Richardson and Richardson

[2008] FamCA 1215

FAMILY COURT OF AUSTRALIA

RICHARDSON & RICHARDSON [2008] FamCA 1215

FAMILY LAW – MAINTENANCE – interim spousal
FAMILY LAW – COSTS – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Richardson

RESPONDENT: Ms Richardson

FILE NUMBER: PAF 5698 of 1991

DATE DELIVERED: 18 December 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 18 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodgson

SOLICITOR FOR THE APPLICANT: Atkinson Vinden

COUNSEL FOR THE RESPONDENT: Mr Thomas

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

1. Orders are made in terms of the wife’s Response to an Application in a Case filed 14 November 2008 in terms of paragraphs 1, 2 and 3 (as amended) as set out hereunder:

   “1.      That the Application in a Case filed 23 September 2008 be dismissed.

   2.That pending further order the respondent husband pay or cause to be paid the following:

   a.In respect of the property at T Street in E (“the T Street property”) the council rates, water rates and insurance premiums.

   c.All instalments of principle and interest as and when the same falls due in respect of the mortgage to the National Australia Bank (and/or any other mortgage) secured over the title of the T Street property.

   d.        To the wife the sum of $400 per week.

   And the court noted that the payments under 1(2)(a) and (d) are by way of spousal maintenance.

2. That pending further order the wife be granted exclusive occupation of the T Street property.

3. That pending further order the husband provide advance written notice to the wife in the event that he intends to further mortgage, charge, encumber, sell or in any way deal with the properties at:

   a.        T Street, E

   b.        2T Street, E

   c.        R Street, E

   d.        D property

   e.        K property

   save in relation to any of those things arising under an existing facility in relation to those properties.

4. That within 14 days of receipt of an invoice addressed to the wife from Newnhams Solicitors in relation to the wife’s solicitors costs or disbursements for barristers fees, the husband pay to the solicitors for the wife the amount required to satisfy that invoice.

5. That in relation to any single expert appointed in these proceedings, pending further order, the parties are to bear the costs of that expert equally but in the first instance the husband is to meet the costs of that single expert.

6. That within 14 days of receipt of an invoice for an expert retained on behalf of the wife with the leave of the Court together with a document setting out the scope of the inquiry required of that expert, subject to a right to bring the proceedings back to the Court on 48 hours’ notice to the Court and to the wife’s, the husband is to pay to the solicitors for the wife the amount of that invoice.

7. Orders are made in terms of paragraph 9 as amended, as set out hereunder:

   “9.That within one month of the date of order the husband provide to the solicitors for the wife documentation in relation to the following:

   a.Full and frank disclosure by the husband in accordance with Rule 13.04.

   b.To satisfy the husband’s duty of disclosure pursuant to Rule 13.07 including Rule 12.02.

   c.A copy of all bank statements and credit card statements since June 2006 in relation to any account operated by the husband or upon which he is a signatory.

   d.The purchase and sale of any real estate since June 2006.”

IT IS NOTED

1. The character of the payments made by the husband to the wife or to her solicitors pursuant to these orders, save pursuant to 1(2)(a) and (d) is a matter for the trial judge.

IT IS FURTHER ORDERED

1. No order is made as to costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5698 of 1991

MR RICHARDSON

Applicant

And

MS RICHARDSON

Respondent

REASONS FOR JUDGMENT

1. These are interlocutory proceedings in connection with proceedings for settlement of property which were filed pursuant to leave granted in 2006. The background is a husband and wife who are 57 and 55 years of age respectively. They married in December 1970 and separated in June 1990. They lived separately and apart under one roof until late December 1991 when the wife left the former matrimonial home. The parties divorce was granted in November 1991.  They have three adult children who are about 37, 34 and 32 years of age respectively. 

2. The matter has had a torturous history.  The file is a 1991 file.  The matter commenced with the divorce.  Then there were no property proceedings.  Leave was sought to bring property and spousal maintenance proceedings in 2006.  There was an order ultimately made by a judge of the court granting leave after there had been an earlier hearing before me.  In July 2008 an appeal against the granting of that leave was dismissed. 

3. I do not know that it is terribly helpful to go back over much of the history, but some of it is necessary to understand what has happened.  The Full Court quoted a passage from the trial judge's decision in relation to the background.  As far as I can tell, there was no complaint about it.  So I think these are matters that are not in dispute.

   “Her Honour observed that in the latter part of the marriage the wife suffered from undiagnosed ill-health.  From 1992 till about 1997 she was accommodated in a nursing home in a bedsit.  She received sickness benefits and some small income of about $100 a week from work she did at the nursing home assisting with patients and with lunches.  She had no other income from paid employment after separation. 

   At separation the children were aged around 19, 15 and 13.  They remained living in the family home with their father.  Their mother continued to visit regularly of a weekend and stayed overnight when she undertook some tasks in relation to the children's arrangements.  There were no significant assets at the time they separated.  Nonetheless, there was furniture and other household items which the wife left there so as to provide for the children.  At no time did the wife seek any legal advice about property or spouse maintenance.  In 1994 the wife accompanied the former husband to look at a property he was purchasing at [E].  This was acquired and he and the children then moved to live in this house. 

   In 1997 the wife's health deteriorated and the nursing home accommodation was no longer available to her.  She went to live with one of her children.  The husband provided some rental assistance for her for a few months and the wife then moved to another property for a while and the husband paid the rent there.  In 1997 the husband won $3 million in a lottery.  He gave the wife $500 at the time.  He purchased some investment properties, including another property at [E] where he went to live.  The wife then moved into the [E] home that the husband had purchased, the original property purchased in 1994.  Prior to his departure overseas late in 1997, the husband took her to see a villa at [E] and said something to her about buying it and her living in it.

   There is a dispute about what he said.  On her account of it he told her if she likes, he would buy it for her.  It would be in his name, but she would be entitled to live in it for life.  On his account, he permitted her to move into the property "on the basis that she signed a residential tenancy agreement" and also on the basis that she could live there until he needed to sell or occupy the property for his own purposes.  He says that he was concerned to keep the children happy. 

4. The quotation from her Honour’s judgment continued:

   The tenancy agreement the husband now produces is inconsistent with either account of the arrangement agreed.  It is at odds with what actually occurred and it does not reflect her continued occupation of the property for the past eight years.

   The husband has paid all expenses related to the property she has occupied, including the rates and land tax.  In 1998 she saw a doctor, Dr [Z] who assisted her to apply for a disability pension.  She still receives a disability pension and regularly sees Dr [Z].  In his short report Dr [Z] says he has been treating her since May 1998.  She reported at the time being unwell for a year but on reviewing his notes he corrected that to six months, complaining of tension, feeling hopeless and not being able to get her head straight.  Other doctors diagnosed her as suffering from chronic fatigue syndrome.  He saw her regularly, has given her vitamin B12 injections fortnightly, as well as supportive counselling "as it was apparent she was suffering from a depressive disorder".  She has made a reasonable recovery, he says, over the years.

   Initially she could not leave the house, but in the last five years or so leading up to 2006 she has been able to go to the shops and the [E] Club at night.  She has more energy and seems less depressed.  In his opinion, she was just suffering from a depressive illness and possibly a post-viral fatigue type illness.  He commented that she had been on the disability pension in the time he has treated her and he does not feel she is fit for employment at present. The exhibits also reflect her ill-health with symptoms of depression, chronic fatigue syndrome and disordered thought processes.  

   During 2004 the husband gave her his credit card to use for the payment of dental treatment on the basis she would pay off any amount debited to the card.  She fell behind with the payments in late 2005 and it has created some discord.  She says she is now paying off the debt of some $7200-odd.  The husband says he is also paying $300 to $500 a month to avoid a bad credit rating.  The husband says in 2003 he invested in a business venture which ultimately failed.  He did not elaborate in those proceedings and there is a debt of $460,000 borrowed from a bank secured against the property in which the wife lives.  Acting on the advice of his accountant, he accepts it is best to sell the property which he says is valued at $470,000. 

   There were developments in 2005 that brought into question her continued occupation of the [E] villa.  The husband informed her he could not afford to keep her there, he needs the money, so she will have to get out.  Correspondence between solicitors was exchanged and culminated in the wife filing this application in June 2006. 

   The wife's current circumstances are that she receives a disability pension of $252 a week.  That is her only income.  She has no assets, apart from minimal household furniture she estimates to be worth around $400. She has a credit card debt of $7244 just mentioned. 

   The husband's current circumstances are not apparent as he has not filed a financial statement.  However, he says he is retired, living on his investments, despite his evidence of difficulties meeting $3000 a month mortgage repayments on the debt secured against the property the wife occupies.  It can be inferred that he has property and means of some substance. 

5. In the proceedings before me, there is an amended application in a case from the husband in which he seeks that anything the wife has asked for be dismissed.  He seeks that the wife vacate the property at T Street, E, within 28 days and that thereafter he have exclusive occupation of the property. He wants to pay her $1,400 a month towards her rental accommodation and he wants that payment taken into account by the trial judge in the substantive proceedings.

6. The wife's response is, first of all, that the husband's application be dismissed and that the husband pay or cause to be paid what I might describe as outgoings on the property she lives in.  She wants him to pay for the installation of a landline telephone in the property and thereafter maintain that service.  She wants him to keep the mortgage up on that property and she wants a payment of $500 a week. Those things would be by way of spousal maintenance, I assume.  She wants exclusive occupation of the property pending further order.  She wants the husband restrained from further mortgaging, charging, encumbering, selling or in any way dealing with a number of properties.  She wants the husband to pay the mortgage instalments on all of those properties as they fall due.  She wants the husband not to be able to draw down on his superannuation fund except to meet the obligations that she seeks he meet.  She seeks $50,000 by way of interim property settlement for the purposes of the payment of legal fees. She does not refer to legal costs in the orders she seeks,  but that is what I understand the purpose to be. She seeks that the characterisation of that payment be left to the trial judge. She would like to bring the matter back if that is not enough and she wants some orders in relation to the preparation of the substantive proceedings and disclosure in accordance with the Rules.  She wants a copy of all bank statements, credit card statements since separation.  I think that would be revised to perhaps the date of the wife's application in 2006 and documents in relation to the purchase of sale of any real estate since separation.  Again there is an issue about that.  And she wants costs. 

7. Starting with the main issue - the occupation of the E property, the court has power to make an order.  There is power in s.114 to require the parties to join in dealing with their own property in a particular way.  There is power in s.114 to make an order for the preservation of property.  In s.114 there is power to make an order whether it is by way of mandatory injunction or a restraint, in connection with the substantive proceedings between the parties.  Here, the competing arguments are the husband says that he has a deficiency of income over liabilities of the order of $8000 a month.  $3,000 of that arises because of the mortgage being serviced on the property that the wife occupies, P Street, E.  He wants to get out from under that obligation and he has been given advice that it would be sensible to sell that property.  Indeed that advice and that intention is referred to in her Honour's 2006 reasons for judgment. 

8. The wife’s case is that in her Application for Final Orders filed in anticipation of the leave being granted in 2006, she seeks that she retain this property in specie. It is the fact that the husband's application would frustrate that intention.  It is submitted for the husband that no criticism can be made of him. He has arranged his affairs as he thought best.  He was not on notice until 2006 that there was going to be a claim for settlement of property or spousal maintenance.  It is argued that at all times he had done the decent and honourable thing in relation to his wife, but in circumstances where his assets are being depleted at an alarming rate, in part because of the way in which he is making use of particular properties and the encumbrance on properties, he should be accepted as to his preference for the way in which his financial arrangements are made. Thus he would be able to save $1600 a week or a bit more than that, if instead of paying $3000 a month, plus the other outgoings on this property, he was to pay the wife $1400 a month towards her rental. 

9. The submission on behalf of the husband is that his application is just a matter of commonsense. The subject property has a value of $420,000.  It is encumbered to a figure greater than that, about $440,000-odd and there is no tax relief in respect of the outgoing. Thus it is submitted that the merit of the husband’s application is obvious.

10. Unfortunately, there is no evidence about other options or any comparative assessment of them.  There is a property at K, which is partly a rural property, worth $800,000. It is encumbered to $127,000-odd.  There is a property at R Street, E, which is tenanted. It has a value of $610,000 and is encumbered as to $628,369.  There is another property in P Street at 2P Street, E, occupied by the husband which has a value of $500,000 and it is unencumbered. There is a property at D which has a value of $450,000 which is tenanted and which seems to be unencumbered.

11. The husband has an interest in superannuation which on 30 June stood at $621,000.  It is in a self-managed superannuation fund.  It has been leaking, the husband says, at about $8000 a month and it may well be that there has been some damage done to it in recent financial circumstances. 

12. The wife's main argument relates to the frustration of her claim for final relief.  I can imply from the background facts that I have referred to, that there may well be some advantage, if it is practicable, that the wife retain this particular property. There is reference to her ‘keeping house’ at some points in the past, about her having problems leaving the property. The husband through his counsel points out that if the wife wants $80 a week for taxi fares, maybe some of those pressures have been diminished and her need to this particular home is not as critical as it was. There is no medical evidence about this, so it is not the strongest aspect of the wife’s case. 

13. The main argument on behalf of the wife is it frustrates her final relief and any damage to the husband can be repaired by an adjustment between the parties on the settlement of property. The argument goes that there is a pool of something like $2 million; the wife has a case built around the adjustments for the non-contribution aspects of s.79(4) and particularly by incorporation in s.79(4)(e), of s.75(2) matters; because leave has been granted we can accept that she has a substantive claim. Therefore the submission is that the husband can be protected now in relation to what he says is an avoidable loss of $3000 a month or of that order, by an adjustment. The argument for the wife is that, if the wife is to get an award of a particular sum or a proportion of the pool of assets, there could be an adjustment back to the husband if it proves that his argument has merit.

14. At the end of the day, I think that is a sensible course.  The onus falls on the husband to make this case.  The court is cautioned in relation to dealing in interlocutory proceedings with the subject matter of the final case. Caution must be exercised.  The husband has been entirely frustrated in his consistent request in relation to this issue since 2006.  From that point of view, there has been a diminution of his assets because of this.  But at this late stage it seems to me that the balance of prejudice favours the property not being sold and retaining the wife in the property. 

15. Nextly, as to the wife's claims, there is a claim in relation to spousal maintenance. Remedy arises from ss 72, 74 and 75 of the Family Law Act. The gist of those provisions is that if a party to a marriage is unable to adequately support (in this case) herself from her own resources for any adequate reason the court can order the other party to provide that support to the extent of the reasonable capacity of that person to do so. In relation to those issues, the court is to have reference to s.75(2) and the matters that are referred to there in making a decision.

16. Firstly, can the wife support herself adequately from her own resources?  The legislation requires that I ignore an income tested benefit.  That means the wife has no income. Therefore, the wife cannot support herself from her own income. There was no submission made to me to the effect that the wife is capable of paid employment.  The Government authorities have accepted that because she is in receipt of a disability pension despite the fact that she has not reached the age for the age pension.  The husband has acted in a way consistent with the wife needing subsidy for 15 years. He provided her with accommodation, financial assistance in relation to dental treatment, payments and accommodation in specie. I do not think for the purposes of today there is any argument to be made about that. 

1. The next issue is the reason why she is not able to adequately support herself.  There is some evidence about some medical treatment she received in the past.  Again the husband was satisfied about her needs all these years. He has been satisfied that there was adequate reason for her needing support from time to time.  The legislation says there needs to be an adequate reason.  A couple of examples are given.  Having care and control of a child under 18 or by reason of age or physical or mental incapacity for appropriate gainful employment. From the background facts the latter example may well apply.

2. The final element is the husband's capacity. He does not have a surplus of income over outgoings, but he has access to funds. The matters that s.75(2) talk about are the income, property, financial resources of the parties. I do not think the husband addresses the issue of his capacity for gainful employment. I do not think he has had employment from his own labours for some period. That is probably not an issue for today. There is something like $2 million in assets.

3. Thus there is a need for a proper reason and the husband has capacity. It is important to get the quantum right because the capacity comes at the cost of the parties, but more accurately and more correctly in these proceedings, it comes at the cost of the husband's assets.  The parties are crowding up on the time when they would be leaving the workforce in any event. The husband has tried to make provision for a self-funded retirement. I accept that every dollar is important. 

4. The wife says that she spends what she has at the moment, which is $284 a week.  She receives $281 in her disability pension and $3 by way of a pharmaceutical benefit. However, the wife gives details about the problems of her weekly arrangements. She stills runs short of food and household essentials like toilet paper, towards the end of a week.  She calls on the parties' son, and he provides assistance when he can. She has obtained items like bread, milk, cat food and the like, from him.  There are occasions when she does not have money for fares.  She has not had her glasses prescription updated and it is needed.  She has not been able to go to the dentist for a number of years.  She has not been able to travel there and cannot afford the services when she does get there.  She has not been on a holiday since separation.  She says the power and hot water were cut off.  I do not know what that means. Perhaps she means the power and water were cut off in May 2008.

5. She has been using a mobile phone running at $30 a month and does not have a landline.  It was cut off because Telstra cut it off for non-payment of bills. The wife has not bought any new clothes or shoes for many years. She buys her clothes and shoes second-hand from St Vincent de Paul. She has not bought any new bedding, sheets or blankets for many years. When she does it is from St Vincent de Paul. She has no new furniture although she recently bought two items for $59 each, from Ikea. The wife cannot afford to repair anything.  She has had a relative, her stepfather, do some household repairs in the past, but he is getting too old to do that.  She used to have a cleaner come at $25 a week but cannot afford that any more. The back garden is not mowed. She has not been to the hairdresser for many years. She is not able to afford the drycleaner.  Friends gave her a cat but she cannot afford vet’s fees.  She does not buy any luxury food items, does not buy meat very often, and so on.

6. The wife has prepared an estimate of what her costs would be ideally - $740.  It includes things like gas, electricity, telephone, which she has doubled up in her application.  It includes things she has made no provision for, $50 for holidays, $50 for hobbies, clothing and shoes at $100 a week. Some of those things would give way to necessity. They have given way to necessity for many years.  Those expenses total $740 a week.

7. The wife seeks that the outgoings on the property be paid directly by the husband. He pays council rates, water rates and insurance. He does not currently pay gas, electricity or telephone.  As I said, she seeks a landline be put in. The wife seeks that the mortgage be paid and she seeks $500 a week. 

8. The court permits a broad-brush approach in relation to interim proceedings.  There is no scope for testing the detail of the parties' evidence. The parties give different versions of some events. There is a necessary in-exactitude about claims for outgoings.  The fact is the wife will not spend exactly $100 a week on clothing and shoes.  She will not need exactly $80 a week on fares and taxis.  They are estimates rounded out to a figure. What you can say in a broad way is that one could imagine a payment for the sorts of things that the wife has identified exclusive of the outgoings associated directly with the property; council rates, water rates, insurance premiums, of the order of $400 a week without any trouble at all. 

9. As a practical matter - and I am required to take it into account under s.75(2)(f) the fact that albeit reduced the wife would have a benefit of about $112 a week. Thus there will be some extra support to make up the shortfall. Doing the best I can, it seems to me appropriate that the husband continue to pay the council rates, water rates and insurance premiums on the property. I am not going to make an order about installing a landline in the property. I will order that he be required to maintain the mortgage payments as and when they fall due; that would not of course preclude him from reaching some compromise with the National Australia Bank by way of refinance to an interest only basis or whatever if he would like to do that. We need to prevent a mortgagee sale. And a payment of $400 a week. It follows from what I have said that I will order that the wife have exclusive occupation to the property.

10. As to the injunction sought in para.4, I think, with respect, Mr Hodgson on behalf of the husband is right.  There is no basis for assuming that those things will happen or that they have happened in the past.  There is no evidence that the husband is likely to or even in the time available, would be able to, reduce the net assets so as to impact on the wife's claim, remembering that there is no obligation in the court to make an order for settlement of property by reference to a percentage.  It can be a cash sum.  To take an extreme example, if the court ordered that there be an adjustment of a $2 million pool at 25 per cent to the wife and she was to be paid $500,000, the court could order that she receive $500,000 and not express the order as a percentage. However, the parties are involved in proceedings where there is an ongoing obligation of disclosure. Therefore the husband needs to tell the wife if he is going to take any of those steps. 

11. I have the same feeling about the order sought in paragraph 5.  There is no indication that the husband has failed to meet the mortgage payments.  It may be that it suits him to sell one of the other properties.  I do not see why he would be restrained from doing that. It does not seem to adversely affect the wife's claim.  In circumstances where there are issues about meeting recurrent payments, it is not ideal for the court to get in the business of requiring particular things to be done.  Similarly, the proposed order in relation to the superannuation would be a bit tough.  The husband has been keeping the wolf from the door and for the time being there is no basis for impugning his stewardship of the parties' assets over the period since he has been on notice that the wife had a claim. To lock him out of his superannuation in circumstances where he says he has been drawing on his superannuation as to $5000 a month for reasons independent of the need to keep the P Street unit operating, it is a bit tough to suddenly say he has to find $5000 a month from somewhere else.  So I will not make that order.  Indeed the wife does not object to the payments to her being made from that source. 

12. Nextly, there is a claim for interim costs. That is a remedy to preserve the exercise of discretion under the Family Law Act to make sure that the case is properly argued on behalf of the parties. The wife signed a contract with her lawyers to meet certain costs. She has incurred some costs. Over the lengthy history of the case to date the wife has had a grant of Legal Aid but no more. Her lawyers estimate that there will be about $38,800 in profit costs and counsel's fees and a number of other costs associated with experts.

13. The husband opposes the payment altogether, says that there is no need for the lawyers to be paid in advance. He says that there is no need for the wife to incur expert evidence in a jurisdiction where there is normally a single expert. A single expert’s fees can be covered by the husband in the first instance meeting the parties' obligations and the issue being resolved later by an adjustment between the parties.

14. As I said during the course of submissions, the lawyers will be paid out of the subject funds; nothing surer.  It is just a matter of timing.  The husband has met some fees, I gather fees associated with this last round of the proceedings.  I have not been told whether he has paid any profit costs to his lawyers or whether he has paid any counsel's fees, but he has met some costs.  It used to be the situation that a solicitor's contract was entire and a solicitor was only entitled to their costs on the conclusion of the proceedings.  Sometimes a demand was permitted where there was a natural break in litigation. On the whole the inception of interim billing has been a good thing and it is now the basis on which the profession operates. It enables parties to know what costs are being incurred and so on.

15. Here the wife is at a significant disadvantage.  Of the two parties the only question about the wherewithal to meet payments arises in relation to her and it seems to me in those circumstances, albeit not to provide a capital fund, but to ensure that as costs are invoiced and the wife is obliged to pay them, her costs should be met. The husband wants to fund any required payment out of his superannuation fund. That would facilitate the payment of periodic amounts.

16. I agree with the submission on behalf of the husband in relation to experts’ fees. It is now rare that there would be an adversarial expert in family law proceedings.  It happens sometimes and usually only by leave. I will adopt the proposal of the husband. If the wife is given leave to adduce evidence from her own expert on a particular issue, then, subject to issues about the scope of that exercise, the husband should be responsible in the first instance for making those payments. 

17. As to leaving the door open in relation to further proceedings, I will give the parties leave to apply generally. If there is something else of significance like further costs, there would need to be evidence about it. That would mean a further application. I will made the disclosure orders sought (c) and (d). In each case limited to after June 2006.  

18. There is an application for costs on behalf of the wife.  The court has power to make an order.  Normally parties bear their own costs.  In considering an application I am required to look at the respective financial circumstances of the parties; whether there is any legal aid - and there is not here - whether either party has been wholly unsuccessful; whether there has been a breach of court orders giving rise to the proceedings; the conduct of the parties in relation to the carriage of the proceedings, filing documents and attending and so on; any offers of settlement under s.117C or otherwise; and any other matter relevant.

19. I know of no offers of settlement. I have said what I have said about the parties' financial circumstances. Neither party has been wholly unsuccessful. There was no breach of court orders giving rise to the case and nothing comes to attention about the conduct of the proceedings. My concern about this case is that the parties have had every aspect of this case litigated to the nth degree. Over 90% of property cases settle and this case, I would have thought, even thought there are some novel aspects to it, should settle. The purpose of a costs order here would be to bring home to the husband the need to think very carefully about compromising the matter. We are past the point where one of the parties is seeking an indulgence. That is all old news. The wife has been permitted to make the application, for better or worse, and there are now competing applications in relation to settlement of property.

20. I do not think we are at that point today.  It cannot be said that the husband was not proposing to provide any support.  It was made clear today at the outset of his case, that on certain bases the husband would continue to provide support.  It was made clear that if he was granted permission to sell the property, he may be able to make improved provision for spousal maintenance. Thus the issue of costs is complicated. Further minds could differ about the husband's application in relation to the sale of the property. On balance, the parties should bear their own costs.  I make no order as to costs. 

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan.

Associate:  

Date: 27 February 2009