M and G
[2006] FCWA 1
•6 JANUARY 2006
[2006] FCWA 1
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : [REGIONAL CENTRE] | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
[G]
Respondent
Catchwords:
Property settlement - de facto marriage - date of separation - application filed out of time.
Law reform - desirability of amendment of s 205ZB(1) Family Court Act 1997.
Legislation:
Family Court Act 1997, s 205ZB(1), s 205ZB(2)
Interpretation Act 1984, s 13A
Category: Not Reportable
[2006] FCWA 1
Representation:
Counsel:
| Applicant | : | Mr N Cogin |
| Respondent | : | Mr D Childs |
Solicitors:
| Applicant | : | Bowen Buchbinder & Vilensky |
| Respondent | : | Ball & Co. |
Case(s) referred to in judgment(s):
Bloomfield & Clarke [2003] FCWA 158
Evans & Parkinson [2005] FCWA 4
Hiberson v George (1989) DFC 95-064
[2006] FCWA 1
1 Mr [M] and Ms [G] began living in a de facto marriage relationship in 1997. The question I am required to determine is when did that relationship end?
2 The answer has significant consequences. Mr [M] filed an application for
property settlement on 24 June 2005. If the relationship ended on 22 July 2003, as Ms [G] claims, Mr [M] needed leave of the Court before filing. This is so, because S205ZB(1) of the Family Court Act 1997 provides that applications for property settlement must be made within one year after a de facto marriage relationship ends.
3 Mr [M] filed an amended application in August 2005. He maintained his claim
that the relationship ended on 17 November 2004; however, in case he was wrong, he also sought leave to commence proceedings out of time. This application was abandoned at trial, presumably because it was conceded Mr [M] could not establish he would suffer “hardship” if denied the right to litigate.
Credibility
4 There were a number of witnesses called on behalf of both parties. This was
a refreshing case where all of the witnesses appeared to be attempting to give their honest recollection of relevant events. None of them gave the appearance of adjusting their evidence to support the party on whose behalf they had been called. None of them was successfully challenged in cross-examination and I therefore generally accepted all of their evidence. However, it was apparent that Mr [M]’s son, [MM], did not have a particularly good memory for events and conversations – a fact he readily admitted in cross-examination.
5 I found Ms [G] to be a particularly impressive witness. She gave her evidence in
a measured and a thoughtful way. She was ready to make concessions and allowances where they were due. Other than on a very few occasions, I did not gain the impression she was adjusting her evidence to support her case.
6 Mr [M] also seemed to be a reasonably credible and open person. He too was
prepared to make some allowances and concessions; however, I gained the impression his memory was not quite as reliable as that of Ms [G]. Mr [M] was clearly extremely attached to Ms [G] and found it very difficult to deal with the breakdown of their relationship. I found he was inclined to view some events as he wanted them to be, rather than as they really were.
7 The most critical item of evidence was the discussion that occurred between the
parties on 22 July 2003, when Ms [G] left the home in which they had been residing in [the country town]. If Ms [G]’s evidence is accepted, she made an unequivocal statement of her intention to terminate their relationship, followed by her immediate departure from the home. Mr [M]’s evidence was that the exchange was much more equivocal. He does not accept that Ms [G] ended the relationship then and there, but merely indicated she was no longer prepared to live with Mr [M]’s son. I considered Ms [G]’s evidence on this point to be far more convincing than that given by Mr [M]. Other evidence, including subsequent correspondence sent by Mr [M] to Ms [G], provided strong corroboration for Ms [G]’s version of events.
[2006] FCWA 1
8 The other important part of the evidence related to Mr [M]’s claims about
discussions that occurred between the parties after Ms [G] left the home, in which he says they agreed they would resume cohabitation once he was free to leave [the town]. Although there was no corroboration of either party’s version, I tended to prefer
Ms [G]’s evidence on this point as well. However, it was more difficult to make a firm finding of credibility about this period, as Ms [G]’s feelings towards Mr [M] were ambivalent and she did not want to hurt his feelings by rejecting his plans for the future too firmly.
| The law | |
| 9 | In reaching my decision, I must have regard to the provisions of s 13A of the |
| Interpretation Act 1984, which sets out the following factors to be taken into account in assessing whether a de facto relationship exists between two people: - |
(a) the length of the relationship between them; (b) whether the two persons have resided together; (c) the nature and extent of common residence; (d) whether there is, or has been, a sexual relationship between them; (e) the degree of financial dependence or independence, and any arrangements for financial support, between them; (f) the ownership, use and acquisition of their property (including property they own individually); (g) the degree of mutual commitment by them to a shared life; (h) whether they cared for and support children; and (i) the reputation, and public aspects of the relationship between them.
10 De facto relationships begin and end in a multitude of ways – quite unlike
marriages, which have a prescribed method of celebration and dissolution, both marked by public and legally documented events. In many cases, it is extremely difficult to discern when a relationship between two people ceases being that merely of lovers and begins being a de facto marriage. It is also sometimes difficult to discern when the de facto marriage relationship ends – or, if it did end, whether it was later revived.
11 I agree, with respect, with the observations of Mahoney J in Hiberson v George (1989) DFC 95-064 at 75,766, where, in considering an appeal in a case involving a de facto marriage relationship in New South Wales, his Honour said:
“There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding all of the things for which it was created have ceased. Parties will live in the relationship
[2006] FCWA 1
of marriage notwithstanding that they are separated, without children, and without the exchange of incidents which the relationship normally involve. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as was suggested in the present case, to enable the one party or other to decide whether it should continue.” (my emphasis added).
12 In Hiberson v George, the issue was whether a de facto marriage relationship had ended prior to 1 July 1985 (the date on which the NSW De Facto Relationships Act 1984 commenced). The defendant had given evidence that she had left the home in order to think about her relationship with the plaintiff, and that she did not decide to end the relationship until after the Act commenced. In rejecting her claim the relationship still subsisted after she left the home, the trial Judge had this to say: -
“In the absence of any overt act or indication by the defendant to the plaintiff that she was staying away only temporarily and intended to return, it seems that I must find that the relationship had ceased by 1 July.”
13 Mahoney J, and the other members of the New South Wales Court of Appeal, saw no error in the approach adopted by the trial Judge.
14 Penny J had occasion to review the relevant authorities in Bloomfield & Clarke
[2003] FCWA 158. Her Honour concluded (at para 55): -
“I agree with the proposition that it takes more than a physical separation to sever a de facto relationship. A de facto couple could separate, but work towards continuing the relationship, for example, by attending counselling and going out together socially.”
15 In previous decisions, including Evans & Parkinson [2005] FCWA 4, I have indicated my respectful agreement with Penny J’s views. However, reference to authority can only provide helpful guidance. Ultimately, each case turns on its own facts.
Findings
16 The parties met in August 1996. Ms [G] was operating [ a business] and Mr [M]
was running [a store] in a nearby town. They developed a close personal relationship and started spending nights together regularly. Ms [G] refused Mr [M]’s offer of marriage, but told him she was committed to their relationship. She sold her business and moved to live in [his town] in December 1997.
17 On arrival in [town], Ms [G] stayed with Mr [M] for a month or so, but then
obtained her own home in the town. I accept Ms [G]’s evidence that she did not want to live in the same residence as Mr [M] immediately, but he did move in with her almost as soon as she took up occupation. Mr [M]’s son, [MM], moved in shortly thereafter. Ms [G] commenced working for wages in the store. She later purchased
[2006] FCWA 1
the home, using funds from the sale of the business. The property was registered in
her name alone. Mr [M] let his home to tenants.18 While living and working in [the country town], Ms [G] travelled regularly to
[the regional centre] to attend a dancing class. She used to stay overnight at a motel. The parties agreed it would be more cost effective to buy a home in [that town]. Having taken accounting advice, it was decided the property should be in Ms [G]’s name to obtain a taxation deduction for Mr [M]’s business. This was achieved by him making a payment to her for the night she spent in [that town] in return for which she brought back provisions for the store. A suitable property was duly located and purchased. Ms [G] paid the deposit from the remaining proceeds of sale of her business and with money she had saved from her wages. The balance was funded by a mortgage she obtained.
19 Although the parties kept their finances separate, there is little doubt they were
living in a de facto marriage relationship from about the time Ms [G] moved to take up residence in [his country town]. However, their relationship was somewhat “rocky”. They separated on at least six occasions before July 2003. On each of these occasions, Ms [G] would leave the [town] home and go elsewhere, usually to the house in [the regional centre]. It appears the longest break was for a period of about a month in 2001, when Ms [G] went to live with her brother. On this occasion, the parties actually entered into a lease agreement, pursuant to which Mr [M] agreed to pay Ms [G] for occupying her home. However, as with all the other earlier separations, matters were resolved and Ms [G] returned to the [town] home and resumed work in the store.
20 In April 2003, Ms [G] purchased a small rural lot at {another country town]. She
had a long-term dream and decided to set up a business on the property. In order to have funds to do this, Ms [G] sold her [town] property to Mr [M]. He sold his own residence in [that town] at around the same time. In December 2003, Ms [G] also sold the property in [the regional centre] and used the proceeds to pay off the bridging finance she had obtained for [the rural property]. Ms [G] did not plan to move to [the rural property] immediately. She continued to live in [the country town] with Mr [M] and continued to work in the store. The [rural property] was let to tenants.
21 On 22 July 2003 there was a most unfortunate incident between Ms [G] and Mr
[M]’s son, [MM]. [MM] was suffering from a mental illness at the time. As a result of what occurred, I find that Ms [G] said words to Mr [M] to the effect “I will not be treated like this ever again. We are finished and I am out of here”.
22 Ms [G] immediately left the property in [the country town] and went to stay with
her friend, Ms [A]. She told Ms [A] that she was not putting up with the situation in the home any longer and that her relationship with Mr [M] was definitely at an end. The next day, she and Ms [A] went around to the home to collect her possessions. An argument ensued between the parties. I accept Ms [A]’s evidence that Mr [M] was trying to persuade Ms [G] not to leave. He told her it was not “fair” she was leaving him because of the incident involving [MM]. Ms [G] said she was leaving for other reasons as well. She once again, this time in the presence of Ms [A], told Mr [M], “it’s over”. She also told Mr [M] that she did not want to live in [the country town]
[2006] FCWA 1
and did not want a relationship with him. She collected her possessions and asked Mr
[M] to promise he would let her come back to collect the rest of her belongings.23 After staying with Ms [A] for a few days, Ms [G] moved to live in the house in
[the regional centre], which at that stage had not yet been sold. She immediately applied for a Job Search Allowance and began looking for work in order to support herself. There was no suggestion in the evidence that she had applied for social security or sought employment during any of the previous separations.
24 Mr [M] was desperately unhappy about Ms [G]’s departure. He was well aware
this rupture in their relationship was serious and he feared it would be permanent. I find that until November 2004, when he finally gave up all hope, his life was dedicated to restoring the relationship. He tried a variety of strategies, including trying to make Ms [G] feel sorry and guilty. However, he mainly followed the conventional course of wooing and pleasing.
25 Mr [M] sought to persuade the Court that Ms [G] was only angry with [MM],
and not with him when she left [town]. He denied he was ever told the relationship was over. He said she told him she would not live with [MM] again, but she was prepared to live with him (i.e. Mr [M]) at [the rural property] once he was able to dispose of his store. I do not accept this evidence.
26 A week after she had left [the country home], Ms [G] had still not arranged for
the collection of her remaining possessions. Mr [M] then boxed them up and took them to her in the regional centre. However, as he said in a letter he wrote to Ms [G] at the time, he really came to visit to tell her, “I miss you, & I love you”.
27 In this letter of 29 July 2003, Mr [M] professed his undoubted love for Ms [G];
however, the letter also contained comments such as, “when you want to come and get anything else, just ring or let me know”. The letter acknowledged that Ms [G] had very little remaining in the home in [the country town]. The tone and content of the letter are indicative of the fact that Ms [G] had ended the relationship and Mr [M] was endeavouring to restore it.
28 The parties’ first meeting in [the regional centre] after the separation did not go
well. Indeed, things went so badly that Mr [M] was prompted to write “Not good reaction” on his calendar. Under cross-examination, he admitted he received a “mixed reception” and that he could have “hoped for a better response”. He later conceded that Ms [G] was angry with him when he visited, which he continued to feel was “unfair”, because he was “being blamed for something I had no control over”.
29 Soon after she moved to [the regional centre], Ms [G] arranged for the tenants to
leave [the rural property]. She moved onto the property in August 2003 and began to establish her [rural] business, whilst supporting herself from employment she had obtained in the nearby town.
30 Mr [M] continued to make overtures to Ms [G] to resume their relationship.
There was undoubtedly a thaw in their frosty relations and Ms [G] was prepared to allow Mr [M] to visit her for a cup of tea and a chat. After a while, Mr [M] began to stay overnight. There is a dispute as to when the parties resumed having sex, but I am
[2006] FCWA 1
inclined to accept Ms [G]’s evidence that this was not until late 2003 or early 2004.
Thereafter, they had regular sexual relations on each of Mr [M]’s visits.31 A pattern soon developed where Mr [M] would come to [the rural property] and
stay overnight on Wednesday – and sometimes on Thursday. I was not inclined to accept his claim that he also regularly stayed on Saturday night. I note than while he provided much corroborating evidence of the midweek visits, there was very little to corroborate his claim of regular weekend visits. However, they spoke to each other frequently on the telephone.
32 During Mr [M]’s visits to [the rural property], the couple would regularly travel
to regional centre. They would dine together and go to the movies. They would attend auctions and visit shops to acquire things for their respective homes and businesses. Sometimes Mr [M] would pay for items that were to be kept by Ms [G]. I accept that sometimes these were put on Mr [M]’s account and he was later reimbursed by Ms [G]. Nevertheless, I was not persuaded that Ms [G] reimbursed Mr [M] as consistently as she wanted me to accept. However, nor was I persuaded that Mr [M] gave Ms [G] a lump sum of $2,000 as he claimed.
33 Mr [M] continued to try to persuade Ms [G] that they had a future together. He
again asked her to marry him (as he had done on many occasions previously). She continued to refuse his offer. I find that Ms [G] was quite happy with the relationship as it was – i.e. with them maintaining separate residences, but seeing each other as friends and lovers. I accept Ms [G]’s evidence that she told Mr [M] that she did not believe their relationship could work if they resumed cohabitation. This was only in part because she maintained the view that [MM] would never be welcome in her home.
34 Matters proceeded along these lines up until 17 November 2004. On that date,
Ms [G] saw a photograph of Mr [M] in the newspaper. He was pictured with his children and his ex-wife at a social event. The nature of the relationship between Mr [M] and his ex-wife had always been a matter of concern to Ms [G]. Mr [M] had visited Ms [G] on his way to the social event in question, but he had not even mentioned it to her. It was clear she was very upset by the fact that he had been out with his former wife without telling her. She decided their relationship was “not going anywhere”. She telephoned Mr [M] and told him not to visit her anymore. This is the date Mr [M] says marks the end of the de facto marriage relationship.
35 Notwithstanding that Ms [G] did not want to continue with the relationship, Mr
[M] continued to call past her property, hoping in vain that she would invite him to the house when she saw him down at the front gate. He sent letters asking her to reconcile with him. He would also telephone her often, regularly not speaking when she answered the phone. Ultimately, Mr [M] began to threaten Ms [G] with legal action. I suspect he even saw this as the “last roll of the dice” in his desire to reconcile. However, Ms [G] remained firm. Mr [M] then commenced legal action, claiming he was entitled to a significant settlement.
[2006] FCWA 1
Discussion and conclusion
36 There was discussion at the trial as to which party carried the burden of proof.
I consider this is a matter of some importance, because I did not regard the outcome of the proceedings to be entirely clear-cut. Ultimately, I formed the view that Mr [M] carried the burden. I have found Ms [G] made an unequivocal statement at the time she left [town] in July 2003 that her relationship with Mr [M] was over. There is no doubt in my mind the de facto marriage relationship ended then or when she came back to the home and collected her belongings. The parties thereafter did have a relationship – but the real issue is whether or not that relationship can be reasonably characterised as the resumption of their de facto marriage.
37 It is Mr [M] who asserts the de facto marriage relationship resumed sometime
after August 2003. The party alleging a fact bears the burden of proving it. Ultimately, after much reflection, I have concluded that Mr [M] did not discharge that burden.
38 My reasons for so deciding are primarily these: -
(a)
Once she left the home in [the country town], Ms [G] never once returned to [the country town] to live, work or even visit. The relationship became one of courtship, with Mr [M] repeatedly travelling to Ms [G]’s new home, seeking the reinstatement of their former relationship and Ms [G] resisting those attempts.
(b)
Ms [G] was perfectly happy living on her own and did not wish to resume the full relationship the parties had when living together in [the country town]. She communicated that fact to family and friends. The former relationship had been too stormy for her liking. The last straw had been [MM]’s assault on her. She thereafter considered it unrealistic to live with a man whose much-loved son was never to be permitted in her home.
(c)
The fact this middle age couple had an active sex life is not a strong indication of the existence of a de facto marriage. In modern Western society, regular sexual intercourse is far from being the preserve of those living in marriages or marriage-like relationships. It is a common element of boyfriend/girlfriend relationships and, in fact, is common amongst those in no relationship at all.
(d)
The parties kept their finances completely separate, albeit this is not as important a factor as it would have been had they intermingled their finances when they were together. I accept that Mr [M] provided some financial assistance to Ms [G] when she was living at [the rural property]. However, I consider that can be viewed as being compensation for some of the costs associated with him being a regular visitor in the home and also (for example in the case of the ride-on lawn mower) as being by way of generous gifts aimed at promoting the relationship. Mr [M] not only sought to impress Ms [G] with these gifts, but also her family and friends.
[2006] FCWA 1
(e) The parties each ran their own businesses quite independently. Mr [M] did offer Ms [G] $10,000 to [extend the facilities on the property], but she refused the offer. Although Mr [M] did a number of jobs for Ms [G] around the property, this is to be understood in the context of Mr [M] being a fairly genial fellow, who was trying to win his love back. (f) Mr [M] was challenged in cross-examination on his claim that he still had items of clothing left at her property, but Ms [G] was not cross-examined on her claim that Mr [M] did not keep belongings such as clothing, a tooth brush, shaving gear or other personal items at her home. Although Mr [M] may have had an odd item of clothing at her house, essentially all of his possessions were in his own home and all of Ms [G]’s possessions were in her home. He was a visitor in her home, albeit one who shared a bed with the owner. (g) I accept that Mr [M] was informing his friends and associates in [his town] that he would be selling his business and going to live with Ms [G] at [the rural property]. However, he was endeavouring to paint a rosier picture of the relationship than the facts warranted. Sometimes he stretched the truth. For example, he told Ms [O] that he and Ms [G] had bought the rural property together, which is not the case. I believe he was more honest with Ms [A], who had been present when Ms [G] terminated the relationship. He would afterwards often express regret to Ms [A] that Ms [G] was not interested in coming back to him. (h) I am satisfied that most of Ms [G]’s relatives and associates were not only told - but observed - that the parties had separated and were living independent lives, albeit enjoying each other’s company. Many of Ms [G]’s witnesses observed that she was enjoying the freedom of her new lifestyle. (i) The fact the couple went out together socially is not a strong indication that they were living in a de facto marriage relationship. For people of their age, the fact Mr [M] picked up the restaurant bill and paid for the movie tickets might even be one small indicator that he was wooing her rather than living with her in a de facto marriage relationship.
(j)
Similarly, the fact that they visited family together on occasions after July 2003 (and on one occasion probably had Christmas lunch together) does not show that the resumed relationship progressed beyond being that of friends and lovers. They still liked each other and they got on well with each other’s family (except for the problem with [MM]). Significantly, there were also some important family occasions they did not attend together. For example, in November 2003 they received separate invitations to attend the wedding of Ms [G]’s son. Ms [G] went to the wedding accompanied by a lady friend. Mr [M] did not attend. (The bride and groom had planned to seat them at separate tables.) Nor did Mr [M] attend the
[2006] FCWA 1
80th birthday party of Ms [G]’s father in the middle of 2004. He did not accompany her to Perth on the occasion of the birth of her granddaughter in April 2004.
39 In light of these findings, I have decided that the de facto relationship concluded
in July 2003, as Ms [G] alleged. Although the parties restored their friendship, they did not resume living in a de facto marriage. Mr [M]’s application was therefore out of time. In light of the abandonment of the second limb of his claim, his application must be dismissed.
Law reform
40 This case highlights an unsatisfactory aspect of the “de facto amendments”
brought about by the introduction of Part 5A into the Family Court Act 1997. The express intention of the legislature, in introducing what many saw as long-overdue reform, was to give couples to failed de facto relationships the same legal rights and obligations as those who have been legally married. However, this objective was not entirely achieved.
41 Parties to a failed de facto relationship have only one year in which to
commence property settlement proceedings from the date on which the relationship “ended”. On the other hand, parties to a failed marriage have one year from the date their divorce becomes final in which to institute similar proceedings. As a divorce cannot be obtained until the parties have been separated for a year, and as the divorce process takes a few months, married couples effectively have well over two years in which to commence proceedings from the time their relationship has “ended”. Many married people have much longer than this, since most people do not commence divorce proceedings immediately the requisite time has elapsed.
42 As the avalanche of “de facto” cases coming before the Court demonstrates,
intimate personal relationships are attended by an amazing variety of different circumstances. This has led to a large number of disputes about jurisdictional issues. The Court is increasingly employing its already overstretched resources to deal with hotly contested preliminary issues. These include answering deceptively simple questions such as:-
• Was there a de facto marriage relationship? • Did the relationship last two years? • When did the relationship end? 43 Resolution of these matters does not come cheaply. Mr [M] has already incurred
legal costs approaching $30,000. Much of this expense could have been avoided had he enjoyed the same rights as a husband in a legal marriage. He could then have waited more than two years before commencing proceedings. He started proceedings less than two years after the end of the relationship and yet has been forced to overcome a preliminary hurdle. In the process, not only have he and Ms [G] been put to inordinate expense, but two days of Court time have also been lost – not to mention all of the preliminary appearances. Judgments in other cases have been delayed
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whilst I have reserved my decision and taken time to reflect on the appropriate
outcome.44 It takes many people a long time to come to grips with the breakdown of
a cherished relationship. Following such breakdown, there is often a need to attend to practical matters such as new housing, change in employment, new arrangements for children and counselling/medical intervention to deal with the aftermath. People are at their most vulnerable during this stressful time. They are frequently not ready to deal with the formal processes of resolving outstanding financial issues.
45 Once they are ready, it is highly desirable parties not be forced to rush into
litigation before the limitation period expires. The Court and Parliament have placed great emphasis on the desirability of resolving disputes by means other than litigation. Once parties are ready to begin resolving their outstanding legal issues, they first need time to gather information and seek advice. They then need time for discussion, negotiation and/or mediation. This case – and a number of others that have preceded it – demonstrates it is highly unsatisfactory for parties to be expected to undertake all of this within just 12 months from the date on which their relationship came to an end.
46 The Family Court of Western Australia has not been resourced to deal with this
entirely new jurisdiction. “De facto” property cases now account for a significant proportion of applications. I strongly suspect that they utilize far more than their proportionate share of court time, since they give rise to many jurisdictional disputes that cannot arise in cases involving breakdown of legal marriages. Some of these disputes are unavoidable. However, it is unfortunate that because of what is an unrealistic limitation period, the Court must also deal with many applications for leave to commence proceedings out of time.
47 The Attorney General for Western Australia has recently asked Courts to make
representations about any amendments perceived to be needed to relevant legislation.
I would suggest that s 205ZB(1) of the Family Court Act 1997 is ripe for reform.
I certify that the preceding [47] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate