Nott and Greene

[2014] FCCA 2719

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOTT & GREENE [2014] FCCA 2719

Catchwords:
FAMILY LAW – Parenting dispute predominately arising out of tyranny of distance – mother living in (omitted) and father in (omitted) – both parties financial circumstances strained, but mother’s more so – competing proposals for changeover – father seeking (omitted) and mother (omitted) – most other issues largely uncontroversial or not pressed – mother simply not able to afford changeover to (omitted) – extant orders continued but modified to extend child’s time with father.

Legislation:  
Family Law Act 1975 (Cth)

Applicant: MR NOTT

Respondent: MS GREENE

File Number: MLC 5607 of 2013

Judgment of: Judge Burchardt

Hearing dates: 18 & 19 September 2014

Date of Last Submission: 19 September 2014

Delivered at: Melbourne

Delivered on: 2 December 2014

REPRESENTATION

Counsel for the Applicant: Mr Scriva

Solicitors for the Applicant: Williams Hunt

Counsel for the Respondent: Mr De Zwart

Solicitors for the Respondent: De Zwart Lawyers

ORDERS

1. Ms Greene (“the mother”) and Mr Nott (“the father”) have equal shared parental responsibility for the child X born (omitted) 2010 (“the child”). 

2. The child live with the mother. 

3. The child spend time and communicate with the father as follows:

   (a)On one weekend, being the first full weekend, in each month from 8:45 pm Friday until 4:00 pm Sunday, with changeover to occur in (omitted);

   (b)For half of all school holidays and in default of agreement the first half.  Notwithstanding this order the child will spend the first half of the 2014 long school holidays with the mother and in each even numbered year thereafter.  Changeover for the purposes of the time will occur at (omitted);

4. The mother is to make the child available for telephone contact with the father each Wednesday between 6:30 pm and 7:00 pm.

5. The father is to make the child available for telephone contact with the mother each Wednesday between 6:30 pm and 7:00 pm when the child is in his care. 

6. The monthly weekend visits will be suspended while school holidays are occurring. 

7. The mother is to make the child available for telephone, or Skype contact if available, initiated by the father as follows:

   (a)Child’s birthday;

   (b)Father’s birthday;

   (c)Father’s Day; and

   (d)Christmas Day.

8. The father is to provide the mother written notice within 21 days of his intention to spend the following time in (omitted):

   (a)From after school or childcare, or if not relevant, from 4:00 pm on Friday until 4:00 pm Sunday. 

9. Should the father move to (omitted), then order 3(a) is suspended, and the following contact is to commence:

   (a)The father spend time with the child on the second and fourth weekend of every month, from after school or 4:00 pm on Friday until school at 9:00 am on Monday, with changeover to occur at school or at the mother’s residence. 

10. During time spent pursuant to orders 8 and 9 the father shall ensure that the child attends all regular extra-curricular activities. 

11. That the mother shall notify the father as soon as practicable, in the event the child suffers from any illness, injury and/or medical treatment is prescribed for the child whilst in her care. 

12. That the father shall notify the mother as soon as practicable, in the event the child suffers from any illness, injury and/or medical treatment is prescribed for the child whilst in his care. 

13. The mother shall keep the father informed as to the details of the child’s Preschool, Kindergarten or School and authorise the relevant Preschool, Kindergarten or School to communicate directly with the father. 

14. That both parties be entitled to receive correspondence, documents, newsletters, photographs, reports and the like from the child’s Preschool, Kindergarten or School and authorises the Preschool, Kindergarten or School to provide these documents to the father, at the father’s expense. 

15. That the father be restrained by injunction from encouraging or allowing any other person to refer to themselves as the child’s mother or mummy. 

16. That both parties be restrained by injunction from denigrating the other parent in the presence of the child, or permitting another person or persons to do so. 

17. The mother be restrained by injunction from moving from (omitted) save on giving the father three months’ notice thereof. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 5607 of 2013

MR NOTT

Applicant

And

MS GREENE

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting dispute bedevilled by the tyranny of distance and the associated financial problems that the parties face as a result.  The applicant father lives in (omitted) and the respondent mother lives in (omitted).  The child, the primary subject of the proceedings, X, born (omitted) 2010, lives with his mother in (omitted).  It is immediately apparent that for him to spend time with the father is problematic. 

2. The parties’ positions have fluctuated somewhat but as I understand the matter the father’s proposal is that X should spend time with him from Friday evening to Sunday afternoon at (omitted), and additionally in (omitted) with the mother and child flying to (omitted) on four occasions per year.

3. The mother’s proposal is time once a month from Saturday morning until Sunday afternoon with changeover at (omitted). 

4. It appears the parties are now in agreement that X’s relationship with his father is sufficiently secure that he could spend half school holidays from now on with his father. 

5. The mother’s position is, further, that up to one week of extra time could be spent with the father in the long school holidays.  She proposes changeover at (omitted) for the holidays which is half way between (omitted) and (omitted). 

6. She otherwise proposes time once per month either at (omitted), or at (omitted) provided the father gives 14 days’ notice.  In that event the mother proposes a collection from school and return on Sunday evening. 

7. For the reasons that follow, I am going to make the orders sought by the mother in the main. 

The background, agreed facts

1. The father was born on (omitted) 1970 and the mother on (omitted) 1969.  The father was previously in a relationship with Ms T who was born on (omitted) 1980.  She and the father met in 1999 and were in a relationship for three years and married in (omitted) 2003.  Their child, Y, was born (omitted) 2003 and they separated in mid-2004. 

2. The father met the mother in 2009 and they commenced co-habitation in January 2010.  X, as mentioned, was born on (omitted) 2010.  The parties separated in either January or February 2011.

3. The mother took out an Intervention Order against the father on 1 August 2012. 

4. In March 2012 the father reconciled with Ms T and Y. 

5. The father and mother had lived in Melbourne and (omitted) respectively during the relationship but the mother moved initially to (omitted) and subsequently to (omitted), where she has bought a home.  Her reasons for moving to the country had to do with the cost of accommodation and do not strike me as being in any way unreasonable. 

6. The father moved to (omitted) in order to obtain remunerative employment.  Although the date of relocation is not, I think, given in terms the father described it in paragraph 28 of his affidavit filed 10 July 2003 as:

   “For the past year we have lived in (omitted) as I was relocated to (omitted) for work.”

7. Once again, there is nothing unreasonable in the father’s conduct in so relocating.  Ms T has a job as a (occupation omitted) in (omitted). 

8. Pursuant to orders made by Judge Small on 28 January 2014 X has been spending time with the applicant father in (omitted), gradually increasing so that it is presently from 10:00 am on Saturday until 4:00 pm on Sunday on one occasion per month. 

The evidence given at Court

1. Given the way the matter has transpired it is not necessary or appropriate to traverse the parties’ affidavit material in any detail.  Both parties were, to an extent, critical of the other and some of the matters raised were concerning.  The reason it is not necessary, however, to refer to that material is that in the ultimate the parties’ evidence shows that the matters in issue between them are far more restricted than the affidavits themselves would have proposed.  Accordingly, I will set out a paraphrase of the evidence given taken from my notes. 

The evidence of the father

1. The father adopted his affidavits and Financial Statement as true and correct.  He deposed that he had spent time with X two weeks before his birthday.  He left (omitted) at about 11:00 am on Saturday and arrived at (omitted) at approximately 4:00 pm.   There was a cabin set up for the birthday.  He had been seeing X there since May 2014 when overnight time commenced.  He now proposes time to be spent at (omitted).  He can leave at 4:00 pm on Friday (but not earlier given Ms T’s work commitments) and it takes about four and a half hours to (omitted).  He would arrive at (omitted) at about 8.30 pm and there was cabin accommodation available.  X does not go to sleep until 9:00 pm.  Y is X’s half-brother and they lie in bed together and watch TV.  They lie in bunks head to toe.  The cost for two night’s accommodation is $220 per night and the drive to (omitted) costs about $130 for petrol.  (omitted) is much the same. 

2. There would be more travel time to (omitted) for the mother than there would be from (omitted).  It is 210 kilometres to (omitted) from (omitted) whereas it is a bit over an hour to drive to (omitted).  There was some discussion of a proposal of changeover at (omitted) that is no longer relevant. 

3. Y has to be at school on Mondays and that governs the time when they have to leave. 

4. In relation to his proposal for air travel the father said X cannot fly alone but the costs should be shared.  He was not prepared to pay the mother’s cost of petrol to come to Melbourne but was prepared to pay half of the airfares and other costs associated with the mother and X coming to (omitted).  He said each would pay in turn.  He said the costs would amount to about $708 in total including airfares and accommodation and would involve approximately four hours travel.  Driving from (omitted) to (omitted) takes about seven and a half hours. 

5. Under cross-examination the father was pressed with the proposition that what he really intended to do was to take X to (omitted) where his own mother lives, this being another one and a quarter hour drive.  He said that he might do this on occasions. 

6. When he was taxed with the proposition that the mother’s proposal was restricted to holiday time, which would be cheaper, he said that finances come second. 

7. When taxed with moving to (omitted) the father said that if he had no work he would not have the finance to afford to see X.  He had thought the mother would be in (omitted) at the time he moved to (omitted).  He confirmed that he and the mother have trouble communicating. 

8. The father said that overnight time at (omitted) had been satisfactory and that in his opinion X could easily handle up to seven nights with him.  He said he had had Y by himself for seven nights at the same age.  He said X had had lots of travel all his life.  He and Y play games in the car. 

9. He had seen X the previous Christmas in (omitted) after extensive travel and X had been fine.  He and Y like waking up together. 

10. When cross-examined about Child Support the father said his wage was assessed and he pays what is assessed.  He said he was $131 in arrears, not $900. 

11. The father said the difference in travel time between (omitted) and (omitted) is about half an hour and he would like his mother to see X more.  It is two and a half hours to (omitted) from (omitted). 

12. In respect to telephone communication he said that he had spoken to X on his birthday but X did not want to speak to him.  He did not know why.  He said conversations are often short.  The father said he sends emails to X via the mother and she is to read those out and this takes place by agreement. 

13. The father confirmed that he was looking for work in (omitted) but this was hard to get. 

14. The father had some implicit criticism about the mother in relation to X’s childcare on Fridays but this is, in my view, of no moment.  The father pointed out that he loses two days pay to see X. 

15. When it was put to him that a regime of half the various holidays would be appropriate he disagreed and said that more regular visits would be better. 

The evidence of the mother

1. The mother deposed that she is an (occupation omitted) and lives in (omitted).  She adopted her affidavits and Financial Statement as true and correct. 

2. She said that to travel to (omitted) by 8.30 pm on a Friday might be difficult because she sometimes had to work on Fridays.  The fuel would cost $100 - $120 for the return trip and would be a three hour trip with a minimum 10 minute break from (omitted) to (omitted).  She said she would then need to find a hotel at a cost of $100 so that the total cost of her taking X to (omitted) would be some $400 - $500. 

3. The mother said she only works 20 hours a week but sometimes those hours are on Friday.  She said she does not have any spare money and would have to stop X swimming or childcare.  She said, with evident conviction, “I literally do not have it (the money).” 

4. The mother said she has three credit cards and had had difficulties when the father did not pay Child Support.  She has spoken to a financial counsellor and is in the process of trying to pay off her credit card debt. 

5. The cost of a trip to (omitted) is $80 in total and takes one and a half hours.  She said this was about enough travel time for X. 

6. The mother said that X was asleep when she gets him home and it takes about a week to ten days to recover and that a trip to (omitted) would just be too long.  She said she simply could not afford to fly to (omitted), and in any event this would limit her capacity to work.  She had bought her house in (omitted) for $140,000 to save excessive rent. 

7. She said that if the father was to be in (omitted) (whether visiting or living there) she would be agreeable to him spending time with X. 

8. Under cross-examination by counsel for the father the mother confirmed that if the father was in (omitted) he could spend each alternate weekend with the child and two overnights during each such period.  She said that she did not believe that X had to do most of the travel but agreed that he might sleep in the car.  She said two hours driving is tops.  She said she has to stop because she needs a break herself.  She confirmed that X takes a week to recover from his monthly visits to his father, being clingier and grumpier.  She confirmed that there are some days when X is not in childcare on Mondays. 

9. The mother confirmed that she spends $80 per trip to (omitted). 

10. The mother conceded that X spending time with Y is important. 

11. The mother was cross-examined about difficulties in communication with the father, during which she seemed to me to be somewhat accusatory, but the only point I take from this is that the communication between the parties is strained.  

12. The mother confirmed that when she goes to (omitted) she can stay with a friend, but she has no such friend to give her free accommodation in (omitted). 

13. The mother confirmed that Skype would be okay if she had internet connection and confirmed that she could do this from a public library.  She did not want Skype at her home because she did not want the father seeing into her home. 

14. The mother’s position was that telephone time should take place once per week, until X starts school, at 6.30 pm to 7:00 pm. 

The family report of Ms E dated 15 August 2014

1. Ms E set out the background to the dispute including the allegations of anger and assault on the part of the father.  As I say, those matters appear to have receded from consideration. 

2. The background set out by Ms E is, in my view, uncontroversial and now largely not of great moment. 

3. Likewise concerns expressed previously by the mother as to overnight time seemed to me to have somewhat receded. 

4. In the context of the present dispute, what is probably most significant are the observations of Ms E of the children and their interaction with the adults and each other.

5. I note that paragraph 72 and following, Ms E recorded:

   “72.  X presented as a cheerful happy little boy.  He was spontaneous and confident.  He related to his mother as would be expected, in a close and affectionate way. 

   73.  X was quite happy to come without his mother to the interview room when he was told his father was waiting.  There were no overt signs of anxiety or hesitance. 

   74.  On the way he saw Ms T and Y in the waiting area.  His face lit up and he ran in to hug them.  Y picked him up and took him to see his father.  X was delighted to see Mr Nott.  They hugged and kissed.  Mr Nott dropped to his knees and he and X and Y played and talked together.  They were very animated.  X initiated physical contact with his father and with Y.  They responded appropriately.  X appeared to have a very close bond with Y.  He attended to his father and made spontaneous overtures to engage him.  He was relaxed and confident.  X smiled, chatted and laughed throughout their time together, which is approximately 10 to 15 minutes.”

6. Under the heading “Evaluation”, Ms E went on at paragraphs 75-77 to say:

   “75.  The two main issues in this matter are the distance between the two houses of the mother and father and the lack of effective communication between the mother and father.  There is also debate about X’s capacity to have overnight time with the father. 

   76.  In relation to X’s capacity to overnight with the father, there is little to suggest that he would not be able to manage the arrangement.  He has a close relationship with his half brother and was very affectionate and positive in his interaction with Mr and Ms T.  The reaction Ms Greene has observed in X may be general fatigue or X may be responding to Ms Greene’s anxiety about the situation.  In any event, it is unlikely that unrest on X’s part will continue when a routine is well established. 

   77.  The distance between the houses of the parents is something that more cooperation between the mother and father would be better suited to resolve.  They are more likely to know what suits their extended family situations.  Unfortunately, this seems unlikely at present.”

7. Ms E went on to recommend that a fair changeover location in terms of kilometres would be at (omitted) (paragraph 79). 

8. Ms E went on to deal with the question of family violence in terms with which I would respectfully agree but, as I say, this matter was not given any emphasis during the trial. 

9. I note that paragraph 87 Ms E recommended Skype as advantageous to promoting the relationship with the father and Y and X.  She said, “the more familiar X becomes with his father, Ms T and Y, the less likely he is to feel insecure on overnight visits.” 

10. Ms E went on to recommend that until X commenced school he spend the second Friday of each odd-numbered month from 4:00 pm until the following Sunday at 4:00 pm with changeover at McDonald’s family restaurant in (omitted) or by agreement and on the second Friday of each even-numbered month from Friday afternoon to Sunday afternoon in (omitted) with X to fly from Melbourne to (omitted) and for one week of each of the school term holidays and two weeks of the 2014 to 2015 summer school holidays.  For school holidays she recommended changeover at (omitted). 

11. Ms E recommended telephone contact each Wednesday between 6.30 pm and 7:00 pm. 

12. Once X starts school the time would increase to half of all school holidays. 

13. She further recommended Skype and a communication book and that the mother be retrained from relocating outside Victoria with the child unless agreed to in writing by the father. 

The evidence of Ms E

1. Ms E was first cross-examined by counsel for the father. 

2. Ms E confirmed that the child was very cheerful and had lots of energy when she observed him and he went to his father easily.  She said he was a pretty secure child and it was not unusual that there be some effects when he spends time with his father.  X was very excited to see his father but the effects referred to by the mother will settle over time.  The visits seemed to have gone well. 

3. Ms E said that three hours in a car was a long time but if it was necessary it would have to happen.  She said it was the mother’s idea to travel by plane and that the mother was trying to think of different ways of approaching the matter. 

4. When it was put to her by counsel that it would be appropriate, if time was not spent monthly, to have more than half school holiday time Ms E was clear that it was definitely preferable to see the father during school terms.  She said that 9:00 pm changeover was probably too late until X is at school.  She thought 9:00 pm changeover at the moment would be counterproductive. 

5. Under cross-examination by counsel for the mother Ms E was clear that X would be okay spending half school holidays from now on judging by the relationship she saw between X and the members of the father’s household. 

6. She further agreed that two nights of time in (omitted) would be okay if the father could get there provided he gave notice and provided that he takes X to all extra-curricular activities. 

7. Ms E confirmed that once a month travel was not ideal but it was important for X to have a relationship with the father.  She said that the mother seems very capable of doing the driving with the child. 

The parties Financial Statements

1. The parties have both filed Financial Statements, not because there is any property dispute but because their finances are relevant considerations in this matter. 

2. The father’s Financial Statement, filed 26 August 2014, discloses weekly income of $1,748 per week and personal expenditure of $2,692.  His house is, to all effects and purposes, completely mortgaged. 

3. Nonetheless, I note that Ms T, who, of course, contributes to the finances of the household, earns $900 a week.  Although the Financial Statement suggests that Ms T only provides $325 per week by way of household assistance, it would seem to me that the figure is more likely than otherwise to be greater. 

4. The net equity in the home is approximately $10,000 but the most substantial other debt, other than the mortgage, is a hire purchase/lease due to be paid out in January 2018 in the total sum of $65,000.  I note further that of the $1,035 disclosed by Part N in the Financial Statement, $190 is for telephone and $70 per week is set aside for the cost of visiting X and $100 for legal fees.  The legal fees expenditure will necessarily eventually cease.  It should be noted that there is no explanation in the affidavit material that, at least, I have been readily able to find which explains quite why the telephone bill is so large and nor how much of the $65,000 hire purchase figure remains to be paid.  I would infer that it must be a vehicle associated with the father’s trade. 

5. The mother’s Financial Statement filed 11 September 2014 shows an income of $1,149 per week and total expenditure of $1,229 per week.  The income is, of course, inclusive of the Child Support paid by Mr Nott. 

6. I note that the home in which she lives is valued at $140,000 and subject to a mortgage of $135,000 approximately.  The mother owes $15,611 to MasterCard and other credit cards and a further $4,525 to Visa.  It is not surprising that she is paying $118 to her two Visa cards and $40 a week to her MasterCard.  It is not clear from the statement how much she is paying off her (omitted) Bank and (omitted) Bank debts. 

7. The mother’s expenditures on personal matters are, in my view, wholly unremarkable, and I note that like the husband, she is spending $100 a week on legal fees which will eventually cease. 

Observations about the witnesses

1. Both the parents struck me as honest.  The father was clearly an honest witness who answered questions directly and credibly.  Nonetheless, it was easy to see that to an extent he is frustrated by what he perceives as the mother’s resistance to his spending time with X and lack of cooperation in enabling it to happen in a more beneficial way.  

2. The mother was likewise generally a responsive witness although as I say there was a clear element of frustration and accusation of the father in her evidence about Child Support issues. 

Findings on the facts

1. Given the various matters earlier put as to possible threats of violence or anger on the part of the father have now effectively dissipated (although I have no doubt they lurk in the background of the mother’s mind) there is little to determine.  The evidence of Ms E, given with complete assurance and within her area of expertise, is evidence that I accept.

2. Much of what Ms E had to say accords with common sense and ordinary human experience in any event.

3. Clearly lengthy travel for a child as young as X is likely on occasions to be problematic.  It is more so for the mother than the father because (as I would infer) the father and Ms T can share the driving.

4. I accept that on occasions Y and X have played together in the car, but on any view of the matter very extended travel by car might be problematic.

5. The proposal for air travel is, given the parties circumstances, utterly unsustainable.  It does the mother credit that she was prepared to think outside the square, so to speak, in suggesting it but it plainly cannot happen.  The parties just do not have the money.

6. The father’s desire for changeover at (omitted) to enable his elderly mother to see X more than the handful of times that she has done thus far is not inherently unreasonable of itself.  The further travel might be slightly problematic to X, but that of itself would not dissuade me from it.

7. The real difficulty in the case is money.  I fully accept the mother’s evidence that the cost of the weekend in (omitted) once per month to her is $80.  She has free accommodation and is basically paying for her petrol. 

8. The extra costs in the event that she had to go to (omitted) are simply beyond her means.  The father cannot afford to subsidise the mother to make up the shortfall.  His finances are also extremely strained.

9. In these circumstances it is clear that Ms E’s recommendation that it is in X’s best interests to see his father routinely during school term time should be acceded to, and I will order that time continue from Friday to Sunday at (omitted). 

10. So far as the time is concerned the father will not arrive until 8:30 pm or thereabouts and I will order that time commence at 8:30 pm on Friday and conclude on Sunday at 4:00 pm. 

11. The mother’s position is, of course, that that is too late for X on a Friday and may conflict with her work. 

12. In my view the mother’s evidence does not go far enough to suggest that her work on Friday is likely to be a significant inhibitor to X spending time with the father.  In my view, it is more in X’s best interests to get to (omitted), albeit late on Friday, and wake up in bed with or very near Y which he plainly very much enjoys doing.  This gives him a full day on Saturday with his father, and in my view all the evidence suggests, including most particularly the observations of Ms E, that that would be in his best interests. 

13. So far as telephone time is concerned it is scarcely surprising that a young child of X’s age is not a great performer on the telephone, and time once per week between 6:30 pm and 7:00 pm on a Wednesday as recommended by Ms E makes every sense. 

14. So far as school holidays are concerned, it is clear from the positions adopted by the parties and endorsed by Ms E that X should move immediately to half school holidays.  I do not think it is appropriate in the circumstances to take up the mother’s offer of an additional week during the long school summer holidays.  X is still young and needs to spend time with his mother during that break. 

15. The draft orders I am going to formulate will suggest that the first half of the school holidays be spent in the 2014 to 2015 long summer school holidays with his mother, which will have the effect that he spends Christmas with his mother.  I would be minded simply to reverse that sequence year by year, although I will give the parties an opportunity to consider that matter and make further submissions, as will be the case with all the draft orders. 

16. Changeover for school holidays will be at (omitted).  This seems uncontroversial and is fair in any event. 

17. In the event that the father is able to come to (omitted) without relocating then I would be minded to order time from the end of school or childcare as the case might be until 4:00 pm on Sunday.  Once again there may need to be some fine tuning given that X’s circumstances on Fridays are not entirely clear to me. 

18. If the father relocates to (omitted) then as I understand it the parties were agreeable that X spend time from Friday afternoon until Sunday each alternate weekend.  In my view, once X attends school that regime could properly be from the end of school Friday until start of school Monday, and together with half school holidays. 

19. The father has sought an order preventing the mother from relocating more than 100 km from (omitted) without his agreement.  Given the parties history the father’s concern is not unreasonable.  If he uproots himself and Ms T from their employment in (omitted) to (omitted) it would self-evidently be thoroughly undesirable for everybody if the mother were to relocate from (omitted).

20. On the other hand, the mother’s evidence as to why she moved to (omitted) struck me as being sincere.  Absent some deus ex machina such as a new relationship her moving would not seem likely.

21. It is not possible to foresee in advance the myriad events that may change the positions of either of these parents as to where they wish to live, nor to evaluate in advance the reasonableness or otherwise of any desire they might have to relocate.

22. In all the circumstances it seems to me appropriate that I should order that the mother not relocate from (omitted) without agreement in writing from the father or alternatively the giving of not less than three months notice, which would give the father ample time to bring the matter to Court should he be so advised.

Conclusion

1. This judgment has not followed the normal template.  I have not dealt in terms with the statutory pathway and its application.  Given the nature of the dispute between the parties, and its very limited extent as things have transpired (both counsel agree that the matter could almost have been done on oral submissions only) it has not been necessary to do so.  I think these reasons for judgment have disposed of all the matters in issue between the parties.  As indicated I have formulated draft orders to give effect to my conclusions, but given several areas of uncertainty I will give the parties an opportunity to consider them and make any further submissions.  

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  2 December 2014