DELUCA & RYZYNSKI

[2018] FamCA 984

FAMILY COURT OF AUSTRALIA

DELUCA & RYZYNSKI [2018] FamCA 984

FAMILY LAW – PROPERTY – undefended hearing – interim orders - where the husband has not complied with orders for discovery and costs – where the husband did not respond to the wife’s application or attend the hearing –where the wife seeks partial property settlement of $50,000 – where the wife has sole use of the former matrimonial home – wife’s application for partial property settlement dismissed.

FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks that the husband pay $1,000 per week in spousal maintenance and other expenses – where the wife does not have sufficient income to support herself and the children – where the husband’s refusal to participate has made it difficult to ascertain his income and benefits – where it was found that the husband has capacity to meet the order – order that the husband pay to the wife $1,000 per week in spousal maintenance and other expenses.

FAMILY LAW – CHILD SUPPORT – where the wife seeks that the husband pay the children’s educational expenses including tuition fees and arrears and medical expenses – where the wife has primary care of the children – where the husband has previously consented to such orders – order that the husband pay non-periodic payments in addition to periodic child support.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Deluca

FIRST RESPONDENT: Mr Ryzynski

FILE NUMBER: MLC 3156 of 2018

DATE DELIVERED: 23 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 13 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tulloch

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

THE RESPONDENT: No Appearance

Orders

Spousal Maintenance

1. Until further order the husband pay or cause to be paid to the wife periodic spousal maintenance of $1,000 per week (“spousal maintenance”), by direct deposit into the wife’s nominated bank account each Monday in advance commencing 26 November 2018.

2. The husband pay and / or continue to pay on behalf of the wife by way of spousal maintenance:-

   (a)all repayments in relation to the mortgage in favour of the B Bank (on Title referred to as C Bank Ltd, being registered mortgage number …) secured against the property located at D Street, Suburb E in the State of Victoria (“the Suburb E property”) as and when same fall due, inclusive of but not limited to the amount in arrears;

   (b)all rates, insurances, utilities, taxes and outgoings of and in relation to the Suburb E property, inclusive of but not limited to, gas, electricity, water (charges and usage), telephone and internet, home and contents insurance;

   (c)the private health insurance premiums for the wife at the current rate and extent of cover and all “out of pocket” medical, hospital and ancillary health care costs; and

   (d)motor vehicle expenses for the motor vehicle utilised by the wife being the motor vehicle 1 (registration number: …) registered in the husband’s name, including but not limited to servicing, insurance, registration, maintenance and repairs (but excluding fuel);

   either by direct payment as and when same fall due to the supplier within seven days of being presented an invoice or in the event that the wife pays any of these costs at first instance, upon the wife providing the relevant invoice to the husband and, that the husband reimburse her by direct credit into her nominated bank account within seven days of the wife providing him with a receipt of payment.

Child Support Departure Order

1. Until further order pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”) the husband pay direct to the provider, or in reimbursement to the wife within seven days of the provision of receipts, the following by way of child support in a form other than periodic support for the children of the marriage X born … 2005, and Y born … 2008 (collectively referred to as, “the children”):

   (a)the educational expenses for X at F School, including but not limited to, tuition fees (inclusive of arrears), levies, uniforms and footwear, books, stationery, computer equipment and requirements and excursions;

   (b)the educational expenses for Y at G School, Suburb H, including but not limited to, tuition fees (inclusive of arrears), levies, uniforms and footwear, books, stationery, computer equipment and requirements and excursions;

   (c)the out of pocket and non rebateable hospital, medical, dental, orthodontic, and prescribed pharmaceutical expenses for the children; and

   (d)the private health insurance premiums for the children at the current rate and level of cover.

2. The annual rate of child support payable by the husband pursuant to the assessment issued 19 July 2018 is not to be reduced by the non-periodic payments payable by the husband pursuant to paragraph 3 hereof.

3. The husband appear at or be represented at the compliance hearing on 19 December 2018.

4. If the husband fails to comply with paragraphs 5 and 6 of the orders made 14 June 2018 and paragraph 4 of the orders made 5 September 2018 by 12 December 2018 and/or does not appear or is not represented on 19 December 2018 the wife have leave to apply for the matter to be listed for a final hearing on an undefended basis.

5. The wife cause a sealed copy of these orders to be served upon the husband:

   (a)by pre-paid post addressed to the husband at J Street Melbourne in the State of Victoria; and

   (b)by email to the husband at....

Note: The form of the order is subject to the sentry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Deluca & Ryzynski has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3156  of 2018

Ms Deluca

Applicant

And

Mr Ryzynski

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing before me in the Judicial Duty List on 13 November 2018.  The application listed before me was the wife’s Application in a Case filed 24 August 2018.  The wife sought the following orders:

   1. The Respondent pay or cause to be paid to the Applicant spousal maintenance of $1,000 per week, pursuant to Section 74 of the Family Law Act 1975 (“the Act”) (“spousal maintenance”), by direct deposit into the Applicant’s nominated bank account each Monday in advance.

   2.      The Respondent pay and / or continue to pay on behalf of the Applicant by way of spousal maintenance:-

   i)all repayments in relation to the mortgage in favour of the B Bank (on Title referred to as C Bank Ltd, being registered mortgage number …4K) secured against the property located at D Street, Suburb E in the State of Victoria (“the Suburb E property”) as and when the same fall due, inclusive of but not limited to the amount in arrears;

   ii)all rates, insurances, utilities, taxes and outgoings of and in relation to the Suburb E property, inclusive of but not limited to, gas, electricity, water (charges and usage), telephone and internet, home and contents insurance;

   iii)the private health insurance premiums for the Applicant at the current rate and extent of cover and all “out of pocket” medical, hospital and ancillary health care costs; and

   iv)motor vehicle expenses for the motor vehicle utilised by the Applicant being the … (registration number: …) registered in the Respondent’s name, including but not limited to servicing, insurance, registration, maintenance and repairs (but excluding fuel);

   either by direct payment as and when the same fall due to the supplier within 7 days of being presented an invoice or in the event the Applicant pays any of these costs at first instance, upon the Applicant providing the relevant invoice to the Respondent and, that the Respondent reimburse her by direct credit into her nominated bank account within 7 days of the Applicant providing him with a receipt of payment.    

   3.      The Respondent forthwith do all acts and things necessary to pay to the Applicant the lump sum of $50,000, with such sum to be characterised at Final Hearing.

   4. Pending further order, pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”), the Respondent pay to the Applicant periodic child support by way of a departure from the administrative assessment of child support payable by the Respondent to the Applicant in respect of X born … 2005, and Y born … 2008 (collectively referred to as, “the children”) such sum as determined by the Court to be paid on the first day of each calendar month to the Applicant’s nominated bank account.

   5. Pending further order, pursuant to section 123(1)(a) of the CSAA the Respondent pay direct to the provider, or in reimbursement to the Applicant within seven (7) days of the provision of receipts, the following by way of child support in a form other than periodic support for the children:

   i)the educational expenses for X at F School, including but not limited to, tuition fees (inclusive of arrears), levies, uniforms and footwear, books, stationery, computer equipment and requirements and excursions;

   ii)the education expenses of Y at G School, Suburb H, including but not limited to, tuition fees (inclusive of arrears), levies, uniforms and footwear, books, stationery, computer equipment and requirements and excursions;

   iii)the out of pocket and non rebateable hospital, medical, dental, orthodontic, and prescribed pharmaceutical expenses for the children; and

   iv)the private health insurance premiums for the children at the current rate and level of cover.

   6.      The annual rate of child support payable by the Respondent to the Applicant under any relevant administrative assessment will not be credited against the child support ordered in the preceding paragraph. 

2. The wife commenced proceedings in this Court seeking final orders for property settlement by way of her Initiating Application filed 23 March 2018.  That application was listed for a Case Assessment Conference on 14 June 2018.  On that date both the husband and the wife appeared and were represented and they consented to detailed orders for discovery, the wife’s costs were reserved and all extant applications were adjourned to the Registrar’s Directions List on 5 September 2018 for a procedural hearing.  The husband filed a Response to Initiating Application and a Financial Statement on 13 June 2018.

3. Both the husband and the wife appeared and were represented at the hearing on 5 September 2018.  By the time of that hearing the wife had filed the Application in a Case and that application was adjourned for a defended interim hearing in the Judicial Duty List.  The husband was required to file and serve a Response to the wife’s Application in a Case supported by an affidavit within 28 days.  In circumstances where, and the order made 5 September 2018 notes, the husband had failed to comply with the orders for discovery made by consent on 14 June 2018 it was further ordered that the husband pay the wife’s costs of the hearing on 5 September 2018 fixed in the sum of $2,415 within 21 days. 

4. In circumstances where the husband has still not complied with the orders for discovery made 14 June 2018, has not paid the costs he was ordered to pay, has not filed any answering material and did not appear and/or was not represented at the hearing before me in the Judicial Duty List, the wife sought to proceed with her Application in a Case on an undefended basis.  I note that the husband’s solicitors filed a Notice of Ceasing to Act on 5 November 2018.  I am satisfied that the husband being present at the hearing on 5 September 2018 was aware of the hearing this day and that hearing date is referred to in the Notice of Ceasing to Act.

5. Rule 11.02(2) of the Family Law Rules 2004 (“the Rules”) provides that if a party does not comply with the Rules, the Regulations or a procedural order, the court may determine the case as if it was undefended. I am satisfied that in this case the husband has not complied with the orders made on either 14 June 2018 or 5 September 2018, has not filed any answering material and has chosen not to participate in these proceedings. The wife is entitled to have her application dealt with and her application has some urgency. This will be discussed in greater detail later in these reasons. In all of the circumstances I am satisfied that I should proceed with the wife’s Application in a Case on an undefended basis. On that basis the wife’s evidence contained in her Affidavit filed 23 August 2018 and the Affidavit of Ms K, who had the conduct of the matter on behalf of the wife at that time, also filed on 23 August 2018, is unchallenged.

Background

1. The parties in this case were married and commenced cohabitation in 2000.  They separated on a final basis on 1 January 2016 and a divorce order was made by the Federal Circuit Court of Australia on 12 December 2017. That order became effective on 13 January 2018. 

2. There are two children of the marriage namely:

   X who is 13 years of age; and

   Y who is 10 years of age.

3. The wife was the children’s primary caregiver during the marriage and the children have lived with her since separation. She describes the children as spending time with the husband sporadically and the last time the children saw the father was on Father’s Day in September 2018.

4. The wife has a permanent part time sales position and earns $1,100 per fortnight net.

5. The husband is the Chairman and CEO of L Pty Ltd a company which was started by his parents. The husband in his Financial Statement deposes to an income of approximately $77,000 and benefits including car lease payments, car registration and insurance, car maintenance and fuel, which he estimates are worth approximately $440 per week, and a mobile phone allowance of $20 per week. The wife for reasons which I will discuss in more detail in due course disputes the husband’s evidence as to his income and benefits.

Financial History Of The Marriage And Post Separation

1. Although the wife deposes to having some knowledge of properties she and/or the husband owned or controlled and some of the husband’s business activities, the crux of her evidence is that other than the fact that they lived a very comfortable, if not at times luxurious lifestyle, her knowledge of their financial affairs and how they funded that lifestyle was limited. The wife described a lifestyle including expensive motor vehicles, luxury overseas travel, eating in restaurants on a regular basis and high levels of personal expenditure. It was also her evidence that the husband had never indicated that they had any financial problems.  

2. The wife remained in the property at D Street, Suburb E following separation. The property is registered in the wife’s name but is subject to a mortgage in their joint names. The wife deposes that following separation in January 2016, the husband continued to meet the mortgage payments of approximately $4,000 per month, rates, utilities, groceries for the wife’s household and the children’s expenses including but not limited to school fees and activities. The wife was also permitted to withdraw $300 per week from the husband’s personal bank account.

3. In or about December 2016 the husband cancelled the wife’s access to his personal bank account and in 2017 she says she began receiving letters from the B Bank (“the Bank”), ultimately followed by Notices to vacate, as a result of the husband’s failure to make the mortgage payments. During 2017 the husband made the following payments to rectify the mortgage defaults:

   1.In or around March 2017, a payment of $11,000;

   2.In or around April 2017, a payment of $3,000;

   3.In or around May 2017, a payment of $5,500; and

   4.In or around June 2017, a payment of $11,900.

4. The wife deposes that in December 2017 the husband initiated contact with the Bank in relation to a hardship application reassuring the wife that he would complete and return the documents to the Bank. It was the wife’s understanding that she and the husband were to submit their respective applications to the Bank on or before 1 February 2018. Although the wife completed hers she says the husband failed to do so. She says that as at 5 January 2018 there were mortgage arrears of approximately $16,694 and it was her understanding that the Bank intended to take legal action if the default was not rectified. On or about 16 February 2018 the husband made a payment of $12,694. He has not made any further mortgage payments.

5. The wife says that when the husband made no further mortgage payments she had to liaise directly with the Bank and entered into an arrangement with the Bank as a result of which she only had to pay $100 per month. Although this arrangement allowed the wife and children to remain in their home it also means that the mortgage balance has been increasing by approximately $2,000 per month. That arrangement, which was to continue until the end of August, was extended until the end of November. Thereafter the Bank will require the husband and wife to make the monthly payments of approximately $4,346.

6. The wife deposes that she has no way of knowing whether the household bills which remain in the husband’s name have been paid. She gave as an example the internet account for the home which she says has been disconnected on a number of occasions including on one occasion for just over a month leaving the children without access to the internet to do their homework. The husband has also failed to pay the rates by the due date and although the wife was able to obtain an extension until 30 July 2018 they remain outstanding.

7. Although the husband and wife agreed upon the children’s attendance at their current schools and the husband paid a deposit of $500 to secure the eldest child’s place in Year 10, the fees for 2018 and have otherwise not been paid.  

Issues

Partial Property Settlement

1. Although it is generally accepted that it is preferable for there to be one final hearing of an application for property settlement, the court’s power may “...be exercised by a succession of orders until the power… is exhausted” (Gabel v Yardley [2008] FamCAFC 162).

2. The Full Court in Strahan & Strahan (Interim Property Orders) (2009) FamCAFC 166 (“Strahan”) said that the courts “overarching consideration” when considering whether to exercise its power to make property orders is the interests of justice. The Full Court went on to say with respect to that exercise of power as follows [para137]:

   [137]…Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant … will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought … then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.

1. The wife’s financial position is quite dire. I accept her evidence that she has had to rely upon credit cards and a personal loan to support herself and the children. She has also had to borrow to pay her legal fees and does not have the funds to pay her outstanding costs or her ongoing costs. Although the wife has a one third interest in three rental properties with her siblings, it is her evidence that these properties are in poor condition and that rental income has been set aside to meet the ongoing cost of renovations and/or repairs. For the reasons I will discuss in more detail when I address the wife’s other applications, I am satisfied on the balance of probabilities that is likely that the husband has other income or financial resources available to him not disclosed in his Financial Statement.

2. The wife is seeking an order for a partial property settlement of $50,000 and although the court is not required to identify the source of any partial settlement as a precondition of the exercise of its power, even on the husband’s case if I were to have regard to his Financial Statement it seems likely that she will receive property in whatever form greater than the amount she now seeks. However although I am satisfied that there is scope within the assets of the parties in this case for an order of the size the wife seeks, I am also mindful that in this case it is the wife who has both possession and control of the former matrimonial home which is by far and away the parties’ most significant asset. In these circumstances I am not satisfied that I should exercise my discretion to make the order the wife seeks.

Spousal Maintenance And Child Support

1. The pathways the court must follow in determining applications for spousal maintenance and child support are not the same, however there is significant overlap with respect to the relevant evidence and the matters the court must consider. Although the wife has not applied to the Child Support Registrar for a departure I am satisfied that in these circumstances, there being other applications before the court, that it is appropriate for the court to consider her application [Section116(1)(b) of the CSAA].

2. The current assessment which was issued on 19 July 2018 provides for the husband to pay monthly child support payments of $612 per month. The wife now seeks non-periodic payments which requires the court to consider whether or not the amounts payable by the husband should be reduced by the amount of the non-periodic payments and if not whether the court should depart from that assessment. Although in her Application in a Case the wife also sought a departure with respect to the periodic child support assessment, this was not pressed.

3. Pursuant to s 117(1) of the CSAA the court must be satisfied as to the existence of one of the grounds set out in s 117(2) of the CSAA and that it would be just and equitable with regard to the child, the child’s carer and the liable parents and otherwise proper to make an order. The relevant ground in this case is found in s 117(2)(c) of the CSAA which provides that in the special circumstances of the case, the application of the assessment would result in an unjust and inequitable determination of the level of financial support for the child because of the income, income earning capacity and financial resources of the husband and the wife.

4. The wife’s evidence is that the children’s expenses are $525 per week, including school fees, however this figure does not include any allowance for food, household supplies, the cost of utilities or motor vehicle expenses or gifts, all of which would be at least in part attributable to the children’s needs. This figure also does not take into account the costs of keeping a roof of their heads.

5. Whilst the husband’s ongoing failure to provide full and frank disclosure made it difficult for counsel for the wife to place an exact figure on the income and benefits the husband receives or his financial resources, she referred me to the following matters:

   ·    That although the husband’s Financial Statements are consistent with his individual tax returns for the financial years ending June 2016 and 2017 they are not consistent with the evidence with respect to the parties life style during the marriage and the husband’s life style since separation which the wife says has included extensive overseas travel;

   ·    In his Financial Statement the husband discloses weekly income of $1,490 and benefits paid by his employer of $460 however he also says he has expenses of $3,553 per week. The husband’s expenses include an amount of $1,250 for the mortgage which he is not paying and an amount of $400 per week for the children which he says includes some school fees, health insurance, sporting activities, internet, Foxtel and utilities. This is not consistent with the wife’s unchallenged evidence;

   ·    Even if the mortgage payments and the payments for the children were to be deducted the husband’s expenses would be just over $2,000 and it is difficult to see how in those circumstances he would be able to meet rental payments of $1,303. I note in this regard that although the husband deposes to having a new partner, his Financial Statement is far from transparent and most unhelpful when it comes to her financial circumstances and what is any contribution she might make to his household; and

   ·    That the husband deposed in his Application for a Divorce Order, as he did in his Financial Statement, that although he was not paying formal child support he was paying the mortgage, household expenses and the children’s expenses;   

6. Counsel for the wife also relied upon the husband’s substantial credit card expenditure and the transfer of funds to an account in his name to meet those large credit card payments in support of her case that the husband has income and resources and receives benefits beyond those he discloses in his Financial Statement. In my view there is some force in counsel for the wife’s submission. In all of the circumstances I am satisfied that the child support assessment would result in an unjust and inequitable determination of the child support payable for the children.

7. These proceedings are undefended and the husband had the opportunity to put a case in opposition to the orders the wife seeks. He has not done so and in circumstances where he has himself deposed to making payments for the children’s benefit of the kind the wife now seeks by way of non-periodic child support, albeit he has not been making those payments, I am satisfied that it is just and equitable and otherwise proper having regard to the matters in ss 117(4) and (5) of the CSAA to depart from the assessment and make the orders the wife seeks pursuant to s 123 of the CSAA pending further order.

8. The current assessment is for the period ending 19 September 2019. This matter is listed for a directions hearing on 19 December 2018. The husband will have the opportunity to participate in the proceedings and if he does not do so the proceedings are likely to be determined on an undefended basis before a further assessment is issued. 

Spousal Maintenance

1. Section 72 of the Act imposes upon a party to a marriage the liability to support the other party to the extent that the first mentioned party is reasonably able to do so and only if the other party is unable to support himself or herself adequately by reason of having the care and control of a child of the marriage under the age of 18 years or by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason.

2. In Hall & Hall [2016] HCA 23 the High Court said in reference to an interim application for spousal maintenance as follows:

   [8] …a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).

3. In her Affidavit the wife deposed to her efforts to obtain employment. Although those efforts bore fruit, she earns only $1,100 per fortnight which is not sufficient to meet her expenses and the expenses of the children in her care. It is her evidence that the husband pays for the family’s health insurance cover, albeit it is not clear if the wife is actually covered by that health insurance. The husband has, at least historically, also paid the registration for the motor vehicle 1 registered in his name which the wife drives and her sister in law has paid the most recent house and contents insurance. However even if I deduct those expenses as well as some of the items which might not be considered as necessary for her support, particularly in the short term, such as the house repairs and maintenance, the wife does not have sufficient income to meet her own support let alone support the children.

4. It is often not an easy task distinguishing whether and to what degree expenses should be referable to the care of the children and in this case the wife has clearly on occasion not made that distinction.  For example the wife does not attribute any part of her expenditure on food and household supplies, utilities, motor vehicle expenses, entertainment and hobbies or holidays to the children notwithstanding that some of these expenses would clearly be for the children’s benefit.  Doing the best I can and having regard to the wife’s income of $550 per week I am satisfied that the wife who has the care of the children cannot support herself even at a level of expenditure which I am satisfied on the balance of probabilities based upon her evidence of the parties lifestyle during the marriage represents a significant reduction in her standard of living and that of the children.  

5. As previously referred to, the husband has not opposed the orders the wife seeks and having regard to the evidence and submissions I have referred to in relation to the wife’s departure application, I am satisfied that the orders she seeks for both periodic and non-periodic spousal maintenance are on an interim basis orders that make proper provision for her support and that the husband has the capacity by virtue of his income, benefits and/or financial resources to meet those orders.

Further Conduct Of The matter

1. On 5 September 2018 Registrar Sudholz made orders adjourning the matter to Registrar’s Duty List for compliance at 9.30 am on 19 December 2018 in circumstances where the husband had failed to comply with the order for discovery made 14 June 2018. It is the wife’s case that the husband has still not complied with that order and has not paid the costs that he was ordered to pay and that in the event that he has not complied by the date of that hearing she will be seeking orders listing the matter for an undefended final hearing. I am not left with much confidence that the husband will comply with the order for discovery given that he did not file and serve any material in answer to the wife’s Application in a Case and did not appear at the hearing before me. It is on that basis that I propose to make an order that the husband either appear or be represented at the hearing on 19 December 2018 and that if he does not do so and/or has not complied with the order for discovery by 4.00 pm on 12 December 2018 or paid the outstanding costs the matter be listed for an undefended final hearing as soon as it is practicable to do so. Clearly even if the husband does not comply with the orders I propose to make, the mortgagor will not wait indefinitely and this matter will require determination.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 23 November 2018.

Associate:

Date:  23 November 2018