and
8.2.The Husband’s American Express Credit Card.
9.That, as between the parties, and subject to the above orders, each party shall be solely responsible for all taxation liabilities arising in their sole name respectively at present and at any time in the future, AND the parties shall indemnify and keep indemnified each other in respect of all such liabilities whenever and however arising.
10.That, the Husband and Wife shall agree on a date and time for the Wife to collect the following items from the Y property:
10.1.Britannica Encyclopaedia set;
10.2.The Wife’s personal papers, books and photographs;
10.3.Provided the husband can locate it, a Juicer;
10.4.Personal effects of M and L Abidi in the form of a bicycle and some weights
11.That, subject to the above provisions of this Order, each party shall retain sole legal and beneficial ownership of:-
11.1.All personal property now in his or her respective possession or control.
11.2. All shares, debentures, units in unit trusts, accounts held at any bank, building society, credit union or financial institution standing in his or her sole name respectively.
11.3. Any interest in any life insurance policy or superannuation fund standing in his or her sole name respectively.
12.That each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
13.That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
IT IS NOTED that publication of this judgment under the pseudonym Rao & Abidi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCC 532 of 2006
| Ms Rao |
Applicant
And
| Mr Abidi |
Respondent
REASONS FOR JUDGMENT
After a marriage of more than 12 years the parties cannot agree on a settlement of their property.
Applications
The wife seeks orders in terms of a Minute emailed to my chambers late on the final day of the hearing, as follows:
1.That an Order by way of alteration of property interests pursuant to s79 of the Family Law Act 1975 (Cth) be made in terms of paragraphs 2 to 12 hereof.
2. That within forty two (42) days from the date of this Order, each party shall do all things necessary, sign all documents, deeds and instruments and provide all necessary consents to cause the following simultaneously:
2.1.Transfer of the property situate at and known as [K Street, Suburb X] in the Australian Capital Territory, being the whole of the land contained within Certificate of Title Block … Section … (“the [X] property”) to the sole name of the Wife at the Wife’s cost, such that the Husband shall sign all documents presented to him by the Wife and the Wife shall do all other things necessary to cause such transfer;
2.2.Discharge of all mortgages and encumbrances registered on title to the [X] property at the cost of the Wife, including the registered mortgage to the Commonwealth Bank of Australia, such that the Husband shall sign all documents presented to him by the Wife and the Wife shall do all other things necessary to cause such discharge;
2.3.Transfer of the property situate at and known as [G Street, Town Y] in the State of New South Wales, being the whole of the land contained within Folio Identifier … (“the [Y] property”), to the sole name of the Husband at the Husband’s cost, such that the Wife shall sign all documents presented to her by the Husband and the Husband shall do all other things necessary to cause such transfer;
2.4.Discharge of all mortgages and encumbrances registered on title to the [Y] property at the cost of the Husband, including the registered mortgage to the Commonwealth Bank of Australia, such that the Wife shall sign all documents presented to her by the Husband and the Husband shall do all other things necessary to cause such discharge;
2.5.The Husband shall pay to the Wife’s solicitors, Watts McCray Lawyers of Level 4, 17‑21 Macquarie Street, Parramatta in the State of New South Wales on the Wife’s behalf a bank cheque in the sum of $323,292.00;
2.6.Discharge of the Commonwealth Bank of Australia loan account number …104 in the name of the Wife, Husband and [L Abidi] at the cost of the Wife, such that the Husband shall sign all documents presented to him by the Wife and the Wife shall do all other things necessary to cause such discharge.
2.7.AND the Wife shall indemnify and keep indemnified the Husband in respect of all liabilities in relation to the [X] property whenever and however arising.
2.8.AND the Husband shall indemnify and keep indemnified the Wife in respect of all liabilities in relation to the [Y] property whenever and however arising.
3.That both parties forthwith do all things and sign all documents necessary to authorise Colquhoun Murphy Solicitors to pay the monies held in Trust following the sale of the property situate at and known as [J Street, Suburb U] in the Australian Capital Territory, to the Wife.
4.In the event that payment has not been made to the Wife in compliance with paragraph 2.5 of this Order then within a further fourteen (14) days each party shall do all things necessary, sign all documents, deeds and instruments and provide all necessary consents to cause the [Y] property to be listed for sale by private treaty at the earliest possible date at a price to be agreed upon between the parties and failing such agreement for a period of seven (7) days or more to be determined by the President of the Australian Institute of Valuers and Land Economists (NSW) or his/her nominee and that upon completion of sale of each property the proceeds of sale of the [Y] property shall be applied in the following manner and priority:
4.1.In payment of agent’s commission, advertising expenses and legal expenses of the sale;
4.2.In payment of costs incurred to the nomination of a real estate agent (if any) and in payment of costs in relation to determination of value or selling price by the President of the Australian Institute of Valuers and Land Economists (NSW) or his/her nominee;
4.3.In an amount sufficient to discharge in full all mortgages registered on title to the [Y] property at the time of sale of each property;
4.4.In payment to the Wife of the sum of $323,292.00 together with interest on that sum calculated in accordance with the Family Law Rules from the date of these Orders until the date of receipt of such money by the Wife; and
4.5.In payment of the balance then remaining to the Husband.
5.That for the purposes of effecting a sale of the [Y] property pursuant to paragraph 6 of this Order, the following will apply:-
5.1.Neither party may confer on any agent without the written consent of the other party first obtained any right to any sole or exclusive agency in respect of the [Y] property, or either of them, or as to any commission payable to any agent upon sale of the [Y] property, or either of them.
5.2.The Solicitor to be engaged by the parties shall be as agreed between them.
6.That within twenty eight (28) days from the date of this Order, the parties shall do all things necessary at the Wife’s cost to close their jointly held Commonwealth Bank of Australia account, being account number …042 and the Wife shall retain to the exclusion of the Husband all remaining funds standing in that account at the time of closure of the account.
7.That within twenty eight days (28) from the date of this Order, the parties shall do all things necessary to cause the jointly held Commonwealth Bank of Australia shares to be transferred to the sole name of the Wife at the Wife’s costs and the Wife shall indemnify and keep indemnified the Husband in relation to all liabilities in respect of the shares whenever and however arising
8.That, as between the parties, the Wife shall be solely responsible for and shall pay the following loans and/or liabilities in her sole name, and the Wife shall indemnify and keep indemnified the Husband in respect of same however and whenever arising:
8.1.The Wife’s HECS debt;
8.2.The parties joint debt to Centrelink (Family Tax Benefit);
8.3.The Wife’s Westpac Mastercard Credit Card;
8.4.The Wife’s Commonwealth Bank of Australia Mastercard Credit Card;
8.5.The Wife’s Citibank Visa Credit Card;
8.6.The Wife’s Bankwest Mastercard Credit Card; and
8.7.The Wife’s HSBC Credit Card.
9.That, as between the parties, the Husband shall be solely responsible for and shall pay the following loans and/or liabilities in his sole name, and the Husband shall indemnify and keep indemnified the Wife in respect of same however and whenever arising:
9.1.The Husband’s Commonwealth Bank of Australia Visa Credit Card; and
9.2.The Husband’s American Express Credit Card.
10.That, as between the parties, and subject to the above orders, each party shall be solely responsible for all taxation liabilities arising in their sole name respectively at present and at any time in the future, AND the parties shall indemnify and keep indemnified each other in respect of all such liabilities whenever and however arising.
11.That, the Husband and Wife shall agree on a date and time for the Wife to collect the following items from the [Y] property:
11.1.Four (4) lamp shades given to the Wife by her sister;
11.2.Britannica Encyclopaedia set;
11.3.The Wife’s personal papers, books and photographs;
11.4.The three seater Italian red velvet lounge;
11.5.Juicer;
11.6.Extendable coffee table; and
11.7.Personal effects of [M] and [L Abidi].
12.That, subject to the above provisions of this Order, each party shall retain sole legal and beneficial ownership of:-
12.1.All personal property now in his or her respective possession or control.
12.2.All shares, debentures, units in unit trusts, accounts held at any bank, building society, credit union or financial institution standing in his or her sole name respectively.
12.3.Any interest in any life insurance policy or superannuation fund standing in his or her sole name respectively.
13.Pursuant to Section 81 of the Family Law Act 1975 (Cth) the parties intend these Orders to finally determine all financial relations and issues between them and avoid further proceedings between them.
14.That each party shall do all things necessary including providing all consents to give effect to these orders in the time periods prescribed in these orders.
15.That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
The husband seeks orders in terms of a Minute handed up with final submissions on the final day of the hearing as follows:
1. Within 42 days of the date of the making of these Orders the Husband transfer to the Wife the property known as and situate at [K Street, Suburb X], in the Australian Capital Territory (“the [X] property”).
2. Contemporaneously with the transfer in Order 1 the Wife will cause any mortgage secured on the title to the [X] property to be paid and discharged and thereafter do all acts and things necessary to indemnify the Husband against all actions, suits, claims or demands made on the Husband by the mortgagee pursuant to the mortgage secured on the [X] property.
3. In the event that the Wife fails to comply with Order 2, the parties will immediately do all acts and things and execute all documents necessary to effect the sale of the [X] property for the best price reasonably obtainable.
4. In the event that the [X] property is required to be sold the parties will:
4.1.Immediately list the [X] property for sale by private treaty with such agent as the parties agree to appoint and in default of agreement as to the agent within 14 days after these Orders come into effect, with such agent as the President of the Real Estate Institute of New South Wales, or the equivalent in the Australian Capital Territory appoints, the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due.
4.2.List the [X] property for sale at a price as agreed between the parties and failing agreement at a price determined by a licensed valuer appointed by the President of the Australian Property Institute with the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due.
4.3.Each co-operate in every way with the agents including but not limited to making the key available to the agents; allowing inspection of the [X] property at all reasonable times requested by the agents; doing or saying nothing to hinder or prevent a sale being effected; ensuring that the [X] property including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers; and signing all documents requested by the agents in relation to the listing the sale of the [X] property, except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
4.4.Each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer in accordance with 4.2.
4.5.In the absence of agreement between the parties as to a solicitor to have conduct of the sale on their behalf, the parties will invite the president of the Law Society of the Australian Capital Territory to nominate a solicitor to act on behalf of the parties, and the costs and expenses of engaging that solicitor will form part of the legal costs of sale and be deducted from the proceeds of sale;
4.6.Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the [X] property or to any commission;
4.7.In the event that the [X] property remains unsold for a period of 3 months from the date upon which it was first listed for sale, the parties will list the [X] property for sale by public auction with such agent as the parties agree to appoint and in default of agreement as to the agent, with such agent as the President of the Real Estate Institute of New South Wales, or the equivalent in the Australian Capital Territory appoints, the costs of and incidental to such appointment to be borne equally by the parties and the following provisions will apply:
4.7.1.The reserve price for the purpose of such auction will be such as the parties agree upon and failing agreement will be the price nominated as a fair market value by a licensed valuer appointed by the President of the Australian Property Institute with the costs of such valuation to be borne equally by the parties.
4.7.2.In the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the [X] property at a price which is not more than 10% below the reserve price;
4.7.3.If the [X] property remains unsold, the parties will do all acts and things and sign all documents necessary to immediately re-list the [X] property for sale by public auction again, on a date nominated by the agent, and at such auction there will be no reserve price.
4.8.On settlement of the sale of the [X] property the proceeds of sale be paid in the following manner and priority:
4.8.1.All costs and expenses of sale including legal costs and disbursements, agent's commission, valuer's fees and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
4.8.2.The amounts required to discharge the mortgage(s).
4.8.3.The amounts required to pay all municipal and water rates outstanding with respect to the [X] property;
4.8.4.The balance then remaining to the Wife.
5. Within 42 days of the date of the making of these Orders the Wife shall do all acts and things and execute all documents, instruments and writings necessary to transfer to the Husband all of the Wife's right title and interest in the property known as [G] Street, [Town Y] in the State of New South Wales being the whole of the land comprised in Certificate of Title Folio Identifier … (“the [Y] property”).
6. Contemporaneously with the transfer in Order 5, the Husband will cause the mortgage registered on the title of the [Y] property to be discharged and thereafter do all acts and things necessary to indemnify the Wife against all actions, suits, claims or demands made on the Wife by the Commonwealth Bank of Australia pursuant to the mortgage secured over the home.
7. In the event that the Husband fails to discharge the mortgage within 42 days from the date of the making of these Orders the parties will then immediately do all acts and things and execute all documents necessary to effect the sale of the [Y] property for the best price reasonably obtainable.
8. In the event that the [Y] property is required to be sold the parties will:
8.1.Immediately list the [Y] property for sale by private treaty with such agent as the parties agree to appoint and in default of agreement as to the agent within 14 days after these Orders come into effect, with such agent as the President of the Real Estate Institute of New South Wales, or the equivalent in the Australian Capital Territory appoints, the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due.
8.2.List the [Y] property for sale at a price as agreed between the parties and failing agreement at a price determined by a licensed valuer appointed by the President of the Australian Property Institute with the costs of and incidental to such appointment to be borne equally by the parties as and when same fall due.
8.3.Each co-operate in every way with the agents including but not limited to making the key available to the agents; allowing inspection of the [Y] property at all reasonable times requested by the agents; doing or saying nothing to hinder or prevent a sale being effected; ensuring that the [Y] property including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers; and signing all documents requested by the agents in relation to the listing the sale of the [Y] property, except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
8.4.Each execute a contract for sale in the form prepared by the solicitors having the conduct of the sale at a price agreed upon by the parties or, in the absence of any agreement, at or above the price nominated by the valuer in accordance with 8.2.
8.5.In the absence of agreement between the parties as to a solicitor to have conduct of the sale on their behalf, the parties will invite the president of the Law Society of the Australian Capital Territory to nominate a solicitor to act on behalf of the parties, and the costs and expenses of engaging that solicitor will form part of the legal costs of sale and be deducted from the proceeds of sale;
8.6.Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the [Y] property or to any commission;
8.7.In the event that the [Y] property remains unsold for a period of 3 months from the date upon which it was first listed for sale, the parties will list the [Y] property for sale by public auction with such agent as the parties agree to appoint and in default of agreement as to the agent, with such agent as the President of the Real Estate Institute of New South Wales, or the equivalent in the Australian Capital Territory appoints, the costs of and incidental to such appointment to be borne equally by the parties and the following provisions will apply:
8.7.1.The reserve price for the purpose of such auction will be such as the parties agree upon and failing agreement will be the price nominated as a fair market value by a licensed valuer appointed by the President of the Australian Property Institute with the costs of such valuation to be borne equally by the parties.
8.7.2.In the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the [Y] property at a price which is not more than 10% below the reserve price;
8.7.3.If the [Y] property remains unsold, the parties will do all acts and things and sign all documents necessary to immediately re-list the [Y] property for sale by public auction again, on a date nominated by the agent, and at such auction there will be no reserve price.
8.8.On settlement of the sale of the [Y] property the proceeds of sale be paid in the following manner and priority:
8.8.1.All costs and expenses of sale including legal costs and disbursements, agent's commission, valuer's fees and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
8.8.2.The amounts required to discharge the mortgage(s).
8.8.3.The amounts required to pay all municipal and water rates outstanding with respect to the [Y] property;
8.8.4.The balance then remaining to the Husband.
9. Within 14 days of the date of the making of these Orders both parties do all acts and things and sign all documents necessary to authorise Colquhoun Murphy Solicitors to pay the monies held in trust by them following the sale of the property situated at [J Street, Suburb U], Australian Capital Territory to the Husband.
10. Within 14 days of the date of the making of these Orders the Wife do all acts and things and sign all documents necessary to transfer to the Husband all of her right title and interest in any shares registered in the parties joint names in the Commonwealth bank of Australia.
11. Within 14 days of the date of the making of these Orders the Wife pay and discharge the loan held in the names of the Husband, the Wife and [L Abidi] from the Commonwealth Bank of Australia and indemnify the Husband for any future liability with respect to this loan.
12. Within 14 days of the date of the making of these Orders both parties do all acts and things and sign all documents necessary to close the parties joint Commonwealth Bank of Australia account number …042 and to authorise and direct the funds held in that account to be paid to the Husband.
13. Within 14 days of the date of the making of these Orders the Husband will make available to the Wife, at the Wife's expense, the following items from the [Y] property:
13.1.Encyclopaedia Britannica set;
13.2.The Wife's personal papers, books and photographs;
13.3.Personal effects of [M] and [L Abidi].
14. Except as otherwise provided in these Orders the Husband and Wife shall each retain and be declared the sole legal and beneficial owner of all other items presently in their respective possession or control including but not limited to motor vehicles, liquid funds in bank accounts, life insurance or funds invested by either party in a bank or like institution, shares, superannuation, furniture, furnishings and household effects.
15. Except as otherwise provided in these Orders the Husband will indemnify the Wife against all debts, actions, suits, claims or demands in the name of the Husband or in relation to any real or personal property held in the sole name of the Husband.
16. Except as otherwise provided in these Orders the Wife will indemnify the Husband against all debts, actions, suits, claims or demands in the name of the Wife or in relation to any real or personal property held in the sole name of the Wife.
17. That pursuant to section 106A of the Family Law Act, in the event that either party fails, neglects or refuses to sign any document required to give effect to these Orders, within 7 days of being requested in writing by another party who has an interest in the execution of such document, then upon the filing of an affidavit evidencing such failure, neglect, or refusal, a Registrar of the Newcastle Registry of the Family Court of Australia is appointed to execute such document in lieu of the defaulting party.
Issues for determination
The issues for determination identified by learned counsel for the parties are:
Wife’s issues
The husband’s contributions for his family during the relationship;
The wife’s needs post separation for re-establishment;
The extent of the wife’s initial contribution;
The child support and non financial assistance received by the wife during the relationship from the children’s father;
The husband’s income and earning capacity.
Husband’s issues
The nature and extent of the husband’s involvement with the wife’s sons, including financial and non-financial and the adjustment in contribution flowing from that;
The wife’s actual financial position at the present;
The extent to which the wife has maintained income and assets separate from communal assets during the marriage;
Whether the alleged lump sums paid in by the wife went into the joint account utilized by the parties;
The whereabouts of the wife’s share of the H property sale;
The extent of contributions to and income foregone as a result of accommodation provided to the wife’s elder son;
The extent to which the wife’s current debts should be excluded from the current asset pool.
Short History
As at the date of hearing the wife and husband were 51 and 45 years of age respectively. They were married in 1991 and separated in April 2004 or March 2005.
Children
The parties have no children.
The wife has two adult sons:
L Abidi, who was 27 years of age as at the date of the hearing; and
M Abidi, who was 20 years of age as at the date of the hearing.
Background facts
The wife was born in England and first came to Australia with her family in 1975. She lived in Fiji with her first husband and they migrated to Australia in 1984. In 1985 the wife commenced employment as a Commonwealth Public Servant. The wife became an Australian citizen in 1986.
There are two children of the wife’s first marriage. M Abidi and L Abidi.
The husband was born in Country N. The parties commenced a relationship in December 1990 when the wife was visiting Country N.
On 16 August 1991 the wife bought a unit at Suburb P, ACT for $108,950. She paid $38,797.63 and borrowed $76,100. Given that some moneys were applied to the costs of purchase, the wife’s equity was about $32,850.
In Country N the husband was working part time as a medical professional and was a full time specialist training registrar.
The parties arranged to be married and the husband arrived in Australia on 6 October 1991 on a fiancé visa.
The parties were married in late 1991. In addition to the equity in the P unit, the wife had a time share apartment that was later sold for $6,000 and her superannuation entitlement was about $6,903. She also had $18,000 in savings and insurance policies worth about $2,500.
The wife received no child support from her first husband from June 1993 to November 1997. In total she says that her ex-husband paid $44,605.49 in child support between March 1991 and December 2006.
In November 1993 the parties purchased and moved into K Street, Suburb X, ACT. The P unit was rented out. Initially the rent went into and the mortgage was paid out of the wife’s account. Later the rent went into and the mortgage was paid from the joint account.
In 1995 the wife sold the timeshare apartment for $6,000. It is her evidence that the sale funded the parties travel overseas in 2004. The cost of the trip went onto a credit card and the proceeds of the timeshare were later applied to pay the credit card debt.
In 1995 the wife took voluntary retrenchment. She received a gross payment of $62,189.30, representing superannuation and other benefits. The net amount $45,450 was paid into the husband’s St George Bank account on 6 September 1996 and $45,000 was withdrawn at the another branch on 2 October 1996. It is the wife’s case that the $45,000 was paid off the mortgage debt of the parties. The husband does not know what happened to those funds.
In December 1995 the wife moved to Melbourne. She sold the P unit and the proceeds of $105,452.57 were applied to the payment of bank charges and to:
Discharge the P unit mortgage $75,028.81
Reduce the X property loan by $25,943.33
Credited to a State Bank account $3,800.87
In February 1996 the husband and wife purchased a property at Suburb H, Victoria for $114,000.
In August 1998 the husband moved to Hobart, Tasmania, for work.
In December 1998 L ceased to live with the parties.
In January 1999 the parties moved to Town V, Tasmania, for the husband’s work.
In August 1999 the parties moved to New South Wales for the husband’s work.
In 2002 the wife returned to paid employment.
In December 2003 the husband travelled to Country N for about six weeks.
During that time the wife met with Mr A. Mr A is a citizen of New Zealand, a relative of the wife’s first husband and someone the wife has known since 1980. It is the wife’s case that she had been paying an amount equivalent to her HECS contribution (6 per cent of her salary) into an account in her name with the Bank of Melbourne. It is her evidence that she did not actually pay those amounts off her HECS debt but made those deposits as a way of secreting money away from the husband, for her own uses. She understands that the Bank of Melbourne was taken over by the Westpac Bank and that she was then required to open a new account. On 30 December 2003 the wife opened a Westpac Bank account in the joint names of herself and Mr A. The account was opened with a deposit of $500 which came from part of the closing balance of the Bank of Melbourne account. The wife says that it was a joint account so as to allow financial transactions between the wife and Mr A who lent the wife $5,000. It transpired that the wife’s evidence is that the account was intended for the mutual support of herself and Mr A and that the first support was provided by the wife to Mr A. It was the wife’s evidence that Mr A made several withdrawals from New Zealand totalling about $350 because he was in some form of financial crisis. Much later, in September 2004 Mr A paid $NZ5,000 into the account. There was a later transfer of funds into the account of $A2,000 into the account. Over time she paid moneys into that account from her wages. Some of the payments were in excess of 6 per cent of her wages. One payment was her full wage. In about May or June 2004 the wife opened yet another account in her name and commenced to make deposits in to that account. It is submitted on behalf of the husband that in all about $7,000 was withdrawn from the Westpac joint account from New Zealand. The joint account was closed in December 2004. The husband was not told of the existence of the account. I cannot reconcile the wife’s evidence with the statements for the account.
The husband says that the wife moved to Sydney on 18 March 2004 .
The husband says that the parties separated on 29 April 2004. He says that they lived under one roof but separately into May 2004.
In July 2004 the parties sold the H property for $220,000 and divided the proceeds equally. The parties did not account to each other for the disposition of the funds.
The wife was out of paid employment from August 2004 – April 2005.
The husband says the parties spent further 2 week period living together from 15 August 2004.
On 22 December 2004 the parties commenced a period of attempted reconciliation.
The husband says that the final attempt at reconciliation ended on 5 February 2005.
From March 2005 to February 2007 the wife paid half the mortgage on a property occupied by husband in addition to renting her own accommodation.
The wife says that the parties separated on 19 March 2005.
In June 2005 M ceased to be a member of the husband’s household.
As at June 2006 the wife’s HECS debt stood at $7,303.
In January 2007 the tenants vacated the X property. The wife’s son, L, moved into the property. He pays $350 per fortnight towards the mortgage payments on that property.
In April 2007 the wife completed the first year of a two year internship as a health professional.
On 18 April 2007 orders were made by consent. The effect of those orders was
to record the parties’ agreement of the values of R and S motor vehicles;
to provide for the husband to retain the R vehicle and the wife to retain the S vehicle;
from the date of the order the husband was to pay the mortgage instalments and all other outgoings associated with the Y property;
the wife was to pay the mortgage instalments and all other outgoings on the X property;
to provide a timetable and mechanism for the sale of the property at Suburb U in the ACT, for the application of rental income from that property to the mortgage secured on it and for the net proceeds of sale to be held on trust for the parties.
The parties are divorced.
Since August 2007, in addition to the wife’s son, there has been a boarder in the X property. The boarder pays $260 per fortnight to L who remits that money to the wife.
Credit and Submissions
The evidence of the witnesses
The only witnesses called for cross-examination were the parties.
As to the wife - a significant proportion of cross-examination was focussed on the wife’s evidence about a joint account she had with a friend during 2003-2004. Her evidence about the account was not consistent but it transpired that a number of propositions put to the wife during cross-examination were incorrect. In those circumstances it would not be fair to assess her credit by reference only to that course of cross-examination. I should say that learned counsel for the husband quite properly brought the error to attention as soon as practicable and apologised to the witness and the Court. Despite all of that, the wife’s evidence about the joint account was confusing and at least, careless. On the other hand, on several occasions she said that she had records available that would support her version of events. There was no call for those records and therefore those issues were not always pursued on behalf of the husband.
On several occasions the wife conceded propositions in favour of the husband. For example, when asked for a bare concession in relation to the husband’s role with her sons, she volunteered that he was (like) a father to her sons.
The husband was not a good witness. He made few concessions in favour of the wife. His evidence about his income was inaccurate and given that the evidence was consistently and significantly understated, I take it that the mistakes were deliberate. In any event he made no real effort to provide proper disclosure on that issue. Given that he is a PAYE wage earner, the logic of seeking to understate his income, escapes me. The husband’s wage and tax records would always put the lie to a significant understatement of income.
It was asserted that the husband’s evidence about omitting $100,000 from a Financial Statement should not be believed. His evidence is that on 20 September 2006 he withdrew $100,000 from a St George Bank account. He says that as the money was in the form of a bank cheque and not in any account he omitted it from a Financial Statement filed in September 2006. He says he took the money out because his mother was ill and he thought he would have to send money to Country N for her treatment. He says that his mother’s condition improved, the money was not needed for her care and he returned the money to an account in lots of $5,000 because of the daily transaction limit. It is submitted for the wife that none of that should be believed and that the husband tried to hide $100,000 from the wife and the Court. I do not accept that submission. The events described by the husband are unusual but I am not permitted to reject them for that reason only.
Submissions
The written submissions on behalf of the wife are as follows:
Schedule of assets, liabilities and superannuation
Asset Ownership Value Agreed 1 [Y Property] Joint 340,000 Yes 2 [X Property] Joint 335,000 Yes 3 CBA …34 Joint 3 Yes 4 [U Property] proceeds Joint 8,878 Yes 5 ANZ Husband 10,000 6 St George Husband 750 7 300 CBA shares Joint 15,500 8 St George investment ac Husband 302,000 9 [R motor vehicle] Husband 13,250 10 [S motor vehicle] Husband 1,000 11 [W motor vehicle] Husband 2,000 12 Household contents Joint 30,000 No 13 CBA …12 Wife 1,100 14 [K Firm] Wife 33,802 15 [I motor vehicle] Wife 1,000 16 Contents Wife 2,000 Subtotal 1,096,283 Liabilities 17 Home mortgage Joint 127,832 18 [X Property] mortgage Joint 85, 480 19 Westpac mastercard Wife 11,000 20 Bankwest mastercard Wife 8,927 21 Citibank visa Wife 8,824 22 CBA cc Wife 16,500 23 Network consumer finance Wife 3,730 24 HECS Wife 10,567 25 Family Tax Benefit Wife 2,331 26 CBA visa Husband NIL No 27 Car loan Joint 3,000 Subtotal liabilities 278,191 Total assets 818,092 Superannuation 28 Health super Husband 17,941 29 First State super Husband 40,555 Date 6/04 30 Tower Husband 3,148 31 Advance Retirement Plan Wife 38,456 32 First State Super Wife 699 Total superannuation 100,799+ Total super & assets 918,891 Issues for determination
Addbacks
The husband’s affidavit material contends that various amounts received by the wife during the marriage should be notionally added to the pool.
The wife submits that all monies received by her during the marriage were expended by her during the marriage and that amounts expended since separation have been utilised for her support (income, rent), her establishment of new premises (furniture, household goods) and to pay debts.
Contribution
Initial contribution: the wife had:
(a) a superannuation interest worth $6,903.13;
(b) equity in the unit at Suburb P, ACT of $32,850;
(c) timeshare sold subsequently for $6,000;
(d) savings $18,000;
(e) Insurance policies $2,500.
Total: $66,253.13
The wife received $62,189.30 gross by way of redundancy 4 years after marriage. This was in large part accumulated from her employment pre-marriage.
The wife supported the husband’s career (including multiple work related moves).
When the wife’s unit was rented, its rent was greater than the amount required to service the mortgage.
During the marriage the wife performed the majority of housework and the husband was the principal breadwinner.
Since separation the wife has met from her funds half the mortgage over the home occupied by the husband.
The contribution based entitlement favours the wife by 10%.
Section 75(2) matters
There is an income disparity (even though the wife will argue that the husband is not currently exercising his earning capacity). The wife has only recently trained. There should be an adjustment.
If the Court recognises her contributions by a 10% adjustment then her s75(2) adjustment may be minimal but if they are not recognised to that degree then an adjustment of up to 10% is necessary to take into account the disparity.
The oral submissions by learned counsel for the wife were to the following effect:
The wife should be believed because she made proper concessions;
This is a one pool case and the assets and liabilities should be as they stand at the date of the hearing, inter alia, because this was not a short marriage, the wife made significant initial contributions and extensive contributions were made since separation; the net pool is $997,267. Although the wife’s early contribution was far greater, it is submitted that overall the parties’ contributions were equal. As to the other matters in section 79(4) there need be a 10 per cent adjustment to the wife. That is warranted because she is older; she suffered as a result of the husband’s moves for work; those moves damaged her efforts at retraining and career; she supported the husband while his income grew from nothing to $29,000 pa to a level he will not disclose but it could be $156,578 pa based on an extrapolation of seven months income in this financial year.
Although the parties did not live together after March 2005 the wife contributed to the joint account and thereby to the Y property, where the husband lived. She also contributed to the X property and had significant set up costs for her own accommodation;
The wife concedes that her estimate of initial savings of $18,000 was wrong and now puts the figure at $6,416 based on documentary evidence. Together with the other initial contributions referred to above
(a) a superannuation interest worth $6,903.13;
(b) equity in the unit at Suburb P, ACT of $32,850;
(c) timeshare sold subsequently for $6,000;
…;(e) Insurance policies $2,500.
And in September 1996 there was a gross payment of $62,000. About $45,000 in superannuation and $11,000 in termination payments;
Insofar as the husband puts the wife to proof that she applied the September 1996 moneys to joint purposes, it is submitted that the parties then lived on one wage and they could not have paid their living expenses, put $20,000 into renovations at the H property, had two trips to Country N and bought a Honda motor vehicle, on the husband’s salary alone. Thus it is likely that $45,000 was paid off one or both of the mortgages – H property or X property;
As to the diversions of funds, it is submitted that they are distractions. There is the possible diversion of funds by the wife to Mr A, the parties sending funds to their respective families overseas, the husband paying his nephew’s TAFE fees and $300pw in living expenses. It is submitted that these matters and the husband’s contributions to the wife’s children, in effect cancel each other out, if only because there is no way of assessing the quantum of the various diversions of joint funds;
It is submitted that there is little if any adjustment required by the wife’s stewardship of the X property. It appears that as at the date of separation the X property was rented out for about $295 per week. From January 2007 to August 2007, L lived there and paid $350 per fortnight. From August 2007 to January 2008 there was also a boarder there, paying $260 per fortnight. It is submitted that the wife was not successfully challenged in relation to her motivation for not renting the property out – the need for repairs. In any event there was income from the property from January 2007 and from August 2007 it was at about the level of the previous commercial rent. There was no challenge to the wife’s evidence of paying the outgoings on the property. It is further submitted that from November 2006 to April 2007 the wife contributed to the Y property’s mortgage despite the husband’s sole occupation;
In addition, it is submitted that the wife had additional living costs – the costs of setting up new accommodation, twice after separation together with the car costs which fell disproportionately on her.
The written and oral submissions on behalf of the husband were to the following effect:
The assets and liabilities and values are largely agreed. The husband argues that separation occurred in April 2004 and that the parties’ post separation investments should be excluded from the list of assets and instead $210,000 should be included (attributed equally between the parties) being the proceeds of the H property that were equally divided between the parties at that time. It is submitted that it would be unfair to do otherwise. The husband turned his $105,000 share of the proceeds of the H property into a considerable profit while the wife reduced hers to $15,000 and a debt of $60,000.
Thus the net asset pool is $762,546 and not $852,348. With superannuation the entire pool would be $827,345;
The wife’s credit card debt, personal loan, HECS debt and Centrelink debt should all be excluded as joint debts because they were incurred after separation;
The husband’s contributions to the reduced pool were 53 per cent compared to 47 per cent by the wife. The wife made the only initial contributions – the equity in the P unit and some superannuation. The wife supported the husband for the first 20 months, then for six years of the marriage, the husband supported the wife. The husband supported the wife through her studies, enabling her to gain qualifications for paid employment. It is the unchallenged evidence of the husband that all his income was applied to the joint account. Both parties sent moneys to their families in Country N and therefore there should be no adjustment for this. Otherwise the parties contributed their income to the marriage. As to the husband’s contributions to the wife’s sons – it is submitted that the husband’s role is conceded to be that of a father. The financial support was very significant as there was four years with virtually no child support paid by the boys’ father and overall very inadequate financial support from that quarter.
There should be no adjustment under section 75(2). The husband contributed to the wife’s qualifications. The wife should retain the X property and her other interests and discharge the X property mortgage.
In final submissions the husband seeks that he retain the Y property, that the wife retain the X property and that there be no cash adjustment.
The approach in proceedings under section 79
The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [1]
[1] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370
There is no mention of steps in section 79 but it is convenient to approach the exercise of discretion in a structured way. As I say, the Full Court has supported such an approach.
The property of the parties at the date of the hearing
The Court is required to make a finding as to the property of the parties. That involves identifying assets and liabilities and financial resources and their values. The assets and their values are agreed although the parties agreed on 18 April 2007 that the value of the wife’s S motor vehicle was $2,000. They have since agreed that it is $1,000.
There is however a dispute about the inclusion of some of the assets and some of the liabilities in the pool for division.
Generally the Court is obliged to identify and value assets and liabilities at the date of the hearing. Care is needed in departing from that approach. That is not to say that assets and liabilities are always identified as at that date. There are circumstances, which the Court has found in other cases, have justified the inclusion of property that no longer exists, in the pool of property for settlement. In In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30] To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b) Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
I In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.
In the language of the Full Court in In the Marriage of Browne and Green (1999) 25 Fam LR 482; (1999) FLC 92-873 at [44], these are not binding approaches but are useful guidelines that assist by promoting some consistency in the exercise of discretion under section 79.
Treatment of the proceeds of the H property
In July 2004, when the parties were estranged, they sold the H property for a net $220,000 and divided the proceeds equally. Far from adding back assets, it is argued for the husband that the proper approach in this case is to notionally include just those net proceeds in the pool for division and to ignore the parties’ savings (and some of their debts) as at the date of the hearing. That course would be appropriate in this case, it is argued, because on the husband’s case, the parties were finally separated at that time and the husband has increased his savings since then, while the wife has only $15,000 left. The submission is that it would be unfair on the husband to share his post separation savings with the wife and for him to share in her post separation loss. The suggested approach is opposed on behalf of the wife because, on her version of events the parties were not finally separated until 2005 and in any event there were very significant contributions made by each party to the other up until April of 2007. Further, the wife’s savings were depleted and debts were incurred in meeting her necessary living expenses, including the need to establish two new homes in the period after separation. The wife argues that over that period the husband had the benefit of the Y property.
It is easy to understand the general approach of dealing with the assets and their value at the date of hearing. To do otherwise makes the exercise of settling property artificial and the outcome can be impracticable and unjust. An added problem in these proceedings is that the husband’s approach would result in his current savings being ignored. There may be some sense to that course if the savings were traceable to the proceeds of H. However, there is no evidence as to the source or sources of the husband’s savings. Further, it is unlikely that the husband’s savings of over $344,000 are the product alone of the prudent investment of the husband’s share of the H proceeds. If the husband does not want to give that evidence, well and good but he cannot then rely on the source of the funds in aid of his argument.
I can see the logic of the approach advocated on behalf of the husband given the circumstances of this case. The state of the evidence does not allow findings to be made about the significance of the diversions of funds by the parties, during the marriage and since. The suggested approach would seek to treat the parties as if they were still in the position they were in immediately after the distribution of the H proceeds in July 2004. July 2004 was a period when the parties were estranged and is between the dates that the parties respectively argue were the dates of final separation. This approach would result in many of the financial dealings by the parties since then, being ignored. The problem is that such an approach neither repairs the damage done by the lack of disclosure nor does it allow the exercise of discretion under section 79 on a pool that has relevance to the circumstances of the case. Each of the parties says that there were diversions of funds prior to July 2004. The husband’s approach does not address that. In my view it is dangerous to isolate one asset as it stood in July 2004, to deal with other assets and debts as at early 2008 and to ignore yet other assets and debts. I will not adopt the approach proposed on behalf of the husband.
Funds diverted by the wife to Mr A
In my view there is an argument for reading back into the list of assets, moneys paid by the wife for the benefit of Mr A.
The wife’s case about her financial dealings with Mr A involving their joint Westpac account between December 2003 and December 2004 makes no sense. Her initial evidence was to the effect that she needed to open a new account to secrete moneys away from the husband in the form of the pretence of repaying her HECS debt. Mr A (unrelated to the wife or the husband) is a relative of her former husband and a friend. She had been communicating with Mr A by email, discussing cricket and other matters. The wife’s evidence in cross-examination was to the effect “I opened a joint account with him so he could lend me money.” Mr A lives in New Zealand. The wife visited him there and he visited the wife in Australia. As far as I can tell the only deposits into the account before 13 September 2004 were made by or on behalf of the wife. On 13 September 2004 the equivalent of $A4,670 was deposited into the account. The wife would have it that the deposit was made by Mr A. She was not challenged about that proposition. Prior to that date $888.37 was withdrawn from the account in New Zealand. When the fact that the ‘repayments’ to Mr A predated his loan to her was put to the wife, her response was that Mr A was in financial need and in effect, she supported him for a period.
This is confusing and it should not be for me to reconcile the evidence. From my reading of the statements of the account, it is likely that Mr A deposited $4,670 into the account and withdrew $8,150.53. The latter figure is the total of the withdrawals made in New Zealand. The wife’s evidence is that Mr A visited her in Australia on several occasions and that she visited him in New Zealand on several occasions. It is possible that Mr A also made withdrawals from the account when he was in Australia. It is also possible that some of the New Zealand withdrawals were made by the wife, when she was there. All of these events occurred prior to the date the wife asserts to be the date of separation from the husband and were kept secret from him. It is for her to explain these matters and given that she has not done so, I will not make inferences in her favour. The wife gave or lent Mr A $3,480.53.
The problem with including the diverted funds in the list of assets is that each of the parties diverted matrimonial funds during the marriage. The evidence does not permit a proper estimate to be made of the total of those funds. In my view I should read back the $3,480.53 that the wife apparently provided to Mr A. I am able to make a finding about the amount, it was diverted in recent years and there is no suggestion of the funds being applied for the purposes of the marriage.
Paid legal fees
The wife has paid $10,668.77 to her solicitors. The husband paid $8,000 to his previous solicitors and $11,000 to his current solicitors. Those funds will be read back into the list of assets on the basis that the pool would have been greater but for that payment. See the discussion of In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 and other authorities in In the Marriage of Omacini (2005) 33 Fam LR 134.
Financial Resources
There is no evidence that either of the parties has any financial resources.
Contributions
The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[2]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[3].
[2] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[3] In the Marriage of Shewring (1987) l2 Fam LR 139
As to whether the Court should apply the considerations in section 79(4) to the assets globally or asset by asset, the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
A separate pool for superannuation
In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.
The case was argued on the basis of there being one pool of assets, combining superannuation and non-superannuation. In accordance with the counsel of the Full Court, on that basis, I too will apply the section 79(4) considerations to a combined pool of superannuation and non-superannuation assets.
Contributions
Section 79(4)(a) Contributions
Financial contributions, both direct and indirect were made by each of the parties.
The wife came into the marriage with $54,671 made up of:
·An equity in the Suburb P unit of about $32,850;
·Savings $6,418;
·insurance policies worth about $2,500;
·A timeshare apartment later sold for $6,000; and
·her superannuation entitlement of about $6,903.
In September 1996 the wife received $45,450.04 in a superannuation payout and about $11,000 in the form of long leave and termination payment. The evidence about the additional $11,000 is scant. However, it is an agreed fact that the gross termination payment was $62,189.30. Superannuation and termination payments enjoy preferential tax treatment and in my view it is unlikely that the income tax on such a payment would be of the order of 25 per cent. On that basis I accept the wife’s case on this issue. So as not to double count the contributions, I take it that the superannuation payout included the $6,903 balance that existed at the commencement of the marriage.
The wife was in paid employment at the commencement of the marriage until late 1995. She returned paid employment as a research assistant in 2002. In December 2003 the wife obtained a position with the E Hospital as a Manager. In April 2005 she moved to Sydney and obtained a position with B Health Service as a health professional. She remains in that position. At the other times since 1995 the wife followed the husband with his work placements and undertook studies in a health profession.
At the commencement of the marriage the husband had savings of about $2,000.
The husband was out of paid employment for the first 20 months of the marriage. Thereafter he was consistently in paid employment, albeit in different locations. In August 1993 he secured a position in the ACT. After two years, the term of that position expired and in August 1995 the husband obtained work in Melbourne. In August 1998 he obtained work in Hobart and then, in January 1999, in Town V. Later that year he secured a training position in Newcastle and he remains in a similar position as at the date of the hearing.
Each of the parties applied matrimonial funds to their respective families. The wife says that the husband commenced sending money to his family in Country N as soon as he obtained employment in Australia (1993). She recalls him sending the equivalent of between $150 and $270 per month. In addition he sent about $500 each year for various expenses including weddings, medical expenses and gifts. She gives specific examples of his brother’s funeral and his nephew’s surgery. She says that he paid for his mother to travel to Australia and paid her private health insurance. He paid to accompany his mother back to Country N. He contributed to household expenses for his family in Country N and for bathroom renovations. He paid for his niece’s wedding.
The husband agrees that he started sending money to his mother once he commenced employment in Australia. He says it was $100 per month. He conceded in cross-examination that he also sent lump sum amounts to his mother. He says they were odd payments of $100 or $200. He says that he currently supports his “family and friend” in Country N. He regularly sends money to his mother, his sister who had recent heart surgery and his best friend, whose sister was involved in a traffic accident. The husband paid for the friend’s sister’s operation and supports her post operative care. The husband provides financial support to his nephew who is an overseas student in Australia. In the latter regard the husband said in cross-examination that he made regular payments of $300 per week for his nephew’s expenses in 2006 because his nephew had no income. He also paid his nephew’s TAFE College fees.
The wife too spent money on her family and friends, usually for birthdays, Christmas, weddings and other special events in amounts ranging from $50 to $100. She loaned money to a friend overseas in the amounts of $200 to $500 and sent several gifts to the value of $30 to $50 for a couple of months. It is possible that the wife meant that the loans and gifts went in whole or in part to Mr A. The wife was not challenged in relation to that evidence.
The authorities discourage the taking of a mathematical approach to the exercise of discretion under section 79. It is just as well! It is impossible to make any meaningful findings about the quantum of the funds that the parties have expended on members of their families and friends during the marriage and since.
Despite the uncertainties in this case, it is likely that the husband’s financial contribution was greater than that of the wife.
Section 79(4)(b) contributions
The wife attended to arrangements to rent out the X property. While she remained in the ACT and after the husband went to Melbourne for work, the wife drove to Melbourne several times to take items to the husband and to cook for him. She organised the packing of the X home and arranged for the move to Melbourne. The wife attended to finding rental accommodation in Melbourne including negotiating with real estate agents. When the husband moved to Hobart for work and she was still in Melbourne with her sons, she paid for food to be couriered to Hobart for the husband. The wife organised the packing and shipping of cars and household effects to Town V. The wife painted the kitchen, lounge and dining areas of the parties’ Melbourne home and arranged for tradesmen to finish off gardens and complete fencing, so the property could be leased. The Melbourne home was rented out and the parties dealt with the Rental Tribunal when they evicted tenants for damaging that house. When the parties moved to Newcastle the wife searched for and found rental accommodation.
The husband helped the wife lay pavers in the backyard of the P property. He fixed appliances and undertook painting in that property. The husband spent time looking for a property to buy in Canberra. The parties organised carpet and blinds for the X house. With assistance from the wife the husband laid turf at that property. With the wife he looked for a Melbourne property to buy and attended on banks in relation to a loan. The husband organised quotes for repairs to the Melbourne property and painted the driveway fence. The husband organised for removalists to pack up the home in Tasmania for the move to Newcastle. The parties attended display homes and chose tiles and bricks for the Y home. The husband arranged the home loan and for turf to be laid and fencing erected. Each of the parties made valuable non-financial contributions. The non-financial contributions were approximately equal.
Section 79(4)(c) contributions
This provision deals with contributions in the form of parent and homemaker contributions. In relation to the parenting contributions, the clause covers only contributions to children of the marriage. There are no children of the marriage within the terms of this provision. Therefore the only relevant contributions were those of homemaker. However, the husband’s contributions to the wife’s children can be dealt with under section 75(2)(o) – see Robb and Robb (1995) FLC 92-555
The parties do not agree about the way in which the role of homemaker was discharged. It is likely that they shared the role. For the first 20 months of the marriage it is likely that the husband undertook much of the homemaker role. Thereafter the parties were both in paid employment until 1995. It is likely that at least from 1995 to 2002 the wife undertook the main homemaker role. In the circumstances the wife’s contribution as homemaker is likely to have been greater than that of the husband.
Conclusion
It is submitted for the wife that the contributions of the parties were equal. The husband’s case was argued on the basis of a reduced pool of assets but it is submitted for him that even in relation to a pool that ignores the parties’ current savings and the wife’s debts, his contributions exceeded those of the wife in the proportions 53 per cent compared to 47 per cent.
The key aspect of contributions is financial. There is little evidence about non-financial contributions and there being no children of the marriage, section 79(4)(c) only picks up homemaker contributions. Compared to a nominal initial contribution by the husband, in addition to her income, the wife injected about $100,000 to the marriage. About $54,000 came in at the commencement of the marriage and a net payment of about $49,000 ($55,000 in superannuation and termination payments less the balance of superannuation at the commencement of the marriage) was received in 1996 as a result of the wife’s cessation of paid employment. As to the form of the wife’s assets, the P unit was important. Apart from a couple weeks of separation, the parties lived in the unit until November 1993. The unit was then rented out and the rent was applied to the mortgage on the unit. In December 1995 the parties sold the P unit and $25,000 was applied to reduce the borrowings secured on the X property.
In terms of income, the husband’s contribution was greater than that of the wife. Notwithstanding his reticence about fully disclosing his income, the husband’s income was very significant and it supported the family and enabled the wife to conclude her studies. In that credit is given for all of the husband’s financial contributions by way of income and injections of funds, the financial support he gave to the wife’s sons has been included in those contributions. To make any additional allowance for that form of support would double count the contributions made. The financial support for the boys was made easier for periods because of some $44,000 in child support paid by their father.
I have refused to adopt the approach favoured by the husband in relation to the pool of assets. Thus I have taken the wife’s financial position as it is today with diminished savings and significant debts. The effect of that is that the husband can be said to have contributed to the wife’s expenses since separation.
In the normal course parent and homemaker contributions would often balance the financial contributions of a breadwinner. That approach cannot be taken here because there were no parenting contributions made within the terms of section 79(4)(c) and the wife was engaged in studies for much of the time. In allowing for that imbalance of contributions I need to recognise about $100,000 of capital injection through the wife and the fact that the scope for her employment was restricted by the various changes of residence necessitated by the husband’s search for appropriate employment. Taking those countervailing factors into account, in my view the contributions overall favour the husband in the proportions 52.5 per cent by him and 47.5 per cent by the wife.
The other matters in Section 79
Once contributions have been assessed, the other factors in section 79(4) need to be considered.
Dealing with the matters identified in the legislation:
Section 79(4) (d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. There is no relevant effect.
Section 79(4)(e) - Section 75(2) Factors
The relevant matters in Section 75(2) would seem to be paragraphs (a), (b), (k) and (o).
(a) the age and state of health of each of the parties;
First, as to the age and state of health of each of the parties. The wife is 51 years of age and the husband is 45. There is no probative evidence about the health of either party.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The wife’s income is $780 per week made up of her wages as a health professional with T Health Services of $734 per week and $46 per week in interest.
The wife lives alone. Her son, L, lives in the X property and pays $350 per fortnight towards the mortgage payments on that property. There has been a boarder in the property since August 2007 and the boarder pays $260 per fortnight to L who remits that money to the wife. Those moneys are paid into the wife’s account and are applied to outgoings on the X property – the mortgage payments, rates and maintenance and repairs.
The wife’s fixed expenses are as follows:
Expense Amount Income tax $120.00 Advanced superannuation installments $101.00 Rent - Q Hospital shared staff accommodation $150.00 Private health insurance – HCF $20.00 Motor vehicle registration – Nissan vehicle $60.00 Hire purchase payments – to David Jones for a Vacuum cleaner $15.00 Mastercard payments $150.00 Living expenses $420.00 Food $150.00 Household supplies $10.00 Gas $5.00 Electricity $5.00 Heating fuel $20.00 Telephone $15.00 Petrol $35.00 Motor vehicle maintenance $10.00 Fares and parking $10.00 Clothing & shoes $10.00 Medical dental optical $60.00 Entertainment and hobbies $20.00 Chemist pharmaceuticals $10.00 Dry cleaning $5.00 Books and magazines $2.00 Gifts $3.00 Hairdressing toiletries $50.00 sub-total $420.00 Total $976.00
Evidence about the wife’s assets and liabilities is set out earlier in these reasons.
There is no evidence to suggest that the wife is not exercising her earning capacity.
The husband earns at least $150,000 per annum from his salary as a medical professional with Z Health Service. That is not what he says in his Financial Statement sworn in September 2007. In that Statement he said his income was $1,872 per week, made up of his salary of $1,672 and $200 per week in interest. The letter containing the offer of appointment to his current position is dated June 2007 and puts his salary for a 40 hour week at $2,267. The husband’s evidence is that he invariably works overtime.
The husband lives alone. In his Financial Statement sworn 10 September 2007 he puts his expenditure as follows:
Expense Amount Income tax $664.00 Mortgage payments to CBA on Y property $216.00 Rates and unit levies $15.00 Other Rates and unit levies $75.00 Private health insurance – Medibank Private $15.00 Household insurance – AAMI $18.00 Motor vehicle registration – R vehicle; W vehicle $60.00 CBA Visa card payments $500.00 Total $1563.00
I take it that the Visa card payments reflect the husband’s living expenses. Reference to his assets, liabilities and resources is set out earlier in these reasons. The husband has a significant weekly surplus. By way of check, that would account for his generation of savings since separation.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The parties have no children under 18.
(d) commitments of each of the parties that are necessary to enable the party to support:
himself or herself; and
a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
I have set out the evidence in relation to the parties’ expenses.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,
and the rate of any such pension, allowance or benefit being paid to either party;
Neither party is in receipt of an income tested benefit. They each have interests in superannuation funds.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There is little evidence in relation to the standard of living of the parties during the marriage. The husband had several trips to Country N. Of recent times the wife has had several trips to New Zealand.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
There is no evidence that either of the parties intends to undertake further study.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This is not a significant aspect of the case.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The wife was required to move on several occasions and that delayed her tertiary studies, which in turn delayed her return to secure employment. The wife has missed out on the benefits of an unbroken history of paid employment. They include the opportunity for promotion or progression, long service and other leave entitlements and the establishment of employer funded superannuation entitlements. The marriage adversely affected her earning capacity. It is difficult to assess the impact of the marriage on the husband’s earning capacity. It is fair to say, however, that the parties focussed their efforts largely on his career during the marriage, hence the various relocations. He has steadily improved his income over the course of the marriage.
(l) the need to protect a party who wishes to continue that party's role as a parent;
This is not relevant.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
Each of the parties lives alone.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
These issues are not relevant.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The husband made a very valuable contribution to the wife’s sons. His financial contribution was in the form of his wages and is fully taken into account in the assessment of contributions above. He made a non-financial contribution in terms of his role as parent and homemaker. Albeit that there is little by way of detail in the admissible parts of the husband’s affidavit, the quality of his contribution is an agreed fact. The wife says he was a father to the boys.
The boys were four and 12 at the start of the marriage. L lived with the parties until January 2000 and M lived with the parties until their final separation and then remained with the husband for a period thereafter. The husband supported the boys emotionally and provided a role model for them. The husband boys the boys gifts when he travelled to Country N. He helped the wife search for M in December 2004 even though he was to have blood tests that day.
(p) the terms of any financial agreement that is binding on the parties.
There was no binding agreement made between the parties.
Section 79(4)(f)
I have referred to the orders of 18 April 2007.
Section 79(4)(g)
This is not relevant.
Conclusion
The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
Ø The wife is five years older than the husband;
Ø The husband’s income is significantly greater than that of the wife;
Ø The husband’s earning capacity is significantly greater than that of the wife;
Ø The husband made no real effort to fully disclose his current income;
Ø The husband made a very valuable contribution to the wife’s sons as parent and homemaker.
For the wife it is argued that there should be a 10 per cent adjustment in her favour by reference to these matters. The husband argues for no adjustment.
Favouring an adjustment to the wife are the husband’s greater income and earning capacity, including the greater scope for him to earn because he is younger than the wife. Favouring an adjustment to the husband is the fact of more than 14 years parenting contributions made by the husband to the wife’s sons. These are both important matters. It is accepted that one of the most valuable ‘assets’ of many marriages is the capacity of secure, well paid employment. Here the husband is in a stronger financial position than the wife and he will have the potential of more years in the paid workforce than her. As against that there was a wonderful contribution as the husband stepped into a parenting role for the wife’s sons throughout the marriage.
In my view there should be no adjustment.
Just and Equitable
In my view it would be just and equitable within the context of s 79 if the assets were divided in the approximate proportions 52.5 per cent to the husband and 47.5 per cent to the wife.
Checking through the issues for determination identified by learned counsel for the parties:
Wife’s issues
The husband’s contributions for his family during the relationship;
oThe evidence did not permit a specific finding in relation to his issue;
The wife’s needs post separation for re-establishment;
oThis issue was not explored in cross-examination;
The extent of the wife’s initial contribution;
oFindings were made on this issue;
The child support and non financial assistance received by the wife during the relationship from the children’s father;
oThere was no challenge to the wife’s evidence about child support of the order of $44,000. No significant evidence was given in relation to the boys’ father’s non-financial contributions;
The husband’s income and earning capacity.
oThe evidence was inadequate on this issue but some findings were made;
Husband’s issues
The nature and extent of the husband’s involvement with the wife’s sons, including financial and non-financial and the adjustment in contribution flowing from that;
oA generous concession dealt with this issue;
The wife’s actual financial position at the present;
oApart from the wife’s financial relationship with Mr A there was little challenge to the wife’s evidence’
The extent to which the wife has maintained income and assets separate from communal assets during the marriage;
oNo specific findings were possible in relation to this issue;
Whether the alleged lump sums paid in by the wife went into the joint account utilized by the parties;
oAt the end of the day I was satisfied that the injections of funds were applied for joint purposes;
The whereabouts of the wife’s share of the H property sale;
oThis was not specifically explored in cross-examination but in general terms I was satisfied that the moneys had been applied to the wife’s expenses;
The extent of contributions to and income foregone as a result of accommodation provided to the wife’s elder son;
oFor about 8 months in 2007 there was a shortfall in the X property rent of about $130 per week. Thus there was potentially about $5,280 in lost rent. The wife gave a reason for that – the need for repairs – and was not successfully challenged in cross-examination. No allowance was made for the ‘lost’ rent.
The extent to which the wife’s current debts should be excluded from the current asset pool.
oFindings and reasons are set out above.
Conclusion
The net assets have a value of $1,030,416.30.
The parties agree that, if practicable, the wife should retain the X property and the husband should retain the Y property. Each of the parties seeks to retain the following joint assets:
Assets Value CBA a/c number …34 (J) $3 U property proceeds (J) $8,878 300 CBA shares (J) $14,820 Total $23,701.00
No submissions were made in support of those claims. As the effect of the orders will be to require the husband to pay out the wife, I will order that she retain those joint assets. Thus the wife will receive and owe the following:
Assets Value X Property (W) $335,000 CBA a/c number …12 (W) $1,471 K Firm (W) $15,535 S motor vehicle … (W) $1,000 I motor vehicle(W) $1,000 Contents (W) $5,000 Moneys advanced by the wife to Mr A $3,480.53 Paid legal fees (W) $10,668.77 Advance Retirement Plan (W) $38,694 First State Super (W) $699 CBA a/c number …34 (J) $3 U property proceeds (J) $8,878 300 CBA shares (J) $14,820 X property mortgage -$84,011 Car loan (L) -$8,411 Westpac Mastercard (W) -$10,482 Bankwest Mastercard (W) -$462 HBSC (W) -$7,055 Citibank Visa (W) -$8,176 CBA cc (W) -$18,801 HECS (W) -$7,303 Family Tax Benefit (W) -$2,331 Total $289,217.30
In order to bring her to 47.5 per cent of the net assets the wife should receive about $489,448. The husband would need to pay her about $200,230. I will round out that payment to $200,000.
On that basis the husband will receive and owe the following:
Assets Value Y Property (H) $340,000 ANZ Cheque account number …31 (H) $16,723 ANZ account (H) $2,000 St George Bank Cheque account number …03 (H) $8,803 St George investment ac (H) $344,462 R motor vehicle … (H) $26,500 W motor vehicle (H) $2,000 Household contents (H) $10,000 Paid legal fees (H) $19,000 Health super (H) $21,059 First State super (H) $74,182 Tower (H) $4,236 Y property mortgage -$127,301 CBA visa (H) -$465 Payment to the wife -$200,000 Total $541,199.00
In relation to personalty, the wife seeks and the husband conceded during cross-examination that she could have the following items from the Y property.
The Encyclopaedia Britannica;
Her personal books, papers and photographs;
Personal effects of M and L Abidi, in the form of a bicycle and some weights; and
If the husband can locate it, a juicer.
Conclusion under Section 79
In my view the outcome I have identified would be just and equitable.
I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.
Associate:
Date: 7 March 2008
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