FITZMAURICE & WOOLRIDGE

[2019] FCCA 1834

FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZMAURICE & WOOLRIDGE [2019] FCCA 1834

Catchwords:
FAMILY LAW – De facto property dispute – length of relationship significantly disputed – court finding relationship from 2012 to 2016 – applicant wife entering relationship with substantial assets – respondent owning own home before relationship commenced – matrimonial home in joint names – substantial dissipation of wife’s funds – court finding funds dissipated by wife even though unable to say exactly how – just and equitable husband retain his unencumbered home and wife retain the matrimonial home and mortgage thereon.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Stanford & Stanford [2012] HCA 52
Fenton & Marvel [2013] FamCAFC 132

Applicant: MS FITZMAURICE

Respondent: MR WOOLRIDGE

File Number: DGC 2566 of 2017

Judgment of: Judge Burchardt

Hearing dates: 9 & 10 May 2019

Date of Last Submission: 10 May 2019

Delivered at: Dandenong

Delivered on: 23 July 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Applicant: Dandenong Family Lawyers

Counsel for the Respondent: Ms Fisken

Solicitors for the Respondent: Farrar Gesini Dunn

ORDERS

1. That within 21 days of the date of these Orders the Applicant do all such acts and things and sign all documents necessary to remove the caveat registered against the property at Street A, Suburb B, (“the Suburb B property”) (more particularly described as all that piece or parcel of land contained in volume …, folio …), caveat number …, at the expense of the Applicant, and provide to the Respondent evidence of such withdrawal including a copy of the title search for the Suburb B Property showing no instruments are registered against said property.

2. That within 90 days of these orders being made the Respondent will do all acts and things and sign all documents necessary to transfer to the Applicant all of his right, title and interest in the real property situate at Street C, Suburb D, being all of the land more particularly described in Certificate of Title Volume … Folio … (“the Property”) to the Applicant at the expense of the Applicant (“the transfer”).

3. That contemporaneously with the transfer of the Property from the Respondent to the Applicant, the parties do all things and sign all documents for the Applicant to discharge the registered joint mortgage … currently secured over the Property at her expense.

4. In default of compliance with orders 2 and 3 above, the parties do all such acts and things and sign all documents necessary to place the property at Street C, Suburb D, (“the Suburb D Property”) (more particularly described as all that piece or parcel of land contained in volume …, folio …), registered in the names of MS FITZMAURICE and MR WOOLRIDGE, on the market for sale (“the Sale”).

5. That up to the completion of the settlement of the Sale neither party shall mortgage or otherwise offer the Suburb D property for security other than to comply with these Orders.

6. That from the date of these Orders the Applicant indemnify the Respondent against:

   (a)All payments and liability pursuant to the Suburb D Mortgage, including but not limited to any and all payments or outstanding liabilities;

   (b)All rates and land tax (if any) with respect to the Suburb D Property and

   (c)All expenses with respect to the Suburb D Property; including but not limited to house insurance, utilities, water bills and other outgoings, council rates, and maintenance expenses.

7. That for the purposes of effecting the sale of the Suburb D property as per Order 4 above, the property is to be sold by the following mechanism:

   (a)The parties are to list the property for sale with a real estate agent as nominated by the Applicant.

   (b)The Applicant shall instruct a solicitor or conveyancer to act upon the sale of the property;

   (c)That within 7 days of listing the property with the nominated real estate agent the parties shall agree upon:

   (i)A date for the sale of the Suburb D property by public action being a date not less than 2 month and not more than 5 months from the date of the orders unless otherwise agreed by the parties in writing;

   (ii)A reserve price for the auction and in the event that agreement cannot be reached the parties shall accept the reserve price as set by the President of the Real Estate Institute of Victoria or his/her nominee;

   (iii)Other terms and conditions of sale.

   (d)The parties shall follow the reasonable recommendations of the nominated real estate agent in relation to the sales and marketing of the Suburb D property and :

   (i)Execute all documents requested by the sales agent as auctioneers for sale of the property by auction;

   (ii)Execute a contract of sale;

   (iii)Cooperate in every way with the agent in relation to the auction of the property including making the keys available for an inspection of the property at times requested by the agent and ensuring that the property is in a clean and neat condition at the time of inspection by the prospective purchasers.

   (e)If the Suburb D property is not sold at the auction within 21 days thereafter the parties shall follow all reasonable requests and recommendations of the sales agent to meet the market price and sell the Suburb D property at the best price obtainable.

   (f)During the period that the Suburb D property is being offered for sale the Applicant to cooperate in every way with the Respondent, the agent or otherwise, in relation to the sale including ensuring that prospective purchasers are able to inspect the property at all reasonable hours by appointment.

8. That the Applicant and Respondent do all things necessary to cause the proceeds of the sale of the Property to be distributed as follows:

   (a)To pay all costs, commissions and expenses of the sale;

   (b)To pay the usual rates adjustments;

   (c)To pay the amount required to ANZ for the amount outstanding for the Suburb D Property for loan number …, and to discharge the mortgage securing that loan (mortgage registration number …) (“Suburb D Mortgage”) in the names of MS FITZMAURICE and MR WOOLRIDGE;

   (d)To pay the balance, if any, to the Applicant.

9. That the time limits and the terms and conditions for sale set by these Orders may be varied by the parties by written agreement.

10. That as and from the date of these orders, the Respondent shall retain for his sole use and benefit absolutely free from any further claim or demand from the Applicant all assets he now has, whensoever and howsoever acquired, including but not limited to:

    (a)The Suburb B property;

    (b)His shares in Business E Pty Ltd and Business E Pty Ltd;

    (c)His personal savings held in any financial institution;

    (d)His motor vehicles;

    (e)His personal effects; and

    (f)Any other superannuation entitlements standing to his credit.

11. That as and from the date of these orders, the Applicant shall retain for her sole use and benefit absolutely free from any further claim or demand from the Respondent all assets she now has, whensoever and howsoever acquired, including but not limited to:

    (a)The Suburb D property (if not sold pursuant to the orders hereof);

    (b)Her shares in Business F Pty Ltd and Business G;

    (c)Her personal savings;

    (d)Her motor vehicles;

    (e)Her personal effects; and

    (f)Any other superannuation entitlements standing to her credit.

12. That contemporaneously with the making of these orders and unless specified otherwise, the Respondent be liable for and indemnify the Applicant in relation to:

    (a)All liabilities associated with Business E Pty Ltd and Business E Pty Ltd;

    (b)All liabilities owing over the Suburb B property without limiting the generality thereof, including any past, current or future liabilities from any loans, taxes or duties howsoever arising;

    (c)Any and all debts in his name;

    (d)Any and all credit card liabilities in his name; and

    (e)Any other liability encumbering any item of property to which he is entitled or to which he would be entitled pursuant to the orders and any liability in his sole name.

13. That contemporaneously with the making of these orders and unless specified otherwise, the Applicant be liable for and indemnify the Respondent absolutely in relation to:

    (a)All liabilities associated with Business F Pty Ltd and Business G;

    (b)All liabilities owing over the Suburb D property without limiting the generality thereof, including any past, current or future liabilities from any loans, taxes or duties howsoever arising;

    (c)Any and all debts in her name;

    (d)Any or all credit card liabilities in her name; and

    (e)Any other liability encumbering any item of property to which she is entitled or to which she would be entitled pursuant to the orders and any liability in her sole name.

14. That liberty be reserved to either party to apply to the Court with respect to the implementation of these Orders.

15. That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits files and served by or on behalf of the party alleging this, a Registrar of the Family Court be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such document in the name of such party.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2566 of 2017

MS FITZMAURICE

Applicant

And

MR WOOLRIDGE

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is an unusual de facto property dispute.  The applicant asserts that she was in a de facto relationship with the respondent from 2007 until 2016, whereas the respondent says the relationship lasted only from 2014 to 2016.  The applicant’s case is that outcome of this proceeding should be that she receives a home unencumbered by any mortgage, which is what she had when the relationship commenced.  The respondent’s position, in his amended response, seeks that he retain solely his home at Street A, Suburb B, that the home registered in the joint names of both parties at Street C, Suburb D, be sold, that he be paid up to $50,000 from the proceeds of sale and following payment out of any liabilities, the balance be paid to the wife.  He also seeks, in effect, that each party retain their own superannuation and all relevant chattels.

2. As the reasons that follow will hopefully demonstrate, I find that the de facto relationship was somewhat longer than that than contended for by the respondent, but nowhere near as long as that asserted by the applicant, even though it is not practicable to put a precise date of inception of the relationship.  In my view, the just and equitable resolution of this matter will be achieved by the applicant retaining his property and the respondent retaining the Street C, Suburb D property together with such liabilities as are attached to it. 

3. It should be noted at the outset that the applicant’s self-representation has given rise to serious evidentiary deficiencies in her case which have made a forensic resolution of the matter more difficult than would otherwise be the case. 

Agreed or Uncontested Relevant Matters            

1. The applicant was born on … 1970 and the respondent was born on … 1987.  It is common cause that their families knew one another for many years and the respondent knew the applicant from his childhood onward. 

2. The wife received what appears to have been the round sum of $1,000,000 as a result of a settlement arising from a failed earlier marriage and bought a property at Street H, Suburb J for $670,000 unencumbered.  Plainly she had additional funds remaining to her arising out of the $1,000,000. 

3. It should be noted, in parenthesis, that the wife’s affidavit materials do not in the main denote dates with great precision.  It should also be noted that the wife was represented by a court-appointed litigation guardian until shortly before the trial, at which time she provided medical evidence sufficient to set the orders for such representation aside. 

4. The husband had a serious accident at work in 2009.  The wife’s contention that this was in 2007 is clearly on the objective materials mistaken.  He applied some of the $378,000 he received in the WorkCover payment to pay out the mortgage on a property that he bought in 2009 at Suburb B and of which he remains the sole registered proprietor.  That property remains unencumbered. 

5. The parties jointly bought the former matrimonial home at Street C, Suburb D, in … 2012 for a purchase price that appears to have been $420,000.  That property was rented out until the parties moved into it in … 2014.  The respondent asserts, and it has not been put in issue, that he paid the difference between the rental receipts and the mortgage repayments until 2014.  He asserts, and it is a matter in issue, that he was repaid some $60,000 referrable to such payments and other advances.

6. The applicant sold the property at Street H, Suburb J in 2015 and appears to have received in excess of half a million dollars.  It is apparent from exhibit R3 that some $511,000 was credited to the applicant’s bank account on … 2015, and it is also apparent that the vast bulk of those funds were disbursed rapidly thereafter.  The question of to whom the funds were disbursed is a live one in the proceeding.

7. The applicant has three children, one of whom is adult and two of whom still live with her.  The respondent has re-partnered with Ms K and they live together with Ms K’s seven year old child in the Suburb B property. 

8. The applicant is unemployed and her mental health has been at times extremely precarious.  The respondent is self-employed, but has ongoing difficulties arising from or interrelated with his earlier accident. 

The Parties Affidavit Material

1. As earlier indicated, the applicant’s affidavit material has at all times, including when she has being legally represented, been somewhat imprecise as to dates.  Both parties have filed substantial affidavit material and much of the relevant matters are set out in the agreed matters above.  I have, of course, read the parties’ affidavits and annexures carefully, but given the way the matter has progressed, it is more profitable to concentrate of what was actually said and put at court. 

Opening and Evidence of the Applicant

1. What follows is taken from my notes.

2. The applicant confirmed that the orders she was seeking in the case were that she have an encumbered home.  She said she had a home at the commencement of the relationship. 

3. The applicant adopted her affidavit as true and correct and confirmed that she is presently employed in home duties. 

4. Under cross-examination by counsel for the respondent, the applicant said that cohabitation was the issue.  Separation took place in September 2016.  She stayed in Street C, Suburb D and the respondent went to Street A, Suburb B. 

5. When pressed as to when cohabitation commenced, the applicant said that the respondent moved in after his accident at work.  She accepted that the accident took place in … 2009.  He moved in some time in 2010 when she was looking at Street H, Suburb J.  Because of his work, there was a lot of travelling.  On some days, they stayed at her home and some days with him.  They went backwards and forwards between the two properties.  It was a stable and strong relationship.  They were not together every night because the children had to go to school.  Two of the children are still at school.  They are in contact every day.

6. It was put to the applicant that the respondent moved in to the Street C, Suburb D house in … 2014 and she accepted that this was the case. 

7. The wife confirmed that she has sold the boat, the campervan, the truck and the excavator previously owned and kept the proceeds herself. 

8. The applicant confirmed that she had read her affidavits recently.  She had discharged her litigation guardian.  She wanted the Street C, Suburb D property unencumbered.  The mortgage is some $358,000 in joint names, and there had been arrears of $60,000 since separation.  The agent thought that the Street C, Suburb D property was worth between $530,000 and $560,000. 

9. She first met the respondent in about 2004.  He was living in Town DD and the families were friends.  She and her former husband had a home in Town DD.  They did not use it.  She met the respondent through their families.  He used to do the lawn mowing and some structural work.   He moved to Melbourne in 2007.  She separated from her former husband in 2008 and the legal proceedings took four years.  There was no relationship with the respondent before she had separated from her former husband.  She accepted that her assertion in an affidavit that the relationship commenced in 2007 was not correct.  She was not in a good place when she swore the affidavit. 

10. The applicant had assisted her former husband’s business. 

11. When it was put to her that the respondent was living with his brother in Suburb EE in 2009, the applicant accepted that he was living in Suburb EE, but was not sure of the timeframe.  She said he had bought the Suburb B property just before his accident in 2009.  He was hospitalised for several months and she visited him in two hospitals.  She visited him in the ICU.  She saw him in the Hospital every day.  She was living in Suburb BB and was separated from her husband.  

12. When it was put to her that the respondent left hospital in … 2009 and moved to his property in Suburb B, the applicant said that he was with her but wanted to go to his own home.  During weekends, they became intimate in late 2009. 

13. When it was put to her that they were not sharing finances, the applicant said she bought the respondent pyjamas.  He had no clothes.  He sought her help with bills.  She bought him an Akubra and a wi-fi.  She denied that the parties were not sharing finances. 

14. When it was put to her that the husband was renting, the applicant said she only met Ms L, his flatmate, once.  Then it was Ms FF and then Mr Z.  She was living in Suburb BB with the children, her own mother and her sister, and paying for all of them.  She was going to Street A, Suburb B a lot of times.  She had given the respondent money.  It took him a while to get WorkCover payment and she was not sure what he did with the money he received.  She has not given the respondent more than $5000, and the biggest single payment was $1000.  She could not say when this took place.

15. She had bought the property in Street H, Suburb J for $670,000 in 2010.  There was no joint account until … 2012.  She had had substantial legal costs.  She had sold her property in Suburb BB and bought Street H, Suburb J.  She had received Suburb BB in the property settlement.  Street H, Suburb J was $670,000 inclusive of all additional expenses.  She bought a Motor Vehicle W and furnished the house.  She also repaid her own father $90,000 in legal fees.  She had Street H, Suburb J in 2010 and had cash moneys too.  It took her 12 months to get under the Centrelink limit of $70,000.   She had given her solicitor a power of attorney and paid fees of about $40,000 swiftly.  

16. The respondent had supervised one or two visits by her former husband in about 2010.  She moved into Street H, Suburb J in 2010. 

17. When it was put to her that the respondent was still in Suburb B, the applicant said they were in a relationship.  He had clothes and toiletries stored at her home, and possessions.  He had a wardrobe at her house.  She had drawers at his house.  There was a lot of toing and froing.  She used to accompany the respondent to appointments. 

1. She accepted that the respondent had returned to work at Employer GG in mid-2010 at Suburb EE.  She did not dispute that he resigned from Employer GG on … 2011.  She had been to work with him on some occasions.  She worked at Employer HH for several weeks.  All his employment was in the Suburb EE area. 

2. The respondent broke his leg in … 2011.  Full-time cohabitation started in … 2011.  The relationship stepped up to a strong relationship.  Things gradually evolved.  She went to Suburb B on weekdays.  The children were not spending time with her ex-husband.  If she stayed with him, then her mother and father got the children to the school, but this did not happen on many occasions.  She had terminated two pregnancies because the respondent did not want children.  She had told him because of the age difference now was the time, but he did not want children.  This did not really end the relationship. 

3. The applicant was cross-examined about other relationships entered into by the respondent.  She said things cooled off but not for long.  She was aware he was going to ask a woman to go away with him.  He had taken the lady to Town DD for the weekend and then, in fact, went in her car. 

4. When it was put to her that he dated Ms M in … 2014, the applicant conceded this.  There was an online site.  They met in Suburb N Hotel for lunch.  She walked out and he was back in an hour.  She does not know the date and does not care. 

5. When cross-examined about the purchase of the Street C, Suburb D property in 2012, it was put to her that she had asked the respondent to assist with finance.  The applicant strongly disagreed.  She said it was our house.  Street H, Suburb J was sold in 2015 as it was too big.  This was a joint decision.  The loan to buy Suburb D was $430,000.  She had no savings or not much.  She was on Centrelink and got some help with the respondent.  When it was put to her that she needed the respondent to get her loan, she said it was a joint decision.  They both needed it.  There were two dwellings because of his work.  Both had said they were single on the loan documentation because they were not married.  There are different addresses on the form.  He always used the Suburb B address.  They had rented Suburb D. 

6. The applicant conceded the respondent paid the balance of the shortfall between the rental on Suburb D and the mortgage.  It was not, however, as much as he said.  When it was put to her that he had made such payments on the basis he would be repaid when Street H, Suburb J was sold, the applicant said he took $60,000 when Street H, Suburb J was sold as he had access to her bank account.  She had numerous problems at the time and was not even opening her mail.  She said she did not care how the money had been transferred. 

7. It should be noted that the applicant became labile at this point in her evidence.  She made reference to abuse of her children and this upset her.  I should interpolate and say, however, that it was quite clear from what the applicant said and how she said it that it was she who transferred the $60,000. 

8. The applicant said she was happy someone was taking over.  She did not care about the finances.  She did electrical work on his house in 2014.  The work was done by herself, the respondent and her son Mr O.  He had stayed in her house for 12 months.  There was no electricity for some time. 

9. When cross-examined about the sale price of Street H, Suburb J, the applicant said, “Whatever”.  She conceded that settlement of the property had taken place on … 2015.  She said, “Money went in and money went out.  There is none left.”  She did not challenge that the net funds from Street H, Suburb J were placed in her sole name.  The bank accounts (exhibits R2 and R3) showing the withdrawals were put to her.  The applicant said that during that time, she could not care less about finances, and that the respondent controlled the sale of the property.  When it was put to her that her son Mr O had signed the contract of sale, the wife responded, “Did he?”  Exhibit R1 is the contract of sale and her son did sign it. 

10. The applicant confirmed that vehicles were bought at about that time and money was spent on the house. 

11. Cross-examination showed transfers to an account … in … 2015, but the respondent professed not to know whose account that was.  It is fair to characterise the applicant’s answers about all these aspects of her finances being that she had no recollection because of her state of mind at the time being, to coin a phrase, all over the place.  The applicant said she had no money anywhere.  She said the respondent purchased a van for $32,000 at some point and they had joint use of it.  When she was taxed with exhibit R2, being her … cash account, the applicant said that she did not know what went on and did not care.  She said that the respondent could access any of her accounts.  There was a computer and he had her access codes.  He wanted to know where money was all the time.  The applicant conceded that the $535,000 received in … 2015 was rapidly disbursed.  She accepted that between … and … 2015, the money was all gone.  This was money she and the respondent received and she accepted it was all gone.  The respondent did not only get $60,000 because he had joint access to her accounts.

12. The applicant was cross-examined about her assistance to the respondent in 2009.  He had bought Street A, Suburb B and they were friends at that stage.  She had given him money when he was in hospital and afterwards, but not more than $5000.  She conceded he had received in excess of $360,000 in WorkCover payments.  He had paid his mortgage off on the Suburb B property and bought himself a Motor Vehicle W.  The boat was bought for $18,000 in … 2015 with each contributing $9000, but it was registered in his name.  She disputed that he had improved the boat.  She had bought an auxiliary engine for the back of the boat. 

13. The respondent funded the purchase of the excavator and truck for $25,000.  He said he had loaned the money to her.  After they broke up, he hounded her for the money.  She asked rhetorically what would she do with a truck and excavator if they were not for joint use.  It was going to fund the family business.  She had not repaid the respondent.  She had sold the boat, the truck and the excavator since separation.  The boat was sold for $8000 with the respondent’s consent.  Either of them could sell it.  There were so many Citylink tolls he had run up and the sheriff was knocking on the door.  She paid in excess of $6000 to his fines.  She paid rates and water bills and was behind with everything.  The boat had a leak.  She had sold the excavator.  He had pulled the wires out and was demanding money.  He had laid on her couch, demanding she pay him to shift him back to Street A, Suburb B.  She thought she sold the excavator for $20,000 in the last year but could not remember if it was in cash.  The funds were probably paid into her bank account and applied to legal fees. 

14. The applicant was cross-examined about funds in Country JJ.  She conceded she opened an account in Country JJ towards the end of the relationship.  They had not been anywhere overseas before they went to Country JJ.  When cross-examined about in excess of $13,000 worth of education expenses, the applicant was unable to recall.  The relationship had gone downhill when they went to Country JJ.  The respondent was accusing her of having secret accounts in Country JJ.  They bought a car while they were there, as it is cheaper than rental.  The Country JJ account had no funds and is closed.  She had tried to obtain Country JJ bank records because they would be helpful to her, but the account was closed.  She disagreed that the respondent paid his airfare to Country JJ.  They were in Country JJ for some weeks.  Her aunt and intellectually handicapped sister had been with them.  She had sold the camper to Ms KK early in ….  It was registered to Ms KK. 

15. She had swapped the ute with her uncle and aunty.  She had obtained her aunt’s little Motor Vehicle P in exchange.  She sold the Motor Vehicle LL truck for $1200.  It might have been cash.  She used it to pay outstanding bills.  Her sister is not living with her and has not done so for some time, nor does Mr O.  Only she and the children are living there. 

16. In re-examination, the applicant said she relied on her affidavits.  She could not prove the respondent had the sole benefit of moneys, nor herself.  They were going to Country JJ for what she wanted.  She has not worked and had been stupid to say that she had. 

The evidence of Mr O

1. Mr O adopted his affidavit as true and correct.  He stopped living in Street C, Suburb D about two years ago.  They would go to Town DD about two times per year. 

2. Mr O confirmed that he had not received any lump sums in the last few years.  He signed the contract of sale for Street H, Suburb J because his mother was not available.  She had given him power of attorney.  He had nothing to do with the house and got nothing out of the sale. 

3. He confirmed that the respondent used to sleep with the applicant.

4. Under cross-examination, Mr O confirmed that his parents separated in about 2008.  He was born on … 1996.  Mr Woolridge was with his mother in Suburb BB.  He was staying for extended periods of time, sharing her bed. 

5. He recalled Mr O’s accident in 2009.  The relationship started while they were in hospital.  The applicant was going all the time.  He was 100 per cent sure of the relationship after Suburb BB.  Walking in to the bedroom, he saw a condom.  The respondent did not move in permanently but was there most nights and stayed every weekend.  He was at school in Suburb MM at the time.  They would also stay at Mr Woolridge’s place at the weekend.  He would often stay with them overnight and drive in the morning.  This is not at Suburb BB but more at Street H, Suburb J.

6. His mother had transferred funds to him because he was studying.  He had undertaken an apprenticeship, having left school at Year 10. 

The evidence of Ms Q

1. Ms Q is an aunt of the applicant and is retired.  In examination-in-chief, she confirmed that she had talked to the respondent in Country JJ.  They did not talk about money, except that he did not know what would happen when they returned.

2. Under cross-examination, Ms Q confirmed that the supervision referred to in paragraph 5 of her affidavit only happened on a couple of occasions. 

3. The applicant was happy in Country JJ and rational.  She was in control to the best of her ability.  Everything was organised, and there were no concerns about her mental health.  She visited Suburb BB every few weeks.  They all knew the respondent was not going to work when he returned from Country JJ.  She would be surprised if he was. 

4. In re-examination, Ms Q confirmed that she communicates with the applicant almost every day.  The applicant was always rational and able to make decisions. 

The evidence and submissions of the respondent

1. In opening, counsel submitted that the parties had a relationship as friends for a number of years and then became intimate.  The husband had bought the Street A, Suburb B property prior to the relationship, and obtained WorkCover payments in 2014 with which he discharged his mortgage.  He had made contributions to Street C, Suburb D which were reimbursed on the sale of the Street H, Suburb J property.  He used his WorkCover payments to purchase machinery and the boat which had been sold since separation.  He accepted that the applicant had repaid $7000 worth of Citylink debts on his behalf.  The proceeds of sale from Street H, Suburb J had been paid to the applicant’s account.  He sought the sale of the Street C, Suburb D property, noting that a default notice had been served by the ANZ Bank.  He sought the orders in his amended response. 

2. The respondent was called and adopted his affidavits and Financial Statements as true and correct.  In evidence-in-chief, he said he had not transferred moneys from the applicants’ accounts and was absolutely certain that he had not done so from … 2015 onwards.  Account … was not his account.  He had never asked any questions about the withdrawals during the relationship. 

3. On the cross-examination by the applicant, the respondent confirmed that there had been a test in relation to sexual diseases.  He had also been treated by a hand specialist at Suburb NN.  He had consulted his GP at the Suburb B Clinic for a sore back after intercourse.  This was part of his WorkCover claim, and he would tell his close friends. 

4. The respondent was cross-examined about his account number …, his Reward Saver account.  His wages go into the Everyday account.  He has three accounts with INB and one account with INB in New South Wales and an ANZ account.  In respect of one account, his brother Mr R is a signatory.  Mr R’s wife is not a signatory. 

5. When cross-examined about a business, Business OO, he said this was conducted by Mr R.  He did not know if it was a business.  He has visited his brother’s farm often.  When asked why his brother and his brother’s wife put money into his own account between 2010 and 2013, the respondent said his brother is a tradesman.  He was buying a truck which the respondent bought for them.  He could not say when his brother had separated.  His brother’s wife had known about the money.  He made his brother a signatory so his account so they could help each other.  His brother had been through a divorce, and he himself had been injured. 

6. The hand specialist in Suburb NN did the initial operation.  The applicant came with him to some appointments.  She had been with him to Shine Lawyers in respect of his WorkCover claim.  He had never been to the applicant’s lawyer, Hepworth, nor had he attended about selling the house.  He is not saying that he had not met Hepworth, but he could not recall it. 

7. When it was put to him that he had a sore back and had seen his GP after sex, the respondent said that they had a sexual relationship.  He said he would see someone else and that she knew. 

8. He had been at the respondent’s 40^th birthday party at Street H, Suburb J.  She was going on a holiday to City RR and asked if he wished to go.  He declined.  He said the applicant said that she had just come out of something bad and that they could both use a break.  He was aware of a police investigation.  The applicant’s children and Ms PP came.  Ms PP had a room, and he stayed with the applicant and the children.  The applicant convinced him to go and said she would pay his airfare and accommodation.

9. While he was in hospital, the applicant bought him two pairs of pyjamas and a laptop and a USB stick.  He accepted that exhibit A1, a collection of photographs, showed both properties (I understood this to mean Street H, Suburb J and Street C, Suburb D ). 

10. The respondent was questioned about a ute.  He said it was the applicant’s ute and she had given it to his brother and partner.  He could not understand why it happened.  The applicant was strapped for cash at the time.  Both their families had a good relationship for over 40 years. 

11. The respondent said that when he got his WorkCover lump sum payment, he was unsure whether to pay off his home or buy a factory or another house. 

12. When questioned about Suburb S property, he could remember Suburb S property but not the number.  He paid off his house in late 2014 to mid-2015.  He owned a ute in 2010.  He had problems driving after the accident.  She had provided him with a station wagon. 

13. He had signed the contract for Street A, Suburb B in … 2009 just before his accident.  His sister-in-law had helped him settle the property.  He had a Motor Vehicle T from New South Wales.  After that, he had an old van which was a gift from his grandfather.  He also had the Motor Vehicle U that the applicant gave him.  He had a road bike bought in 2014.  He had a Motor Vehicle T as well, bought in 2012 to 2013, which ran on gas.  He bought a Motor Vehicle W after his payout which could have been in 2013 to 2014.  WorkCover payments paid for it.  He accepted that part of the reason he bought the bike was to commute between Suburb D and Suburb EE. 

14. When it was put to him that the substantial comings and goings from 2011 onwards between Suburb D and Suburb BB to his property, the respondent conceded they saw each other, mainly on weekends.  She had given him the Motor Vehicle V in 2011 after he broke his leg.  He was coming to see her on weekends. 

15. He would not say that he never came over during the week.  He borrowed her vehicle for some time. 

16. I should interpolate and say that the applicant’s cross-examination about the Citylink records put to the respondent produced answers that were palpably evasive and made up on the run.  His endeavours to explain away the travelling of the vehicle between the two homes were quite unpersuasive. 

17. The respondent accepted that he had regular holidays in Town DD.  His family live in Town DD.  He had worked at Employer HH, but this ended in … 2016.  It started in about 2012 to 2013.  He does not have another job lined up.  His next job after that was with Employer X after separation.  This was in his affidavit. 

18. It was put to the respondent that he resigned from Employer HH to start a family business with the applicant and the son Mr O, but he said he did not see it that way.  There was a disagreement with Employer HH over his rate of pay, which had been stressful, and he had quit.  He intended to help the applicant get her business running.  Just as that started, separation occurred in September 2016.  He still had a fair bit of WorkCover payment leftover in … 2016 when he resigned, and he had annual leave as well.  He used that and sought work.  He lived with the applicant from … to … 2016.  He was helping them set up the business.  He did work on the truck and excavator.  There was no set intention what his future would be.  He could have been an employee of the applicant’s business. 

19. When it was put to him that when the relationship ended in September 2016 he had a term deposit of $50,000 with IMB, the respondent said “yes”.  He does not retain all of it.  Following the accident in 2009, he was in hospital.  He did not need income.  He had WorkCover within a week of getting out of ICU.  He also had income insurance which covered his mortgage at Street A, Suburb B .  He had 10 days in ICU.  He then had the WorkCover claim to cover the costs of his medical procedures. 

20. The respondent said the applicant had a laptop at Street H, Suburb J.  He did use it for emails and Facebook.  He serviced all the cars.  He doubted that he had used the applicant’s card to buy parts.  It could be cash, and it was a long time ago (once again I interpolate and say that the evidence given by the respondent was, again, evasive on this matter).  If he had worked on the applicant’s vehicle, she could have bought the parts.  A lot of the work was done at his place.  He recalled replacing brakes on a Motor Vehicle Y at his home.  He might have used the applicant’s card for meals.  He said, “She may have told me her PIN at the time,” but he did not remember it.

21. She had told him to make a booking with her password and PIN details.  Only his morals stopped him looking in the book in which the password and PIN details were recorded.  He was sure he would have asked her to use the computer.  It is personal to someone. 

22. His grandfather died before 2014.  The meal afterwards cost around $1200, and the applicant had paid for it.  He agreed that the applicant had been very generous to him in 2009. 

The evidence of Mr Z

1. Mr Z adopted his affidavit as true and correct.  His affidavit purported to show that the applicant and the respondent were not in a relationship. 

2. Mr Z, under cross-examination, accepted that he was known as Mr Z.  Ms AA had become pregnant in about … 2011.  She had the baby and decided to move out.  They moved out within one and a half years.  There had been issues with drug use by Ms AA.  He had nowhere to stay and then went back to Suburb B.  When he was first living there, there was no rent.  He just paid his share of utilities.  He has two boys from another marriage, and the three children cost him about $300 a week.  The respondent had been a good friend to him.  He only met the applicant once a month.  Mr Woolridge was going to her place at weekends.  The respondent is a good mate and a good person.  He had given him a car, a Motor Vehicle CC.  He gave him a TV.  The car was not expensive.  It was a Motor Vehicle CC which he still has.

1. Mr Z knows the applicant’s children.  They would use his consoles when he moved back in.  He did not seek the applicant much in the first time he lived there.  She and the children had not been regular visitors.  When he moved back in, the applicant was there every second weekend.  He thought this was in 2015.  His child was two and a half when he split up with Ms AA.  The applicant’s children are young. 

The evidence of Ms L

1. Ms L likewise adopted her affidavit as true and correct.

2. Ms L deposed that in 2009 to 2010 she had lived with the respondent and the Suburb B property as a tenant.  In effect, she was deposing to the absence of a relationship between the applicant and the respondent during her tenancy.  Under cross-examination, Ms L confirmed that she lived at Suburb B after the respondent’s accident.  It was a stressful time for her, and she was undergoing divorce.  Her rent was about $120 per month.  She used to come home at about 4.30pm.  She was not socialising much and stayed for over a year.  No one stayed at the house while she was there.  She did not know Ms AA or Mr Z but had heard their names.  She never gave the respondent money or a car. 

3. She had only met the applicant once.  She does not know her middle name or surname.  The respondent had not helped her with her affidavit.  She could not recall any display of affection between the applicant and the respondent.  The respondent spoke to her about medical problems.  He was at rehab at least three times per week.  He was collected in the morning and tired when he came back.  There were discussions about his fingers and back problems.  He could not walk very far when she first met him.  She first met him when he returned from hospital.  He was not then in a wheelchair. 

Closing submissions for counsel for the respondent

1. Counsel submitted there were three issues:  when did the de facto relationship start - it was conceded that there was a relationship between … 2014 and September 2016 - contribution and what the contributions were.  Counsel submitted that even on the applicant’s evidence, the relationship was only 2010 to 2016 so it was a short relationship.  There should be an asset-by-asset approach.

2. A third issue arose from the $514,000 received by the applicant from the sale of Street H, Suburb J in 2015.  This was gone by … 2015.  The question was where it went. 

3. Counsel referred to post-separation conduct and noted the sale of assets. 

4. Counsel submitted that the parties met in 2004 when the respondent was 17.  The applicant was married.  The families in Town DD were close friends.  The respondent relocated to Melbourne in 2007 and he worked for the applicant and her husband.  Following separation in 2008, there were proceedings until 2012, from which the applicant received the property in Suburb BB.  The applicant incurred legal costs which were paid by her father and subsequently repaid. 

5. Intimate relationship between the parties commenced after the applicant left hospital, where he had been for several months.  The applicant had bought him pyjamas and a computer.  He was out of hospital in … 2009 and said he lived first with his brother and then at Suburb B.  In mid-2010, the respondent returned to work and was employed in Suburb QQ.  The motorcycle accident took place on a public holiday weekend in 2011. 

6. The property in Suburb D was bought in … 2012.  The home loan application shows separate residences.  She could not have obtained a loan without his assistance.  He made payments towards the mortgage in 2012 to 2014 but was repaid upon the sale of the Street H, Suburb J property. 

7. There were two pregnancies and terminations in 2012 which led to some serious discussions.  The relationship ceased for several months.  The respondent dated another woman which the applicant knew as she lent her car.  In … 2014, the respondent went on a date, which the wife also knew about.  He moved to Suburb D in … 2014 at the latest.  The relationship changed and they lived together.  They bought the boat in … 2015 and had the holiday in Country JJ.  There was consideration of running a business together and a query as to whether the respondent would be an employee.

8. The respondent moved out in September 2016 and the applicant has lived there in the property since.  He paid $4000 towards the mortgage at separation at the insistence of the ANZ Bank.  He is seeking to sell the property.  Arrears in the mortgage are now $60,000.  The applicant had sold assets, possibly at an undervalue, although there was no evidence.  The Citylink debt of $7000 has been repaid.  Counsel laid emphasis upon the evidence of Mr Z and Ms L.  It was submitted that Ms L was a credible witness and had met the applicant only once.  It was clear from Ms L’s evidence that the respondent was living alone. 

9. The Citylink records were consistent with the respondent’s position.  The parties were intimate and spent weekends together.  There was a mutual degree of commitment.  The medical reports annexed to the respondent’s affidavit show that he told professionals about his living circumstances.  This is consistent with his evidence (counsel referred to annexures 1 and 2 to the trial affidavit).  The respondent received almost $400,000 from his WorkCover claim and paid out his mortgage in … 2015. 

10. Counsel referred to the dissipation of the funds received from the Street H, Suburb J property.  He submitted that the applicant’s evidence was vague and unhelpful and disinterested.  She said she was unaware of transfers.  The proceedings with her former husband ended in 2012.  She was looking to buy a property in Country JJ and looking to start a business.  Ms Q had said that the applicant was okay and there were no concerns when they were in Country JJ.  The reports from the applicant’s treating psychologist and counsellor show no concerns. 

11. The bank statements speak for themselves.  The money went into a joint account but then into the applicant’s account.  The applicant had produced no documents in the proceeding.  Everything had been obtained on subpoena.  The applicant was extremely precise in cross-examination of the respondent and was extremely familiar with her finances.  She had had the moneys.  The respondent had not taken the money.  She sought the orders in his amended response.

Closing submissions of the applicant

1. The applicant said she had had ongoing problems with mental health for 10 years.  She had been self-harming and suicidal.  She was looking after everyone.  Her mother had terminal cancer and her sister was handicapped and her father had leukaemia.  She was also looking after the applicant.  She had other matters with her former husband.  There was an overload and she paid a heavy price.  For her, money was not the be-all and end-all during that time.  She had moneys left over. 

2. She was adamant that there was a relationship.  She had not been generous to anyone else.  The only change in 2014 was that he was at the house more.  Citylink accounts showed only half the travel.  The husband had a motorbike.  There are no Citylink records for motorbikes.  She stood by what she said.  She had been flat out and then crashed in a heap.  There were financial contributions from the start of the relationship in 2010.  He was not able to contribute until his WorkCover payment in 2014. 

3. She rejected the respondent’s argument he needed her on the loan.  She could have sold the house and bought another one.  The house purchase was jointly considered and jointly made.  She had been pregnant in 2012.  There was an obvious age gap that she had not considered much before.  He had dated another lady for two months at the most. 

4. They started a business.  He resigned from his full-time job of many years and did not know what to do with himself.  He is trying to disassociate himself.  She was going to run a business.  The excavator was expensive.  She could get $1000 a day for it.  She is on a pension.  He had an account with his brother and they left their money with him. 

5. In Christmas 2011, no one was bringing friends.  The respondent was new to her family.  As for the money, the respondent confirmed his access to her computer.  He knew the password.  There was a book on the desk.  She often did not open her mail for significant periods of time.  There were automobile purchases on her account.  Substantial moneys went into the joint loan account.  He is jointly responsible for what went out. 

6. She never had a rest.  Her father died in 2013 and her mother in 2014.  There were issues with her sister’s health too.  She had never put money ahead of her family.  No one shows where the money went.  She had taken action about the funds by placing a caveat on his house.  He was more involved from when her father died in 2013.  Until his payout, he had nothing and she had assets.  He had the benefit.  They stayed together throughout.  He had taken the money.

Findings about the credit of the witnesses

1. The applicant was, in some senses, both a very good and a very bad witness.  She made concessions, generally, when they were there to be made, and her answers to questions were generally direct and straightforward.  Her concessions about selling the various chattels following separation were made candidly and directly.  I note that she was extremely composed when cross-examining the respondent, and it appeared to me at times she had a far clearer recollection of his financial circumstances than he did himself.  All of this is to her credit.

2. On the other hand, the applicant’s answers about her finances, while given directly, were at times quite extraordinary.  As I have earlier indicated, the gravamen of her position was that she really had little recollection of her financial affairs during the time of the alleged relationship because of the numerous difficulties that her life was facing.  I accept that that is so, but it leaves the court in a great difficulty because she has no positive memory of what happened to the enormous amounts of money that plainly went amiss following the sale of the Street H, Suburb J property.  

3. Her answer that she did not know whose account, the … account, to which so much money was put, was just, I am afraid, unbelievable.  Indeed, her answers at times appeared to suggest a complete insouciance about the past history of this matter.  I can understand why that might well be her position, but it does not assist the court in the task of working out what actually happened.

4. The evidence of Mr O and Ms Q was plainly given honestly.  Ms Q in particular struck me as being an entirely fair witness.

5. The respondent was by no means an entirely satisfactory witness.  I have already commented on aspects of his evidence that struck me as being unsatisfactory.

6. Mr Z struck me as being an honest witness, albeit somewhat ingenuous.  Ms L was an excellent witness who was plainly telling the truth.

Findings about the facts

1. These parties knew each other for many years through their families, who were very friendly.  The applicant was, of course, and has at all times been 17 years older than the respondent.  This is a significant age difference at any time but a particularly significant one obviously when the parties first met during the respondent’s childhood. 

2. I accept that the respondent moved to Melbourne in 2007, and there is no question that his accident took place in 2009.  At that stage, the applicant was undergoing long and messy divorce proceedings with her first husband, which lasted from 2008 until, finally, it appears, 2012. 

3. Inconsistently with this, however, it appears that the applicant owned an unencumbered property in Suburb BB by no later than 2009. 

4. The response of the applicant to the respondent’s accident and his very serious health difficulties, which I accept kept him in hospital for several months, was, in the scheme of things, extraordinary.  She went into the hospital almost every day.  From Suburb BB to either Hospital or the ICU was a considerable journey.  She had young children of her own whom she left essentially in the care of her parents.  She must have been infatuated.  No other explanation makes sense.  She bought him pyjamas and a computer with a USB stick.  Given the relative isolation of the respondent, this was extremely helpful to him.

5. As I find, the parties became sexually intimate relatively soon after the respondent left hospital.  I accept that he first lived with his brother and then ultimately moved into the Suburb B property.  He entered into the contract for the purchase of the Suburb B property in … 2009, and it is clear that he moved back into it for a period.

6. Exactly what occurred between the commencement of sexual intimacy, at a point when such intimacy caused him back problems, suggesting it was relatively shortly after he left hospital, and 2014, in …, when he definitively moved into the Street C, Suburb D property is, of course, shrouded in a measure of mystery and obfuscation.

7. The evidence of Ms L in particular militates strongly against the suggestions advanced by the applicant that the parties were together almost all the time from 2009 onwards.  By the same token, the evidence of Mr O suggests that the relationship was intimate at an earlier point than the respondent concedes.  The parties did not, it would appear, much mingle their finances, if at all, albeit that they set up a joint account, it would appear, at the time of the taking out of the mortgage in … 2012. 

8. As earlier indicated, the husband’s answers about his movements were evasive and unsatisfactory.  I suspect that both of these parties, subconsciously or otherwise, have tended now to reconstruct events to make them amenable to the positions they now propound.

9. The taking out of the mortgage in 2012, however, is a significant matter.  The basis on which it was actually effected does no credit to either party.  The parties recorded separate dwellings on the loan application and otherwise misrepresented their position.  I accept the wife’s oral evidence that this was a joint decision.  It was a joint venture.  It reflected the fact that by then, if not earlier, the parties were in a committed relationship.  They were spending almost all their time together.  They had bought a property together. 

10. The applicant had, in fact, been pregnant twice, if I understand the matter correctly, in 2012 and terminated the pregnancies.  I accept her evidence that these events led to a more definite commitment or formed the backdrop to a more definite commitment of the parties.  It is consistent with the objective evidence.  There would be no real reason for the respondent to have undertaken the liability that he did undertake, in terms of the mortgage, had it not been a joint effort.  Further, and in any event, in this respect I have seen and heard the parties give their evidence and I believe the applicant at least in this regard.

11. The parties were, as I find, in a de facto relationship from no later than the purchase of the Street C property onwards.  I am not able to find that the parties were in a de facto relationship before that.  The evidence is simply not sufficiently persuasive.

12. It should be noted that the de facto relationship, as indeed is often the case in marriages, had its ups and downs.  There appears to have been a two-month period of separation at some point when the husband took the other lady to Town DD.  His abortive lunch date with another woman is neither here nor there. 

13. Applying the test described by Murphy J in Fenton & Marvel [2013] FamCAFC 132 it is clear that the parties were in a de facto relationship within the meaning of section 4AA of the Family Law Act from at least … 2012 until September 2016, with the solitary exception of two months when each party agrees that the relationship did not subsist.

Stanford & Stanford

1. Both parties seek a property adjustment, albeit in radically different terms.  It is plainly appropriate that there be one. 

The property pool

1. The property pool consists of:

   ·the husband’s Suburb B property, $375,000 (husband’s estimate in most recent Financial Statement);

   ·the former matrimonial home (Not agreed – respondent asserts $660,000 – paragraph 5 of trial affidavit – wife asserts $530,000 in evidence)

   ·husband’s superannuation, $45,000

   ·wife’s superannuation, unknown

   ·mortgage on former matrimonial home $358,000

2. In my opinion, all the other items that the court has been asked to examine are now of no relevance whatever.  The chattels have been sold by the applicant.  There is no evidence, as I think counsel correctly conceded, to show whether they were sold at an undervalue, and I accept that the applicant sold them, at the very least, out of her immediate need for funds.  The parties’ savings are more probably post-separation. Their cars are not the subject of valuation. I do not accept that the applicant owes the respondent anything arising from the failed excavation business.  The loans asserted in the respondent’s final affidavit were not even explored, so far as I recall, during the trial, and if the asserted sums were advanced they were undoubtedly advanced as part of the joint venture that their initiative represented.

Contribution

1. This, of course, is where much of the case was fought out.  I accept that the respondent paid the difference between the rent on the Street C, Suburb D property and the mortgage from 2012 to 2014.  This only goes to buttress my conclusion that the parties were in a committed relationship at the time.  He helped himself to $60,000 to repay the figure, and although nobody has presented me with any calculations, as a matter of impression, I have little doubt that he took far more than he put in.

2. Both of the parties appear to have contributed from time to time to their general expenses and wellbeing.  The applicant paid for their holiday to City RR and the trip to Country JJ, which appears to have involved extravagant expenditure.  I accept that the wife does not have any funds in any Country JJ bank account. 

3. The real question that is of vital import is what happened to the balance of the proceeds of the sale of the Street H, Suburb J property.  The wife received in excess of half a million dollars net and it has basically vanished (this leaves aside moneys admittedly applied to the mortgage on the Suburb D property).

4. In the end, I accept that the respondent did not get this money.  That is what he said, and I have heard his evidence and I believe him.  In the ultimate, the applicant’s case is that she really does not remember what happened to her finances, to which she paid little attention at the time.  It struck me, however, that she had, in some respects, a remarkably precise memory as to certain financial issues.  The wife has had serious and significant mental health difficulties which necessitated the appointment of a litigation guardian, only recently removed at the applicant’s insistence.  I have no doubt that whatever has happened to those funds, they were funds disbursed in one way or another by the applicant.  Whether they are hidden in some bank account, as is possible, or simply expended, they are moneys she has had and/or continues to have.

The question of future needs

1. The applicant is 17 years older than the respondent, and her future employment prospects must be bleak.  She still has two underage children living with her.  There has been some vague suggestion she may inherit something from her parents’ estate, but this matter has not been pressed in any meaningful way.  Her mental health difficulties are plainly not completely resolved.

2. The respondent is in a far better situation.  He is not working at the moment in paid employment, but there seems no reason to presuppose that he will not continue to conduct his business if that is where he directs his energies.  He owns an unencumbered property.  He is much younger and has, unlike the applicant, at least some superannuation.  He has repartnered, but nothing has been said as to his partner’s financial circumstances.

The just and equitable outcome

1. As will be apparent, this is a difficult case, made, in one sense, almost forensically impossible by the absence of proper evidence.  The respondent is in one sense correct to complain of the applicant’s failure to disclose, but this took place in circumstances where she has had to have a litigation guardian for a period of time.  Her failure is, in my view, entirely understandable.  Life has plainly been well on top of the applicant for a substantial period of time. 

2. In my view, the just and equitable conclusion of these proceedings is that the husband should retain his property and the wife should retain the other one.  The Suburb B property was bought by the respondent in 2009, well before the commencement of the de facto relationship in 2012.  He paid for all of it himself out of his workers compensation money.  He should keep it.

3. The Street C, Suburb D property was bought as an investment by the parties.  The respondent’s contributions until 2014 were effectively repaid to himself, something which, in the context of the fact that at the time he was controlling the applicant’s moneys and in a committed relationship with her, strikes me as being extremely underhand and unattractive.  To the extent that there is any equity in the Street C, Suburb D property, it derives wholly from the contributions made by the wife from such of the Street H, Suburb J proceeds as she may have applied. 

4. The applicant has remained in occupation of the Street C, Suburb D property since 2014 and appears to have simply failed to pay the mortgage, at least in large part.  It is plain that the mortgage is one that she must meet herself.  If, as is very possible, she is unable to pay it, then the property will have to be sold, but it is plainly just and equitable that she receive the entirety of the proceeds of such sale.  There has been no meaningful contribution to that property by the respondent, and it is inappropriate that he be paid any sums in respect of it.

5. In my view, while this reasoning process has albeit an element of crudity, it is plainly the only just and equitable resolution of this particular dispute. 

6. I have drawn draft orders to reflect these conclusions and will hear from the parties in case there is any matter I have overlooked.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 23 July 2019