CK & SML
[2004] FMCAfam 119
•25 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CK & SML | [2004] FMCAfam 119 |
| CHILD SUPPORT – Departure orders – liable parent receives personal injuries compensation payout – liable parent invests compensation payout in business – whether any part of compensation payout should be ignored in child support proceedings – effect of failure to make full and frank disclosure of financial position – lump sum child support. |
Child Support (Assessment) Act 1989
Child Support (Registration & Collection) Act 1988
Family Law Act 1975
Federal Magistrates Act 1999
Kannis (2002) 30 FamLR 83; (2003) FLC 93-155
Rayson (2003) FamCA 1384 (unreported)
Oriolo (1985) FLC 91-653
Hardman (2003) FamCA 1057
R & R(No.1) (2002) FMCAfam 153
Weir (1993) FLC 92-338
Black & Kellner (1992) FLC 92-287
Rayson (2003) FamCA 1384 (unreported)
Luton v Lessels (2001) FLC 98-015
Gyselman (1992) FLC 92-279
Hides v Hatton (1997) FLC 92-759
Ross and McDermott (1998) 23 FamLR. 613
Hampson v Lightfoot (1997) FLC 92-775
Harris (1999) FLC 98-010
R & R (No.1) (2002) FMCAfam 153
Prpic v Prpic (1995) FLC 92-574
Hickey (2003) FLC 93-143
Barrell Insurance Pty Ltd v Pennant Hills Restaurant Ltd (1981) 34 ALR 162
Todorovic v Waller (1981) 37 ALR 481
Racine & Hennett (1982) 8 FamLR 716
Bendeich (1993) FLC 92-355
Vaughan & Vaughan (1981) 7 Fam LR 379
Anast & Anastopoulos (1981) 7 Fam LR 728
Applicant: | CK |
| Respondent: | SML |
| File No: | DGM 476 of 2002 |
| Delivered on: | 25 March 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 16 June 2003 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Ambrose |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr McGowan |
| Solicitors for the Respondent: | Taylor Splatt & Partners |
ORDERS
There be a departure of administrative assessment of child support payable by the father for the period 1 July 1997 to 19 February 1998, in such a manner as to provide for the variation of the father's child support income amount for that period from such annual or other periodic amount as may have been determined from time to time to the amount of $60,000.00 per annum.
The mother's application for a departure order in relation to the period 6 March 1999 to 30 June 1999 be dismissed.
There be a departure of administrative assessment of child support payable by the father for the period 1 October 2000 to 31 December 2001, in such a manner as to provide for the variation of the father's child support income amount for that period from such annual or other periodic amount as may have been determined from time to time to the amount of $50,000.00 per annum.
There be a departure of administrative assessment of child support payable by the father for the period 1 April 2003 to 30 June 2004, in such a manner as to provide for the variation of the father's child support income amount for that period from such annual or other periodic amount as may have been determined from time to time to the amount of $50,000.00 per annum.
The father do provide child support for A for the period from 1 July 2004 to 17 September 2011 otherwise than in the form of periodic amounts payable to the mother — such child support to comprise a lump sum payment by the father to the mother of $43,615.00.
The father do pay to the mother the said sum of $43,615.00 referred to in (5) above on or before 1 August 2004.
The order referred to in (5) above is an order under s. 124 of the Child Support (Assessment) Act 1989, and all child support to be provided by the father pursuant to it is to be credited against the father's liability under all administrate assessments of child support payable by the father to the mother that relate to the whole or any part of the period referred to in the said order, and is to count for 100% of the annual rate of child support payable under the said administrative assessments.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGM 476 of 2002
| CK |
Applicant
And
| SML |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother has applied for departure orders in relation to a number of child support periods. The periods are all between 1 July 1997 and
30 June 2004. In addition, she seeks that the father provide a lump sum in relation to all future child support. The father opposes the mother's application.
Background
The parties were in a defacto relationship from September 1991 to January 1994. Their only child, A, was born on 17 September 1993. She is now 10.
A has lived with the mother since the parties separated.
Shortly after separation, the mother applied to the Child Support Agency for an administrative assessment of child support. Since that time, there have been approximately 12 assessments and approximately 10 applications to the Child Support Agency for changes to various assessments.
The administrative assessments which are relevant to the current proceedings are as follows:
| No. | From | To | Date of Assessment | Father's Child Support Income Amount | Child Support (Monthly Amount) | Based on |
| 1. | 1/7/1997 | 19/2/1998 | 23/11/2000 | $0.00 | $0.00 | 1996 taxable income |
| 2. | 6/3/1999 | 30/6/1999 | 23/11/2000 | $19,136.00 | $151.42 | Set by departure |
| 3. | 1/10/2000 | 31/12/2001 | 17/6/2002 | $5,003.00 | $21.67 | 2000 taxable income |
| 4. | 1/4/2003 | 30/6/2004 | NK | $0.00 | $21.67 | NK |
The Father has a Motor Cycle Accident
On 15 April 1994 (some 3 months after the parties separated) the father was involved in a motor cycle accident. He suffered injuries to his left arm, neck and back.
The father is a boilermaker by trade. He had worked as a courier, however, for approximately 2 to 3 years prior to the date of the motor cycle accident.
From the time of the accident to July 1997, the father received payments from the TAC in respect of his loss of earnings. He received something between $270.00 and $300.00 per week.
In mid 1997, the father settled a common law claim arising out of a motor cycle accident. He received $290,000.00 (net of costs) in July 1997, and a further $3,700.00 in January 1998.
The Father Invests his TAC Payout
On or about 18 July 1997, the father invested $290,000.00 in a Bank of Melbourne term deposit. The funds (together with interest) were withdrawn from the Bank of Melbourne in mid November 1997 and invested with Retireinvest in a variety of managed funds and other investments.
According to investment statements attached to the father's affidavit sworn 17 October 2002, the value of the father's investment portfolio was as follows:
a)Approximately $293,000.00 as at 7 January 1998;
b)Approximately $316,000.00 as at 8 April 1998;
c)Approximately $310,000.00 as at 9 July 1998;
d)Approximately $311,000.00 as at 1 October 1998;
e)Approximately $310,000.00 as at 29 October 1998;
f)Approximately $327,000.00 as at 4 January 1999;
g)Approximately $340,000.00 as at 25 March 1999;
h)Approximately $339,000.00 as at 1 July 1999;
i)Approximately $340,000.00 as at 16 December 1999;
j)Approximately $347,000.00 as at 30 March 2000;
k)Approximately $199,000.00 as at 7 July 2000.
The Father Inherits a Farm
The father's father (LEB) owned a farm near Horsham. LEB died in August 1989.
On 22 May 1996, the farm was transferred to the father, who became the sole registered proprietor (subject to a mortgage, which was registered on the same day).
In April 2001, the father purported to sell the farm to DW (who is the father's cousin). The sale price was $90,000.00, inclusive of certain chattels. DW became the registered proprietor of the farm on 30 April 2001.
According to the father —
a)he "sold" the farm to his cousin "…so that he could manage the farm for me", as the father was "…intending to go overseas for an extended period of time", and
b)he and DW "had an agreement that any profits earned from the farm would be put aside for A".[1]
[1] See father's affidavit sworn 17 October 2002
It would appear that the father was overseas for a period of time during 2001. In November 2001, and after the father returned from overseas, DW allegedly sold the farm back to a company wholly controlled by the father (which company I shall refer to as AEPL).
The father conceded that AEPL is his alter ego, as it were.
DW "sold" the farm to AEPL for $90,000.00. It follows that the price for which the father sold the farm to DW in April 2001 was identical to the price for which DW sold the farm to AEPL in November 2001.
The same firm of solicitors represented both the vendor and the purchaser in each transaction.
The mortgage over the farm had been discharged in February 2001, and hence the farm was unencumbered at the time of the "sales" in April and November 2001.
AEPL became the registered proprietor on 28 November 2001. A mortgage to Westpac Banking Corporation was also registered on 28 November 2001. The mortgage to Westpac was expressed to be collateral security in respect of a total borrowing of $2,205,000.00.[2]
[2] See mother's affidavit sworn 27 February 2002, annexure KC1
The Father Disposes of a Property in Edenhope
In February 2001, the father sold a residential property in Edenhope to his brother, E. The property was sold for $45,000.00. Once again, the same firm of solicitors represented both vendor and purchaser. This firm (Lucas & Marshman) also represented both vendor and purchaser in the transactions associated with the disposal and re-acquisition of the farm by the father (or his company, AEPL) in April and November 2001.
Although the contract of sale of the Edenhope property was purportedly entered into in February 2001, the Transfer between the father as transferor and his brother as transferee was dated 26 April 2001, and E became the registered proprietor of the property on 25 May 2001.
According to the father, the sale to his brother "…was legitimate, as I used the money I received from the sale of the house to pay off the mortgage on the farm, so that I could transfer the (farm) to my cousin".[3]
[3] See father's affidavit sworn 17 October 2002
The Father is "Cashed Up"
Following the settlement of his TAC claim in July 1997, the father was "cashed up". According to counsel for the father, his client then investigated a number of options "that might give him an income stream". The father's case is that he first thought to acquire an abalone licence. He then considered purchasing a helicopter, but he eventually decided to buy a boat and associated rock lobster licence.
The Father Seeks to Acquire an Abalone Licence
The father made no mention of any attempt to acquire an abalone licence in his affidavit material. The subject arose, however, during the course of his cross-examination.
During cross-examination, the father said that he and a friend, Mr N, had tendered for the purchase of an abalone licence. The tender price was $5.3 million.
According to the father, he and Mr N were "the winning tender", but the purchase did not proceed because the vendors were not prepared to complete the sale.
It would appear that the deposit for the abalone licence was a total of $250,000.00. Mr N allegedly provided $100,000.00 (through a company controlled by him and known as Flangrove Pty Ltd), whilst the father provided $150,000.00. This sum allegedly came from the sale of shares or other investments then owned by the father.
According to the father, the amount that he paid by way of deposit was returned to him (and reinvested) when the sale did not proceed.
During re-examination, the father said that the abalone licence — had it been acquired — was to have been held as to approximately 93 percent by Mr N or Flangrove and approximately 7 percent by the father or AEPL. The father said that he and Mr N thought that the proposed abalone venture would have been "a viable proposition".
The father's evidence was less than clear as to when the purchase of the abalone licence was considered, and as to when the financial transactions described above took place. As I understand his evidence, however, this was the first of the potential business ventures considered by the father.
The Father Attempts to Purchase a Helicopter
The father made no mention of any attempt to acquire a helicopter in his affidavit material. This subject also arose during the course of his cross-examination.
The father was asked about a withdrawal of $8,000.00 from a St George bank account in his name.[4] He was also asked about other withdrawals of large amounts (in cash) from the same account. The first withdrawal occurred on 16 November 2000.
[4] See exhibit M6
The father said that he was "going to buy a helicopter".
The father cannot pilot a helicopter. He said that it was his intention to act as "ground crew". The pilot was to have been an acquaintance of the father.
The father said that the purchase price of the helicopter was to have been $125,000.00 (although, according to the father, the helicopter was worth approximately $175,000.00). For various reasons, however, the purchase of the helicopter did not proceed and the father later made arrangements with Mr N and Flangrove to acquire a boat and fishing licence.
When asked during cross-examination as to the fate of the large cash withdrawals, the father said that the moneys were kept in a safe in his home. He said that he accumulated approximately $80,000.00 in the safe.
The father's evidence was to the effect that the vendor of the helicopter wished to be paid in cash. When counsel for the mother suggested to him that it was unusual for such a large transaction to be carried out in cash, the father disagreed. He said: "Not really. I suppose it may be, but it didn’t seem that unusual to me. We were getting a helicopter considerably cheaper than what its market value was." When pressed, the father continued: "The deal ... may look suspicious, yes, but business is business, I suppose..."
According to the father, the $80,000.00 that had been kept in the safe in his home was eventually put towards the purchase of the boat and fishing licence.
During re-examination, the father explained that the acquisition of the helicopter may well have been "a quite lucrative possibility". It appears that it was to be used for crop spraying. The spraying and associated equipment, however, was not included in the overall price of the helicopter.
The Father is the Skipper of a Fishing Boat
According to the father, he commenced work as a skipper of a fishing boat in South Australia in approximately November 2001.
The father's evidence was as follows:
a)Mr N (or Flangrove) already owned a rock lobster licence (being licence RL16).
b)The father originally thought of "buying into" licence RL16, but was about to travel overseas at the time.
c)Mr N or Flangrove then took steps to acquire a further rock lobster licence, being licence RL72.
d)The father was invited to acquire an interest in licence RL72. He accepted, and paid the relevant broker $300,000.00 for that purpose.
e)Mr N and the father then discussed matters further, and decided that the acquisition of a third licence — being licence RL40 — was a better proposition.
f)The total purchase price of licence RL40 (and a fishing boat) was $1,100,000.00 — comprising $1,032,000.00 for the licence and $68,000.00 for the boat (and relevant equipment).
g)The maximum amount that the father could borrow from a financial institution at the time was approximately $550,000.00. Although the $300,000.00 that the father had paid towards the acquisition of RL72 could be redirected to the purchase of RL40, he was still some $250,000.00 short of the total purchase price of $1,100,000.00.
h)Mr N, through Flangrove, was willing to provide the remaining $250,000.00.
i)The father and Mr N were originally minded to hold their interests in the boat and licence RL40 in the same proportions as the respective financial contributions that they had made to the purchase price — but it transpired that the boat could not be owned "in proportions". As a result, it was agreed that the father (through AEPL) would own the whole of the boat ("Enterprise"), all of the equipment and 65 of the 86 pots (and quota) associated with licence RL40. The remaining 21 pots associated with licence RL 40 were transferred to Flangrove (to be added to the pots — and quota — held by Flangrove pursuant to licences RL16 and RL72).
In October 2002, the father said that:
a)he contributed approximately $300,000.00 towards the purchase of RL72 (and then RL40) "from shares and bank deposits," being proceeds of his compensation payout, the balance being borrowed from the Bank of Melbourne and guaranteed by Flangrove; and
b)Flangrove "leases the quota of 5,425 kilograms and the boat" from AEPL, and the father operates the boat as an employee of AEPL.[5]
[5] See the father's affidavit sworn 17 October 2002
A deposit of $10,000.00 was paid in respect of the purchase of licence RL40 and the boat. A document headed "deposit receipt" is contained within annexure H to the father's affidavit sworn 17 October 2002. It records that the deposit was paid by Flangrove on 1 October 2001.
Also included within annexure H is a document purporting to be an agreement between Flangrove and AEPL. The agreement is dated 3 September 2001.
The operative part of the agreement is as follows:
Flangrove will provide the collateral as required by the Bank of Melbourne to secure a loan of $1,100,000.00 to be divided as follows — Flangrove will be liable for the repayment of $250,000.00 and proportional interest payments, and AEPL will be responsible for $850,000.00 (less $300,000.00 paid into loan account on 3 September 2001) leaving a balance due of $550,000.00 and proportional interest payments for the life of the loan.
The agreement between Flangrove and AEPL also provides that, in effect, AEPL is to be entitled to the cray boat Enterprise, the licence itself and the equivalent of 65 of the 86 pots (together with the associated quota units). Flangrove is entitled to 21 pots only (together with associated quota units). It is entitled to lease, sell or otherwise dispose of those 21 pots as and when it is minded to do so.
The Father and Mr N have a Written Agreement Prepared
The father conceded that Mr N has never fished for lobster. He (through Flangrove) appears to be something akin to "a silent partner".
The cross-examination of the father revealed that the financial agreements between the father and Mr N (as they related to the acquisition of the fishing licences) were complex. The complexity was not readily apparent from the affidavit material filed on behalf of the father.
The father conceded that, notwithstanding the complexity of the arrangements between himself and Mr N, no written agreement had been prepared between them (or between their respective companies) until the mother's legal advisers pressed for documentary evidence relating to those arrangements. The father conceded that the agreement between Flangrove and AEPL — being part of annexure H to his affidavit sworn 17 October 2002[6] — was prepared after the relevant events. It was then "back dated".
[6] See pp 46, 47 and 48 above
Exhibit M8 comprises a further agreement between Flangrove and AEPL, purportedly entered into on 14 November 2001. Attached to the agreement are forms, purportedly dated 30 July 2002, recording an application for transfer of 21 of the pots contained within licence RL40 from AEPL to Mr N or his company — to be added to licence RL72. The relevant quota units associated with the pots are also the subject of an application for transfer from AEPL to Mr N or his company.
The father's evidence was to the effect that the transfer referred to in the previous paragraph has been carried out. It follows that licence RL40 now relates to 65 pots only.
The Father Sells Enterprise and Purchases Juggernaut.
On 20 September 2002, the father (through AEPL) entered into a contract for the purchase of a boat named "Juggernaut". The purchase price of the boat was $198,000.00. According to the father, he was required to pay a deposit of $5,000.00 at the time of purchase — which sum he borrowed from his brother, E (being the brother to whom he had sold the Edenhope property in approximately April 2001). The father paid a further $10,000.00 on or about 13 December 2002. The balance (amounting to $183,000.00) was paid on or about 24 March 2003.
In his affidavit sworn 24 April 2003, the father asserts that he had to purchase a new boat as Enterprise was built in 1960 and needed constant maintenance. According to the father, Enterprise also "…failed to meet the survey requirements of Transport South Australia and I was told that the boat was not seaworthy. It would have cost approximately $30,000.00 to make the boat seaworthy and that maybe would have extended the boat’s life for another year".
According to the father, he sold Enterprise for $22,000.00, including GST. This sum was paid to the father on or about 23 April 2003 and was "put towards the loan on the boat".
In paragraph 7 of his affidavit sworn 24 April 2003, the father said:
To be able to purchase (Juggernaut) I had to sell (the farm) owned by AEPL. I sold this land for $75,000.00 on a terms contract. The contract provides for the purchaser to pay the sum of $25,000.00 on 1 May 2003, $25,000.00 on 1 May 2004 and $25,000.00 on 1 May 2005, plus interest of 7.5% p.a.
"The farm" is the property that was inherited by the father and later sold to and repurchased (by AEPL) from DW in 2001.
The farm had been used as security in relation to the borrowings from the Bank of Melbourne for the purchase of fishing licence RL40 and Enterprise in late 2001.
In paragraph 9 of his affidavit of 24 April 2003, the father said:
Prior to purchasing (Juggernaut) I had obtained finance approval from the Bank of Melbourne. However, after I had paid the deposit I was told by the Bank that they would not lend me the money. The Bank of SA agreed to lend me the money on the condition that the money from the sale of the farm and the sale of the old boat had to be paid directly to the loan.
The father continued:
10.I also paid the sum of $125,000.00 towards the purchase of (Juggernaut) which was money I received from selling the fish I had caught during the year. I was told that I would not be able to borrow the money unless this money was applied to the purchase of (Juggernaut). Approximately $50,000.00 of the money was Flangrove's share of the quota which should have been paid. However, I have had a falling out with Mr N who is the Director of Flangrove. Flangrove have guaranteed the loan on my fishing licence. I anticipate that Mr N may take legal action against me to obtain this money. I also have not been able to pay either the principal or interest on my loan or my tax bills.
11.As a result of the falling out with Mr N, the new lease has not been drawn up and I am receiving 100 percent of the quota. I anticipate that Mr N will be taking some action in the near future to remove himself as a guarantor on the fishing licence loan.
I shall return to the father's evidence relating to his fishing activities later in these Reasons.
Father Alleges that he has Fallen Out with Mr N
The father refers to a "falling out" with Mr N in paragraph 10 of his affidavit sworn 24 April 2003. During his cross-examination, the father said that he had received a letter (dated 27 May 2003) from Mr N. The letter is exhibit M10. It reads as follows:
As per the ownership agreement dated 3 September 2001, AEPL is responsible for $550,000.00 principal and proportional interest repayments of business development loan number 033-253 14-4011 in the name of Flangrove.
Flangrove herein undertakes to credit any deposit/s made by (the father) or AEPL to that portion of the business development loan belonging to AEPL and, that upon the interest arrears being discharged and thereafter paid when falling due, that any and all subsequent deposits will then be allocated to reduce the principal of the loan.
The father denied that he asked Mr N to provide the letter. He then said that his bank manager had advised him that he should obtain such a letter. The father said that the bank manager told him that he (the bank manager) would organise the letter.
The father said that he has not made any repayments in relation to the business loan since his falling out with Mr N.
Other Aspects of the Father's Financial Circumstances
Much of the cross-examination of the father dealt with the crayfishing enterprise in which he is presently involved, his inter-relationship with Mr N and his overall income and expenditure. I do not propose to deal with those subjects in these Reasons to any great extent.
I have elected not to deal with the father's financial position in greater detail because of the findings that I have made regarding his credibility. Those findings are set out under the heading "The Father's Credibility" — and elsewhere in these Reasons.
In essence, I do not accept that the father has been open and frank in relation to all aspects of his financial position. He has not made full and frank disclosure.
The Father has not made Full and Frank Disclosure
The duty to make full and frank disclosure of one's financial position has been set out in a number of cases determined by the Full Court over the years. They are helpfully summarised in a recent decision of the Full Court in Kannis (judgment dated 24 December 2002). The judgment in Kannis is reported at (2002) 30 FamLR 83; (2003) FLC 93-155, but it is not reported in relation to the non-disclosure issue.
The relevant passages from Kannis are as follows:
47. There have been a series of reported cases in which the Full Court has discussed the task of a trial judge in a property case where the trial judge is unable to ascertain the extent of the pool of assets due to a lack of full and frank disclosure on behalf of one of the parties. Those cases were most recently summarised in the decision of Chang and Su (2002) Fam CA 156…
48. In the course of dismissing the appeal (in Chang and Su) the Full Court quoted extensively from a line of cases discussing how the Court can make orders where there is no visible pool of assets. The Court said:
“Ground 2 - no visible pool of assets.
57. The submissions put to us were that as a necessary prerequisite to making an order under the provisions of s 79 of the Act the Court must determine that there exists adequate property to meet the order and make the order appropriate in the circumstances of the case. An order can only be seen to be appropriate or just and equitable if it can be measured against the whole of the available assets of the parties.
59. Counsel acknowledged that there exists a class of cases where the Court cannot be satisfied as to the extent of the property and can thus be less cautious than might otherwise be the position when making an order. Particular reference was made to Mezzacappa v Mezzacappa (1987) FLC 91-853; 11 Fam LR 957…
67. The law to be applied and the approach that may be adopted in cases where, through the lack of a full and frank disclosure, the Court is unable to fully ascertain the extent of a party's wealth, is well settled (see Stein v Stein (1986) FLC 91-779; 11 Fam LR 353; Mezzacappa v Mezzacappa (1987) FLC 91-853; 11 Fam LR 957; Black and Kellner (1992) FLC 92-287; 15 Fam LR 343 and Weir v Weir (1993) FLC 92-338; 16 Fam LR 154).
68. In Black and Kellner (supra) the appellant had submitted that, absent findings as to the extent of his wealth, the order made by the trial Judge was plainly unjust. The key finding of the trial Judge was:
‘...the failure on the part of the [husband] to disclose his financial position to the court and his attempts to conceal this matter from the court, which has left the court in the position of not knowing what the [husband’s] financial position is, except that he deliberately underestimated it.’
69. Chief Justice Nicholson (with whom Ellis and Cohen JJ agreed), said in dismissing the appeal:
‘As senior counsel for the wife pointed out, the first step in proceedings for a property settlement is for the court to ascertain the wealth of the parties and in this regard it is of interest to note the remarks of the Full Court in the case of Giunti and Giunti (1986) FLC 91-759, particularly at 75,555 where the court commented:
“It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs- see Briese and Briese; (1986) FLC 91-713, affirmed by the Full Court in Oriolo v Oriolo (1985) FLC 91-653, there is no problem, although there may be disputes as to valuation.
However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.”
The Full Court in Oriolo and Oriolo, supra, referred with approval to the remarks of Smithers J in Briese and Briese, and it is perhaps worth reiterating a portion of his Honour's statement at 75,181 where he said, after referring to the decision of the House of Lords in Livesey v Jenkins (1985) All ER 106:
“... I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins… is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred.”
Regard also may be had to the decisions of this court in Stein and Stein (1986) FLC 91-779 at 75,676 and Mezzacappa and Mezzacappa (1987) FLC 91-853.
In the present case a similar situation arose. The assets of the parties could not be ascertained in full because of obvious non-disclosures.
It is apparent that if his income was more substantial than he claimed, then this would be reflected in the value of his practice and in this regard it is perhaps of interest to note that the wife's former husband's practice of a similar nature, was capable of being sold for a figure in 1973 terms which would if reflected in 1991 terms, represent a very substantial asset indeed. Finally, another part of a judge's obligation in cases of this nature in considering s 75(2) factors is to consider the respective incomes of the parties. Again, through the behaviour of the husband, this was something which the learned trial judge could not do.
It follows from what I have said that I do not believe that his Honour's judgment can be attacked upon the basis relied upon by the husband.’
70. In Weir v Weir (1993) FLC 92-338;16 Fam LR 154 the Full Court (Nicholson CJ, Strauss and Nygh JJ) dealt with an appeal against the refusal by the trial Judge to make orders in respect of unascertained property because he could not quantify it. The Court said at 79-593:
‘This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti (1986) FLC 91-759, and Mezzacappa and Mezzacappa (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
It is true that in the case of Monte and Monte (1986) FLC 91-757, the Full Court said that to found jurisdiction under s. 79 in relation to property other than that which had been identified, the trial judge was obliged to make a finding as to the existence and value of other undisclosed property, even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identify and value.
We confess to some difficulty with this proposition. We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
The difficulty then arises as to what order should be made. However, we are troubled by the proposition which seems to arise from Monte and Monte that if a party is either cunning enough or vague enough to cover his or her tracks sufficiently to prevent a Court making a finding as to the amount that has not been disclosed, then the other party fails. We do not believe this to be the law and in so far as the decision in Monte and Monte supports such a proposition, we do not believe that it should be followed.’
71. It was clearly open to Moore J (the trial judge in Chang and Su) to apply these principles to the matter before her. Her Honour concluded that the extent of the husband's wealth, whatever it might have been, was sufficient to justify the order she was proposing to make. This is not an appeal based upon the lack of reasons why her Honour concluded it would be just and equitable to put the wife in a position of having an unencumbered home. It is an appeal which is based upon the inability of the trial Judge to make any order under s 79 without first ascertaining the pool of assets.
72. For reasons which we have explained, we conclude that her Honour made findings sufficient to indicate that the husband was a man of substantial wealth and well able in the circumstances to meet the order made and still retain for himself adequate assets so as to make the outcome in the proceedings just and equitable, having regard to the matters highlighted by her Honour that she was obliged to give consideration to under s 79. These were issues of contribution and factors that could be identified under s 75(2). She was extremely hampered in the exercise of that discretion by the non-disclosure by the husband of his financial position and in those circumstances was entitled to take the more robust view that she did. Accordingly this ground of appeal has not been established.”
49. On 5 November 2002 the High Court dismissed an application by Mr Chang seeking Special Leave to appeal from the Full Court’s decision. In the course of argument Callinan J observed:
“It does not matter what the principle might be said to be, a court has to do the best it can. It does the best it can, having regard to the evidence that is adduced and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings that the court can make.”
50. Mr Ackman submitted that the cases discussed above were authority for the proposition that where there was a finding of deliberate non-disclosure the Court could act more robustly in making findings adverse to the party who had actively misled it. We do not see that the principle should be so confined.
51. Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour. This is the course the trial Judge adopted. It was a course clearly open to him and one that does not merit appellate interference.
Although the cases referred to in the passages cited above deal with issues such as property settlement or costs, there can be no doubt that the obligation to make full and frank disclosure extends to child support proceedings. Indeed, it would be extraordinary if it did not.
In Hardman (2003) FamCA 1057 (unreported), Coleman J said:
The relevant issue before the learned Federal Magistrate was the financial resources of the appellant, from whatever sources those derived. As decisions of the Full Court of this Court in cases, commencing with Oriolo v Oriolo (1985) FLC 91-653 make clear, where a litigant does not make a full and frank disclosure of his or her financial position, that litigant cannot benefit or rely upon the inability of the opposing party by reason of that failure to disclose to suggest a particular capacity or the existence, identity or location and nature of particular assets or resources. A moment's reflection would reveal why that must be so. Any other course would not only encourage litigants to fail to make a full and frank disclosure, but provide a positive incentive for concealment in that regard.
In Rayson (2003) FamCA 1384 (unreported) Kay J said:
The key findings of the magistrate (sic) which are not really challenged before me, is (sic) that it is difficult to pin the husband down as to what is his real earning capacity. This is so because there are years of operating a business without keeping accurate books of account. There is some minor evidence at least of lifestyle inconsistent with supposed inability to make payments. But at the same time I do not think it is an openly elastic exercise of saying 'well, I am not satisfied where the end is so I can be as generous as I like.' It is true that the court can be less than duly cautious where there is not full and frank disclosure (see Weir 1993 FLC 92-338). There is no finding here by the magistrate (sic) of lack of full and frank disclosure. There is a finding of being less than cooperative or fully cooperative in the process of producing documents but it does not seem to me, given that the material that the magistrate (sic) had and that I have, that takes the matter very far indeed.
I have no doubt that Kay J's reference to the Chief Federal Magistrate as "the magistrate" was simply an oversight. After all, the provisions of the Federal Magistrates Act 1999 require that the Chief Federal Magistrate and Federal Magistrates be referred to as such. Like Family Court judges, Federal Magistrates are Justices appointed under Chapter III of the Australian Constitution.[7] They are appointed by the Governor General by commission. Schedule 1 of the Federal Magistrates Act (which is expressed to have effect pursuant to s. 9 of the Act) describes how the Chief Federal Magistrate and other Federal Magistrates are to be styled. It follows that judicial officers of this Court are not "magistrates".
[7] See s. 8 of the Federal Magistrates Act 1999
In Rayson, Kay J observed that, in his opinion, certain findings made by the Chief Federal Magistrate were not available on the evidence. Nevertheless, the learned Judge "found himself doing what (the Chief Federal Magistrate) was doing, just guessing", and summarised the process as being "not a very exact science".
In the present case, and in contradistinction to the fist instance decision in Rayson, I have made a clear and unequivocal finding of lack of full and frank disclosure. This is not simply a case of the father "being less than cooperative or fully cooperative in producing documents". My findings and comments in this regard include the following:[8]
[8] I also rely upon the other findings and comments appearing elsewhere in these Reasons
a)The father has deliberately failed to disclose certain aspects of his true financial position to the mother and to the Court.
b)I am in the position of not knowing the father's true financial position — save that I have absolutely no doubt that he has deliberately portrayed it as less favourable than it really is.
c)The father has kept very large amounts of money, in cash, in his home in the past and it is extremely likely that he still has undisclosed amounts of cash in his possession. I refer, for example, to the $80,000.00 kept in cash during the “helicopter” period.
d)In the paragraphs that I have quoted from the father's affidavit sworn 24 April 2003,[9] it is apparent that the father paid $125,000.00 towards the purchase of Juggernaut from "money I received from selling the fish I had caught during the year". The father also asserted that $50,000.00 of this sum was "Flangove's share of the quota which should have been paid (to Flangrove)". I note from AEPL's profit and loss statement for the year ended 30 June 2002,[10] however, that AEPL's gross income for the 2002 tax year was just under $66,000.00. None of the income was from the sale of "fish". The only sources of income for that financial year were:
[9] See paragraphs 60 and 61 above
[10] See exhibit M4
·Interest received approximately $770.00
·Contract income $3,000.00
·Lease of licence approximately $137,190.00
·Boat charter $23,000.00
e)The period during which the father accumulated the sum of $125,000.00 (presumably in cash, or in a bank account or accounts) is not clear. Even allowing for the fact that $50,000.00 allegedly came from Flangrove's share of the catch, I do not accept that the father could possibly have accumulated $75,000.00 in cash or equivalent between 1 July 2002 and approximately February 2003 (when the final payment for Juggernaut was made).
f)During cross-examination, the father said that approximately $68,400.00 was deposited in AEPL's trading account on 4 November 2002. The father said that these moneys comprised a payment from Flangrove in respect of the lease agreement. The father said that the moneys should have been paid earlier, but that Flangrove did not have sufficient funds. The father also spoke of having received some $17,000.00 from fish sales and having something in excess of $140,000.00 in AEPL's trading account in March 2003.
g)If the amount of approximately $68,400.00 that the father received in November 2002 related to his lease arrangements with Flangrove, then how did the father survive financially (and, for example, pay his deck hand — who is entitled to 15 percent of the total catch) during the period of the alleged lease (being 14 November 2001 to 30 June 2002)? Further, the father made a number of substantial deposits in AEPL's account commencing in the later part of 2002. According to the father, these deposits were from sale of fish.
h)As I understood the father's evidence, the lease arrangements with Flangrove were not renewed for the 2002/2003 season. Once again, therefore, it appears that the father did not have sufficient funds available to him during the 2002/2003 season to enable him to conduct the business effectively and pay the substantial cash contribution towards the purchase of Juggernaut.
i)I have considerable discomfort with the father's evidence regarding his alleged falling out with Mr N. If the falling out was genuine, then why did the Bank Manger have to contact Mr N to obtain what may or may not amount to a letter of demand?[11]
j)The father was asked about the reasons for the establishment of AEPL. His explanation was less than clear. At first the father said that his employer at Roxby Downs had required that the company be established. He later said that his accountant advised him to set it up.
k)The sale and re-purchase of the farming property (the re-purchase being in the name of AEPL) was highly unusual. In my opinion, it was unnecessary. The father has not satisfactorily explained the reasons for these transactions.
l)Having regard to the father's evidence relating to his attempts to purchase an appropriate business and his dealings with Mr N and Flangrove, the reason why the mortgage to Westpac registered against the farm in November 2001 was expressed to be collateral security for a total borrowing of $2,205,000.00 was unexplained.
m)The admitted back dating of written agreements, together with the father's comment that "business is business" are relevant and, when taken into account together with all relevant evidence, can assist in leading the court to the conclusion that the father is quite prepared to take whatever steps he considers appropriate to protect his financial position (even if such steps may involve the provision of misleading information).
n)Although the father seeks to portray himself as a somewhat naive and inexperienced businessman, he is in fact an intelligent and commercially knowledgeable entrepreneur.
o)The father does not wish either the mother or this Court to "part the curtain", as it were, in order to enable a full understanding of his true financial position to be obtained.
p)I am satisfied that the whole truth regarding the father's financial position has not come out and that none of the financial statements sworn by him during the course of these proceedings are completely accurate.
[11] See exhibit M10
The Mother's Credibility
I paid careful attention to the mother as she gave her evidence. She remained calm, the comments that she made were balanced, and she gave appropriate responses to the questions she was asked. She made appropriate concessions when necessary. I was impressed by her as a witness, and find that she is a witness of truth.
The Father's Credibility
I also paid careful attention to the father as he gave evidence. He attempted to portray himself as an easy going, naive and rather inexperienced businessman. He sought to convey the impression that he had no more than a limited understanding or recollection of the various financial dealings in which he had had involvement. I do not accept, however, that the father does not fully understand or recall all aspects of his financial position and the transactions in which he has been involved. He is – to use a colloquialism – “as sharp as a tack”.
Although the father (like the mother) remained calm as he gave his evidence, I am of the view that he was neither open nor candid with the court. I am of the view that he remained wary and guarded throughout his evidence. At times he was non-committal.
I find that the father is not a witness of truth. I find that he is an intelligent, capable and hardworking man who is prepared to explore all available avenues to increase his personal wealth. I find that he has not been open and frank regarding his relationship with Mr N and that the financial information which he has presented to the court (both orally, and in his affidavits of financial circumstances) is either false or something less than the whole truth.
Although the father endeavoured to assure the court that he understands (and has always understood) his obligations in relation to child support, I do not accept his assurances in this regard. I find that the father has deliberately taken steps to obfuscate his financial position. Whether his on-going dispute with the mother in relation to child support is/was his only motivation for such obfuscation, I cannot know — but I have no doubt that it was an important consideration from the father's point of view and that it was one of the factors that led the father to enter into the transactions that he did in the manner and at the time that he did.
I find that the father is an astute and resourceful businessman, but that he has been less than honest with his dealings with the mother and the court.
The Law
The Commonwealth’s legislative scheme for assessment and enforcement of child support liabilities is contained in the Assessment Act and the Child Support (Registration and Collection) Act 1988. Certain aspects of this scheme were considered by the High Court in Luton v Lessels (2001) FLC 98-015. In that case, Gaudron and Hayne JJ said (at page 95,659):
The Assessment Act records that the “parents of a child have the primary duty to maintain the child”. This duty is said, by the Assessment Act, (a) to be not of lower priority than the duty of the parent to maintain any other child or another person: (b) to have priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or another person the parent has a duty to maintain: (c) to be not affected by the duty of any other person to maintain the child or any entitlement the child or another person may have to an income tested pension, allowance or benefit. …The principal object of the Assessment Act is said to be “to ensure that children receive a proper level of financial support from their parents”.
Part 5 of the Assessment Act (ss 35-79) provides for the administrative assessment of child support. “Child support” is defined as “financial support under [the Assessment] Act, including financial support under [the] Act by way of lump sum payment or by way of transfer or settlement of property”. An administrative assessment of child support requires the application of one or more of several statutory formulae that is, or are, apposite in the particular circumstances. Section 79 of the Assessment Act provides that “an amount of child support due and payable by a liable parent to a carer entitled to child support is a debt due and payable by the liable parent to the carer”…
Where there has been an administrative assessment, both the liable parent and the carer may lodge with the Registrar an objection against the assessment. A person aggrieved by a decision on the objection may, pursuant to section 110 of the Assessment Act, appeal to a court having jurisdiction under that Act.
In the same case, Gleeson CJ said (at page 95,653):
The objects of the Assessment Act are set out in section 4. The principal object is to ensure that children receive a proper level of financial support from their parents. To that end, the Act provides for a level of support to be determined in accordance with legislatively fixed standards, and permits carers of children to have the level readily determined without the need to resort to court proceedings.
…It may be observed that, although the legislation is enacted in furtherance of a clearly defined public policy, it creates a distinctly personal liability. The natural and moral obligation of the parent to support a child becomes, by force of the legislation, a legal obligation reflected in a debt, calculated in accordance with the Assessment Act, owing by a parent to a carer of the child.
Gaudron and Hayne JJ continued (at page 95,663):
Part 7 of the Assessment Act (ss 99–146) deals with the jurisdiction of courts under the Act. In particular, provision is made for applications to a court for a declaration about the applicability of the administrative assessment provisions. Provision is made for what are called “appeals” against incorrect administrative assessments and for orders for departure from administrative assessment. (The reference to “appeal”, although similarly used in other contexts, may mislead. The proceeding which is so described is the first application of judicial power; it is an exercise of original, not appellate jurisdiction.) An order by a court for departure from an administrative assessment may be made on the grounds on which the registrar may make a departure determination…
The process involved in the consideration of an application for departure from the administrative assessment of child support was explained by the Full Court in Gyselman (1992) FLC 92-279 at 79,064-5, under the heading “Division 4 — Orders for Departure from Administrative Assessment in Special Circumstances”. The Full Court said (inter alia):
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 subsections (2) to (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.
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 emphasise 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 (1997) FLC 92-759, the Full Court said this (at 84,352):
..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 (at 79,078):
‘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 (see at 79,080), 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 (see at 79,080).
A differently constituted Full Court…in Ross and McDermott (1998) 23 Fam.L.R. 613 at 623-4 (paragraph 39) said this:
In our view a practical and flexible approach should be adopted to the task of considering these s 117(4) and (5) matters, that is an approach similar to that which this court has long adopted to the ‘s 68F(2) matters’… in child-related proceedings under the Family Law Act 1975 (Cth), and to the ‘s 79(4) matters’ and ‘s 75(2) matters’ in property settlement proceedings under that Act. Accordingly, we consider it is unnecessary to make any reference to those s 117(4) and (5) matters which have no real relevance in the circumstances of the particular case. We also consider that it would be permissible to group together and consider as a whole, those relevant matters which by their nature lend themselves to such an approach in the circumstances of the particular case, and in the case of those matters which are required to be considered under more than one subsection of s 117, to examine such matters only once, although they may need to be taken into account under more than one subsection.
The Court must follow the three step process described in Gyselman in respect of each year for which a departure order is sought (see Hides v Hatton (1997) FLC 92-759).
The Mother's Financial Circumstances
The mother's financial circumstances were not a significant issue in the proceedings.
Although the mother was working on a part time basis as a cleaner at the time that she swore her financial statement in October 2002, she was retrenched from that position at Easter 2003. She received $500.00 by way of a termination payment — which moneys have been used for household purposes.
The mother is currently in receipt of social security benefits.
The mother said that the father has bought things for A (including clothes). He has spent amounts of up to $250.00 on A in this way.
The mother has modest assets, and her expenditure is commensurate with her limited income.
It was not in dispute that the mother and A need and are entitled to child support payable by the father at whatever rate properly reflects his overall financial position.
First Child Support Period (1 July 1997 - 19 February 1998)
The table set out at paragraph 5 above records that the father's child support income amount for this period is nil dollars. The assessed child support is also nil dollars.
I have not been provided with details of the mother's financial position during this period. Nor have I been provided with details of the cost to the mother of supporting A.
In essence, however, it is submitted that the court ought to treat the father as having a significant child support income amount for this period, and that an assessment based on a child support income amount of zero dollars is unfair and inappropriate.
The evidence reveals that the father received a net payment of $290,000.00 from the TAC in July 1997. He received a further amount of $3,800.00 in January 1998. These moneys remained invested in the name of the father, as described in paragraphs 10 and 11 above.
It is apparent, therefore, that the father had a very significant lump sum available to him from which he could have paid appropriate child support for A during this period.
The father's evidence was that he was unable to work from the date of the accident (in April 1994) until August 1997. On 28 August 1997, he commenced employment at Roxby Downs. This was, of course, approximately one month after he received the net payout of approximately $290,000.00 from the TAC.
It was not in dispute that the father earnt approximately $60,000.00 per annum during the period he was employed at Roxby Downs (being the period from August 1997 to March 1999).
I note from paragraph 5 of the mother's affidavit sworn 27 February 2002 that the father was required to pay child support at the rate of $764.90 per month throughout the whole of the period from 20 February 1998 to 5 March 1999. The quantum of child support was determined as a result of a Child Support Agency notice of decision in which the father was treated as having an income for that period of $60,000.00 per annum.
Having regard to the fact that the father had a similar income and a similar amount invested in his name during the earlier period (being 1 July 1997 to 19 February 1998), and bearing in mind the father did not attempt to challenge the assessed figure for child support for the period 20 February 1998 to 5 March 1999, I am of the view that (subject to my comment in the following paragraph) the father should pay child support for the period 1 July 1997 to 19 February 1998 based on a child support income amount of $60,000.00.
I take into account, however, that the father did not receive the TAC pay out until 18 July 1997 and that he did not commence his employment at Roxby Downs until 28 August 1997. In the circumstances, and recognising that precision is almost impossible in the current process, I propose to treat the father as having an income of $60,000.00 per annum with effect from 1 September 1997.
I propose to order (subject to consideration as to whether the proposed order is just and equitable and otherwise proper) that there be a departure from the administrative assessment of child support payable by the father for the period 1 September 1997 to 19 February 1998, and that the father's child support income for that period be fixed on the basis of $60,000.00 per annum.
Second Child Support Period (6 March 1999 to 30 June 1999)
Paragraph 5 of the mother's affidavit records that the child support payable by the father for this period was determined as a result of a decision of the Child Support Agency. The father's child support income amount was treated as $19,136.00, resulting in a monthly amount of child support of $151.42.
According to the father, the assessment was changed by reducing his child support income from $60,000.00 to $19,136.00 for the period 6 March 1999 to 30 June 1999 "because he lost his job as a boiler maker on 5 March 1999". The reality is, however, that the father continued to have available to him the very substantial sums invested and referred to above.
The problem with this period, however, is that I am unable to identify relevant information regarding the parties' financial circumstances at that time. In paragraph 2(c) of his affidavit sworn 17 October 2002, the father said:
…I lost my job as a boilermaker on 5 March 1999 because there was no longer work available for me as I was unable to comply with the occupational health and safety requirements of my employer due to my reliance on medication. On 24 August 1999, I applied to have the child support assessment departed from on the grounds that I was travelling from Edenhope to Hastings for contact and I was no longer working. On 30 September 1999, the assessment was changed by reducing my child support income from $60,000.00 to $19,136.00 for the period 6 March 1999 to 30 June 1999. However, due to an error by the Child Support Agency I continued to be assessed at this amount for a few months after and when the Agency realised and increased my child support income to $49,748.00 based on my tax return I was left to pay the arrears for the period that it had been lowered. On 12 November 1999, I objected to the decision because I believed as I was not working that my child support income should have been at the lower figure for a longer period. This objection was unsuccessful. I did not seek a departure order at the time…
It appears that this matter has been dealt with by the Child Support Agency, and insufficient evidence has been provided to me to warrant interference with its assessment for the period 6 March 1999 to 30 June 1999.
I am well aware that the father had something in the order of $340,000.00 invested at that time. I am also aware that the income tax returns annexed to his affidavit sworn 17 October 2002 reveal that the father's taxable income for the 1999 financial year was $48,961.00. The taxable income of AEPL for the same year was zero. AEPL's profit and loss statement for the year ended 30 June reveals, however, that the company's gross income was $58,588.00. Its total expenditure amounted to $57,269.00, but included an item for "travel and accommodation" amounting to $10,671.00.
Although I have considerable discomfort with the appropriateness of the assessment for this period, I have not been provided with sufficient information to enable me to adjust it in any way.
It follows that the mother's application for a departure order in relation to this period will be dismissed.
Third Child Support Period (1 October 2000 to 31 December 2001)
It was during this period that the father took steps towards purchasing a helicopter, and kept $80,000.00 in cash in his home. It was towards the end of the period that he acquired Fishing License RL40 and the fishing boat "Enterprise".
I have already recorded that I do not accept the father's evidence regarding his financial arrangements with Mr N. As well, it was during this period that the father intended to acquire a helicopter and to work as its "ground crew". I have no doubt that the father had the capacity then — and still does — to work extremely hard. I comment further upon this subject later in these Reasons, but, at this stage, simply record my finding that, at all relevant times, the father retained an earning capacity of not less than $50,000.00 per annum. The father was earning some $10,000.00 per annum more than this amount whilst he was employed at Roxby Downs. He does not appear to have sought alternative paid employment after he ceased work at Roxby Downs — but I have no reason to suspect that he could not have found such employment. Having regard to the moneys then held by the father, and to the other matters to which I have referred, I am of the view that the father's earning capacity was as I have stated. In any event, the father had significant cash moneys available to him for the payment of child support and could have organised his affairs in such a manner as to enable child support to be paid at an appropriate rate.
I conclude that there should be a departure of administrative assessment of child support payable by the father for the period 1 October 2000 to 31 December 2001, and that the father's child support income for that period be fixed at the rate of $50,000.00 per annum.
Fourth Child Support Period (1 April 2003 to 30 June 2004)
This is the current child assessment period.
I have already made findings regarding my inability to place reliance on the accuracy of the father's financial and court documentation. I note, however, that, in the father's form 17 financial statement filed on 30 April 2003, he asserts that the total value of his assets is $1,032,000.00 and the total of his liabilities is $647,087.00. This equates to an excess of assets over liabilities of approximately $385,000.00.
At the time of the trial, the father said that he (or AEPL) was retaining all of the income derived from the cray fishing enterprise and that he did not know what steps Mr N may take to recover moneys allegedly owed to him (or Flangrove).
If the father were to dispose of the boat (Juggernaut) and his fishing licence, then on the basis of the evidence presently before me, he would be in a similar financial position to that which adhered during the period prior to the acquisition of RL40. Doing the best that I can with the information available to me, therefore, I see no reason to treat the father differently in relation to this period from the manner in which he was treated in relation to the third period referred to above (at a time when the father's investments remained available to him). In other words, I propose to order that there be a departure from administrative assessment of child support payable by the father for the period 1 April 2003 to 30 June 2004, and that the father's child support income for that period be fixed at the rate of $50,000.00 per annum.
I am satisfied that special circumstances exist to justify the making of orders in the terms proposed in the paragraphs 106, 116 and 120, due to the father's receipt, retention and use of the compensation payout during the relevant periods, due to his income at those times, and due to my findings that I have made elsewhere in these Reasons relating to his failure to make full and frank disclosure of his financial position from time to time and the consequences of that failure.
"Just and Equitable" — Section 117(4)
In relation to child support periods 1, 3 and 4 referred to above, I am satisfied, that having regard to —
a)the financial position of the father at all relevant times during the periods;
b)the property and financial resources available to the father at all relevant times;
c)the objects of the Child Support (Assessment) Act 1989; and
d)the on-going failure of the father to make full and frank disclosure of his financial position, and to give priority to his obligation to pay child support at an appropriate rate,
it would be just and equitable as regards A, the mother and the father to make the orders that I have foreshadowed.
"Otherwise Proper" — Section 117(5)
Having taken into account the matters set out in s. 117(5) of the Child Support (Assessment) Act, I am of the view that it would be otherwise proper to make the orders that I have foreshadowed.
Lump Sum Child Support
The mother seeks a lump sum payment of child support pursuant to ss. 123 and 124 of the Child Support (Assessment) Act 1989. She seeks that the father pay a total of $63,000.00 — to cover the whole of the period until A attains the age of 18 years.
In R & R (No.1) (2002) FMCAfam 153, the Chief Federal Magistrate explained the law relating to lump sum child support as follows:
68.Section 123(1) of the Act provides that application may be made to a Court exercising jurisdiction under the Act for an order that the liable parent provide child support otherwise than in the form of periodic amounts paid to the carer.
69.Before the Court can make an order for substituted support, the Court is required by section 124(1)(b) to be satisfied that it would be just and equitable as regards the child, the carer entitled to Child Support and the liable parent, and otherwise proper to make such an order. The Court is required to have regard to the matters contained in section 124(2) and in determining whether it is “just and equitable” or “otherwise proper” the Court must have regard to the matters contained in subsections 117(4), (5), (6), (7) and (8) of the Act. The Court is not limited by those factors alone (see section 124(5)) which suggests that the Court has a wide discretion in determining the application.
70.The Full Court of the Family Court of Australia in Prpic v Prpic (1995) FLC 92-574 at 81,688 said:
“Capitilisation orders may well be appropriate where there are difficulties in enforcement or where it is proper to sever the financial link between the parties. However, as a general rule, given that payments of child support depend upon circumstances prevailing from time to time, which circumstances cannot be predicted with any significant degree of certainty, it seems to us that the provision of child support by way of lump sum should not be considered to be a readily available alternative but one that is only exercised where there are circumstances that make it appropriate to do so. We would endorse the observations of Mushin J in Bendeich (1993) FLC 92-355 at 79,954 where His Honour said:
‘The rationale underlying the general approach of the court was that the longer a lump sum order operates the greater chance of change in circumstances necessitating a variation of that order, thereby making the order unjust. Those changed circumstances might be in relation to the liable parent, custodial parent or the children. Incomes may increase or decrease and the children may change their living arrangements from one parent to another’
71.It is clear that I have discretion to order a lump sum subject to being satisfied as to the matters which I have identified in the Act, but it is also clear that I must exercise that discretion only when there are circumstances which make it appropriate to do so and that normally it is preferable for periodic support to be paid.
In my opinion, the following matters are relevant to the exercise of my discretion:
a)I have made findings regarding the father's credibility and his failure to make full and frank disclosure of all relevant aspects relating to his financial position from time to time.
b)The father has had significant funds invested in his name (or otherwise available to him — including in the form of cash) for substantial periods of time. Notwithstanding that fact, the father often did not voluntarily meet his obligations in relation to child support.
c)I find that the father is likely to manipulate his financial affairs, to the extent that he is able to do so, to ensure that his assessed child support is as low as possible.
d)I find that the father is a determined and resourceful person and that any decision on the part of the court to leave future child support assessments in the hands of the Child Support Agency will lead — as night follows day — to further objections, reviews and (ultimately) litigation.
In addition to the above factors, I take into account the fact that the father received a net amount of approximately $290,000.00 in July 1997 as a result of the settlement of his personal injuries claim. Counsel for the father suggested that it would be somehow unjust and inequitable if, in the circumstances of the present case, a departure order were to be made taking into account those components of the TAC payment that represent factors other than past economic loss. It was suggested that the component of the payout that relates to future loss of income should be "quarantined" as it were from child support claims.
Counsel for the father argued that his client would not have been obliged to pay child support in a lump sum if he had not received a lump sum award for future loss of income. The suggestion was that the father should simply be obliged to pay periodic child support in the usual way (and, no doubt, on the basis of whatever his child support income may be during the relevant years).
In my opinion, there can be no formulaic answer to the submission pressed by counsel for the father. If, for example, the father had invested the compensation payout in an appropriate business venture (and had made full and frank disclosure of all relevant details relating to his involvement in the venture), thereby enabling him to earn a significant income and pay appropriate child support, then it is difficult to see how an application for lump sum child support could succeed. But those are not the circumstances of this case.
It seems to me that if the father received a substantial allowance for future loss of income, then contained within that amount are moneys that would ordinarily (had the father earned his future income on a periodic basis) have been utilised for the payment of child support. In other words, a component of the allowance for loss of future income is itself capitalised child support (as it were) in an inchoate form.
If the recipient of a compensation payout in such circumstances elects to utilise the whole of his payout to fund a business venture, then he is, in effect, involving the parent who is entitled to the payment of child support — and, of course, the child — as unwitting, and often unwilling, partners in his business venture. After all, if the business venture is unsuccessful, then the liable parent may lose his investment and, as likely as not, the other parent and the child will never receive the child support to which they would otherwise have been entitled (and which as I have indicated, already existed in an inchoate form in the compensation payment).
Obviously, the opposite could also occur. The liable parent might invest his compensation payout in a highly lucrative venture. The income that he derives from such a venture could cause the parent entitled to child support and the child to receive child support at a much higher level than they might otherwise have anticipated.
In the present case, the documents comprising exhibit "J1" indicate that the father's compensation claim was settled on 25 June 1997 in the sum of $310,000.00 "on a plus costs basis". The settlement figure represented a sum of $100,000.00 for general damages and $210,000.00 for "economic loss". Although the Department of Social Security appears to have deemed the economic loss component of the lump sum to be $155,000.00, no clear, agreed figures have been provided to the court that would enable a breakdown of the "global" figure into past and future loss of income components.
In any event, I am unable to accept that any part of the father's lump sum compensation payment should be "quarantined" for child support purposes. I do not propose to spend time dealing with the manner in which compensation payments are treated in property settlement proceedings.[12] The fact of the matter is these are child support proceedings and the court is not obliged to consider matters such as — for example — the contributions (of whatever relevant type) that the mother may have made to the father's compensation payout.[13] The normal 3 or 4 step approach that is to be followed in property settlement cases does not apply in child support matters.[14] What is important is the fact that the liable parent has significant funds, assets or resources available to him, and the fact that the parent entitled to child support, and the child, need and are entitled to appropriate child support.
[12] See, for example, the paper by Frank Castiglione QC headed "Damages: Unresolved difficulties in Current Family Law" delivered at the Family Law Practitioners Association WA conference held in October 1999.
[13] Quite apart from the fact that the parties never married and the property settlement provisions of the Family Law Act do not apply in any event.
[14] See, for example, Hickey (2003) FLC 93-143 (at para 39); OSF & OJK [2004] FMCAfam 63
In Harris (1999) FLC 98-010, the husband had an acknowledged limited earning capacity (due to the amputation of his lower left leg and continuing complications). The court was required to determine the extent to which compensation which the husband had received for his injuries would be considered in relation to his capacity to pay child support.
The compensation payment was made up (principally) of moneys to compensate for future economic loss. The husband had used his payout to purchase an equity in a property.
Kay J was satisfied that the father had dissipated his compensation payout "appropriately (and) without any element of personal indulgence".
The mother's position in Harris is that she was "quite parlous" and she needs every cent she can get to help support the children.
At page 95,330, Kay J said:
The obligation to pay child support…is an obligation to pay, but only to the extent that the payer can afford to do so, and has a priority over all commitments other than commitments necessary for self support and the support of others to whom there is a duty to support. In this case there is no such person. The children are to share in changes of the standard of living of both their parents whether or not they are living with them. The children are to have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both their parents.
The compensation package received by the husband was made up essentially of money to compensate for future economic loss. The nature of the compensation paid in this case is unknown because it was done by way of settlement…but, essentially, a workers compensation payment is an economic loss payment, and without that economic loss these children could clearly have been expected to share in the bounty of their father as he earned his income on a weekly basis and to have their child support paid.
Rather than earning his income on a weekly basis, the father has had it paid up-front by way of compensation. He has utilised that money to acquire an equity in the farm property. The issues as I perceive them are whether, in those circumstances, the application of the capital was a commitment necessary to enable him to support himself, and whether, having applied the money in that manner, an assessment based on an artificially created income which takes into account not only actual income but also deemed income for which he has already been compensated has resulted in an unjust and inequitable determination of the level of financial support.
The husband would have it, as I understand his case, that the horse having bolted, it is a bot late to close the stable door. He has bought the farm and he does not have the wherewithal readily to pay the short fall in child support because his capital is otherwise tied up. As attractive as that submission is, I do not think that it meets the criteria of the legislation, which is that the children have their needs met from the reasonable and adequate shares of income earning capacity, property and financial resources of both parents, and that the parents should share equitably in the support of their children.
Having regard to the approach utilised by Kay J in Harris, I note the following:
a)The only person to whom a duty to support is owed by the father (apart from himself) is A.
b)Without the economic loss suffered by the father, A could fairly have been expected to share "in the bounty of her father" as he earned his income on a weekly (or other periodic) basis, and to have her child support paid.
c)The father has received his compensation payment and used it (after one or two false starts) to acquire an interest in a business.
d)I do not accept (because of the father's failure to make full and frank disclosure) that the father has "dissipated his compensation payout appropriately and without any element of personal indulgence".
e)Although at first glance, the application of the compensation payout for the purpose of acquiring an interest in a business (and I am well unaware that the father does not own a residential property, and that he lives in a hotel) could be regarded as a commitment necessary to enable him to support himself, I am of the view that the actual arrangements put in place by the father (and, in particular, the rather murky arrangements between the father and AEPL on the one hand and Mr N and Flangrove on the other) militate against a conclusion that the father's current business venture should fall within that category.
f)The father has entered into transactions, moved funds backwards and forwards, sold assets, acquired other assets, taken on huge liabilities and restructured other liabilities without — in my view — the slightest thought being given to his ongoing duty to support A. As I metaphorically described the situation to counsel for the father, the father has taken the mother and A on this particular journey with him, and they have not been willing fellow travellers.
g)Counsel for the father argued that the father is burdened with crushing debt. In my opinion, the father's financial difficulties (if, in fact, he is actually encountering such difficulties) are entirely due to his own actions. The effect of the compensation payout is that he was entrusted (as it were) with a notional lump sum fairly attributable to child support for A. It may have been a relatively small proportion of the payout, but it nevertheless existed. He owed — in effect — a duty of care to A to ensure that the notional lump sum child support received by him as a necessary component of or concomitant to his compensation pay out not be squandered (or even put at unnecessary risk).
h)I have absolutely no doubt that the father works extremely hard, and for very long hours, as the skipper of his vessel. Although he has a deckhand to assist him, the reality is that he could not possibly continue to put to sea (in all manner of weather) and tend his pots — not to mention the myriad of other tasks associated with the fishing business — unless any disabilities that he may continue to suffer as a result of the accident that took place in 1994 were relatively minor.
i)The father did not place any relevant expert medical evidence before the court (dealing with his state of health and/or his earning capacity).
j)In all the circumstances, I am not prepared to accept that the arrangements made by the father for the acquisition of the particular business now conducted by him was a commitment which was necessary to enable him to support himself (or one which I could fairly regard as being necessary to enable him to support himself). The father is a boilermaker by trade. He was a courier for 2 or 3 years before the accident in 1994. He investigated the acquisition of an abalone licence (although what his role would have been in that enterprise if the licence has been obtained, I do not know) and a helicopter. He intended to act as "ground crew". He is qualified to skipper Juggernaut. In my view, the father could have found other businesses or ways of generating an income. I find that it was not "necessary" for the father to enter into the particular cray fishing venture in which he is currently involved, and it was certainly not necessary for him to incur the level of debt that he asserts he has incurred.
k)In any event, I am not prepared to accept that the father's true financial position is as he has described it to the court. In particular, I am not prepared to accept his evidence that he has had a genuine "falling out" with Mr N. Nor am I prepared to accept that he faces the prospect of financial embarrassment (let alone ruin).
In the circumstances of the present case, I am satisfied that the father continues to have the capacity to earn not less than $50,000.00 per annum. I have explained in earlier paragraphs of these Reasons why I consider that the father has this earning capacity.
If I regard the amount of $50,000.00 as being an appropriate child support income amount, then the appropriate quantum of child support is approximately $130.00 per week.
A was born on 17 September 1993. She will turn 18 on 17 September 2011.
The current child support assessment ends on 30 June 2004. The period from 1 July 2004 to 17 September 2011 is a period of 7 years and 79 days, or approximately 7.2 years.
Counsel for the mother submitted that the 3% discount scale should be employed to calculate the present value of a relevant weekly sum until A attains the age of 18 years.[15] Counsel for the father did not argue to the contrary. According to the CCH Australian Family Law Child Support Handbook, the 3% "multiplier" relevant to a period of 7 years is 327.22. The 3% "multiplier" relevant to an 8 year period is 368.63. The difference between the two multipliers is 41.11 — 20 percent of which is 8.28.
[15] See Barrell Insurance Pty Ltd v Pennant Hills Restaurant Ltd (1981) 34 ALR 162, Todorovic v Waller (1981) 37 ALR 481 and Racine & Hennett (1982) 8 FamLR 716
If 8.28 is added to 327.22 (being the 3% "multiplier" for a 7 year period), then it is possible to determine an appropriate "multiplier" for a period of 7.2 years. The total of 327.22 and 8.28 is 335.5.
I intend to use 335.5 as the appropriate "multiplier" for a period of 7.2 years. If, as is my view, an appropriate quantum of child support payable by the father is $130.00 per week, then the present value of that periodic sum for 7.2 years (being the period from 1 July 2004 until A attains the age of 18 years) is $43,615.00. Subject to the other considerations that I must take into account, I propose to order that the father pay lump sum child support relating to the period 1 July 2004 until A attains the age of 18 years fixed in the sum of $43,615.00, and that such lump sum is to count for 100 percent of the child support that would otherwise have been payable by the father under any relevant child support assessments during that period.
Before making the lump sum order, the court is required by s. 124(3) to be satisfied that it would be just and equitable with regard to the child, the carer entitled to child support and the liable parent. A lump sum is appropriate for the reasons I have already outlined. I find that it is the only way that the mother is likely to receive appropriate child support. The father has a significant excess of assets over liabilities, and he is involved in a business which has the capacity to generate significant income. He controls AEPL, which employs him. I am not satisfied that the father has made full and frank disclosure of his financial position, or of aspects of his relationship with Mr N. The father should not be permitted to hide behind his conduct in that regard in order to avoid the making of an appropriate order for child support. Whatever the father's financial position may be in reality, I have no doubt that the father has the ability to borrow funds to pay the mother — either personally, or with the assistance of AEPL. The father has made a number of complex arrangements (with Mr N, in particular) in the past, and I am satisfied that he has the ability to do so again.
If the father is not able to borrow the funds to meet the payments that I have deemed appropriate, then (for example) he may well have to sell some of the pots and quota contained within licence RL40. It is a matter for him as to how he decides to arrange his financial affairs, but his obligation to pay child support must take precedence over other commitments beyond those which are set out in the legislation.
The court is also required to consider whether it would be "otherwise proper" to make an order for a lump sum payment. I take into account the fact that it is the parents of A themselves who have the primary duty to maintain her. I received no submissions from either counsel as to the effect that an order for lump sum child support would have on any income tested pension, allowance, or benefit to which the mother is presently entitled. Nevertheless, and as the mother seeks an order for a lump sum payment, I am satisfied that she has taken this matter into account. In any event, it is for the parents of A to accept the primary responsibility for maintaining her. The community should only be required to pay support for A to the extent that her parents (or either of them) are unable to do so.
Once again, I am satisfied that unless I make an order for substitution for lump sum periodic maintenance, the father will not carry out his obligation to pay child support for A.
Section 125 of the Child Support (Assessment) Act 1989 directs the court to state in the (lump sum substitution) order whether the child support ordered to be provided by the father is to be credited against his liability under any administrative assessment that may apply to the period (or a part of the period) for which the order had effect. As foreshadowed earlier, my intention is that the lump sum is to represent the whole of the father's child support liability to the mother for A for the whole of the period from 1 July 2004 until A attains the age of 18 years. It follows that the lump sum is to count for 100 percent of the annual rate of child support payable under all relevant assessments for the period from the period 1 July 2004 until the date upon which A attains the age of 18 years.
General Observation on Proposed Child Support Orders
I am well aware that I have not dealt (in detail) with certain issues, such as an analysis of the commitments of each of the parties that are necessary to enable them to support themselves and the actual (or estimated) costs of maintaining A. I have made no attempt to apportion the overall cost of maintaining A between the parties. I have not embarked upon these exercises because, in my opinion, it is unnecessary and inappropriate for me to do so. I have elected to determine — as best I am able — the father's relevant child support income and to allow the child support formula to then take its course.
I have chosen this approach because its effect is to maintain the integrity of the child support scheme in its broadest sense.
I am also well aware that the father has claimed certain offsetting expenses against his child support liability in the past. For example, he has argued that the (high) cost of having contact with A should be taken into account. The fact of the matter is, however, no evidence relating to such matters was provided to me by either party. It follows that I am unable to assess the impact of such considerations upon the orders (or the structure of the orders) that I have foreshadowed.
I understand that "the longer a lump sum order operates, the greater the chance of a change in circumstances necessitating a variation of that order, thereby making the order unjust".[16] A lump sum award of maintenance or child support prevents account being taken — on a regular, periodic basis — of "the vicissitudes of life".[17] But, as ordinarily undesirable as orders for lump sum child support may be, such orders can (and should) be made in appropriate circumstances.
I regard the circumstances of this case as justifying the making of an order for lump sum child support. Unfortunately, I cannot trust the father to meet his obligations in relation to the payment of periodic child support at an appropriate rate, and the ongoing disputes between the parties as to the appropriate quantum of child support (involving, considerable time, effort and expense — not to mention stress and anxiety — for all relevant parties) lead me to conclude that it is proper to sever the financial relationship between them to the extent that I am able to do so.
[16] See Bendeich (1993) FLC 92-355
[17] See Vaughan & Vaughan (1981) 7 Fam LR 379 and Anast & Anastopoulos (1981) 7 Fam LR 728
Effect of Orders
I am aware that the effect of the orders that I propose to make will be to create "instant arrears" of child support, as it were. I am satisfied, however, that the father earned enough (or, alternatively, had practical access to funds that would have enabled him) to have paid the level of child support that I have found to be proper and appropriate. As a consequence of his conduct of failing or refusing to pay child support at such a level, the mother has clearly incurred a financial detriment.
In my opinion, the father has not been motivated to pay child support at an appropriate level. He gave it a very low priority.
I am satisfied (for the reasons which I have expressed) that the father has sufficient assets available to him to meet the obligations which will flow from the orders which I am about to make.
Orders
I propose to make orders to the following effect:
(1)There be a departure of administrative assessment of child support payable by the father for the period 1 July 1997 to 19 February 1998, in such a manner as to provide for the variation of the father's child support income amount for that period from such annual or other periodic amount as may have been determined from time to time to the amount of $60,000.00 per annum.
(2)The mother's application for a departure order in relation to the period 6 March 1999 to 30 June 1999 be dismissed.
(3)
There be a departure of administrative assessment of child support payable by the father for the period 1 October 2000 to
31 December 2001, in such a manner as to provide for the variation of the father's child support income amount for that period from such annual or other periodic amount as may have been determined from time to time to the amount of $50,000.00 per annum.
(4)There be a departure of administrative assessment of child support payable by the father for the period 1 April 2003 to
30 June 2004, in such a manner as to provide for the variation of the father's child support income amount for that period from such annual or other periodic amount as may have been determined from time to time to the amount of $50,000.00 per annum.(5)
The father do provide child support for A for the period from
1 July 2004 to 17 September 2011 otherwise than in the form of periodic amounts payable to the mother — such child support to comprise a lump sum payment by the father to the mother of $43,615.00.
(6)The father do pay to the mother the said sum of $43,615.00 referred to in (5) above on or before 1 August 2004.
(7)The order referred to in (5) above is an order under s. 124 of the Child Support (Assessment) Act 1989, and all child support to be provided by the father pursuant to it is to be credited against the father's liability under all administrate assessments of child support payable by the father to the mother that relate to the whole or any part of the period referred to in the said order, and is to count for 100% of the annual rate of child support payable under the said administrative assessments.
I shall now hear Counsel regarding the precise terms of the orders necessary to give effect to this Judgment.
I, Paul O'Halloran, certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate:
Date: 25 March 2004
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