MJ & JBD and Anor

[2006] FamCA 419

[2006] FamCA 419

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT   No. (P)SYF.2873 of 2005

IN THE MATTER OF:	MJ	Mother
AND	JBD	Father
AND	LD	Second Respondent

REASONS FOR JUDGMENT

CORAM:	Judicial Registrar W. P. Johnston
DATE OF HEARING:	8, 9 and 10 February 2006
DATE OF JUDGMENT:	31 May 2006

Catchwords

FAMILY LAW - CHILD SUPPORT - Overseas maintenance order

Legislation considered

Family Law Act 1975 – s.66B, s.66B(1), s.66C(1), s.66C(2), s.66G, s.66H, s.66J(1), s.66J(3), s.66K(1), s.66K(4), s.66K(5), s.66P(1), s.66P(1)(d), s.67B

Cases considered

Luckie and Luckie (1989) FLC 92-036

APPEARANCES:

Mr Campton of Counsel	instructed by Barkus Edwards Doolan, Solicitors, appeared on behalf of the applicant mother.
Mr Gould of Counsel	instructed by McDonell Milne Toltz, Family Lawyers, appeared on behalf of the respondent father and the second respondent.

Applications

1. The parties are MJ, JBD and LD.  For convenience I shall refer to them as “the mother”, “the father” and “[LD]”.  The mother seeks the following orders:

   1.That pursuant to Section 66G of the Family Law Act 1975 (“the Act”) the father pay to her within 21 days of the date of these Orders by way of child maintenance for the child P born in December 2004 (“the child”) the sum of $27,415.

   2.That in addition to the maintenance provided for in Order 1 and pursuant to Section 66G of the Act, the father pay to the mother within 21 days of the date of these Orders the sum of $4,036 by way of lump sum maintenance for the child.

   3.That pursuant to Section 67B of the Act, the father pay to the mother within 21 days of the date of these Orders the sum of $4,876 by way of maintenance of the mother during the childbirth maintenance period.

   4.That in addition to the maintenance provided for in Orders 1 and 2 and pursuant to Section 66G of the Act, the father pay to the mother within 21 days of the date of these Orders the sum of $464,359 by way of future lump sum child maintenance for the child.

   In the alternative to Order 4 and without concession:

   5.That in addition to the maintenance provided for in Orders 1 and 2 and pursuant to Section 66G of the Act, the father pay to the mother or as she may from time to time direct in writing, child maintenance for the child in the sum of $530 per week, the first payment to be made within seven days of the date of these Orders and the final payment to be made upon the happening of the first of the following events:

   5.1      on the child attaining the age of 18 years;

   5.2      on the death of the child;
             5.3      on the child becoming a member of a couple.

   6.That the child maintenance payable by the father to the mother pursuant to Order 5 is to be varied on 1 July each year, commencing on 1 July 2007, to such sum as shall be determined by multiplying the child maintenance being paid on the review date by the fraction N/B where “B” is the Consumer Price Index for Sydney (All Groups) published by the Australian Bureau of Statistics (“CPI”) in respect of the quarter year ended on the day 12 months prior to the review date and “N” is the CPI in respect of the quarter year ended on the day immediately preceding the review date.

   7.That by way of security for the child maintenance provided for in Order 5, the father deposit within 7 days into an interest bearing account in the name of the mother and the father with the Commonwealth Bank of Australia (“the account”) the sum of $464,359 and the mother and the father to be joint signatories of such account and both are to authorise any withdrawals from the account except as provided for in the following order.

   8.In the event the father is in arrears of his obligation to pay child maintenance to the mother pursuant to Order 5 in excess of one calendar month, the mother is at liberty to withdraw from the account referred to in Order 7 all moneys as are necessary to meet the father’s obligation for child maintenance.

   9.Upon the happening of the first of the events identified in Order 5, the balance of funds held in the account including any interest earned on that account, as at that date shall be paid to the father and the mother shall sign all documents to effect that payment.

   In the alternative to Orders 5 to 9 inclusive and without concession:

   10.That in addition to the maintenance provided for in Orders 1 and 2 and pursuant to Section 66G of the Act, the father pay to the mother or as she may from time to time direct in writing, child maintenance for the child in the sum of $530 per week, the first payment to be made within seven days of the date of these Orders and the final payment to be made upon the happening of the first of the following events:

   10.1     on the child attaining the age of 18 years;

   10.2     on the death of the child;
             10.3     on the child becoming a member of a couple.

   11.That the child maintenance payable by the father to the mother pursuant to Order 10 is to be varied on 1 July each year, commencing on 1 July 2007, to such sum as shall be determined by multiplying the child maintenance being paid on the review date by the fraction N/B where “B” is the CPI in respect of the quarter year ended on the day 12 months prior to the review date and “N” is the CPI in respect of the quarter year ended on the day immediately preceding the review date.

   Injunctions

   12.That pending compliance with these Orders, the father be restrained from dealing with the funds held by Commonwealth Bank Sydney in the name of the father account number […] (‘the CB account”) except to enable compliance with these Orders.

   13.That pursuant to Section 106B and/or Part VIIIAA of the Act, the transfer of the property at [S], England (“the property”) from the father to [LD] be set aside.

   14.That [LD] forthwith pay or cause to be paid to the father by way of bank cheque so much of the net proceeds of sale received by her from the sale of the property and referred to in paragraph 2 of the Orders made 11 October 2005 (“the net sale proceeds) as is necessary to enable the father to comply with these Orders.

   15.That pending compliance with Order 14 above, [LD] be restrained from dealing with the net sale proceeds except to enable compliance with these Orders.

   16.That forthwith upon receipt of the payment referred to in Order 14 above, the father deposit the bank cheque into the CB account or such other account as agreed by the mother in writing and thereafter, pending compliance with these Orders, the father be restrained from dealing with the funds received by him except to enable compliance with these Orders.

   Costs

   17.That the father pay the mother’s costs of and incidental to these proceedings.

   18.That the father and [LD] be jointly and severally liable for the mother’s costs of and incidental to the application pursuant to Section 106B of the Act.

2. On the other hand, the father seeks the following orders:

   1.That the father pay to an account in the name of the mother the sum of $85 per week as maintenance for the child [P] until such time as the said child attains the age of 18 years or becomes self-supporting, whichever shall first occur.

   2.That the father deposit into an account in his name five years maintenance for the said child at the rate of $85 per week, an amount of $22,100.

   3.That the mother be entitled to draw down on that account each four weeks, in advance, the sum of $340 as maintenance for the said child.

   4.That the father on a quarterly basis pay money into the account so that there is maintained in the account at all times an amount of $22,100 until such time as the child attains the age of 13.

   5.That the mother’s application in relation to child support otherwise be dismissed.”.

Background

1. The parties commenced a sexual relationship in October 2003.  They were both resident in the United Kingdom (“the UK”).  They had been friends for many years.  The mother had separated from her husband Mr J in July 2003.  They had been married in July 1992 and have a daughter R (“[R]”) who was born in September 1994.  The mother and her husband have lived in separate residences since December 2003 when her husband left their former matrimonial home at B in the UK.

2. The mother ascertained that she was pregnant in April 2004.  She had sick leave from 7 April 2004 to 23 June 2004.  The mother was working in a health facility in the UK.

3. The mother informed the father about her pregnancy in April 2004, after he returned from a holiday visiting his parents in Australia.  Although the parties continued their relationship for a few months until 18 July 2004, the father was generally unsupportive towards the mother.

4. At this time the father was the registered proprietor of properties at S in the UK and at T1, T2, T3 and T4 in the UK.  He was also the proprietor of a small business conducted from the premises at T3 called “[HV]”.

5. The father’s sisters LD (“[LD]”) and SD came from Australia to the UK in approximately August 2004 and assisted the father to clear out items of personal property from the shed at the rear of his business.  They also assisted him to pack and move items from the flat above the shop to his property at S.

6. Between May and November 2004, the father sold the properties at T1, T2, T3 and T4.  The property at S was advertised for sale during September and early October 2004.  On 11 October 2004 the father transferred his interest in this property to his sister LD.

7. The father moved to Australia departing the UK on 24 October 2004.  He represented to the mother and to some of his employees that he was embarking on a holiday to Japan.  Prior to his departure the father said to the mother on numerous occasions that he did not propose paying her any money to support their child.

8. The father ultimately transferred the net proceeds of sale of the properties at T1, T2 and T3 to his parents during 2004.

9. In October or November 2004 the mother had a conversation with a Ms N whom she had known some years previously.  Ms N informed the mother that the father was also the father of her child D born in July 1999.   Ms N said that the father had declined to have anything to do with D and had never paid any support for the child.  Ms N said that D suffers from Aspergers Syndrome.

10. The mother became concerned about the future health of her child because she understood that there was evidence of a genetic predisposition for Aspergers Syndrome.  The mother instructed her English solicitors to write to the father in Australia and ask whether there were any genetic predispositions or any medical conditions in his family that the mother should be aware of.  The solicitors sent such a letter on 3 December 2004.  The father did not reply.

11. As indicated above, the child P was born in December 2004, in G, UK.

12. In early January 2005 the mother made an application to the Child Support Agency in Australia seeking an administrative assessment of child support from the father for the child.  The application was rejected on the basis that the child support registrar was not satisfied that the father was in fact a parent of the child.

13. In early 2005 the mother, in somewhat of a fit of pique, placed advertisements in three Sydney newspapers announcing the child’s birth.  The tone of the advertisements was sarcastic and the text was clearly designed to cause embarrassment to the father and his parents.  The mother subsequently regretted this behaviour and she said that her purpose in placing the advertisements was to endeavour to provoke an acknowledgment by the father and his parents about the child’s birth.

14. The mother said that she was concerned that the father might leave Australia which might make it more difficult for her to obtain child support from him.  Accordingly, the mother filed an application in the Federal Magistrates Court, Parramatta seeking various injunctions.  Those proceedings were resolved between the parties by the making of consent orders on 11 February 2005.  The orders were to the effect that pending further order the father be restrained from leaving Australia (and consequential machinery orders), that the parties and the child undertake a parentage testing procedure and that the father and his sister, LD be restrained pending further order from dealing with the property at S.  An order was also made joining LD as second respondent in the proceedings.  A further order required the father to deposit into a controlled monies account an amount the equivalent of 160,000 pounds.  There is currently an amount of approximately 172,000 pounds in the Commonwealth Bank.

15. After the results of the parentage testing procedure became available to the parties, further orders were made including an order declaring the father to be the father of the child.  This order was made on 5 July 2005 and, in addition, an order was made, in effect, permitting the sale of the property at S and for the proceeds to be held in trust by Arnold Harding of J and S P Pope, solicitors in the UK.  This latter order was discharged by consent on 11 October 2005 and replaced by an order in effect requiring LD to deposit the net proceeds of sale into an account in her name with the Commonwealth Bank at a Sydney suburban branch, to remain in such account pending further order.

16. On 9 August 2005, the father paid the mother the amount of 1,911 pounds and 35 pence.  This was the equivalent of $AUD4,525.  The father’s solicitors informed the mother’s solicitors that this amount was calculated as follows:

$
-         Parentage testing	825
-         Preliminary expenses	1,500
-         Contribution to wage loss during childbirth maintenance period	300
-         Child support at the rate of $50 per week from  December 2004 to 28 August 2005, 38 weeks	1,900
_______
$4,525

Credit

The mother

1. The mother was forthright and responsive in her answers to questions in cross-examination.  She had a good recollection of details.  She impressed me as being a witness of the truth.

The mother’s witnesses

1. I have a similar view about each of the witnesses in the mother’s case notwithstanding that those who are former employees of the father have a grievance against him arising from him selling the business without informing them of this.

The father

1. I am afraid that I do not regard the father as a truthful witness.  This does not mean that the entirety of his evidence is to be disregarded.  However, where his evidence conflicts with that of the mother and her witnesses in these proceedings, and is unsupported by appropriate documentation, I prefer their evidence.

2. The reasons for the poor view I have about much of the father’s evidence will be clear from the discussion below.  But these reasons also include the following matters.

3. The father said that he did not know Ms N yet on the evidence it is more probable than not that he fathered her child D.

4. In August 2005 the father’s solicitors asked whether the father still held bank accounts in the UK.  The father failed to disclose an account with G Bank and an account with Barclays Bank.  The father said that he informed his solicitors about the latter account.  The father also failed to disclose in his financial statement sworn on 28 April 2005 his St George Bank account No. … .

5. The father’s solicitors informed the mother’s solicitors by letter dated 23 November 2005 that the property at L1 and L2, which was the premises from which the original small business was operated, were never owned by the father or his parents.  Yet it is clear that the father purchased this property from his uncle Mr B in July 1988 for 38,500 pounds and he sold it in August 1995 for 120,000 pounds.

6. I am satisfied that the father has been secretive, at least to his staff and to the mother, about what must have been his intention, from approximately July 2004 when he separated from the mother, to sell the various properties of which he was the registered proprietor in the UK and move to Australia.

The father’s father, Mr D

1. I have reservations about the truthfulness of some of the evidence of this witness.

2. In his affidavit the father’s father said that the father was an apprentice decorator to his father’s brother in law Mr B.  The father’s father said that Mr B wanted to migrate to Australia in the late 1980’s and wanted the premises in which the small business “[HV]” operated to be sold.  He said that the father informed him that he had found a place, T3, from which he could operate the business but he did not have the money.  The father’s father said that it was agreed that the property would be purchased in the father’s name as he would be operating the business from that property.  He said that the purchase price was 25,000 pounds and that this was provided by him and his wife.  He said that he and the father renovated the premises and then the business moved to T3 so that Mr B could sell his property at L1-2.

3. There are at least two difficulties with this evidence.  Firstly, at the time the father would have been discussing the purchase of T3 the father not Mr B, was the registered proprietor of L1-2 the original location of the business.  Secondly, as indicated (below) T3 was purchased for 36,000 pounds not 25,000 pounds.

The father’s sister, LD

1. I have a poor view of this witness.  I had a strong sense that where the truth conflicted with what LD perceived would favour her brother’s case, truth became a ready casualty.

2. In particular, I do not believe her account of the acquisition of the property at S.  I shall refer again to this in some detail below.  Nor do I accept LD’s assertion that she was the beneficial owner of a property at O, UK also referred to below.

3. This witness was unable to support any of her assertions by objective documentation.

The mother’s case

1. It is submitted on behalf of the mother that the father cannot be trusted to pay periodic child maintenance.  It is submitted that the Court should order lump sum child maintenance because of the following matters:

   -the father’s behaviour before the child’s birth;

   -the fact that he did not wish to acknowledge parentage of the child;

   -that he informed the mother that he did not propose to pay for the child;

   -that the father divested himself of most of his assets in an endeavour to avoid paying maintenance for the child;

   -that he has failed to make a full and frank disclosure of his financial circumstances to the Court and to the mother and

   -that the father is dishonest and untruthful and the Court could not accept any assurance by him that he would comply with an order of the Court.

The father’s case

1. It is submitted on behalf of the father that:

   -the Court is required under the Act to consider the capacity of the father to provide maintenance by way of periodic payments before considering his capacity to provide maintenance by way of lump sum payment;

   -the father is able to pay periodic child maintenance in accordance with the income received by him from his employment as a manager;

   -most of the properties in the UK of which the father had been the registered proprietor were not beneficially owned by him but rather by various members of his family so that in reality he owns limited property;

   -accordingly, his capacity to pay child maintenance should be considered in the context of his income earned rather than his property so that he has a limited capacity in this regard.

Issues

1. These two very different cases raise a number of issues which I shall endeavour to address.

Father’s assertions that properties were not his

1. As indicated above, at the time the mother informed the father that she was pregnant, the father was the registered proprietor of five properties in the UK which he subsequently sold or transferred.

1. In my view, there is a considerable amount of evidence which runs contrary to the father’s assertion that most of the properties of which he was the registered proprietor were not owned beneficially by him.

2. The father informed the mother in the late 1990’s that he was buying the “old [stables]”.  He said that he had “a thing for buying old [stables]”.

3. The mother said that property S had been a stable.  She said that T3 had also been a stable.

4. The mother said that after the father’s parents migrated to Australia (in 1998) she asked him whether he was going to migrate to Australia as well.  The mother said that he replied that he had his own house (in the UK) and a business and did not want to.

5. The mother said that in June 2004 the father showed her a very large derelict house in G and said that he was thinking about buying it and doing it up.  The mother said that she thought the house would be very expensive and asked him how he would be able to afford to buy it.  The mother said that he replied “From the houses” which she understood to mean the properties at T1, T2 and T4 which he had renovated.

6. In relation to the purchase of T3 on 13 February 1991 the father said that the purchase price was 25,000 pounds and that this was provided to him by his parents.  This is incorrect.  It is clear that the purchase price was 36,000 pounds.  I accept that 25,000 pounds was provided by the father’s parents towards this purchase because there is a copy of a bank statement which supports this annexed to the father’s father affidavit.  There is no objective evidence to indicate whether the advancement of the 25,000 pounds was a gift or a loan.  I note that the father paid the rates and outgoings on the property and that he renovated the property with his father.  In my view, on the basis that the father was the registered proprietor, and in the absence of any evidence about the matter, I find that it is more likely than not that the balance between the 36,000 pounds required for the purchase of the property and the 25,000 pounds provided by the father’s parents was contributed by the father from his funds.

7. In his affidavit the father said that he sold the property in November 2004 for 157,000 pounds.  It is clear that he sold the property to Mr and Mrs H.  He said that he transferred this money to his parents because it was their money which had been used to purchase the property.  This ignores the 11,000 pounds which in my view the father must have contributed to the purchase.  The father also said that the property was purchased in his name because he was living in the UK but his parents had applied to migrate to Australia and could be leaving at any time.

8. I find myself unable to accept the evidence of the father and his father concerning the circumstances of purchasing this property and the disposition of the net proceeds of sale.  In my view, it is more likely than not that the father had at least a significant beneficial interest in this property.

9. The property at T4 was purchased on 12 November 1998 for 18,000 pounds.  The father said that this money was provided by his parents who by this time had migrated from the UK to Australia.  The father said that he thought these funds were provided by a cheque sent to the conveyancing solicitors.  I accept this on the basis of a copy of a letter dated 17 November 1998 from Williamson and Soden solicitors in the UK.  The solicitor said in the letter which was addressed to the father’s parents, that she was treating the funds as “your gift to [the father] so they are not secured by any charge against the property nor am I recording that you have any financial interest in these properties. Should this be incorrect please let me know.  Should you wish to reach an informal arrangement with [the father] about these monies, that is a matter for you.”.

10. The father said that at the time of its purchase this property was derelict.  He said that he did not have the funds to renovate it.  So he asked his sister LD, who had sold a property at O for 18,000 pounds for funds.  He said that he transferred his interest in the property at S to LD for this amount.

11. I am afraid I cannot accept this for the reasons set out below in relation to S property at pages 14 to 18.

12. The properties at T1 and T2 were purchased on 9 March 1999 for a total of 50,000 pounds.  These properties were on one title. The father said that the necessary funds were provided by his parents.  The father’s father said that the deposit of 12,500 pounds was provided by him and his wife and the balance was borrowed by the father on mortgage, namely 37,500 pounds.

13. The father said that really he had nothing to do with these properties.  Yet it is clear that he undertook some of the renovations and took out a mortgage.

14. The father’s father said that he and his wife repaid the outstanding balance on the loan, being 30,000 pounds in March 2000.

15. The property at T2 was sold in May 2004 for 170,500 pounds.  The property at T1 was sold in October 2004 for 171,000 pounds.  The father said that the proceeds of sale were paid to his parents.  This is true in the sense that after the funds were initially deposited to the father’s account they were transferred into an account of his parents.

Property at S

1. There is a major issue concerning the circumstances of the purchase of this property and whether the father was the beneficial owner of this property from the time of its purchase until it was sold by LD to its current owner.  As indicated above, one of the orders sought by the mother is to the effect that the transfer of this property from the father to his sister LD be set aside.

2. It is common ground that this property was purchased in July 1997 for 25,000 pounds and that the father was the registered proprietor. 

3. The father said that he and his sisters SD and LD each paid one-third of the purchase price.  The father also said that his sisters were going to move to Australia which they did in 1998.

4. As indicated above, the father said that upon purchasing the property at T4 he required funds to renovate this.  He said that he made an arrangement with his sister LD to the effect that she would acquire his interest in the property at S for 18,000 pounds.  The father also said that LD had sold a property at O for 18,000 pounds and that she provided that money to him for this purpose in November 1998.

5. The father’s account was supported by his sister LD.  In her affidavit she said that the father, their sister SD and she purchased the property in the father’s name and that they contributed equally to the purchase price of 25,000 pounds.  LD also said that she had owned a property at O which she sold in the second half of 1998 for 18,000 pounds.  LD said that she gave these funds to the father to assist the renovation of the property at T4.

6. The father said that in 2004, at a time when his sister LD was in the UK he and she decided that he would transfer his interest in the property at S to her which he subsequently did.  LD confirmed this account and added that this was in circumstances in which the father had informed her that he was returning to Australia and because she was in the UK at the time.

7. The property was transferred to LD on 11 October 2004.  LD sold the property to Mr F in September 2005 for 132,000 pounds.  The net proceeds of sale have been deposited into an account in the name of LD with the Commonwealth Bank at a Sydney suburb in accordance with the current Court orders.

8. I must say I find myself unable to accept the account of these matters given by the father and LD.

9. Firstly, I have a poor opinion of both of them as witnesses for the reasons referred to elsewhere in these reasons for judgment.

10. Clearly, the starting point in relation to the question of the beneficial ownership of the property at S is the fact that the father was the registered proprietor of the property until it was transferred to his sister LD.  There is no document to support the assertions that the property was purchased by three parties or that it was held in trust.  The father said that he paid in cash which he had in the safe in his parents’ hotel and that his sisters also paid their shares in cash.  Yet during cross-examination the father conceded that in fact at settlement he presented a cheque rather than cash.

11. As indicated above, the father and LD asserted that the latter had sold a property at O for 18,000 pounds and given the money to him in November 1998.  LD said that she had owned the property.

12. The purchaser of this property was a Mr E.  In his affidavit Mr E said that he purchased the licence to use the property in 1996 from the parents of the father.  He said that he dealt with the father’s parents who appeared to be the owners.  He also said that he did not deal with LD and did not see her name on any relevant documents relating to the sale.  Mr E also said that he paid the 18,000 pounds by personal cheque.

13. On the other hand, LD conceded during cross-examination that her parents had purchased the O property, that her parents had sold it and that in fact it was sold in 1996 not 1998.  LD initially said that her parents gave her 18,000 pounds cash and that she put it in her safe.  She said subsequently that the money was probably always in the safe at her parents’ hotel and that she never had it in her possession.  LD then said that she never actually gave the father this money but gave him permission to use the money in the safe.  This was a most unconvincing part of her evidence.

14. The father’s father said that he and his wife sold this property on behalf of LD.  He said that he could not remember whether he physically gave her the proceeds of sale or left these monies in the safe.

15. The mother said that the father pointed out this property at O to her in May 2004.  She said that the father said that his Dad rebuilt it, that his mother was fed up when she had to sell it and that his parents could have made more money if they had hung onto it.

16. In December 1999 LD made an application to the St George Bank for a loan.  In the application form, she made no reference to her alleged ownership of the property at S which had been transferred to her almost two months previously.  LD said that in preparing this application she thought she only had to disclose property in Australia.

17. As indicated above, the property at S was advertised for sale during September 2004 and early October 2004.  In September 2004 the father informed his conveyancing solicitors in the United Kingdom, J & SP Pope, that he wanted to transfer title of the properties at S and T3 to his sister LD.  In a letter dated 5 October 2004 the solicitors informed the father that they were proceeding on the basis that his circumstances were “that this is to be an outright gift in other words a gift “with no strings attached”.”.  I note that there was no suggestion that in relation to the property at S that the transfer was in consideration for the alleged payment of 18,000 pounds by LD to the father.

18. As it turned out, only the property at S was transferred to LD, the father subsequently instructing his solicitors that he did not wish to go ahead with transferring T3 to LD because he had found a purchaser, Mr H for this property.

19. It is the father who has asserted that the beneficial ownership of S property was different from that which had been formally recorded in the land titles register namely that he was the registered proprietor.  In these circumstances, in my view, he bears the onus of establishing what he asserts.  In my view, he has failed to do this.  There are too many inconsistencies in the evidence of him and his sister LD for them to have established a persuasive case.  I do not accept their evidence.  In addition, SD was alleged to own one-third of the property and there is no evidence at all from her, notwithstanding the fact that she sat in the courtroom during the hearing.

20. The father was the registered proprietor of the property.  He held out to the mother, to his staff and to many other persons including lending institutions that he was the owner of the property.  In my view, at all times until LD sold the property to Mr F in September 2005, the father has been the beneficial owner of the property.

21. Accordingly, in the event that it should become necessary for the purposes of these proceedings to set aside the transfer of the property from the father to LD, I would not hesitate to do so.

The Applicable Law

1. Sub-section 66B(1) of the Act provides that the principal object of Division 7 of the Act is to ensure that children receive a proper level of financial support from their parents. Particular objects of the Division include ensuring the following. Firstly, that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents. Secondly, that parents share equitably in the support of their children.

2. Sub-section 66C(1) of the Act provides in effect that it is the parents of a child who have the primary duty to maintain the child. Sub-section 66C(2) of the Act provides in effect that the duty of a parent to maintain a child:

   -is not of lower priority than the duty of the parent to maintain any other child or another person and

   -has priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself or any other child or another person that the parent has a duty to maintain and

   -is not affected by the duty of any other person to maintain the child or any entitlement of the child or another person to an income tested pension, allowance or benefit.

3. Section 66H of the Act provides that there is a two-step approach to be taken in child maintenance proceedings. Firstly, the court must consider the financial support necessary for the maintenance of the child. Secondly, the court must determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child, that should be made by a party, or by parties to the proceedings.

4. In considering the first above matter namely, the financial support necessary for the maintenance of the child, sub-section 66J(1) requires the court to take into account the following matters:

   -the objects of the Division as referred to above

   -the proper needs of the child and

   -the income, earning capacity, property and financial resources of the child.

The proper needs of the child

1. In her financial statement the mother estimated that the proper costs of the child total 451 pounds per week.  This is the equivalent of approximately $1,059.85 per week (451 x 2.35 = 1,059.85).  I must say this appears to be an extraordinary amount and not one consistent with what I have usually seen in such proceedings.

2. This amount was challenged by learned counsel for the father.  In particular the mother’s estimate of 96 pounds attributed as the child’s share of the mother’s weekly mortgage repayments of 288 pounds was challenged as being unreasonable.  I accept this.  There are a number of difficulties with this estimate of 96 pounds.  Firstly, the mother said that she and her former husband extended their mortgage by an amount which caused the mortgage repayments to increase by 200 pounds per month.  Secondly, the mother does not actually pay the mortgage repayments.  These are paid by her former husband.  The major part is funded by the rent received by the mother’s former husband from the tenant of an investment property owned by the mother and her former husband.  But there is a shortfall of rent compared with the amount required for the mortgage repayment, the shortfall being 103 pounds per week.  The mother and her former husband treat this 103 pounds per week shortfall as maintenance from the former husband for their child R.  In any event, the mother and her former husband have not had a property settlement yet.  The mother said that their investment property will almost certainly have to be sold.  The mother also said that in the event of the sale of the property she would like to reduce the mortgage. 

3. I understand also that part of the loan secured by the mortgage has been used by the mother towards her legal costs.

4. In my view, it is unlikely that the mortgage will remain at its present level very far into the future.  Accordingly, as a consequence of these difficulties, I do not accept that the 96 pounds per week estimated by the mother as being a share of the mortgage attributed to the child P’s costs can be said to be a proper cost.  A proper cost in my view would be an amount which can be reasonably attributed to the accommodation of the child.  In my view, an amount less than half that estimated by the mother would more likely reflect the proper accommodation costs of the child.

5. In my view, some reduction of the mother’s estimate for child care / baby sitting costs for P is appropriate.  While I accept the estimate as reflecting current cost, it must be kept in mind that once the child goes to school the costs will be different.  I note that the mother does not include any child care costs for R who attends school.  On the basis that I am considering the costs of P over a period of some years because the mother does not wish to have to return to Court at least not for quite some years, I propose to reduce the mother’s estimate to approximately half the estimate to average these costs over a period beyond the time when the child will commence school.

6. The mother also attributed 38 pounds per week to P’s costs for each of her loan repayments and credit cards.  Much of this cost lies in the mother having borrowed funds to pay her legal costs.  In any event, I do not regard these as proper costs of the child.

7. I propose to reduce travel and holidays for the reason that I am not persuaded that it is appropriate for these to be funded at the level which the mother would like, although clearly some holidays are appropriate.

8. The mother also says that she wants to open a savings account for P to assist him in his education in the future.  The mother has included various educational and related costs in her estimate of the child’s costs.  Accordingly, I do not propose to allow her estimate of savings of 15 pounds per week.

9. There are obvious difficulties for a court in Australia endeavouring to determine the proper costs of a young child in the United Kingdom.  One of the difficulties is that this Court does not have the benefit of appropriate research into such costs.  But doing the best that I can in all the circumstances, in my view, the proper costs of the child are a total of 200 pounds per week.  This is $AUD470 per week.  I note by way of a very broad comparison only, that, as indicated above, the mother’s former husband is in effect contributing 103 pounds per week to the mother as maintenance for their child R.  On the one hand, R is a much older child and would be expected to have higher costs than P.  But on the other hand, there are the baby sitting / child care costs in relation to P.  I also note that the mother’s former husband makes some other financial contributions to R’s costs.

Income, earning capacity, property and financial resources of the child

1. Sub-section 66J(3) provides in effect that in taking into account the income, earning capacity, property and financial resources of the child a court must disregard any entitlement of the child or the mother to an income tested pension, allowance or benefit.  As I understand it, the English benefits received by the mother and child would not fall within the definition of these matters.  Accordingly, in my view, the benefit payable in respect of the child should be considered.  The mother says that she receives 26 pounds child benefit per week.  She has two children.  In the absence of further details about this I attribute half of this, which is 13 pounds, to P.

2. As indicated above, P has proper costs of 200 pounds per week and income of 13 pounds per week.  His parents must provide for his weekly needs therefore in the amount of 187 pounds (200 – 13 = 187).  This is approximately $AUD440.

Contributions by each parent towards the child maintenance

1. Sub-section 66K(1) of the Act provides in effect that in determining the respective financial contributions towards the financial support necessary for the maintenance of a child that should be made by each parent, the court must take account of the following matters:

   -the objects and principles referred to above,

   -the income, earning capacity, property and financial resources of each parent,

   -the commitments of each parent necessary to enable each of them to support themselves and any other child that each has a duty to maintain

   -the direct and indirect costs incurred by the parent with whom the child resides in providing care for the child and

   -any special circumstances which, if not taken into account would result in injustice or undue hardship

2. There appears to be no issue between the parents that each will assume one half of the proper costs of the child.  Where they are at issue is in relation to the quantum of such costs.  In case I have misunderstood them I propose to consider their respective capacities to provide support.

3. The mother’s financial situation is made somewhat uncertain by the fact that she has not had a financial settlement with her husband, Mr J.

4. The mother’s weekly income includes 334 pounds from working three days per week. The mother also receives a working tax credit of 125 pounds from the English Government. Sub-section 66K(4) of the Act provides in effect that in determining the financial contribution that should be made by a party the court should disregard any entitlement of the person with whom the child lives to an income tested pension, allowance or benefit. But in my view, the English Government benefit paid to the mother does not fall within this provision.

5. Rent of 138 pounds per week is paid by the tenant of the investment property owned by the mother and her former husband.  But, as indicated above, this is received by the former husband, not the mother.  In turn, as I have said, the mother’s former husband pays the mortgage on the former matrimonial home which exceeds this rental income by approximately 103 pounds per week.  As also indicated, this 103 pounds is attributed by the mother and her former husband as child maintenance for R.

6. On this basis, the mother’s income is 459 pounds per week (334 + 125 = 459).  This is what is available for the support of herself.  But she must also fund approximately half of the costs of R and half of the costs of P.  One half of P’s costs as determined by me above is 93 pounds 50 pence.  If I was to assume R’s costs were twice the 103 pounds in effect paid by her father, and that one half of the 26 pounds per week child benefit was for R, R would need 193 pounds per week from her parents (206 – 13 = 193).  Half of this is 96 pounds 50 pence.

7. On this basis, the mother would need to fund one half of P’s weekly costs namely 93 pounds 50 pence and one half of R’s costs namely 96 pounds 50 pence.  This is a total of 190 pounds per week.  After paying such costs the mother would have 269 pounds per week remaining for her own support (459 – 190 = 269).

8. The mother also benefits from some other payments by her former husband.  I assume however, that these will cease upon the parties making a financial settlement.

The mother’s property consists of the following:

£
1.        50% interest in former matrimonial home at B	100,000
2.        100% interest in investment property at A	130,000
3.        deposits in building society / bank accounts totalling	8,222
4.        shares in C Company	1,000
5.        life insurance policy	?
6.        2004 Peugeot motor vehicle	5,000
7.        household contents	1,000
8.        piano and motor bike	1,000
__________
$246,222

The mother also has superannuation with a value of 13,488 pounds.

1. The mother’s liabilities are as follows:

£
1.        mortgage (50% share)	79,000
2.        LT Bank personal loan	9,941
3.        LB personal loan	8,000
4.        loan from former husband	30,000
5.        loan from her sister	5,000
6.        loan from her mother	4,000
7.        credit cards totalling	23,305
__________
$159,246

1. The mother therefore has net assets with a value of 100,464 pounds or $AUD236,090.  This is expected to change, probably with a reduction in net value, upon the mother and her former husband reaching a matrimonial property settlement.  The position would also change in the event that a costs order was made in these proceedings in favour of the mother.  This is because much of the mother’s indebtedness has arisen because she has borrowed funds to pay her legal costs.

2. The mother estimates that her expenses for providing for her own needs come to a total of 468 pounds per week.  This is well beyond the 269 pounds per week available after paying her share of the costs of both children referred to above.  As I have said however, after resolving a property settlement with her former husband the mother’s financial situation will change.  In the event that this Court makes some costs order in favour of the mother, her position will improve.

3. On the other hand the true state of the father’s financial position is far from clear to me.  I certainly do not regard him to have made a full and frank disclosure of his financial position.

4. In his financial statement and other evidence the father says that his financial position is as follows.  He is working as an employed decorator earning $608 per week gross.

5. He says that his property consists of the following:

$
1.        Property at P, Sydney	550,000
2.        Accounts in -
Commonwealth Bank  172,000 pounds	404,200
St George Bank	674
Bank of Ireland  200 pounds	470
G Building Society  65 pounds	155
Barclays Bank  96 pounds	225
__________
$955,724

1. The father says that his liabilities are as follows:

$
1.        Loan from his parents on mortgage	572,000
2.        Loan from his sister SD	35,500
3.        Loan from his parents (18,000 pounds)	42,300
__________
$649,800
__________
Net property	$305,924

1. In my view, the father’s evidence in relation to the alleged monies owing to his parents is quite unsatisfactory.  The father said that the deposit of $27,500 for the purchase of his P property was borrowed from his sister SD.  He also said that the balance of the purchase price ($550,000) together with the legal expenses and stamp duty were lent to him by his parents.  The father also said that in addition, his parents loaned him some money to assist with renovation of the property so that he owes them $572,000.  He said that he is not making any repayments on the alleged mortgage but that when he does the interest rate will be 6 per cent.  He intends to make repayments of $300 per week.

2. As I have said, I am unpersuaded that the father has given a truthful account of his financial circumstances.  In my view, it is more probable than not that the father’s true financial position is that he owns property with a value far greater than as represented above.

3. Moreover, in my view, he has a capacity to earn income well beyond what he is receiving as an employee.  As indicated above, the father operated his own business in the United Kingdom for many years.  This business usually employed six employees. I do not propose to refer to the accounts of that business because I regard them as not representing the true position of the father’s income from the business.

4. Ms Y, who had been the most senior employee of the father’s business in the UK said that in approximately 1991 the father asked her to operate the business while he was in Australia for some years.  Ms Y said that the father said that she could make up to 1,000 pounds per week profit in a good week.  Ms Y subsequently ran the business.  After paying between 150 pounds and 200 pounds per week rent to the father’s mother, her profit was 600 to 800 pounds per week.

5. Ms Y also said that in approximately May 2004 the father asked her whether she would be interested in buying the business.  She said that the father said to her that she could easily clear more than 1,000 pounds per week profit.

6. Ms Y and three other longstanding employees of the business, Ms U, Ms A and Ms V, said that the father was in the habit of paying a weekly commission and loading in cash to each of them in addition to their regular wage.  The clear inference was that the additional cash monies were never declared to the English revenue authorities.  The father denied that he had been understating the earning position of the business.  He conceded that he paid his employees a commission but said that he paid this from his own taxable income.

7. I must say I prefer the evidence of the employees to that of the father in relation to this matter.

8. Accordingly, in my view, it is more probable than not that the father has understated his property by a considerable amount and I find him to have an earning capacity significantly greater than that reflected by his current employment.

9. In these circumstances, in my view, the father has the capacity to pay maintenance for the child in accordance with any proper order of this Court.

10. As indicated above, the mother takes the view that the father should pay one half of the child’s costs.  The father has agreed with this on the basis of what he referred to as “a principle” and providing that he had the funds available.  I must say I regard the father not only to have the funds available for this but also to have a considerably stronger capacity to contribute to the child’s costs than the mother.  But the mother has only sought to have the father pay one half of P’s costs.

11. In my view, it is appropriate for the father to be required to pay one half of the proper costs of the child.  As indicated above, I regard half of these costs to be 93 pounds 50 pence per week which is $AUD219.72.  I propose to round this off to $220.

The likelihood or otherwise of the father supporting the child

1. The mother said that after she informed the father that she was pregnant, but before they separated, the father told her to have an abortion, that he would ask Ms Y, one of his employees to buy his business and that he would disappear.

2. In July 2004 the mother and father were discussing the circumstances of a friend who apparently had to pay child support.  The mother remarked to the father that the Child Support Agency were ringing the friend asking for money and were being horrible to him.  The mother said the father said that if the Child Support Agency ever did that to him he “would tell them to fuck off and just disappear to Australia” and that “No woman would ever do that to (him)”.  The mother said she said that she would not get the Child Support Agency onto him.  The mother said that the father replied “I’d just sell the shop and fuck off if you did.”.

3. The mother said that at about this time, which was shortly before separation, she noticed that the father had property magazines relating to Sydney real estate.  She said that at about this time the father started making such comments as “I’ll be off.  You will be on your own.”.

4. Shortly after separation the mother was admitted to hospital.  At her request the father visited her.  The mother said that he pointed his finger at her and said, in effect, that she had checked his financial circumstances, and that she wanted “a piece”.  The mother said that he said “Well you are not fucking getting anything.”.

5. In September 2004 the mother asked the father what his intentions were about supporting the baby.  He declined discussing the matter.

6. In late October 2004, the mother took some documents to the father for his signature.  The father had asked for these to enable a parentage testing procedure to be undertaken.  He had requested the mother to submit to such a procedure.  The father declined to sign the documents saying that he would contact the mother the following week.  The mother challenged him on this suggesting that he proposed to go to Australia the following day.  The father denied this and said that he was going to Japan for 10 days.  In fact, as indicated above, shortly afterwards, the father moved to Australia.  On the same occasion the father informed the mother that he did not propose to have his name on the child’s birth certificate.

7. The mother’s former husband had been present with the mother on the occasion referred to above.  He confirmed the mother’s account.  He also said that the father said in his presence that the mother chose (to have the child) and that he had no intention of paying anything ever for the child.

8. Immediately before moving to Australia the father behaved deceptively not only towards the mother but also towards his staff.  He endeavoured to mislead his staff into thinking that he was only going on a holiday whereas in reality he was moving to Australia.  At the same time that he was denying that he was about to move to Australia he had instructed solicitors to prepare a contract for the sale of the property at T3 in which he conducted his business.  Even after he had sold the property, and obviously arranged with the purchaser Mr H for Mr H to continue the business, there was further deception involved.  This was that when the staff of the father’s business challenged Mr H that the father had sold the business to him, Mr H denied this until such time as the mother’s former husband obtained relevant documents which made it clear that the father had transferred the property to Mr H. 

9. Having removed himself from the UK, no approach was made by the father to the mother to offer any support for the child.  In fact, she had to seek legal advice and to instruct solicitors to commence these proceedings before any assistance was forthcoming from the father.

10. In addition to all these circumstances, I am satisfied that it is more probable than not, that the father, upon hearing from the mother about her pregnancy, commenced a course of conduct to divest himself of assets with a view to appearing to reduce his true wealth so as to minimise the amount of money which he would have available against which the mother could claim support for herself and their child.

11. As indicated above, I have a poor view of much of the father’s evidence as well as that of his father and his sister LD.  In my view, the father has conspired with each of them to misrepresent the true position of their financial circumstances to the mother and to this Court.  The only logical explanation for this deception appears to be an endeavour to protect the father’s financial position.

12. This behaviour has left the Court in the position where it does not know what the true financial position of the father is, except that, as indicated above, the Court is confident that the father enjoys significantly more property than he has represented to this Court.

13. As indicated above, the father has refused to acknowledge that he is the father of D let alone provide any support for the child.  The evidence of Ms R, senior scientist, is to the effect that DNA test results support the hypothesis that the children P and D have the same father.

What maintenance order is appropriate?

1. Sub-section 66K(5) of the Act provides in effect that in determining the financial contribution that should be made by a party, the court must consider the capacity of the party to provide maintenance by way of periodic payments before considering the capacity of the party to provide maintenance by way of lump sum payment or in any other way.

2. This has been made clear in numerous decisions of the Court over many years including the decision of the Full Court of this Court in the case of Luckie and Luckie (1989) FLC 92-036. At pages 77,464 and 77,465 the Full Court said as follows:

   A number of cases decided under the superseded child maintenance legislation were to the effect that save in exceptional circumstances the most appropriate order for child maintenance was a periodic order rather than a lump sum order anticipating the long term future.  These decisions include Spano v. Spano (1979) FLC ¶90-707, V. and G. (1982) FLC ¶91-207, Racine and Hemmett (1982) FLC ¶91-277 and Vartikian v. Vartikian (1984) FLC ¶91-587. The rationale underlying the general attitude of the Court was that it was difficult to predict the long term future and that a lump sum maintenance for a long future period might mean that maintenance had been pre-paid in respect of a time when the circumstances did not justify an order for child maintenance. However, the cases also recognised that there might be particular circumstances justifying the making of a lump sum order to cover future child maintenance.

   Section 66E(5) (now s.66K(5)) makes it clear that the usual and preferable order for the payment of child maintenance is one for periodic payments and that the Court is not to consider other methods of payment unless it has first considered the capacity of a party to make periodic payments. In the present case, the husband had the capacity to pay periodic maintenance out of his capital if the Court considered it appropriate that he should do so.”.

3. Later at page 77,465 the Full Court said as follows:

   “If the husband had capital out of which to satisfy an order for periodic child maintenance, then in our view, sec. 66E(5) means that prima facie the Court should not have considered an order for lump sum maintenance.”.

4. As indicated above, in my view, it is clear that the father has ample income and capital out of which a periodic maintenance order could be paid.  In these circumstances, in my view, it would not be appropriate to make a lump sum maintenance order.  Accordingly, the appropriate order in all the circumstances is an order that the father pay periodic child maintenance in the amount of $220 per week. 

5. As also indicated above, in my view, this Court can have little confidence that the father will pay in accordance with the Court’s order, particularly for the entirety of the period during which the child will require maintenance, despite the assurances otherwise on his behalf. In my view, therefore, the Court will need to consider putting in place a means which will ensure that the father pays in accordance with his obligations under the Act.

6. Sub-section 66P(1) of the Act provides the Court with powers in proceedings for a child maintenance order. These powers include, pursuant to s.66P(1)(d), power to make an order that payment of an amount ordered to be paid be wholly or partly secured as the Court specifies. As indicated above, the father offers such an order in his Response although only for a limited period.

7. In my view, the father’s behaviour has been such that the order should be secured for the entirety of the period during which the child will require maintenance. Otherwise, in my view, this Court cannot be confident that the objects of the Act as set out in s.66B will be achieved.

8. It is submitted on behalf of the father that if he is required to deposit significant capital into an account to secure payment of maintenance he will be unable to repay loans to his parents.  I do not accept this.  As indicated in these reasons I do not accept what the father asserts as being indebtedness to his parents.

9. In this regard, in my view, it is appropriate to require the father to deposit a capital sum into an investment account to ensure that a fund exists to secure payment by him.  In the event that the child’s circumstances might change, both parties will be able to make further application for orders including orders to vary the capital sum secured.

Section 67B application for childbirth maintenance period expenses

1. As indicated above, the mother is seeking an order to the effect that the father pay to her a sum of money for part of what amounts to her loss of wages during the pregnancy.

2. The mother suffered from complications arising from her pregnancy.  Before the pregnancy the mother had been working as a health practitioner for four days per week earning 455 pounds per week gross.  The mother was unable to work during most of the period of her pregnancy.  She was able to avail herself of some sick leave and annual leave prior to commencing maternity leave on 29 November 2004.

3. But the mother lost net earnings over the period from April 2004 to 29 May 2005 of 3,175 pounds 80 pence.  The mother is seeking payment of $AUD3,432.72 calculated by converting 3,175 pounds 80 pence to $AUD7,465.44 dividing this by two to apportion responsibility equally between the father and the mother which gives $AUD3,732.72.  The father has paid $300 towards these expenses so this was subtracted resulting in an amount of $AUD3,432.72.

4. Although the point was not taken by leaned counsel for the father, as I read s.67B of the Act, the father is only liable to make a proper contribution towards the maintenance of the mother for the childbirth maintenance period. This period is defined at s.60D(1) of the Act to commence on the day the mother stops working and conclude three months after the child’s birth. P was born in December 2004 so the childbirth maintenance period ended in March 2005. Yet the mother is basing her claim on loss of earnings up to 29 May 2005.

5. Doing the best I can in the circumstances, the evidence is that the mother lost net earnings of 941 pounds 23 pence from April to September 2004 and 1,261 pounds 39 pence for the period October 2004 to March 2005.  This is a total of 2,202 pounds 62 pence.  This converts to $AUD5,176.16.  On the basis that the mother agrees that she and the father would share childbirth costs equally, this is divided by two.  This produces a liability for the father of $2,588.08.  He has paid $300 so this will be subtracted therefrom.  The resulting liability is therefore $AUD2,288.08.

6. In principle, the father does not oppose the making of an order for half the mother’s loss of earnings during the period.  Accordingly, I propose to make an order that the father pay $2,288 in response to this part of her application.

Comments on proposed orders

1. There appear to be sufficient funds in the Commonwealth Bank account to enable the father to create a new account to contain the capital from which child support can be paid.  The funds in the Commonwealth Bank account would appear also to be sufficient to meet any costs order if made.

2. Accordingly, in my view, it will be unnecessary to set aside the transfer of the property at S by the father to LD.  Although I regard the funds produced by the sale of this property to be beneficially owned by the father, as indicated above, the fate of such funds will be a matter between him and his sister.  I propose to discharge the injunction restraining LD from dealing with these funds.  Because I wish to give the parties’ further opportunity to address me on the form of the orders and also because there may be outstanding applications for costs, I propose to suspend commencement of the operation of the orders for a short period.

Orders

1. The orders shall be as follows:

   1.That the father forthwith deposit into an account in the names of the father and the mother in a financial institution to be agreed between them the sum of $205,920, withdrawals from such account only to be available upon the signatures of both the father and the mother.

   2.That the father shall pay periodic maintenance for the child P born in December 2004 at the weekly rate of $220 commencing in December 2004, such to be payable quarterly on the first day of December, March, June and September each year until the child attains the age of 18 years, or becomes a member of a couple or dies, whichever is the earlier.

   3.That for the purposes of these orders both the father and the mother shall forthwith do all things and sign all documents necessary to implement these orders and, in particular, they shall sign the necessary withdrawal forms sufficiently in advance of each quarterly payment to enable the mother to receive the payment not later than 24 hours after the first day of each quarter.

   4.That the payment due on 1 June 2006 shall include arrears as from December 2004 adjusted to take account of child maintenance payments made by the father to 1 June 2006, as well as the amount due for the quarter commencing on 1 June 2006.

   5.That the weekly rate of $220 child maintenance shall be adjusted on 1 June each year in accordance with movements of the English equivalent of the Australian Consumer Price Index and the quarterly payments shall be adjusted accordingly.

   6.That pending further order, the father and mother are restrained from dealing in any way with the account established pursuant to these orders except for the purposes of compliance with these orders.

   7.That pursuant to section 67B of the Act, and in addition to the father’s liability pursuant to the above orders, the father shall forthwith pay to the mother, or as she shall in writing direct, the sum of $2,288.

   8.That for the purpose only of fulfilling his obligations pursuant to these orders the father is permitted to withdraw from the funds in the Commonwealth Bank Account No. … the necessary monies and he is otherwise restrained pending further order from dealing with such funds.

   9.That the mother’s application for an order to set aside the transfer of the property at S by the father to LD be dismissed.

   10.That all parties do all acts and sign all documents necessary to instruct J & S Pope, solicitors and the Commonwealth Bank to pay to LD the monies in the controlled monies account with the Commonwealth Bank at a Sydney suburb being the net proceeds of sale of the property at S.

   11.That the above orders shall not commence operation until 21 June 2006.

   12.That all parties have leave to re-list these proceedings before me by arrangement with my Associate at any time prior to 21 June 2006 for further submissions in relation to the form of the orders only and in relation to any application for costs.

   13.That in the event that a party fails to sign any document as required by these orders the registrars of this Court are appointed pursuant to s.106A of the Act to sign such document in the name of the person and to do all acts and things necessary to give validity and operation to the document.

   14.That all exhibits be released.

W P Johnston

Judicial Registrar

31 May 2006

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MJ & JBD