BABBITT & BABBITT
[2009] FMCAfam 857
•5 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BABBITT & BABBITT | [2009] FMCAfam 857 |
| Child Support – Appeal against administrative assessment – departure application – applications stayed pending the determination of a constitutional point – whether the application was prejudiced by the order of proceedings. |
| Child Support (Assessment) Act 1989 (Cth) Child Support (Registration and Collection) Act 1988 (Cth) Evidence Act 1995 (Cth) Federal Magistrates Act1999 (Cth) Partnership Act 1891 (Cth) |
| Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179 Gyselman, In the Marriage of (1992) FLC 92-279 Hallinan v Witynski [1999] FamCA 1127; (1999) FLC 98-009 Hides and Hatton, In the Marriage of (1997) FLC 92-759 Jones v Dunkel (1959) 101 CLR 298 Jonhson Tiles Australia Pty ltd v Esso Australia Ltd (2000) 104 FCR 564 Lutton v Lessels (2002) 210 CLR 333 Parkdale Custom Built Furniture Pty ltd v Puxu Pty Ltd (1982) 149 CLR 191 Weekes v Child Support Registrar [2006] FamCA 598; (2006) FLC 93-273 Whittaker v Child Support Registrar [2004] HCATrans 252 |
| Applicant: | MR BABBITT |
| Respondent: | MS BABBITT |
| File Number: | BRM1186 of 2003 |
| Judgment of: | Burnett FM |
| Hearing dates: | 15 May 2007, 12, 13 and 15 November 2007; 18 December 2007; 23 January 2009 |
| Date of Last Submission: | 13 February 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 5 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr O’Neill |
| Solicitors for the Applicant: | RB Lawyers |
| Counsel for the Respondent: | Ms Downes |
| Solicitors for the Respondent: | Direct Access |
ORDERS
I declare the Child Support Assessment Act assessable income of the respondent Mr Babbitt for the years ending 30 June 1995 to 30 June 2005 are as per Table “A” below:
1994/95
$6,829.00
1995/96
$11,832.00
1996/97
$32,947.00
1997/98
$49,398.00
1998/99
$52,168.00
1999/00
$63,814.50
2000/01
$75,797.23
2001/02
$86,129.68
2002/03
$54,182.30
2003/04
$54,182.30
2004/05
$54,182.30
That the applicant file and serve any submissions on costs in relation to the departure application by 4.00pm on 15 January 2010.
That the respondent file and serve any submissions on costs in relation to the departure application by 4.00pm on 29 January 2010.
That the matter be adjourned to 9.30am on 23 April 2010.
That the respondent pay the costs of all parties’ appearance for
18 December 2009.
IT IS NOTED that publication of this judgment under the pseudonym Babbitt & Babbitt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT brisbane |
BRM1186 of 2003
| MR BABBITT |
Applicant
And
| MS BABBITT |
Respondent
REASONS FOR JUDGMENT
Introduction
This application was initiated by the mother who makes application under s.117 Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) for a departure from Child Support Agency assessments for the financial years ending 30 June 1995 to 30 June 2000 together with the assessment for the period 1 January 2004 to 9 January 2005. She also seeks a sum of $2,273 by way of non periodic child support for secondary school fees incurred. Mr Babbitt (the father) also seeks to appeal pursuant to section 110 of the Assessment Act and seeks orders that the administrative assessments made against him for the years ended 30 June 2002; 30 June 2003; and 30 June 2004 be assessed upon the basis that his child support income for the relevant years be declared at $54,000 per annum and that to such an extent the earlier assessments be departed from.
In the meantime the Child Support Registrar, by its application made pursuant to section 113 of the Assessment Act, seeks to enforce recovery, as sums due under section 30 of the Child Support (Registration and Collection) Act1988 (Cth) (the Collection Act) being the sums of $19,549.97 by way of arrears of child support and under section 67 of the Collection Act for a sum of $1,923.89 for late payment penalties as at 8 October 2003.
Shortly after these applications were commenced the applications were stayed pending the determination of a constitutional point taken to the High Court in the matter of Whittaker v Child Support Registrar [2004] HCATrans 252. The application for special leave in Whittaker v Child Support Registrar (supra) was dismissed in June 2004.[1] In the meantime the Full Court of the Family Court had heard argument in a matter of Weekes v Child Support Registrar [2006] FamCA 598; (2006) FLC 93-273 and had determined to stay the delivery of judgment in that matter pending the resolution of the special leave application in Whittaker v Child Support Registrar (supra). Following the High Court’s dismissal of the special leave application in Whittaker v Child Support Registrar (supra) the Full Court invited further submissions in the matter before it. Ultimately a judgment was not delivered in that case until June 2006. In the result the validity of the Act was affirmed and many matters including this matter which had been stayed pending resolution of the constitutional issues were relisted for directions to further progress the matters to trial. These applications were listed on 27 February 2007 for trial directions for that purpose. At that directions hearing the usual trial directions were made together with a direction that the evidence in each application would be evidence in the other. Save for that one interruption this matter has progressed in the usual manner.
[1] See Whittaker’s case [2004] HCA Trans 252 (23 June 2004).
Initially at trial the Child Support Registrar was represented and participated in the proceedings. It ceased active participation once it had concluded cross examination of witnesses relevant to its application. During that time Ms Babbitt (the mother) represented herself. Subsequently she was represented with the assistance of pro bono counsel who assisted her in her presentation of her application and responding to the departure application.
At its heart the resolution of this dispute requires the determination of issues relevant to the father’s income. In particular a question arises as to his financial resources and earning capacity. The case advanced by the mother against him is that the arrangement of his affairs has been designed to distance the father from a profitable venture and remove into the hands of his now wife effective control of the distribution of dividends from that venture to achieve financial advantage to him by minimising his tax and also, more significantly for present purposes, by reducing his assessable income for child support purposes. It is submitted that he has thereby not fulfilled his child support obligation.
Order of proceedings
At the outset the father complains that the proceedings were conducted out of sequence. As I apprehend the complaint it seems that the father contends he ought not to have been examined in respect of matters relevant to enforcement until the court had determined the question of his indebtedness. That was a matter, he contended, which could not be resolved until after the departure application was determined. In particular he submitted:
“If for example, the court upholds the departure application then there can be no debt upon which the first respondent can be examined. By focusing purely on the narrow question of Mr Babbitt’s assets and ignoring the central question of whether the department had properly established the legal foundation for its certificate upon which it placed so much reliance, the court was also ignoring the views of the High Court of Australia.”
The meaning of this submission was revealed in paragraphs 13 to 17 of his outline filed 13 February 2009. He contended the basis for the registrar’s application was its certificate which he submitted was not “conclusive”. It followed on his submission that it was inappropriate for the court to deal with “an essentially administrative issue” (being the enforcement proceeding) before it dealt with the “substantive issue”, being the alleged indebtedness. He relied upon observations of the Full Court in Weekes v Child Support Registrar (supra)[2]. I do not accept those submissions. Weekes v Child Support Registrar (supra) affirms the High Court’s pronouncements in Lutton v Lessels (2002) 210 CLR 333 following Gleeson CJ with whom McHugh J agreed where the Chief Justice stated:
“22. The exercise by the registrar of powers referred to above does not involve the determination of pre-existing rights and obligations. It involves the creation of new rights and obligations for the future. The acceptance of an application, the making of an administrative assessment, and the making of a departure determination constitute the factum upon which the legislation operates to fix or alter the rights and obligations of parent and carer.
23. Furthermore, the enforceability of such rights and obligations depends upon the intervention of a court and the independent exercise of judicial power. The registrar cannot enforce his or her own assessments or determinations.
24. In addition, neither an assessment nor a departure determination is conclusive. In the case of an assessment, after an objection made to the registrar has been decided, an application may be made to a court for a declaration and an applicant is or is not entitled to an administrative assessment. In the case of a departure determination, following the disallowance of an objection either the liable parent or the carer may apply to a court. In both cases, the court exercises original jurisdiction, and the court has broad powers to override decisions of the Registrar.” (Citations omitted).
[2] (2006) FamCA 598.
The effect of their Honour’s remarks are in my view self evident. The father having made his departure application this court in the exercise of its original jurisdiction can, if it is appropriate, exercise its broad powers to override the decisions of the registrar. However if the court does not consider this an appropriate case to exercise its powers then the administrative assessment will constitute the factum upon which the legislation operates to fix and alter the rights and obligations of the parties. In that case the registrar is entitled to enforce the assessment in the manner provided under the Assessment Act.
I do not see the observations of the Chief Justice as suggesting a proper sequence of enquiry.
I think the real issue that the Counsel for the father seeks to advance is that in some respect his client’s application has been prejudiced by the order of proceedings. Part 6 of the Federal Magistrates Act1999 (Cth) (the Federal Magistrates Act) deals with practice and procedure. It is informed by section 3 of the Act which notes other objects of the Act to include the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power and to enable the Federal Magistrates Court to use streamlined procedures.
Additionally Federal Magistrates Rule 1.06 provides that the court may in the interests of justice dispense with compliance or full compliance with any of the rules at any time. As the order of witnesses is generally a matter governed by evidence, section 11 of the Evidence Act 1995 (Cth) (the Evidence act) is also relevant. It permits the court to control the conduct of a proceeding at large and unaffected by the Evidence Act unless provided for expressly or by necessary intendment.
Ultimately the question becomes one of fairness to the litigants. That matter is generally assessed by reference to the question of any prejudice that may have been occasioned by such procedure. No question of prejudice has been advanced by Counsel for the father and in my view none arises. Given that the circumstances surrounding the creation of the present corporate structure, which is discussed below, it would not have been inconceivable that the registrar’s enquiries would have been directed to ascertaining whether or not certain property held by the husband’s new wife was held on trust. That issue enjoyed considerable overlap with the issue concerning the registrar’s assessment that the father had significantly understated his income for child support assessment purposes. That understatement necessarily flowed by reason of the forbearance by the father of pursuit of a business opportunity following his interest in a chicken catching business only to see that opportunity be taken up by his new life partner. If the father’s departure application is successful then I accept the submission that the time expended in that part of the application will have been wasted. However given the commonality of the issues, I consider that there would have been greater efficiencies achieved in the disposition of the application of the two proceedings within the one hearing, rather than by the conduct of two discrete proceedings limiting the registrar’s involvement in the second proceeding requiring him to re-attend on a later occasion in the event that the father’s departure application was unsuccessful.
In summary I do not accept the procedure has caused any prejudice to the father and I consider that it was appropriate having regard to the overall proceedings between the parties.
Departure Applications
The Act provides in section 117 for the matters which a court must be satisfied of before making a departure order. Relevantly section 117 provides:
“Court may make departure order
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B) A parent's costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a) dividing the parent's adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.”
The Commonwealth Legislative Scheme for assessment and enforcement of child support liabilities are contained in the Assessment Act and the Collection Act. In Luton v Lessels (supra) the High Court discussed certain aspects of the child support scheme. These aspects do not appear to be the subject of controversy. Relevantly in that decision Gaudron and Hayne JJ said[3]:
“Under the Registration and Collection Act, however, the obligation to make a payment to the carer of the child is replaced by the obligation to pay the same amount to the Commonwealth. That obligation is coupled with the creation of a new right in the carer to have the Commonwealth pay the carer whatever the payer thereafter gives up - whether by making a payment to the Commonwealth or by suffering a compulsory deduction from salary or wages. The combination of these features - the substitution of a new obligation to the Commonwealth equal to an existing obligation which is terminated, coupled with the substitution of new rights in the carer against the Commonwealth equal to the extent to which the payer performs his or her obligation to the Commonwealth - takes this compulsory exaction outside the description of "taxation".
The fact that the original liability may later be varied requires no different conclusion. Subsequent variation of the amount for which a payer is liable does not diminish the significance of the fact that, when first registered, the liability owed by a payer to a carer is brought to an end and replaced by an obligation, in the same amount, owed to the Commonwealth. All that is changed by registration is the identity of the party to whom the liability is owed. Neither the existence nor the exercise of the power to make changes to the amount of the liability, in response to changed circumstances, alters the character of the exaction...”
[3] P 355, para 60 and 61.
As matters presently stand the father’s income for child support assessment purposes has been assessed for the various periods in contention. The mother objects and seeks departure on the basis that the decision of SCO O’Neill did not backdate that determination to 1994. In the meantime the father objects to SCO O’Neill’s decision of 28 February 2002 on the basis that the business income attributed to him is not his. Further, the father says his income is limited to approximately $30,000 per year, being the wages paid to him as an employee of the business.
Although the father sought to make something of the mother’s income in proceedings before the SCO no such issue was pursued before the court.
The father’s true income is central to this application. Its determination raises the issue of whether, pursuant to section 117(2)(c), a ground for departure is demonstrated because in the special circumstances of the case the application of the provisions relating to the administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the father for the child because of his income, property and financial resources or because of his earning capacity.
This issue is also reflected in the need for consideration of matters required to be taken into account by the court pursuant to section 117(1)(b)(ii) as expressed in section 117(4) of the Assessment Act.
In short the father had an interest in a business. He says that he ceased to carry on that business. At about the same time that he ceased to carry on his business he became an employee of a new business which business was conducted by his then new life partner, now wife. From that time his income fell significantly as did his child support obligations. The initial assessment was reviewed and his assessable child support income was significantly increased to take account of business income flowing to his wife. The father maintains his child support income has been mis-assessed as the registrar has wrongly taken into account that income earned from that business when assessing his income for child support purposes.
Background facts
The father and mother married [in] 1985. [X] born [in] 1987 was a product of the marriage. The parties separated about June 1990. The child resided principally with the mother from that date although there was one period between 1 August 2000 to 28 October 2001 when she resided with the father.
After separation the father relocated to [North Queensland] and in September 1994 commenced in partnership with entities associated with Mr B and Mr J in a business called “[C]”. The nature of the business was a chicken catching business. [B] and [J] or entities associated with them each owned chicken farms and supplied chickens to [T] which conducted a chicken abattoir. The purpose of the business was to catch chickens from the partners’ farms and other farms contracted with for that purpose and then transport the chickens to [T] for processing. The arrangement with [T] was formalised by contract dated 10 September 1994.[4] The initial term was for two years. However upon its expiration the term was extended for a further two year term[5]. The parties to the agreement were noted as [B] Pty Ltd, [S] Pty Ltd and the father. [B] Pty Ltd was an entity associated with Mr B and [S] Pty Ltd was an entity associated with Mr J. This partnership (the [C] Partnership) traded successfully in this enterprise for four years.
[4] Exhibit 14.
[5] Exhibit 15.
In the meantime in April 1997 the father took up with Ms A now known as Ms A (to avoid confusion referred to in and after as Ms A).
In August 1997 the father and Ms A purchased vacant land at
Property N and shortly thereafter entered into a contract to construct a house upon the land. In July 1998 the construction was completed and the parties moved into those premises and took up residence.
On 30 October 1998 the [C] Partnership ceased. At about the same time a trust, the [H] Trust, was settled and a company entitled [C] Pty Ltd ([C]) was incorporated. Ms A was both the trustee of the [H] Trust and also the sole director and shareholder of [C].
On 9 November 1998 a business name, [F] was registered. That entity owned the equipment to be used by [C] to conduct the chicken catching operations. Initially the equipment was owned by the partners in the same proportions as the equipment was owned by the [C] Partnership. Dividend payments by [C] reflected the value of the partnership holdings and were paid in that proportion. Previously profits from the [C] Partnership were paid into a trust, the [C] Trust and in turn distributed from the trust to the partners by discretionary trust.[6] This arrangement continued with the [F] Partnership except that the fathers interest had passed to entities associated with Ms A. The proprietors of that business were [B] Pty Ltd, [S] Pty Ltd and the [H] Trust. Each entity held a one third interest in [F], which partnership (the [F] Partnership) distributed the profits it received from [C].
[6] T 77, Ln 13 Mr B
Broadly this structure provided for the chicken catching contract to be between [T] and [C]. That company was to not only be the contracting party with [T] but it was also to conduct the operations and be the accounting entity through which all transactions relevant to the business were recorded. There was an agreement between each of [B] Pty Ltd, [S] Pty Ltd and the [H] Trust that they would each receive one third of the net profit achieved from the trading operations.[7] This partnership (the [F] Partnership) did not trade as the [C] Partnership had, but merely received dividends from [C] through the [F] business.
[7] T 64, Ln 40 Mr B.
On 1 December 1998 [T] then entered into a contract with [C] for the provision of the same services previously provided by the [C] Partnership.
The initial organisational structure ensued for a little over a year before there were changes to the structure of the [F] Partnership. The evidence of each of the father, Ms A and Mr B was that [T] were unhappy with growers having a controlling interest in the [F] Partnership and accordingly capital holdings had to be re-arranged to ensure the controlling interest was not held by interests associated with chicken growers. This was given effect to by [C] acquiring a further one-sixth interest in [F]. That interest was acquired from interests held by [B] Pty Ltd for a consideration of $80,000. This sum appears to have been secured by a loan made to [C] by its bank secured against the jointly owned property of the father and Ms A at Property N. At about the same time as this significant reorganisation the father’s income fell dramatically. He became an employee of [C] and continued to work in the business while Ms A’s involvement was, at best, peripheral. She continued in her full time employment whilst enjoying a share of the profits achieved by the [F] Partnership from November 1998 through her ownership and control of the [H] Trust and [C].
For the father it is contended that there is nothing suspicious about these matters and that the confluence of these factors was pure serendipity. For the mother it is contended the object, although not expressed, was plain. That was to restructure affairs in order to minimise the father’s obligations to provide child support. She contends that accordingly the court ought look behind those transactions to ascertain the true income, property and financial resources of the father and his true earning capacity in order to determine the application and the cross application.
Credit
Generally
Issues in this case fall to be resolved largely by determination of the credibility of the various witnesses. I commence by observing that I found the father and Ms A each to be most unimpressive witnesses. For reasons which follow I determined each to be unreliable and untruthful; in some instances deliberately so. As the evidence demonstrates they have each sought to put a “spin” on the evidence favourable to their case and their interpretation of the facts. Unless their evidence has been capable of objective verification it has been rejected in all respects.
This is a case where much of that which is contended for by the father and Ms A falls to be resolved by their subjective statement and interpretation of events.
It follows in my view that the matter of their reliability as the recorders and re-tellers of events is particularly important in assessing the matters to be determined. This is especially so concerning matters dependent upon their subjective assessment. For reasons that follow I do not regard either of the father or Ms A to be reliable and accurate recorders of fact. Likewise I do not accept that they were capable of expressing a subjectively reasonable interpretation of facts when that was required of them. It was apparent to me that the events leading to these proceedings represent the product of their collusion driven by a desire to minimise the father’s child support obligations.
Circumstances surrounding Ms A’s acquisition of interest in the [T] contract
At the outset the father was the subject of a child support arrangement. By private agreement between he and the mother the Child Support Agency did not collect child support for her. That was until August 1997 when that arrangement changed. Up until that time the father was not regularly paying his child support. It appears from the unchallenged evidence of the mother that up to that time there had been ongoing difficulties with the child support collection and following a recommendation made to her by Centrelink she engaged the Child Support Agency to collect her child support payments. Following that time events appear to have taken a turn for the worse.
In the 1996/1997 financial year the father’s taxable income for child support assessment purposes was assessed at $63,435. It followed that his child support obligations were enlarged. From 1 July 1998 the father’s financial circumstances changed significantly. Later that year he forwent a commercial opportunity to join with his partners in the [C] Partnership in renewing the expired chicken catching contract. That commercial opportunity passed directly into the hands of Ms A who he wed shortly thereafter. Despite forgoing this commercial opportunity (which would have had no cost to him) he continued to work for the new partnership, the [F] Partnership performing the same duties as under the [C] Partnership except only on salary at an income of about half of the 1997/1998 income. I accept, as was submitted by the mother’s counsel, that this was no coincidence.
Until that time the father had been a one third partner in the [C] Partnership. In his evidence Mr B and the director of [B] Pty Ltd, another of the partners, noted that the partnership commenced initially because he together with Mr J, the director of [S] Pty Ltd, the other partner, as growers saw an opportunity for a chicken pickup operation. However as growers they did not want to be seen to be directly operating the nightly pickup functions. At that time the father was employed at [B]’s farm and was seen by Mr B to be trustworthy. Given their commercial objectives [B]Mr B says that he offered to the father a proposal whereby the father would be offered a partnership in a business. It is not entirely plain from the evidence of Mr B what the partnership entailed except that the father was to receive one third share of any profits in addition to an hourly wage and that there was a “limited” partnership. The father had no capital and could contribute nothing to the capital of the partnership. Accordingly the initial partnership capital appears to have been provided by [B] Pty Ltd and [S] Pty Ltd[8]. There was nothing in the evidence to suggest that the object of this arrangement was not satisfied or that [T] were unhappy with the arrangement. It is however conceded by all parties that the contract was due to expire toward the end of 1998.[9]
[8] Exhibits 14 and 15.
[9] Affidavit of Mr B filed 27 April 2007 paragraph 7.
In his oral testimony Mr B stated that in the course of conversations between he and [T], [T] informed him that they were unhappy with the structure of the [C] Partnership as they did not want growers being owners or part owners of the chicken catching operation[10]. He says it followed from that that the arrangement between the [C] Partnership and [T] was terminated and a new contract was concluded.
[10] T65 Ln 27.
Although Mr B characterised the ending of the relationship between [T] and the [C] Partnership as a “termination” he clearly did not mean this in its term of art or legal sense. A contract existed between the [C] Partnership and [T]. It was due to expire in September 1998. I take Mr B’s evidence to mean that [T] would not renew its contract with the [C] Partnership.
A little under a month later the new entity, the freshly incorporated [C] Pty Ltd ([C]) entered into a contract with [T] to undertake the chicken collection service previously provided by the [C] Partnership. It performed the chicken catching operation pursuant to a new contract with [T]. It in turn also had an arrangement with [F] for the use of its equipment in the performance of its operations. The [F] business was initially constituted by the partners of [C] Partnership except the father’s interest had been relinquished to the benefit of the [H] Trust. Each of the partners held a one third share in the [F] business which constituted the [F] Partnership. The [F] Partnership would in turn distribute dividends it received from [C] to each of the partners in accord with their respective partnership entitlements.
Unquestionably the corporate structure changed and the entities forming the constituent members of the [F] enterprise also changed. Significantly [C] was an entity in which neither Mr B nor Mr J, as growers, had an interest. Notionally this would have addressed [T] prima facie concern that the contracting party not be under grower control. However, as Mr B conceded in his oral evidence nothing changed in a practical day to day sense.[11]
[11] T69 Ln 42 T70 Ln 16.
The evidence is that [T] did not wish to deal with an entity associated with chicken growers and on that basis [T] was not happy with the involvement of either Mr B or Mr J.[12] Irrespective of that matter when the new entity came into being the father had no interest in it. Yet there was no imperative for him to forego his interests in such a contracting entity because he was not a chicken grower and accordingly not subject to the same concerns as the other partners. Indeed the father was the person who had the day to day contact with [T] before and after the contracted transition from the [C] Partnership to [C]. At all times [T] dealt with him without demurrer.[13] Furthermore, as Mr B conceded, in all practical respects nothing changed except the entity with which [T] concluded its ongoing arrangement and the composition of that entity.[14] Against that background the father’s and Ms A’s contention that the ongoing arrangement in effect presented a new opportunity for Ms A in respect of which the father had no prima facie interest rings somewhat hollow.
[12] T65 Ln 36.
[13] T19, Ln 1; T70 Ln 15.
[14] T69 Ln 35 to T70 Ln 16.
Evidence of this seamless transition from one contract to the other is affirmed by the father’s own evidence. He stated that apart from some changes in his own functions, that was a more managerial and administrative function, the business proceeded very much as it had prior to the restructure.[15]
[15] T116.
Except for Ms A’s introduction into the arrangement the same natural persons were involved in both the [C] Partnership and the [F] Partnership. As noted, the exception was the introduction of Ms A who was introduced through the creation of the [H] Trust and the incorporation of [C]. Through this she assumed at no cost the interest which had previously been held by the father.[16]
[16] T13.
Although I accept [T] wanted to have in place an arrangement that maintained separation between farming and chicken catching entities that requirement did not bear upon the father who had no farming interests. From the facts matters proceeded seamlessly between the expiration of the chicken catching agreement between the [C] Partnership and [T] and the commencement shortly thereafter of the chicken catching agreement between the [C] and [T]. Accordingly it seems odd that the father would relinquish or forego any prospective entitlement to be part of the entity to renew the [T] contract to Ms A without some justification. None was apparent.
Although it is strictly correct for Ms A to maintain that the father strictly had no legal interest to dispose of it is plain that the father’s involvement in the [C] Partnership had some commercial value which was capable of realisation by he simply remaining part of the [C] Partnership syndicate, however structured, in any tender to renew the chicken catching contract. Ms A had no capacity to perform the contract through the entity controlled by her. She could only realise a gain because of her personal relationship with the father. As the evidence demonstrated he had the know-how and experience and Ms A had none. Her position also ignores the fact that initially the [C] Partnership had the equipment used for this enterprise. This capital passed to the [F] Partnership. Limited financial records for the [C] Partnership were produced to the Court despite the father being subject to subpoena to produce relevant financial documents. However from such records as were produced, particularly depreciation schedules, it can be seen that assets which existed in the [C] Partnership were in due course transferred to the [F] Partnership. Additionally given the agreed position that the [F] Partnership owned the equipment and given the distribution of profits equally between the three partners, I infer that upon dissolution of the [C] Partnership the assets of that partnership were transferred to the [F] Partnership with each of the partners taking an interest in the transferred capital proportionate to their former holding. That is except for the [H] Trust which assumed the interest formerly held by the father.
[F] owned the capital necessary to conduct the chicken catching operation. From a review of the company accounts for [C] it can be seen that the interests carried by that entity in its balance sheet largely represented only capitalised expenses, debtors and loans to directors set off against the usual form of liabilities. There are no assets of substance and certainly no equipment for the chicken catching operation. It requires no commercial acumen to appreciate that [B] and [J] permitted Ms A to establish [C] as the contracting entity because as a stand alone it has no value and it could not undertake the business beyond administration. The capital worth of the old [C] Partnership was re-badged as the [F] business. Each entity retained their one third share in this entity, which entity owned a significant inventory of equipment. In the absence of evidence to the contrary it is assumed that the [C] Partnership acquired capital equipment over its four year life[17]and accordingly upon the establishment of the [F] business the father’s interest as a one third partner was assigned to the [H] Trust.
[17] Section 24 Partnership Act1891 (Qld): Exhibit 11 – a review of the date of acquisition column in the capital schedule reveals that a significant number of assets came into being during the course of the [C] Partnership. For instance Exhibit 17 related to the acquisition of the “Freighter” trailer. It appears in the [F] (Exhibit 11) schedule with an acquisition date of 7/5/97 although I note the trailer registration application (exhibit 17) was dated 14/11/97. This was clearly a [C] Partnership asset for whom the father was nominated as the responsible person. Likewise Exhibit 20 evidences a purchase of an International Acco truck on or about 20/3/98 and a Ford Sedan (Telstar) on 1/6/98 each of which found its way into Exhibit 11 – NB: the seller signed the vehicle transfer for application – Exhibit 21 on 1/6/98 but the father’s signature as “new owner” is his birth date.
Although there was no expert evidence adduced concerning the commerciality of this transaction the matter is in my view a matter of commonsense. Given the changes were entirely cosmetic in that in all other respects the arrangement and the personnel involved in the arrangement remained the same it is in my view simply incredible to suggest that the personal relationships that existed between the father, [B] and [J] and those with whom he dealt at [T] did not have some value which could manifest in the form of a contract to persevere into the future that which had been enjoyed in the past. That is particularly so considering Ms A’s involvement in the matter. Her evidence was that she did nothing of significance to warrant her receipt of any remuneration from the business.[18] Furthermore, at these times she was in fulltime employment initially at [businesses omitted].[19] Indeed at the time of formation of the company [C] Ms A was in fulltime employment at [omitted].[20] Finally the evidence demonstrates that following the commencement of the [F] Partnership nothing changed in operational terms.
[18] T18 Ln 35.
[19] T18 Ln 36 and Ln 46.
[20] T20, Ln 24.
Ms A’s acquisition of an interest in the [F] Partnership
Events concerning the [F] partnership do not stop there. In November 1999, approximately one year after the incorporation of the [F] partnership, Ms A acquired a further one sixth share in the business. This occurred when she purchased a half of the [B] Properties interest in [F]. The consideration for the acquisition of that interest was $80,000.
She was cross examined about her acquisition of the interest from [B] Properties which equated to about 17% of the total value of the [F] Partnership.
The father and Ms A sought to create the impression that following the expiration of the [C] Partnership’s arrangement with [T] Ms A bought into the business. This presents as something of a delicious contradiction in their case. On the one hand they maintain that upon the expiration of the contract between the [C] partnership and [T] no business existed which could be subject to sale but on the other hand purport to assert that the father did not have the financial capacity to either purchase outright or fund entry into the ongoing arrangement with [T] and that this presented Ms A (upon the invitation of the father) with the opportunity to assume that situation to her advantage. As the father stated in his affidavit, “I deny that I transferred “the business” to (Ms A). I did not have a business to transfer.”[21]
[21] Affidavit of Mr Babbitt filed by leave 14 May 2008, paragraph 7.
Further, the existence of a business in or about November 1998 for which Ms A paid to acquire an interest is simply a dishonest mirage. In her affidavit filed 10 July 2003 Ms A says she purchased a 17% share from [B] Properties and the balance to make up the contracting interest of 50.08 from [C] Properties.[22] She continued “I borrowed $80,000 from the CBA and paid it to [B] Properties. This gave me a controlling share, (50.08%) in the new partnership, as well as total control of the contract and income through the new entity [C] P/L that held the contract with Bartter [T].”
[22] At para 16.
This fallacy was also advanced by the father. In his affidavit he noted that [T] were objecting to Mr B as a grower having control of the business and that he was advised by [T] that if the situation continued they would put the collection contract out to tender. He said that Mr B offered to sell him all or part of the business so that he could continue but that he had no assets or capacity to borrow any monies and so he was not able to purchase that interest. His affidavit stated that he discussed the matter with Ms A who he said “saw the opportunity to purchase the business for herself.” He continued “she approached [T] and they indicated they would accept her as the contractor. Mr B sold part of the business to Ms A. They did not want to relinquish their interest in the business entirely but they acknowledged that they had to dispose of that proportion of the business that would satisfy [T] that they were not in control of the operation.” He then continued at paragraphs 27 and 28 as follows:
“Ms A established a company, [C] Pty Ltd, and the [H] Trust and she was sole director and shareholder of the company.
Ms A borrowed $80,000 from the Commonwealth Bank of Australia and purchased a 50.08% controlling interest in the business and she became the sole contractor with [T]. Ms A is solely responsible for the loan to the Commonwealth Bank of Australia.”
This version of facts was essentially restated by the father in his notice of objection to the decision and was directed to the objection team at the Child Support Agency.[23] The manner of presentation of information contained within the affidavits of each of the father and Ms A and in particular the chronological presentation of the material in the manner identified above, sought to create the impression that a contract was entered into at about the time the first contract between the [C] Partnership and [T] expired and immediately before the commencement of the second contract, being the contract between [F] partnership and [T], commenced in November 1998. Furthermore the impression sought to be conveyed upon a fair reading of the affidavit is that Ms A paid a sum of $80,000 to acquire a controlling interest in the second partnership and the acquisition of that interest was contemporaneous with the creation of the second partnership and its assumption of contractual obligations to [T]. In my view that is the only reasonable inference available to be drawn from the expression contained in each of those affidavits. Insofar as that is the impression sought to be conveyed, that impression is misleading and in my view, for reasons which follow, intentionally so.[24]
[23] Affidavit Mr Babbitt filed 10 July 2003.
[24] In another context it is well settled that conduct is considered misleading or deceptive if it induces or is capable of inducing error. Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198; Johnson Tiles Australia Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564. Whether a particular conduct is misleading or deceptive is a question of fact to be determined in the context of the evidence concerning the alleged conduct and the relevance surrounding facts and circumstances.
In this case the statements were clearly intended to mislead in that they sought to convey an impression which is not the fact. For instance early in his evidence and before matters concerning the second partnership were put to him, Mr Babbitt when being questioned about the percentages held by the various members of the [F] partnership, made the observation that the percentages were negotiated at about the time “the new contract was signed with Ms A”.[25] The reference to the new contract was clearly a reference to the new contract between [T] and [C] (Exhibit 14).
[25] T 151 Ln 4.
Likewise when Ms A was cross examined about these matters she admitted that when the [F] partnership was first established each of the three partners held only a one third interest in the business. Furthermore she admitted that no money changed hands in 1998.[26] When questioned about the value of the business Ms A’s response was that it went out to tender and that her company, [C] Pty Ltd “won that contract”.[27] She continued “what the value was I have no idea”. The answer was a curious answer. One assumes if some consideration had been offered for the benefit of the contract Ms A would have been quick to point that out. It should not be forgotten that Ms A regards herself as a “very astute businessperson that exhibits a desire to maximise – earning capacity”.[28]
[26] T 13 Ln 40.
[27] T 14, Ln 2.
[28] Affidavit Mr Babbitt filed 10 July 2003 Annexure B Letter [C] Pty Ltd to Whom it May Concern 11 June 2002 page 3.
Funding the acquisition of the [F] Partnership interest
The intentionally misleading nature of the evidence of each of the father and Ms A is further demonstrated by their evidence concerning the acquisition of the 17% interest from [B] Properties in 1999 to then give Ms A effective control of the [F] partnership. I have earlier identified those passages in the affidavits where Ms A swore that she borrowed funds from the CBA to purchase [B] Properties’ interests in the [F] partnership. The language in her affidavit is plain and unambiguous. The clear impression created is that the obligation was a personal obligation for which she assumed full liability. When one has regard to Ms A’s personal testament to her business acumen and her background as a business administration manager for [company omitted] together with her experience as a customer service officer with [omitted], it is fair to infer that she has some familiarity with administration. In my view that would include an appreciation of the significance of party identification, particularly in the completion of forms and applications. That is especially so in the context of her development of the corporate structure for [C] and the [H] Trust associated with it.
The misleading character of this evidence was clearly demonstrated by the documents. In cross examination counsel for the mother put to
Ms A exhibit 26, a letter of approval from the Commonwealth Bank of Australia addressed to [C] Pty Ltd. Ms A was a director of that company. The letter of approval advised Ms A as the “director” that the bank had approved facility for $80,000 to assist in the purchase of “another one sixth share in [F]”. Given Ms A’s background and her involvement in the [F] partnership I do not accept her gloss on the identification of the true borrower as a mere oversight, or being founded in an imperfect understanding of the true identity of the borrower. Indeed it is open to be inferred that the purpose of [C] in acquiring 17% of the [F] partnership from [B] Properties was to place a controlling interest in the [F] partnership in the hands of interests associated with non growers, a matter of significance in their case.
Her protestations that the loan was “a personal loan and not a company loan - - that was my full intention”[29] rings particularly hollow when regard is had to the security documents that came into being in fulfilment of the letter of offer. It will be remembered that the letter of offer required both the father and Ms A to provide a registered second mortgage over the house property at Property N. The mortgage provided in support of that security forms part of Exhibit 5. Materially it noted the mortgagors as the father and Ms A. The mortgagee was the Commonwealth Bank of Australia. The description of the debtor liabilities secured were “all monies, liabilities and amounts which are or became owing or payable to the mortgagee by the mortgagor and/or [C] Pty Ltd (the debtor) and which are referred to in document No. [omitted] filed in the Land Registry.” It should also be noted that the stamp duty endorsement included in the dealing number shows that Queensland stamp duty was paid on $80,000. Further the particulars contained in the mortgage schedule registered on 23 November 1999 are no coincidence. They reflect the very terms identified in the bank’s letter of 4 November 1999 (Exhibit 26). I do not accept that either the father or Ms A did not appreciate this matter. In my view the evidence of Ms A on this point was deliberately dishonest and sought to deceive the court. Likewise when cross examined on this point it was pointed out to her that the debtor was identified as “[C]”. She was noted as the sole director and company secretary. When asked how she could make such a mistake as to identity she stated: “I trusted my bank, stupidly, and I’ve just signed where they’ve pointed.”[30] I reject this evidence entirely as being simply untruthful. Large sums of money were involved. Loans of large sums are not simply for the asking. Applications and forms have to be completed. Questions are asked and answered. Banks and borrowers alike have to form a common intention to give rise to a binding agreement. I have no doubt that in this case, particularly given Ms A’s involvement in establishing [C] and the [H] Trust, she knew precisely who she was representing when she engaged with the Commonwealth Bank. The Commonwealth Bank of Australia certainly thought they were dealing with [C]; that is to whom they forwarded their letter of offer. The signature block made that plain, if nothing else. Likewise the several documents later executed made this plain (see Exhibit 12 Mortgage Schedule [omitted]). Ms A knew clearly who the contracting parties were. Her oral testimony on this point was simply untruthful. It is of particular note that at the particular time this particular oral evidence was given the mother was representing herself. The legal representatives for the registrar had withdrawn, they having completed their examination of the father and the mother’s subsequent pro bono representation was yet to be available to her. From that I infer that Ms A hoped that her statements on this issue would pass through with little, if any, critical examination.
[29] T 48 Ln 34.
[30] T50, Ln 20.
Likewise the father’s statements contained in his objection to the notice of decision 28/2/02 at paragraph 11[31] that he was “not even a guarantor” in respect of any loans in my view constituted a deliberate misstatement. I do not accept the father to be so naive as to not understand that by the provision to the bank of the mortgage to which he was a signatory he was thereby providing security to [C], Ms A’s company and that the effect of that arrangement was to secure or guarantee performance of the loan. While I do not ascribe to the father a lawyer’s understanding of the term “guarantor” I am satisfied he was sufficiently sophisticated to understand the effect of the provision of the mortgage. I am also satisfied that he was sufficiently sophisticated to appreciate that had he informed the child support authority that he had mortgaged his interest in the joint property to secure a loan made to Ms A’s enterprise that that information would have been received by the registrar as contrary to his interests. I am satisfied that his omission of this relevant information was deliberate and that accordingly his statement to the effect that he was not a guarantor constituted a deliberate misstatement by him.
[31] Contained within Exhibit 3
Finally on this point in an affidavit by Ms A sworn 11 May 2007 Exhibit 30 she swore at paragraph 3:
“I was not at all material times the wife or partner of the First Respondent. Although we moved in together in early 1998 we were by no means entering into any formal long term commitment and neither of us considered the arrangement as such. Due to past experiences we were both exercising a great degree of caution. I continued to maintain my own residence in
Property M, until we decided to purchase a house together in mid 1998[32]. I did this because of his somewhat chequered reputation and most of my furniture and personal belongings remained at my Property M address. I then became engaged with the First Respondent in February 1999 and was married in September of that year.”
[32] This illustrates Ms A’s spin on the facts. The real estate was jointly acquired in 1997 and a residence was constructed upon it and ready for occupation in mid 1998.
The clear impression sought to be advanced was that she and the father were maintaining distinct and separate lives at the time Ms A determined to enter into the contract with [T]. Such was not the case. The fact was that these parties had entered into a contract approximately 18 months earlier to purchase vacant land and then arranged to construct a residence upon that land. Following its construction they commenced to co-habit in that residence. This occurred by approximately July 1998, well before the [C] partnership contract expired.
Other matters – nature of relationship between the father and Ms A
However matters pertaining to the credibility of each of Ms A and the father do not stop there.
In a letter of objection written by the father to various persons following the decision of the Child Support Agency complaining about the administrative account concerning the time the contract was being re-negotiated between [T] and the new partnership the father stated:
“I was not married, nor was I engaged to be married, nor did I have a defacto relationship with anyone at the time Ms A began negotiations with [T].”[33]
[33] Exhibit 3 – objections to decision – comments relating to page 3 paragraph 2.
This statement was made in or about 22 March 2008. That statement is to be contrasted with his sworn affidavit filed by leave on 13 May 2008. At paragraph 5 he swore:
“I was not at all material times the husband or partner of (Ms A). Although we moved in together in early 1998 …(Ms A) continued to maintain her own rented house … until we decided to purchase a house together in mid 1998. I then became engaged to (Ms A) around the beginning of 1999 and we married in September of that year.”[34]
[34] Affidavit of Mr Babbitt filed by leave 13 May 2008, paragraph 3.
Ms A gave almost identical evidence[35]. The statement made in 2004 does not sit comfortably with his sworn affidavit.
[35] Affidavit of Ms A filed by leave 13 May 2008, paragraph 5.
Apart from some factual inaccuracies[36] it is simply untrue to state that the parties were not in effect living in a defacto relationship at the time the contract with [T] was being negotiated in late 1989. The parties had committed to purchasing a vacant block of land; they had built a house upon it; the property was owned by them as joint tenants (with the legal consequences that flow from that); and the parties resided together in this house. It is of no surprise that a short time later early in 1999 they announced their engagement and subsequently married. Save for announcing the engagement and the marriage every other fact was evident at the time negotiations began between Ms A and [T].
[36] The father and Ms A did not purchase a house in 1998. They purchased vacant land in mid 1997, constructed a house upon it and commenced occupation of the constructed dwelling in mid 1998. Exhibit 12.
Clearly the father was seeking to place the best possible spin on his situation. However the impression he sought to make was inconsistent with the facts as he knew them to be.
Moreover he was seeking to do so in a bullying manner no doubt with a view to intimidating a reviewer to reconsider the decision by copying his letter of objection to members of the Legislative and Executive.[37]
[37] Other illustrations of this approach by the father can be found in like correspondence addressed by the father in correspondence to various agencies. The tone of that correspondence was also insulting, disrespectful and bullying in character.
Other matters – Motor vehicle records
Further demonstration of the lie sought to be perpetrated by each of the father and Ms A concerning the father’s non-involvement with [C] or [H] Trust are to be found in the documentation surrounding the registration of vehicles used for the business. Clearly the father was the responsible person in respect of vehicles acquired by the [C] Partnership.[38] The evidence demonstrates he continued to nominate himself as the responsible person after the [F] Partnership came into being.
[38] See Exhibits 17, 20 and 21.
In correspondence addressed by the [F] Partnership to [T] Pty Ltd dated 28 November 2001 the father, entitling himself as manager, authorised them as agents. This was within his power as manager. However when for instance the [F] Partnership forwarded annual vehicle registration applications dated 15/5/02 (Exhibit 34) and 15/1/03; 28/11/01; 30/04/04; 27/07/02; together with a vehicle transfer application dated 1 January 2000 (Exhibit 35) the father described himself in each instance as the “Registered Operator”. The relevant forms provided the registered operator must be a “proprietor/trustee of the business or trust”. In my view this was no slip or shortcut taken to avoid detailed explanation. For reasons provided elsewhere within this judgment the father was in fact a proprietor. He had an interest equating to approximately 42% of the [F] Partnership. If he had merely been a manager such a representation would have been well beyond his actual or ostensible authority. Likewise, in 2007, similar representations have been made concerning the Dicci Forklift[39]. Similarly the finance application made by the [F] Partnership on or about 7 November 2001 contains further admission by the father concerning his interest in the partnership. In the finance application signed by him for the Volvo Prime Mover he included himself as the “Partners/Directors/Wife’s name” lease in the form.[40] The AGC finance application (Exhibit 39) put on the father’s involvement beyond doubt. It notes the “Partnership hires P & E (plant and equipment) to company [C] Pty Ltd (partners company) which carries out the transportation of poultry for [T]”. The reference to “Partners company” is revealing as throughout the application the father and
Ms A are referred to as “partners” and the statement of assets and liabilities signed by them notes the entity as “[F] – (Partnership)”. Additionally the AGC documentation required that the father provide a personal guarantee. While such a requirement is not unusual it would not be one to be expected of or proffered by a manager.
[39] Exhibits 18 and 19.
[40] Exhibit 39.
Intermingling of business distributions
The evidence clearly demonstrates a clear intermingling of the father’s income from the [C] Partnership with that of Ms A well before the expiration of the first contract and the creation of the [F] Partnership.
Ms A’s tax assessment for the financial year ending 30 June 1998 (that is the financial year immediately preceding the establishing of the [F] partnership) revealed a taxable income of $78,837 (Exhibit 27). At that time Ms A was employed fulltime as an administrative officer at [omitted]. She had no interest in the [C] partnership. By reference to the tax credit shown in her notice of assessment for group certificate deductions of $13,475 it can be seen that in that financial year her gross income from sources subject to group tax approximated at a little under $50,000[41]. Accordingly about $28,000 in income was unaccounted for in that year.
[41] >
In cross examination when asked where her income came from she stated “I just don’t remember”.[42] I do not accept her answer to that question as being truthful. Ms A did not impress me as a witness who lacked insight into financial matters. The truth of her situation was subsequently extracted in cross examination. In the course of cross examination it was suggested to her that some of that money may have come from the [C] Partnership business to which her response was “lucky me”.[43] At this point it was apparent she had an inkling that the game was up. In the following series of questions she was then shown the income tax return for the [C] trust for the financial year ending
30 June 1998. That trust was the entity which conducted the [C] Partnership’s financial activities (Exhibit 29). The income tax return revealed that she received a distribution totalling one third of the total [C] Partnership distribution. A copy of the trust deed for the [C] Partnership was not produced in the course of the proceedings. In any event one can reasonably infer from the income tax return that the trustee of the trust, Mrs B, distributed the trust proceeds to persons who were identified as appropriate beneficiaries under the trust in accordance with [C] Partnership entitlements. In that regard I note other distributions were made to [B] Pty Ltd and [S] Pty Ltd each of those entities being entities controlled by the other two partners, Mr B and Mr J.[44] Each of those entities received a third each.
[42] T22, Ln 11.
[43] T22, Ln 29.
[44] Exhibit 29.
Given the father was being paid an hourly wage for work performed and otherwise sharing in the profits of the [C] Partnership, the [C] trust represented a useful mechanism for reducing his income by distributing his entitlements in this instance to Ms A and thereby permitting him to minimise his income declarable to the Child Support Agency. The events preceding the creation of the [F] Partnership namely his non payment of voluntary child support and transition to a proscriptive regime clearly inform the motivation for the later structure. Likewise concerning her receipt of this sum her disingenuous statement that she was not aware of the father’s one third interest in the [C] Partnership is in my view incredible.[45]
[45] T 29, Ln 16.
As I have earlier noted the impression sought to be conveyed by each of the father and Ms A is that the chicken catching business whilst not unprofitable was not particularly well run. Furthermore Ms A’s views appeared to be the product of their relationship rather than any in-depth appreciation of the business while owned by him. She did not ever disclose in any of her affidavit material that for instance she had enjoyed any of the profits of the business while owned by him. It should not be forgotten that the [C] Partnership provided that the father would be paid a wage and receive a share of the profits. The profits were to be distributed between the three partners. When those matters were brought to her attention in the course of cross examination[46]
Ms A’s discomfort with having been caught out was palpable.
[46] Ct 22 Ln 25 to 30; T23 Ln 15 to 35 and Exhibit 29.
Likewise the evidence of both the father and Ms A concerning distributions from the [H] Trust were in my view equally disingenuous. Once the new arrangement came into being with the [F] partnership the father commenced on the books solely as an employee. Yet despite that fact trust distributions were made to him, those distributions were sourced from distributions made to it by [C] to the [F] Partnership and in turn to the [H] Trust and from there to the father. The distributions to the father varied from year to year.
Likewise it seems that Ms A was making child support payments to the mother. Contrary to Ms A’s statement that she did so because she was a “nice person”[47] I am satisfied she did so because she and the father had intermingled funds for a lengthy period of time and she controlled the household finances. Child support was merely a household expense attended to from an account convenient to the parties given their intermingled finances. The direct source was immaterial for Ms A and the father.
[47] T29, Ln 12.
At paragraph 10 of his affidavit filed 11 May 2008 the father said that the [H] Trust was not created solely to distribute income to him and that he was at no time in a position to demand to receive or had any agreement with Ms A to receive distributions from that trust. He stated that in fact distributions only began in 2002 for the sole purpose of increasing his child support liability. Yet as was pointed out to him in the course of cross examination by Dr Schulte for the registrar he was indeed receiving funds from the trust as far back as 2000.[48]
[48] T165 Ln25; Affidavit Mr Babbitt filed 10 July 2003; Bank statements – deposits recorded – related to loan on Property N property forming part of Annexure B for period 30 November 2001 to 1 January 2003 – although the bank statement does not disclose it as being the loan document, it is reasonably open to inference from the information contained within in that the loan account that it is the subject of the mortgage given to the Bendigo Bank Limited, formerly First Australian Building Society Limited, referred to in Exhibit 12 – historical title search.
Other statements made by him during the course of cross examination on this point are illuminating. For instance there was the following exchange:
“Question: So I say to you again, that you were in a position where you can tell Ms A how much money she distributes to you, pursuant to the terms of the trust?
Answer: No, I’ve got the right, as any taxpayer, not to accept income from anybody that – she can say what she wants to distribute money to me but as far as I’ve found out, if I don’t want to receive it, I don’t have to receive it. That is my right.”[49]
[49] At T166 Ln 1 – 7.
So much is affirmed by the company accountant Mr T. He readily acknowledged that the broad structure involved the presence of the trust in respect of which Ms A was effective trustee with the sole discretion to determine the manner of trust distributions. The trust itself was a discretionary trust which enabled Ms A to make distributions in accordance with the trust deed on a discretionary basis. Mr T noted that in respect of at least one occasion both the father and Ms A were present when their tax returns were done and that instructions were taken from both of them being present at the same time. Ultimately however, decisions concerning trust distributions were made in order to minimise tax liability.[50]
[50] T24 Ln ;T50 Ln1 -25.
The evidence of the company’s and trust’s accountant appears to contradict the evidence of Ms A at paragraph 28 of her affidavit[51] that the income derived from the interest in [F] Partnership is her own.
[51] Filed 10 July 2003.
In her affidavit[52] she stated she denied that the [H] Trust was created solely to permit distribution of income to the father. She accepted however that it was a fact that distributions were made to him from 2002 although it was stated these “were primarily to increase his child support liability”. So much was affirmed by the father in his affidavit[53] where he noted “Ms A had distributed these amounts (and sums from the trust) to me for the sole purpose of increasing the “on record” amount of child support paid to (the mother)”. Those statements are demonstrably incorrect.
[52] Filed by leave on 13 May 2008 at paragraph 12.
[53] Filed 13 May 2008 at paragraph 22.
Findings
In this case I am satisfied and do find that the father had a one third interest in the [C] Partnership which entity had a secure contract with [T]. When the term of that contract expired a new contract was negotiated. At that time the father voluntarily relinquished his expectation entitlement to participate in entering into a new contract. He relinquished his expectation entitlement to Ms A. At the same time the father’s former partners accepted Ms A instead of the father into the ongoing arrangement then negotiated with [T]. Given the change in arrangements did not adversely impact their economic interests, this change was a matter of indifference to them. At the same time, consistent with a request by [T] to remove any arms length involvement of growers in the contracting enterprise, the new contracting entity [C] came into being. [C] was an accounting entity that assumed the administrative arrangements for the performance of the contract. The arrangements between the partners still provided for the overall profits to be distributed between them through the [F] Partnership in proportion to their partnership entitlements. Additionally, the [F] Partnership owned all the equipment required by [C] to perform the contract. Furthermore, and significantly, that equipment was simply rolled over from the earlier [C] Partnership into the [F] Partnership. There was no consideration for this rollover. In addition, the father had an interest in that equipment which he in turn relinquished to Ms A and interests associated with her. There was no consideration for that transfer.
Upon the facts it is plain that forbearance by the father to take up his rights or his relinquishment of them, together with the relinquishment of his interests in the equipment that was transferred to the [F] Partnership, was a matter the subject of agreement or arrangement between himself and Ms A. I am satisfied that these transfers were not intended as gifts but that she held those interests and those assets in trust for him and that he was then officially entitled to a full interest in them. I do not accept the father’s evidence that he intended to transfer any interest he held to Ms A. He held an interest in the chattels owned by the [C] Partnership. He did not intend to transfer his entitlement in those assets to Ms A who holds those assets as ….. trustee.[54] The interest in the [F] Partnership followed the [C] Partnership and until the partnership proportion changed with the introduction of Ms A she acted for the father and held his interests, including consequential interests arising from the subsequent contract, on his behalf.
[54] Principles of the Law of Trusts H.A.G. Ford and W.A. Lee, Thompson Lawbook Co at [21,000].
Later [B] Properties transferred 16.71% of its holding in the [F] Partnership to [C]. The consideration for that transfer was $80,000. The consideration was funded by a loan made to [C] secured against real estate jointly owned by the father and Ms A. I am satisfied that in the circumstances one half of that loan is attributable to the father and the other to Ms A. Accordingly one half of the 16.71% acquired by [C] was held beneficially for the father with the balance attributable to
Ms A.
It follows that upon the facts as I have determined them, from November 1998, Ms A, by [C] held the one third interest in the [F] Partnership beneficially for the father and that from November 1999 she held a 41.69% interest in the [F] Partnership beneficially for the father.
Even if I were wrong in my findings and a legal nexus could not be demonstrated between that income and the father and it was the fact that there had indeed been a complete severance of the father’s legal entitlements, the voluntary conduct of the father and his relationship with Ms A together with the structure of their affairs does not in my view put the matter beyond the Assessment Act. The Assessment Act provides that if in the special circumstances of the case application of the Assessment Act would result in an unjust and inequitable determination of the level of financial support to be provided by the father because of the financial resources of the father or his earning capacity the Court may make a departure order.
The Full Court in Gyselman, In the Marriage of (1992) FLC 92-279[55] set out the procedure to be followed when considering an application for departure from an administrative assessment of child support. The Full Court said:
[55] T 79,064-5
“Section 117 is the critical provision. The structure of that section is that s 117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in sub-sections (2) - (9). Section 117(1)(b) identifies a clear three-step process:
1. Whether one or more grounds of departure in s 117(2) is established. If So:
2. Whether it is ''just and equitable'' within the meaning of s 117(4) to make a particular order.
3. Whether it is ''otherwise proper'' within the meaning of s 117(5) to make a particular order.
It is clear from the careful way in which s 117 has been structured that the Court must address each of those three separate issues…
… Each of those grounds (in s.117(2)) is prefaced by the words, ''in the special circumstances of the case''. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. (It has been held) that ''special circumstances'' were ''facts peculiar to the particular case which set it apart from other cases''. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.”
In Hides v Hatton, In the Marriage of (1997) FLC 92-759., the Full Court said[56]:
“It was also made clear in Gyselman that when the Court is considering whether it is just and equitable within the meaning of s.117(4) to make a particular order, the Court is required to undertake the task of considering the matters set out in paragraphs (a) to (g) of that sub-section, and in this regard the Full Court said as follows[57]:
“However, some of the matters listed in sub-section (4) may overlap with matters already considered under sub-section (2) and some of the paragraphs in sub-section (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s.117 exercise to carry out the obligation under sub-section (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under sub-section (2).”
The Full Court also made it clear in its decision in Gyselman that similar considerations apply to the Court’s determination as to whether it is “otherwise proper” within the meaning of s.117(5) to make a particular order[58], and furthermore and very relevantly for present purposes the Full Court emphasised the importance of trial Judges providing adequate reasons for judgment in order to ensure a proper exercise of the discretion under s.117.[59]”
[56] At 84,352
[57] At 79,078
[58] At 79,080
[59] At 79,080
The Court must follow the three step process described in Gyselman in respect of each year for which a departure order is sought.[60]
[60] See Hides v Hatton (1997) FLC 92-759
In relation to the consideration of subsections 117(4) and (5), in Hallinan v Witynski (supra)[61], the Full Court said:
“…The reasons for answering the two questions posed by s.117(1)(b)(ii) need not be elaborate, but the task of considering, at least broadly, the matters referred to in ss 117(4) and (5), respectively, and then making a finding as to satisfaction or otherwise in relation to the relevant matter, must be undertaken as a necessary part of the exercise of discretion imposed on the Court by s.117(1).”
[61] [1999] FamCA 1127; (1999) FLC 98-009
Each year is to be examined individually. That assessment is provided below. However common to every year are the background facts giving rise to the structure and to that end those facts apply universally to an assessment of whether or not a departure order be made in the special circumstances of the case. I am satisfied in the special circumstances of this case the conduct of the father in arranging his affairs was undertaken with intent to reduce among other things his child support liabilities. Additionally it would not be proper having regard to the nature of his duty as a parent to maintain a child of his former marriage to permit him to restructure his affairs to diminish that obligation. It is particularly in circumstances where the child’s mother did not have sufficient economic resources of her own to compensate for that diminished support.
Likewise in my view it would not be just and equitable as regards the child on the mother and the father, having regard to the wife’s individual circumstances and the needs of the child and the potential earning capacity of the father and his financial resources, to ignore either the fact of the father’s beneficial entitlement or alternatively the restructure of his affairs to put at arm lengths but within his moral control those assets for the purpose of diminishing, inter alia, his child support obligations.
Each of the years the subject of the application are individually discussed below. Where the evidence demonstrates it the assessable income for child support purposes has been calculated. Given the respective determinations of annual child support assessable income and having regard to matters of the special circumstances of the case, including the consideration of whether orders are proper and just and equitable under the circumstances, I consider it is appropriate to make a departure order in each instance noted below.
The Financial Position
From an examination of the financial statements and tax returns of [C], the father, Ms A, [F] Partnership and the [H] Trust (exhibits 40, 41, 42 and 43) the income position of [C] which in turn distributed to the [H] Trust and from there to the father, Ms A and associated entities can be seen and understood. The information provided has been reproduced in Excel format on a spreadsheet attached to this judgment[62]. As I have earlier noted the provision of financial material by the father and Ms A and entities associated with them was manifestly deficient. Where a blank cell appears in the spreadsheet in any particular financial year in respect of any time of source information it is so because none was provided. An adverse inference has been drawn against the party failing to produce information that ought reasonably have been adduced by them and which would have been material in the proceeding and I do so: Jones v Dunkel (1959) 101 CLR 298. Broadly that material demonstrates as follows.
[62] The spreadsheet will be available to parties in electronic format if requested.
Financial Year ending 1999/2000
The only material included was the income tax return for [C] Pty Ltd which demonstrated a taxable income of $2,314. It did not include material indicating how those funds were distributed. Financial statements for the company show accumulated profit at the end of that year of $8,384.87 so it would appear that this income may have been applied in part to that account.[63]
[63] Exhibit 41.
Financial Year 2000/2001
Material demonstrated that [C] Pty Ltd enjoyed a taxable income of $2,555. It did not indicate how that sum was distributed. From the companies balance sheet for that year it seems a small sum was retained into “accumulated profits”. The father enjoyed an income of $50,861 made up as $20,861 salary and wages and a $30,000 distribution from the [H] trust. Ms A’s income was shown as $57,109. Its makeup was not indicated but indicated at least $19,123 wages from [C] and a [F] Partnership distribution of $35,437.00.
Financial Year 2001/2002
The taxable income for [C] Pty Ltd was $51,050. There was no material dealing with its distribution. The father’s taxable income was $47,674. That was made up as wages and salary of $21,680 and a trust distribution from [H] Trust of $27,420. Ms A’s taxable income was $53,748. That was made up of salaries and wages of $53,748. The source of that income was not particularised.
Financial Year 2002/2003
The taxable income of [C] was not evidenced. The father’s income was $46,756 made up of wages and salaries of $21,756 and a distribution from the [H] Trust of $25,000. Ms A’s taxable income was $43,690 made up as wages and salaries. Its makeup was not indicated.
Conclusions from financial material
A number of matters flow from that material. First the tax evidence does not support the contention that in fact the distributions served to increase the father’s income for child support assessment purposes. Indeed on the material year from 2002 to 2003 the very period when it was said the income was increasing it can be seen that his income diminished from $49,100 to $46,756.
A second and related matter concerns the payment of salaries and wages made by [C] to the wife in the financial year 2001/2002. Her evidence was that she did nothing in the business itself justifying any remuneration.[64]
[64] T18, Ln 35; T22, Ln 25.
At every turn the father and Ms A have sought to put a spin on the evidence that suits their case. In the face of the financial material, the assertions that the father forwent any opportunity to pursue an ongoing relationship between his former partners and [T]; that Ms A quite serendipitously was able to take up the opportunity foregone by him; and that there was no arrangement between them in respect of that matter, are simply risible.
The evidence clearly demonstrates that prior to the expiration of the [C] Partnership the father and Ms A were engaged in an informal profit share or distribution arrangement. I am satisfied that the arrangement was tax driven but that Ms A and the father also appreciated it would have the collateral advantage of lowering the mother’s child support entitlement at a time when there had already been differences between the parties. In particular I am mindful of Ms A’s hostile attitude to the mother and her undoubted sense of entitlement to the profits of that enterprise given her relationship with the father. That sense of entitlement was enhanced by her establishment of [C] and the subsequent provision of $80,000 secured against their joint property to purchase an additional interest from [B] Properties in the [F] Partnership. However any such entitlement could only have arisen from about September 1999 and only in respect of half of that interest acquired from [B] Properties.
It follows from my finding of the facts that until [C] assumed ownership of the additional 16.69% acquired from [B] Properties the father had a beneficial interest of a one third interest in both the [C] partnership and the [F] Partnership. From approximately November 1998 to May 1999 the holding in the [F] partnership was held by Ms A beneficially for the father. From the time of acquisition of the [B] Properties interest Ms A acquired an interest in her own right but otherwise the balance was beneficially held by her for the father. The percentage holding from that time inter se was as follows: 83.25% by the father and 16.69% by Ms A.
Annual Assessments
Financial Years ending 30 June 1995 to 30 June 1997
The mother seeks a review of the child assessment in the years ending 30 June 1995; 30 June 1996; 30 June 1997; 30 June 1998; 30 June 1999; 30 June 2000. As no material was adduced in respect of the financial years ending 30 June 1996, 30 June 1997 and 30 June 1998, the only material is that contained within the notice of decision of the CSA dated 23 February 2005. The mother has failed to discharge her onus of proof in respect of her application for those years and to that end no special circumstances can be demonstrated. The assessment for those years stand.
Financial Year ending 30 June 1998
Although the mother failed to adduce any material in respect of this year other material supports a conclusion that the CSA assessment is incorrect. The CSA accepted the husband’s taxable income at $36,007 and assessed child support on that basis. However in that financial year the financial records show the [C] Trust distributed $13,391 to interests associated with the husband in accord with his partnership entitlement. For reasons explained above this sum found its way into Ms A’s accounts. It ought to have been attributed to the husband. Given his full beneficial entitlement to that sum I assess his CSA assessable income for that year at $49,398.
Financial Year ending 30 June 1999
Concerning the financial year ended 30 June 1999 the assessment income determined by the Child Support Registrar was $23,850. This was the income attested to by the father in his affidavit filed 10 July 2003 at paragraph 13. Upon that basis the Child Support Registrar assessed the father’s obligation at $2,665 per annum. The financial position demonstrated by the financial material is somewhat different. In the financial year ending 30 June 1999 the [C] Trust distributed $13,391 to each of the partners.[65] It is not plain from the material whether the father’s income of $23,850 was attributable solely to wages or was attributable to wages and a trust distribution. However given his level of income attributable to wages as disclosed in his tax returns for the year ending 30 June 2000 I am satisfied that the sum of $23,850 is almost entirely attributable to wages and salary income from employment with the [C] Partnership. In that same year Ms A’s income was not disclosed.
[65] See Exhibit 29 and Exhibit 30.
However [C] had a taxable income of $23,086 which mostly appears to have been retained by the company as undistributed profits or retained earnings (it should be noted that all [F] Partnership expenses such as equipment hire, labour etc are expensed in the company’s profit and loss account). The father has an interest in this sum. The [H] Trust also demonstrated income of $5,232. As [C] is the source of [H] Trust distributions via the [F] Partnership the $5,232 most probably represents income flowing to the [F] Partnership from an expense in the [C] accounts. It follows this is a sum in addition to the $23,086 in respect of which the father has a full interest. On that basis the father’s CSA assessable income ought to have been
$47,423.84$52,168.
Financial Year ending 30 June 2000
The financial material presented to the Child Support Registrar for the financial year ending 30 June 2000 was inadequate. Accordingly the Child Support Registrar adopted an assessment income based on the previous years. She adopted a sum of $23,000 as the assessable income giving an assessment of child support of $2,301 per annum.
On 4 September 1999 the father and Ms A took out the loan to acquire [B] Properties interest in shares in the [F] partnership. Given my finding that until that time the one third interest in the partnership was held by Ms A beneficially for the father and accepting a further 16.75% worth of shares were acquired jointly by the father and Ms A giving the total holding of 50.08% it follows that Ms A’s interest in the shares acquired for $80,000 was 8.35% of the total of the partnership that gave her a 16.69% inter se between herself and the father in the 50.08% holding by [C] in the [F] Partnership.
In that financial year the distributions from the [F] partnership to the [H] Trust totalled $46,610 (Exhibits 36, 42 and 43). In addition there was undistributed profit of $2,314 in [C]. That sum in turn was distributed by the [H] Trust to Ms A. Given their respective interests, the sums of $46,611 and the $2,314 ought to have been distributed by way of $40,728.50 to the father with the balance to Ms A. It follows the father’s actual income was understated by that sum. His actual income for assessment purposes ought to have been $63,814.50.
Financial Year ending 30 June 2001
In the financial year ending 30 June 2001 the Registrar used the financial information for the financial year 1999/2000 (Exhibit 4). In that year the distribution from the [F] partnership to the [H] Trust was $65,437 (Exhibit 42). The [H] Trust in turn distributed those sums to the father and Ms A by way of distributions of $30,000 and $35,437 respectively. It should be noted that that distribution makes no allowance for wages paid to the father. It follows that for that financial year the father’s income was understated by $30,000 as well as by his interest in the $35,437 paid to Ms A. Instead of an assessment income of $23,000 the father’s assessment income should have been $75,797.
Financial Year ending 30 June 2002
For the financial year ended 2002 the assessment income adopted by the Child Support Registrar was $23,913 giving a child support assessment of $2,276 per annum. The father’s tax return filed that year shows his salary and wages income at $21,680 with a trust distribution of $27,420 giving him a taxable income of $42,674 net of the some tax deductable items. However the income received by the [H] Trust by way of distribution from the [F] partnership was $77,420 (Exhibit 42). That sum was distributed by payment of $27,420 to the father and $50,000 to [C]. It will be remembered that [C] is a wholly owned entity of Ms A. In addition Ms A was paid a sum of $19,328 by [C]. It is not apparent from the figures whether or not the sum paid by [C] was from the distribution made to [C] by the [H] Trust or otherwise. For present purposes and adopting a conservative approach I will accept that the sum paid to Ms A by [C] was in reduction of the $50,000 distribution it received. In any event there has been a clear understatement of the father’s income. Of the $77,420 distributed to the [H] Trust the father had an interest in $64,449[66]. Given only $27,420 was distributed to him his income has been understated. The father’s assessable income was $86,129[67]. It was not $105,000 as assessed by the Registrar.
[66] $77,420 x 83.25% = $64,449.00
[67] The formulas are apparent in the electronic version of the spreadsheet.
Financial Year ending 30 June 2003
For the year ending 30 June 2003 the Registrar again used 1999/2000 income (Exhibit 4). That was at least until 29 January 2003 when his income was readjusted by departure. In the interim his assessable income for child support calculation purposes was $23,913. On that basis child support was assessed at $2,276 per annum. In the financial year ending 30 June 2003 the [H] Trust received distributions from the [F] Partnership of $38,952 (Exhibits 42 and 43). It follows given the respective interests of Ms A and the father in the [H] Trust income his interest in the distribution was $32,427.13 with Ms A’s interest being $6,621.80. It follows his income was understated by a factor of
$32,427.13$7,427.13[68] giving him an actual assessable income of$79,183.13$54,182.30[69].[68] $32,427.13 - $25,080 = $7,427.13
[69] $21,756 + $25,000 + 7,427.13 = $54,182.30
Financial Years ending 30 June 2004 and 2005
No financial material was produced in respect of each of those years. The father continues to work in the business and at the time of trial no evidence was adduced to suggest circumstances have changed. Accordingly I adopt the income for the financial year ending 30 June 2003 as the assessable income for child support purposes.
Non Periodic Child Support – School Fees
The Child Support Registrar had determined that the father should also pay “non periodic” child support in respect of school fees. The father did not agitate the matter in the application before the Court. The Registrar determined the application on the basis that the matter was one agreed between the parties. There is no basis to disturb the Registrar’s assessment of 28 February 2002 that the father contribute $2,273 on account of this matter.
Summary
The father and mother each seek a review of the determination of the Child Support Registrar. The review falls to be determined by reference to a number of transactions and the subsequent organisation of the father’s business interests intended to reduce his child support assessable income. I am satisfied the father, in association with his new wife, has sought to re-organise his affairs to minimise his child support assessable income for determination of his weekly child support obligations and for his non periodic child support liability to assist with school fees. In any event the basis of liability was not otherwise agitated before the Court and should stand.
Having regard to those findings the child support assessable income of the father in each of the material years is as follows:
1994/95
$6,829.00
1995/96
$11,832.00
1996/97
$32,947.00
1997/98
$49,398.00
1998/99
$52,168.00
1999/00
$63,814.50
2000/01
$75,797.23
2001/02
$86,129.68
2002/03
$54,182.30
2003/04
$54,182.30
2004/05
$54,182.30
Corrigendum
Following contact made by those acting for Ms Babbitt a number of minor errors and omissions in my written reasons were identified to me. Some involve simple transposition errors, other minor errors in formula leading to miscalculation. On each instance the errors identified are errors in transposition or formula errors which have been compounded into the electronic Excel spreadsheet. In neither event do they relate to reasoning. They are matters capable of being corrected under the slip rule: FMCR 16.05: Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179. The formulae are capable of review by reference to the formula contained in the spreadsheet. Where apposite I have underlined the corrections in the written reasons and introduced footnotes 66, 67, 68 and 69 to further explain the sums referred to.
Orders
I declare the Child Support Assessment Act assessable income of the respondent Mr Babbitt for the years ending 30 June 1995 to 30 June 2005 are as per Table “A” below:
1994/95
$6,829.00
1995/96
$11,832.00
1996/97
$32,947.00
1997/98
$49,398.00
1998/99
$52,168.00
1999/00
$63,814.50
2000/01
$75,797.23
2001/02
$86,129.68
2002/03
$86,129.68$54,182.30
2003/04
$86,129.68$54,182.30
2004/05
$86,129.68$54,182.30
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: B Schmidt
Date: 22 December 2009
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