Lung and Meridien and Anor (No 2)

[2009] FamCA 1066

FAMILY COURT OF AUSTRALIA

LUNG & MERIDIEN AND ANOR (NO. 2) [2009] FamCA 1066

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable

Family Law Act 1975 (Cth) ss 79(4), 75(2)

APPLICANT: Ms M Lung

FIRST RESPONDENT:	Mr Meridien
2ND RESPONDENT	Ms Q Lung

FILE NUMBER: PAF 2020 of 2005

DATE DELIVERED: 17 September 2009

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: WADDY J

HEARING DATE: 18, 19, 20 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kenny

SOLICITOR FOR THE APPLICANT: Byles Canceri Lawyers

1^ST RESPONDENT: Mr Mertoiu, in person

COUNSEL FOR THE 2^ND RESPONDENT: Mr Heazlewood

Orders:

DECLARATION

1. I declare that the applicant Ms M Lung and the Second Respondent Ms Q Lung are jointly entitled to the property at G being the whole of the land comprised in folio Identifier … (“G property”) as tenants in common in equal shares.

AND THE COURT ORDERS:

1. The applicant Ms M Lung and the second respondent Ms Q Lung shall be equally responsible for and indemnify the first respondent  Mr Meridien in respect of the mortgage debt owing to HSBC Bank Australia Limited which is secured over G property.

2. The applicant Ms M Lung and the second respondent Ms Q Lung shall be responsible for and indemnify the first respondent in respect of all outgoing in relation to G property including all council rates, water rates and the mortgage debt owing to HSBC Bank Australia Limited.

3. Otherwise than as hereinbefore provided, each party is declared to be separately entitled to any moneys, investments, bank accounts, furniture, shares, motor vehicles, items of personalty and the proceeds of any superannuation which they separately possess or which is registered in his or her separate name.

4. These orders no not include any determination for the legal or equitable rights, if any, that any of the three parties may have in the real property currently registered in the name of the second respondent and located at B, New South Wales.

5. Exhibits and documents on subpoena may be returned after the expiration of 65 days.

6. The matter be removed from the pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Lung & Meridien and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 2020  of 2005

MS M LUNG

Applicant

And

MR MERIDIEN

First Respondent

And

MS Q LUNG

Second Respondent

REASONS FOR JUDGMENT

1. This matter was heard over three days being 18, 19 and 20 May 2009, when the Judgment was reserved.

2. Mr Kenny of counsel appeared on behalf of the Applicant Wife, Ms M Lung.

3. Mr Meridien, the Husband and first respondent appeared in person.

4. Mr Heazlewood of counsel appeared for the 2^nd Respondent, the wife’s sister, Ms Q Lung.

PROCEEDINGS:

1. The wife filed an application for parenting and property orders on 23 December 2005.  On 26 August 2008 my brother Collier J made final parenting orders.  This judgment deals with the property orders sought.

2. The Husband in his Response filed on his behalf by his then solicitors on 16 March 2006 inter alia joined the 2^nd Respondent, his wife’s sister.

3. The 2^nd respondent filed a Response on 10 May 2006, seeking certain declarations.

4. Before the Court took evidence from the parties, the 2^nd Respondent pressed an application in a case to strike out the claims made against her and to be removed as a party from the proceedings.

5. The application was successful and Judgment was given on Monday 18 May at 2.45 p.m. The following orders were made:

   1.The second respondent is dismissed from the matter without determining any issue between the second respondent and the other parties.

   2.For reasons given this day, it is noted the rights of any of the parties equitable or otherwise may be pursued in the appropriate jurisdiction.

   3.        Costs are reserved.

   4.IT IS NOTED that the second respondent submits to any order the court may make in relation to the property at [G] standing in the names of the applicant wife and the second respondent.

6. The proceedings were then continued between the wife and the husband.

EVIDENCE:

1. The Applicant wife relied on the following documents:

   1.Further amended application for Final Orders filed 20 August 2008;

   2.Affidavit of the wife filed 27 February 2009

   3.Financial Statement filed 27 February 2009.

2. The Husband relied upon the following documents:

   1.Response filed

   2.Financial Statements filed on 16 March 2006 and 4 December 2008.

   3.Handwritten statement of 18 May 2009 (Exhibit A)

   4.Note of instructions, typed, undated (Exhibit C)

LACK OF EVIDENCE FILED

1. The husband did not file any Affidavits but at the commencement of the hearing stated that he had met his wife 15 years ago and had helped her make her life in Australia.  He alleged she had tried to strike him out of her life and retained a lawyer and destroyed his life.  The wife had acted as his accountant for 13 years and when he had asked her where the money was from his two businesses she had told him it was none of his business.  He had not seen “one cash dollar in any of the accounts”. 

2. The husband claimed he was jailed for breach of an AVO and whilst spending 6 months “locked up”, the wife’s agents had entered his property and removed “everything”.  He produced a long list of artefacts that were missing.  He claimed he lost all his documents for 14 years, all business records, all “carbon (copy) books”.  He stated:  “I can’t make any case, your Honour, because I do not have my carbon books to justify how much money” he had put in his ex-wife’s hands over 13 years.

3. The husband claimed that three named properties were investment properties and that he was part of the family who provided the money.  He also alleged that all his cash had been taken out of Australia to China in envelopes and come back as “loans” from his wife’s connections.  He also claimed that his wife had ruined his businesses by denigrating him to his former employers.

4. It was common ground that at the commencement of the proceedings the husband had filed no evidence at all.

5. In such circumstances, Mr Heazelwood made a convincing case for his client to be released from the proceedings.  There was no prospect of her obtaining her costs if she were successful.  Coincidentally such orders also protected the applicant husband from the consequences of his own omission to file and serve any evidence of the case he claimed he wished to pursue against the second respondent.  The asset in question was solely real estate at B registered solely in the name of the wife’s sister.  There was no risk that whatever interest the husband might establish in it in the appropriate jurisdiction would be jeopardized by this court making such an order.

6. Through her counsel the wife supported the dismissal of her sister as a party to the proceedings.

7. Later the husband submitted that he would like to take the issue “somewhere else” and have it “discussed in a proper way”.   He has that option.

8. On behalf of the second respondent Mr Heazelwood agreed that she would submit to any decision of the court in relation to a separate property at G, then registered in her name and that of the wife.

9. Counsel for the wife indicated, however, that he would read and rely on the affidavit filed by the second respondent.

10. Following an order I made and leave I gave the husband ultimately relied on a hand written statement of some 34 lines produced, after the court’s prompting, at 2.15 p.m. on the first day.  Its salient assertions were:

    1.The purchase of the property at G (placed in wife’s and sister’s name) was to be a “family” investment.

    2The purchase of the property at B (placed in the sister’s name) was to be a family investment.

    3.Funds had been drawn down on the V property (in name of husband and wife) towards the purchases at both G and B.

    4.That he was to have been included in the “family”.

    5.At no time had he seen any contracts, mortgages or transfers of these properties.

    6.The purchases at G and B had been organized by his wife who had also been the husband’s accountant. 

    7.That the husband had contributed to the V property mortgage repayments (and thus indirectly to the other properties).

    8.That he had assumed that he maintained an interest in both G and B properties.

    9.He had paid large amounts of cash to his wife during the marriage.

    10.He could only “surmise” that some of that cash was being counted as a contribution from the wife’s sister.

    11.The V property accounts showed all the property costs had come from there and there had been no large cash deposits otherwise.

11. The husband’s statement included an example of how he claimed his cash had been processed:

    (a)He gave, say, $1,000 to his wife;

    (b)These funds were smuggled into China;

    (c)They were banked there and then bank-transferred back to Australia.

    (d)The wife accounted for that $1,000 as a contribution made by her sister, the second respondent.

    (e)That is how it had been (wrongly) claimed that the husband (sic) thereupon owed the wife’s sister the $1,000.

    (f)By only showing the money coming out of China and not the money going in “vast areas for financial creativity can be displayed”, (inferentially by his wife).

12. The husband was permitted to swear to the truth of his statement when he gave oral evidence.  I deemed it essential that the hearing proceed to conclusion without delay in the interests of both husband and wife.

13. Whilst highly unsatisfactory as to eliciting the issues, I deemed it best not to proceed as if the matter were undefended, (which in any case was not sought) but allowed the husband, who represented himself, to give such oral evidence as was not otherwise objected to.

14. A further document produced by the husband became Exhibit “C”.  This appeared to be a memo between two solicitors or advisers acting for the husband.  It made various assertions similar to the husband’s case set out above.  However it added information that he had done a variety of work on the B property to put it into rentable condition. 

CHRONOLOGY

1. A short chronology may assist others in following these reasons.

2. The husband was born in 1961 and is now aged 47 years.

3. The wife was born in China in 1963 and is now aged 46 years.

4. The parties met in September 1990.

5. In November 1990 the parties married.

6. On 30 August 1999 the husband and wife purchased a property at V for $190,000.

7. The wife contended the purchase price and costs were made up as follows:

   (a)Joint savings of $26,000

   (b)Borrowings from the applicant’s sister $19,705.12

   (c)Borrowings from Westpac Bank by way of two loans totalling $151,950.

8. The wife contended that her sister continued to provide financial support to the parties both before and after this purchase.  By the time of the hearing this property had been the subject of a sale by the mortgagee and dispersal of the meagre proceeds had been made equally to the husband and wife.

9. On 2 September 2001 the wife’s sister sought the return of the money she had lent to the parties and purchased in her own name a property at B for the sum of $315,000.  (At the hearing the property was valued at $460,000.  It was the only asset of significant value.)

10. The wife contended that she had assisted her sister by drawing down a sum of $75,690.62 from a home loan in part repayment of the previous advances made by her sister.  The home loan was secured over the former matrimonial home at V registered in the names of the husband and wife.

11. The wife contended that this had been done with the husband’s knowledge and approval.

12. The wife also contended that after the drawdown and payment to the wife’s sister, the wife and the husband still owed her sister $5,733.00.

13. In October 2002 the parties’ child was born.  She now aged 6 ½ years.

14. On 17 May 2003 the wife and her sister together purchased an investment property known as G property for the sum of $568,000.  (At the trial this property was valued at $440,000.  It is registered in the names of both sisters only.)

15. The wife contended that the purchase price was made up as follows:

    (a) Borrowings from HSBC of $450,000.

    (b)Moneys raised by the husband and wife refinancing the original mortgage on V property for $111,308.41.

    (c)Cash of $27,800 contributed by the wife’s sister.

16. After the purchase of the property, the wife’s sister resided alone in the property.

17. The parties separated on 28 April 2005. 

18. The wife and child then moved into the property at G with the wife’s sister.  After a few months the wife’s sister moved out.

19. On 4 August 2006 the parties divorced.

20. On 8 December 2006 Westpac Bank commenced proceedings against the husband and the wife seeking possession of the V property owing to their failure to comply with the conditions of the loans with respect to that property.

21. On 17 August 2007 Westpac sold the V property and after payment of the various loans owing and costs associated with the sale, each of the husband and wife received the sum of $9,161.06.

22. On 23 December 2005 the wife filed her Application in this Court seeking adjustment of property orders.

FINDING OF MATRIMONIAL ASSETS AND LIABILITIES

1. The parties’ assets and liabilities appear to be as follows:

   1.  Wife’s half share in property at G  $210,000.00

   2.  Wife’s furniture at G   $    3,000.00

   3.  Wife’s St George Bank account  $    3,930.12

   4.  Wife’s superannuation (at hearing)  $ 38,000.00

   5.  Wife’s motor vehicle  $ 10,000.00

   6.  Husband’s truck  $   3,000.00

   $267,930.12

2. Liabilities:

   1.  Mortgage on G property owed by wife (50%)                 $209,270.00

   $  58,660.00

3. However this assessment is out of date.

4. There is evidence that the wife has since sold her car and the $10,000 of proceeds has been spent on maintaining herself and the child of the marriage.

5. I accept that evidence.

6. There is also evidence that the husband’s truck is now worthless.  I accept that evidence.

7. The nett interest in equity in the property at G, owned by the wife and her sister is negligible.

   50% of valuation  $210,000

   Less 50% of mortgage  $209,270

   $   1,730

8. I accept that evidence.

9. The wife’s bank account is listed as at the hearing is negligible at $3,930.12.  No doubt it has fluctuated since the hearing.

10. The wife’s superannuation is given at $38,000 but the figure at separation I accept was $22,000 so only that amount should be deemed to be an asset in accordance with the legislation.  It is of course, presently preserved in the name of the wife.

11. A revised list of assets and liabilities shows then that:

    1.        The wife’s half share in G property (nett)  $ 1,730

    2.        The wife’s furniture at G property     $ 3,000

    3.        The wife’s notional bank balance       $ 3,930.12

    The total of these assets (nett)   $ 7,660.12

12. To this should be added the wife’s superannuation as

    at the date of separation           $22,000.00

    $29,660.12

13. Whether the wife has a further debt to her sister, claimed by the wife to be $54,000 I do not decide.  Whatever the figure, I do not assess the evidence of it to be of sufficient weight for one to hold the father liable for any part of it.

14. I should also note that the parties divided the nett proceeds of sale of the former matrimonial home at V equally, and each has derived $9,161.00 from that.  No doubt each party has spent those proceeds by now.

CONTRIBUTIONS

1. Section 79(4) of the Family Law Act leaves the court hearing the matter with a discretion whether to make an order or not, and sets out the matters to be considered.

2. I shall set them out seriatim under the various headings.

SECTION 79(4)

1. In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account:

   (a)    the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

2. Both parties have worked at various times throughout the marriage.  They seem to have pooled their resources and invested (unwisely) in property speculation.  There is little value in calculating totals or percentages as the husband claims the wife was his accountant and much of his income was in cash and mishandled, according to him, by her. 

3. Even if this were the fact they have virtually nothing material to show for their labours, except, perhaps, the wife’s superannuation.

   (b)    the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

4. The husband renovated some of the premises and must be given credit for that.

5. The wife as the accountant and property dealer worked hard, but her endeavours ultimately proved of little financial worth with the collapse of the property market.

   (c)    the contribution 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;

6. The wife made a major contribution to the raising of the parties’ child and also acted as bookkeeper and accountant both for the family and for the husband’s businesses.  His evidence was that he gave what he earned to the wife and that she did all the book work and paper work.

   (d)    the effect of any proposed order upon the earning capacity of either party to the marriage;

7. There being very little value in the parties’ assets, no order will affect the earning capacity of either.

   (e)    the matters referred to in subsection 75(2) so far as they are relevant;

8. I shall deal with this section shortly.

   (f)     any other order made under this Act affecting a party to the marriage or a child of the marriage; and

9. There are orders in place that the mother should have sole responsibility for the child of the marriage with provision for the child to spend one night a fortnight with her father.

10. I find that she is likely to have to bear by far the greater burden of not only nurturing the child but also of providing maintenance for her for the next decade or so.

    (g)    any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

11. This issue is dealt with under Section 75(2).

SECTION 75(2)

1. I turn now to the provisions of Section 75(2) that the Court must take into consideration where relevant.  I shall make brief findings covering each.

2. The matters to be so taken into account are:

   (a)    the age and state of health of each of the parties;

3. The first respondent husband was born in 1961 and immigrated to Australia in 1980.  The applicant wife was born in 1963 in China, and migrated to Australia in December 1989.

4. There is no evidence of any relevant ill health of either party.

   (b)    the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

5. The property of the parties is minimal.

6. The income of the applicant is currently $1,027 net per week.  She has a degree Sydney University and a Masters degree.

1. The husband works as a truck driver.  His taxable income is said to be about $12,000 to $15,000 per year.

2. The only financial resource revealed for either party comprised whatever interest that could be established by the husband or by the wife in the property at B registered in the name of the wife’s sister.  The wife and the sister agree that the property is solely that of the wife’s sister.  The husband airily claims an equitable interest.  Such issue remains to be tested in the appropriate forum.

3. Each party has the physical and mental capacity for appropriate gainful employment.

   (c)    whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

4. Under order of Court dated 27 August 2008 the mother has the sole responsibility for the child of the parties.  The child spends 13 out of 14 nights per fortnight with the mother.  She sees her father each alternate weekend from Saturday afternoon to Sunday night.  She has Chinese lessons each Saturday morning.

   (d)    commitments of each of the parties that are necessary to enable the party to support:

   (i)   himself or herself; and

   (ii)a child or another person that the party has a duty to maintain;

5. The parties both have a duty to support their daughter born in October 2002 and presently 6 years old.

6. A duty to maintain her thus has about twelve years to run.

   (e)    the responsibilities of either party to support any other person;

7. There is no evidence of any such responsibility.

   (f)            subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party;

8. There is no evidence that either party is presently entitled to any pension, allowance or benefit.  Some benefit may be received from the State for the support of their child.

   (g)    where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;

9. The orders will be unable to affect the standard of living of the parties due to the paucity of assets.

   (h)    the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

10. This does not arise.

    (ha)  the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

11. No order is proposed to compromise the recovery of a creditors’ debt.

    (j)     the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

12. This is dealt with under Section 79 above.

    (k)    the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

13. The parties cohabitated from September 1990 until their marriage in November 1990.

14. The parties separated on 28 April 2005 and were divorced on 4 August 2006.

15. There is no evidence that the marriage of 15 years has affected the earning capacity of either party.

16. The wife has managed to further qualify herself for employment by her university studies, the funds for which were contributed to by both parties.

    (l)     the need to protect a party who wishes to continue that party's role as a parent;

17. This is noted. Such action will be taken by preserving the wife’s superannuation intact in her name.

18. I find that the major burden of providing for their daughter, will fall upon the wife for the next decade at least.

    (m)   if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;

19. There is no evidence of such cohabitation.

    (n)    the terms of any order made or proposed to be made under section 79 in relation to:

    (i)   the property of the parties; or

    (ii)  vested bankruptcy property in relation to a bankrupt party;

20. This is the subject of this judgment.

    (na)  any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

21. By letter dated 7 January 2009 from the Child Support Agency, the father was not assessed as liable to make any payments to support the child of the marriage for the period 1 December 2008 and 28 February 2010.  The mother was found to have an adjusted taxable income of $56,967 p.a. and the father of $0.

22. It is unlikely, in my view, that the wife can expect any assistance of more than nominal sums, if any, from the father towards the child’s maintenance in the future.

    (o)    any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

23. Due to the unusual aspects of the case where the husband put on no cogent written evidence and gave no cogent oral evidence, the court has been forced to rely heavily on the only evidence provided, that of the mother and the mothers’ sister.

24. The husband repeatedly stated he neither had nor could procure evidence of his assertions. Thus, necessarily, they weren’t contested.  The documentary support provided supported the case made by the wife as corroborated by her sister.

25. Another circumstance that should be repeated was that although the wife’s sister had been joined as a second respondent, I acceded before the hearing commenced to remove her from the proceedings and specifically declined to decide the equities (if any) arising for any of the parties in relation to the only property the value of which exceeded the debts it secured.  Such property was at all relevant times in the name and possession of the wife’s sister.  Both she and the wife denied the husband had any relevant interest in the property.  The husband vehemently asserted he had, as part of “the family” but produced no evidence to support his assertions.

26. I excluded the issue from the trial for the reasons given above on the first day of the hearing. 

27. Such orders have not been the subject of an appeal.

    (p)    the terms of any financial agreement that is binding on the parties.

28. There is no evidence of any such agreement.

SECTION 79(4)(d)

(d)    the effect of any proposed order upon the earning capacity of either party to the marriage; and

1. This is dealt with under Section 75(2)

   (f)     any other order made under this Act affecting a party to the marriage or a child of the marriage; and     

2. This is dealt with under Section 75(2)

   (g)    any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

3. This is dealt with under Section 75(2)

4. It is also pertinent to note that on the available evidence on the balance of probabilities the greatest burden for the provision of child support that might be liable to be provided in the future is highly likely to fall solely on the shoulders of the applicant mother.

INCIDENTAL ISSUES

1. The evidence does not support the removal of the husband’s property from the former matrimonial home by the wife.  The loss of this considerable list of personal property apparently occurred when his premises were unoccupied whilst he was in jail.  His tools of trade had been left in an unlocked garage.  There is no cogent evidence of who removed the property, but neither party discloses they have retained any of it.

2. There is hardly any relevant equity in the premises at G.

3. There has been a distribution of 50% to each party of the proceeds of the sale of the V property.   That I do not disturb.

4. The husband may retain his truck which I have accepted as of no commercial value.

5. The mother’s car has been sold for $10,000.  The proceeds were retained by her and not shared with the husband.  However, I accept that she spent the money sustaining herself and the child of the marriage.  I also accept that any payments of child support made by the husband have been minimal.

6. In view of the twelve years ahead when the wife will have the major if not sole responsibility for the maintenance of their child, I decline to order any of the money in her bank be divided in any way.  So, too, her superannuation. I accept the evidence of the continuing excess of the wife’s regular income as deposed to by her from 1998-2008, where in each of the last four years it has exceeded $50,000 p.a. (gross) and in 2009 is set to do the same nett.  During the period since separation, her superannuation has grown by $16,000.

7. I also accept that the taxable income of the husband throughout the marriage was between $12,000 and $15,000 p.a.  I make no assumption that this did or did not include amounts of cash.  His assertions concerning transactions with China were not established by evidence.  Suspicion is not evidence:  neither is assertion.

CONCLUSION ON CONTRIBUTIONS

1. I accept that both parties worked hard and contributed what they could to the marriage.  I accept the evidence that the taxable income of the wife in general exceeded that of the husband.  I accept that not only did she make a greater monetary contribution to the marriage but that she contributed as well her services as an accountant and book-keeper for her husband’s business.

2. I find that the decision or agreement of the parties to divide the nett proceeds of the property at V was proper and should not be disturbed.

3. However, I find that the weight of matters considered under Section 75(2) favours the wife, particularly in relation to the future financial and other needs of the child of the marriage. Were it relevant I would add 5% on that basis to the 50% I would allow under the other Section 79(4) factors.

CONCLUSION

1. Having considered all the evidence, paid heed to all submissions and applied the law as I apprehend it to be I am prepared to make the following orders sought by the applicant wife in her further Amended Application for Final Orders.

2. In doing so I rely on the submission of Mr Heazlewood that his client submits to any order the Court might make concerning the property at G.

3. The declaration and orders are also in the husband’s favour as they indemnify him for the mortgage debt over the premises.

I certify that the preceding One hundred & twenty six  (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Waddy

Associate: 

Date:  17.09.2009