Kearney and Kearney
[2012] FMCAfam 187
•20 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEARNEY & KEARNEY | [2012] FMCAfam 187 |
| FAMILY LAW – Property – whether the parties were in a de facto relationship prior to marriage – asset pool largely agreed – add-backs – contributions – subsection 75(2) factors – just and equitable – late agreement on superannuation splitting orders. |
| Family Law Act 1975 (Cth), ss.75, 79, 81 Federal Magistrates Act 1999 (Cth), Pt. 6, Div. 5 Federal Magistrates Court Rules 2001 (Cth), r.21.02(1)(b) |
| Cerini and Cerini [1998] FamCA 143 NHC & RCH (2004) FLC 93-204 Clauson (1995) FLC 92-595 Coghlan (2005) FLC 93-220 Ferraro (1993) FLC 92-335 Hickey (2003) FLC 93-143 Hirst and Rosen (1982) FLC 91-230 Lee Steere (1985) FLC 91-626 Mallet v Mallet (1984) FLC 91-507; (1984) 156 CLR 605 Marker & Marker [1998] FamCA 42 Milankov and Milankov (2002) FLC 93-095 OSF and OJK (2004) FLC 93-191 Pierce v Pierce (1999) FLC 92-844 Rolfe and Rolfe (1979) FLC 90-62 Russell v Russell (1999) FLC 92-877 |
| Applicant: | MS KEARNEY |
| Respondent: | MR KEARNEY |
| File Number: | LNC 532 of 2010 |
| Judgment of: | Roberts FM |
| Hearing dates: | 23, 24 and 25 November 2011 |
| Date of Last Submission: | 13 March 2012 |
| Delivered at: | Launceston |
| Delivered on: | 20 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Turnbull |
| Solicitors for the Applicant: | McLean McKenzie Topfer |
| Counsel for the Respondent: | Mr P McVeity |
| Solicitors for the Respondent: | Jonathan Smith Lawyers |
ORDERS
That this matter is adjourned for further mention in (omitted) on 1 June 2012 at 9.30 a.m.
AND IT IS DIRECTED
That the parties bring in draft minutes of orders within 14 days of today.
IT IS NOTED that publication of this judgment under the pseudonym Kearney & Kearney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 532 of 2010
| MS KEARNEY |
Applicant
And
| MR KEARNEY |
Respondent
REASONS FOR JUDGMENT
The parties and their applications
The applicant is MS KEARNEY and the respondent is MR KEARNEY. They were married in 2002, and in these Reasons I will refer to them as “the wife” and “the husband” respectively.
The dispute between them is about what financial orders should be made under Part VII of the Family Law Act 1975 (“the Act”). The court’s jurisdiction to make such orders arises because of their marriage, but many of the parties’ factual disputes relate to a period of more than 5½ years preceding their marriage.
At the start and end of the hearing the wife was seeking orders that she be paid:
·a sum equivalent to 33% of “the net pool of assets”; and
·the sum of $300 per week by way of spousal maintenance.
The husband was seeking an order that he pay the wife $256,000 in full settlement of her claim. That was said to be based upon her receiving 10% of the net asset pool.
Neither party was formally seeking an order splitting superannuation. However, in his opening on 23 November 2011, counsel for the wife said:[1]
It may well be, your Honour, that after this trial is finished, that Mr McVeity and I will provide you with a statement of agreed facts as to the effect of a superannuation cash-in if it were to occur. Now, it will – during submissions it may well be that there will be a question as to whether or not some part, if not all of the husband’s superannuation should be effectively split to my client. That will be something for your Honour to potentially consider, so that is the way that we’re thinking of dealing with that issue at this time, because obviously the question of the effect of cashing it in will be a relevant matter for your Honour. But it’s something that we can’t answer at this point.
[1] Transcript: Day 1 at page 4
Brief background
Unless a contrary intention is clear from the context, where I refer to facts in these Reasons, they should be regarded as findings of fact, especially where there is a dispute between the parties in relation to those facts.
The wife is 59 years old and is in receipt of Centrelink benefits. The husband is aged 62 years and is a (occupation omitted).
They met as a result of an advertisement that the wife had placed in the “Personal” columns of her local newspaper in September 1995. At that time, both parties were divorced and each was seeking friendship with a view to having a more permanent relationship if they proved compatible.
In January 1996 the wife moved a distance of approximately 100 kilometres from her home to live in a second house on the husband’s (omitted) farm (“Property E”). The husband tried to suggest that the wife’s move there was work related, but I accept that the move was driven by their mutual desire to be closer together. While it is clear that the wife did some work on the husband’s farm and was paid for that work, it is very likely that her pay was below award levels, and I note that it would have suited the husband to be able to claim those payments to the wife as a business tax deduction, in any event.
In January1997 the wife moved into the husband’s house on the (omitted) farm, and from that point the wife was of the view that they were living in a de facto relationship. The husband says that they were not and I shall comment further about that below.
In 1998 the husband acquired additional land in the vicinity of the farm comprising approximately 220 acres (“Property B”). That land has been used for grazing in conjunction with the Property E farming property.
In 2001 the farm ceased being a (omitted) farm and since that time it has been run as a (omitted) farm.
During a period of between six and eight months prior to their marriage, the wife vacated the husband’s home and lived in rented premises. She says that they both had to deal with family issues involving their adult children.
The parties were married in September 2002, and thereafter the husband ceased paying the wife wages for her labours. They separated in September 2009.
Relevant law
Section 79 of the Act sets out the matters that the court must take into account when considering what orders should be made for the alteration of the property interests of parties. They include:
a)the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b)the contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
c)the effect of any proposed order upon the earning capacity of either party; and
d)the matters referred to in subsection 75(2) as far as they are relevant.
The general approach to the determination of a property settlement application has been well established by authority[2]. It is essentially a multi-step process. The first step is to identify the property, liabilities and financial resources of the parties (generally at the time of the hearing). The second step is to evaluate the contributions made by the parties as defined in section 79(4) of the Act and the third step is to consider those matters contained in section 75(2) that are relevant.
[2] See Lee Steere (1985) FLC 91-626; Ferraro (1993) FLC 92-335; Clauson (1995) FLC 92-595, Hickey (2003) FLC 93-143 and Coghlan (2005) FLC 93-220
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so.[3] It is the justice and equity of the actual orders that the court must consider and this has sometimes been referred to as “the fourth step”.[4] In Russell v Russell, the Full court said:
Furthermore, it must be remembered in this regard that under s79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. Indeed we take the opportunity to emphasise that in what his Honour has termed ''the fourth stage'', that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered. [5]
[3] See Sub-section 79(2)
[4] See Hickey (2003) FLC 93-143 and Russell v Russell(1999) FLC 92-877
[5] (1999) FLC 92-877 at page 86,439
However, I agree with Federal Magistrate Walters that “the testing of any proposed orders by reference to section 79(2) is not a fourth substantive step (properly so called) in the property settlement exercise, and there is no fourth step in that sense.”[6]
[6] OSF and OJK (2004) FLC 93-191 at paragraph 16
The parties’ relationship prior to marriage
The parties have very different versions of their relationship prior to marriage and it is not possible for both versions to be correct.
The husband was cross-examined at length about his relationship with the wife and he steadfastly maintained that they were not living in a de facto relationship prior to their marriage. Indeed, in his affidavit he had said:
I did not regard myself as being in a relationship or cohabiting with the Applicant until we married. [7]
[7] At paragraph 4.17 of his trial affidavit
Much of the evidence related to the wages that the wife was paid by the husband for both farm work and housework before the parties married. The husband appeared to be putting forward the proposition that, because he paid the wife wages before the marriage and not after the marriage, it therefore followed that they could not have been in a de facto relationship prior to the marriage. In my view, that does not logically follow. As an illustration, I point out that many people in business pay their spouses and quite legitimately claim tax deductions for spouses’ wages or salaries, but that does not somehow alter the validity of their marriage relationships. Similarly, payment of wages or salary does not necessarily mean that no de facto relationship exists.
In my view, the evidence to support the existence of a de facto relationship from the time the wife moved into the husband’s house is overwhelming. The wife’s counsel referred to the husband’s own oral evidence in this way in his closing submissions:
… he accepted they were in a sexual relationship, accepted they shared the same house, accepted that she had moved all of her property in, accepted that she had established a home for herself, accepted that moneys that he gave her were then used for the relationship, accepted that he socialised with (her) children, accepted that they went to the church together, accepted that he gave her a friendship ring that became the engagement ring two years before (the marriage) ...
I accept that during his cross-examination the husband made all the admissions referred to in that quotation, albeit that his admissions were sometimes only reluctantly given. For example, the husband even maintained during his cross-examination that he had only engaged in pre-marital sexual activity with the wife unwillingly.[8] However, I find that to be a re-interpretation of history on his part that suits both his case before this court and his religious views.
[8] Transcript: Day 2 at pages 37 and 38.
In view of the matters referred to above, I find that where the parties are in dispute about the nature of their relationship prior to marriage, I prefer the evidence of the wife and conclude that their total relationship was one of approximately 12 years (i.e. both de facto and de jure, and taking account of the period of separation prior to their marriage).
The asset pool
There was general agreement between the parties upon the nature and values of the assets and liabilities, save that the parties could not agree upon whether sums totalling more than $40,000 paid to the wife should be added back into the pool. I shall refer to that disagreement further below.
The agreed list of non-superannuation assets (in whole dollars) is:
Real estate – Property B 640,000 Real estate – Property E 1,321,250 Husband’s household contents 4,000 Wife’s household contents 1,000 Nissan motor vehicle 8,500 Mercedes Benz 6,750 Boat & dinghy 9,350 Ultra-light plane & trailer 2,600 Model aeroplanes 2,500 Farm plant & equipment 104,730 Livestock 235,625 Wife’s motor vehicle 1,000 Bendigo Bank account 3,053 AMP Investment 3,223 Rural Bank account 38,322 Share portfolio 153,192 Trade debtors and unpresented cheques 96,968 Total $2,632,063
Of those assets, those in the wife’s possession and control are only her household contents and vehicle, with a total value of $2,000
The agreed liabilities are:
Bendigo bank credit card 633 Tas. Perpetual Trustees 255,494 Landpower 12,595 Farm creditors 56,011 Wife’s loans from her children 27,829 Total $352,562
Of those liabilities, the wife is only liable for the loans from her children.
The husband also has entitlements in two superannuation accumulation funds worth a total of $166,099.
The husband wanted certain funds received by the wife to be added back into the asset pool. They were cash payments around separation totalling $30,745 and cash payments in late 2008 and early 2009 totalling $10,186. It seems clear that the payments were made with a view to assisting the wife to re-establish herself.[9]
[9] See paragraph 60 of the husband’s trial affidavit.
In NHC & RCH, [10] Finn, Kay and May JJ appear to have endorsed the remarks of Nicholson CJ, Ellis, Kay JJ in the unreported decision of Cerini and Cerini, [11] when they quoted paragraph 46 as follows:
Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives.
[10] (2004) FLC 93-204
[11] [1998] FamCA 143
In Marker & Marker [12] their Honours Baker, Kay and Chisholm JJ put the principle succinctly when they said:
There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge.
[12] [1998] FamCA 42
In the light of those decisions, I would not normally add back sums of money that no longer exist and were specifically paid to enable the wife to re-establish herself. However, the parties reached agreement that some money went to the wife’s children, and although some came back to her, the wife paid to her children $8,536 more than she received. As that cannot be said to be money paid to enable the wife to re-establish herself, I am of the view that it is appropriate to add $8,536 back into the asset pool. When that is added to the value of the assets listed at paragraph 26 above, the total is $2,640,599. Consequently, the net value of the non-superannuation assets is $2,288,037.
The combined net value of superannuation and non-superannuation assets is in the vicinity of $2,454,000.
If the husband is required to sell property in order to pay the wife her entitlement, he would be likely to sell the Property B property. That would make him liable to pay Capital Gains Tax (CGT), which I accept will be in the vicinity of $35,000 to $40,000.[14] If such CGT was to be paid, it would reduce the total net value of the combined pool to $2,400,000 (in round figures).
[14] See Exhibit “W2”.
Contributions
At the start of the relationship in 1997, the husband’s contributions were massive in comparison with those of the wife. He was the owner of a viable farming enterprise, whereas the wife was an undischarged bankrupt.
The husband also had superannuation interests at the start of the relationship.
Clearly, the husband’s direct financial contributions were greater than those of the wife during the relationship, because his earnings from the farm were greater than the wages that he paid to the wife (and which ceased upon their marriage, in any event).
I am satisfied that, even though the wife was paid wages for some of her activities prior to the marriage, she then “reinvested” those wages for the benefit of the relationship. Consequently, the payment of wages to her was, in effect, “cancelled out” by her direct contribution of those wages to the relationship. I note that it would also have been to their mutual advantage for the wife to be paid wages for work done. The husband obtained a tax deduction, and it seems likely that any tax paid by the wife would have been at a lower rate than that which the husband would have had to pay if he had retained those wages as profit.[15]
[15] See paragraph 28 of the wife’s affidavit for her taxable incomes from her farm employment.
In my view what their Honours Ellis, Finn and Purdy JJ said in Parshen & Parshen is applicable in relation to this matter. They said:
In our view, in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s79 that moneys howsoever received by a party during the course of the parties’ cohabitation, are used by that party for the benefit of the family unit. Such moneys, in those circumstances, thus constitute a financial contribution by the party who received the moneys. [16]
[16] (1996) FLC 92-720 at page 83,665
I am satisfied that both parties worked hard over the 12 year relationship. In this regard, I have no doubt that the husband worked just as hard in his farming operation during his relationship with the wife as he had done previously. On the other hand, I am also satisfied that the wife worked hard in the home and, when required, she helped on the farm. In this regard, the husband did not agree with counsel’s use of the term “gopher” to describe her activities, but I am satisfied that she delivered things to him when it was necessary and she purchased supplies from time to time when she was in town. She said (and I accept that it was the case):
Basically, I was on call pretty much 24 hours a day, not that I was working – doing farm work all that time, but I was there, and if and when I was needed, I was called upon and I went and helped.[17]
[17] Transcript: Day 1 at page 24
Being “on call” and ready to help when needed is also an indirect contribution. In this regard, I am reminded of some of the words of Mr M, which are just as true today as when he penned them. He said:
They also serve who only stand and wait. [18]
[18] “On His Blindness”, Mr M 1608 - 1674
The husband says that the wife’s attitude to farm work changed upon marriage. However, I accept that she was not lacking when it came to the effort that she put into farming activities. The husband also states that her work on the farm was “perhaps once every three (3) weeks” when she would help cut out cattle, and it amounted to only an hour’s work.[19] The wife’s response to that was that she would have done some work on the farm every day, and I accept her evidence in that regard.[20]
[19] See paragraph 55 of the husband’s affidavit.
[20]Transcript: Day 1 at page 25
I also accept that, in addition to her household and farming duties, the wife also assisted with the outside farm activities and gardening around the home.[21]
[21] See paragraph 31 of her affidavit.
Although the wife was not paid wages during the marriage, I am quite satisfied that she was pulling her weight in terms of effort. In my view, there is a parallel to be found in the decision in Bigelow & Reuter in which Kay J (sitting as the Full Court of the Family Court of Australia) said this about a wife’s contributions:
What was the relevant finding is that the wife, whatever she was doing in the course of the relationship, was not able to earn money at the same rate that the husband was able to earn, but there is nothing to indicate that she was not pulling her weight in terms of effort and endeavour.[22]
[22] [2006] FamCA 1455 at paragraph 25
I am also mindful that the contributions “made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent”[23] should not merely be recognised in a token manner, but rather, they should be recognised in a substantial way.[24]
[23] See section 79(4)(c)
[24] See Rolfe and Rolfe (1979) FLC 90-62 and Mallet v Mallet (1984) FLC 91-507
This was reinforced in Ferraro, when the Full Court said:
The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired. This leads to a tendency to undervalue the homemaker role.[25]
[25] (1993)FLC 92-335 per Fogarty, Murray and Baker JJ at page 79,572
While there were no children of this relationship, I have no doubts that the wife’s homemaker contributions were more than satisfactory. Unfortunately, the husband would only begrudgingly concede that.
However, given the substantially greater contribution of assets by the husband at the start of the relationship (which effectively amounted to 100% of the assets at that time) and his greater financial contributions during the marriage resulting from his ownership of the farming assets, it is clear that there should be a substantial weighting in favour of the husband. His counsel urged me to accept that the Full Court decision in Pierce v Pierce[26] is authority for the proposition that there is no deterioration in a person’s contributions simply because of the passage of time, but rather that any “deterioration” must be a consequence of an offsetting contribution by the other party. He had specifically referred me to the passage in Pierce where their Honours had said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all the other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. [27]
[26] Pierce v Pierce (1999) FLC 92-844
[27] At page 85,881
In my view, the words “regard must be had to the use made by the parties of that contribution” are significant, especially where one party introduces income producing assets that are retained throughout the relationship. Clearly, that is what has happened in this case.
Consequently, when I weigh up the parties’ contributions, I conclude that if this matter was to be resolved on contributions alone, the weighting would be in the order of 92.5% to the husband and 7.5% to the wife. However, such matters are not decided on contributions alone.
Subsection 75(2) factors
The husband is aged 62 years and is in reasonable health.
The wife is aged 59 years and she suffers from migraine attacks. She says that they have very debilitating effect upon her, and the husband agreed with that.[28] I accept her evidence that she has minimal work prospects due to her age and state of health.
[28] Transcript: Day 2 at page 32
The wife is in receipt of Centrelink benefits. When she swore her affidavit in July 2011, she was receiving less than $300 per week from her pension entitlement and rental assistance.
As mentioned above, the only assets in wife’s possession and control are her household contents and vehicle worth a total $2,000. However she has family loans of $27,829 that she will repay so her net position is minus $25,829.
On the other hand the husband’s asset position is such that he is worth nearly $2.5 million. However, that does not mean that there should be a massive redistribution of asset value in the wife’s favour simply because of their disparate financial positions. In this regard, I am mindful of the comments of Nygh J in Hirst and Rosen, when he said:
I also reject any argument based solely upon the disparity in financial resources between the parties. Section 79, as I have indicated in argument, does not entitle the Court to adopt “a soup kitchen” approach. [29]
[29] (1982) FLC 91-230 at p 77,251
In a way, that was perhaps a more colourful way of putting it than Wilson J did in the High Court a short time later in Mallet v. Mallet,[30] when he said:
The objective of the section is not to equalise the financial strengths of the parties. It is to empower the Court … to effect a redistribution of the property of the parties if it be just and equitable to do so having regard, inter alia, to the respective contributions of the parties.
[30] (1984) FLC 91-507; (1984) 156 CLR 605
Having said that, however, subsection 75(2) does require me to give consideration to “a standard of living that in all the circumstances is reasonable”.
It is probable that the husband will retain his interest in the farming enterprise. It is his stated wish to “continue (omitted) farming into the foreseeable future”.[31] However, payment of the wife’s entitlement may require him to sell the Property B property and he estimates that would reduce his “gross profit from (omitted) trading by up to one third”.[32] I have no reason to doubt that estimate, but I conclude that he will still have a reasonable standard of living even if he is required to sell that property.[33]
[31] See paragraph 56 of his affidavit.
[32] See paragraph 58 of his affidavit.
[33] However, such a sale is now less likely in view of the parties’ agreement about superannuation splitting that is referred to below.
Clearly, neither party has the care of any children or responsibility to support any other person.
I must also consider the terms of any order proposed to be made under section 79 in relation to the property of the parties. In that regard, I have indicated that if this matter was to be resolved on contributions alone, the wife would be likely to receive an award in the vicinity of 7.5% of the total net value of that asset pool. Taking into account her negative position as set out above, but also attributing to her the figure of $8,536 added back into the asset pool, I calculate that the husband would need to pay the wife an approximate sum of $197,300.[34]
[34] $180,000 plus $25,829 minus $8,536 equals $197,293
However, when I weigh up the subsection 75(2) factors which clearly favour an adjustment to the wife, I conclude that the wife’s award should be increased by a further 2.5% of the total net asset pool (i.e. a further $60,000). That would increase her award to $257,300.
I note that the parties have now agreed that some or all of the wife’s entitlement is to be satisfied by superannuation splitting orders. While that should reduce or remove any CGT liability, any adjustment is quite insignificant, so I will simply ignore that pursuant to the principle of de minimis non curat lex.[35]
[35] For a discussion of the application of the de minimis principle see the Full Court decision in Milankov and Milankov (2002) FLC 93-095
Conclusion
Given what I have said above, I consider that it is just and equitable for there to be orders that would give the wife a total entitlement of $257,300.
Procedure
I heard this matter in (omitted) but I will be delivering this decision in Launceston. Attendances by telephone have been arranged and my Associate will be providing copies of these Reasons and the Orders to the parties’ lawyers by electronic means.
Originally, I had intended to deliver my decision in this matter on 15 March 2012. However, on 13 March 2012 the parties’ solicitors forwarded a joint memorandum to the Court stating that the parties have agreed that any order in favour of the wife “is to be satisfied or partially satisfied” by superannuation splitting orders in favour of the wife. In view of the facts that (a) there were only two working days between receipt of that advice and 15 March 2012 and (b) that late advice necessitated a review and some rewriting of these Reasons, it was necessary to postpone the delivery of these Reasons for a short time.
In view of this very late development,[36] I will not make any order other than to adjourn the matter for further mention in (omitted) on 1 June 2012. However, I will also direct that the parties bring in draft minutes of orders within 14 days:
·to reflect what I have said in these Reasons about the wife’s entitlement;
·to take account of what the parties have now agreed about superannuation splitting; and
·to finalise the matter for the purposes of section 81 of the Act.
[36] I note that the Trustees’ approvals are dated 3 and 24 February 2012.
If I am satisfied with those draft minutes, I will make the orders in Chambers and, subject to what is said below, the listing on 1 June 2012 will be vacated.
The parties were each seeking an order for costs. No doubt they will be reconsidering their positions in the light of these Reasons and advice from their lawyers. Consequently, if either party wishes to pursue such an application, a listing should be sought by contacting my Associate within 28 days of today in accordance with Rule 21.02(1)(b) of the Federal Magistrates Court Rules 2001. In relation to that, I am prepared to hear any costs application in (omitted) on a date to be organised or by telephone or video link in accordance with Division 5 of Part 6 of the Federal Magistrates Act 1999 if that is requested.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Roberts FM
Date: 20 March 2012
[13] At paragraph 2.11
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