Peck and Peck
[2019] FCCA 558
•19 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PECK & PECK | [2019] FCCA 558 |
| Catchwords: CHILD SUPPORT – Departure application in respect of periods less than 18 months old – where the father sought to rely on the taxable income in his late-filed tax returns – where previous proceedings pursuant to s.98B of the Child Support (Assessment) Act in respect of the same period raised a doubt about whether the father’s taxable income could be relied on as accurate evidence of his income or his income earning capacity – where the father failed to address the issues raised in the earlier proceedings – where the father has failed to establish a ground of departure – application dismissed. |
| Legislation: Child Support (Assessment) Act 1989, ss.56, 98B, 98S, 111, 112, 116, 117, 118, 136, 143 |
| Cases Cited: Bauer & Becker [2009] FMCAfam480 Boer & Magee [2017] FCCA 1970 Jensen & Jensen (1982) FLC 91-263 Yewen & Child Support Registrar & Anor [2014] FCCA 2399 |
| Applicant: | MR PECK |
| First Respondent: | MS PECK |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | NCC 1358 of 2012 |
| Judgment of: | Judge Terry |
| Hearing date: | 31 August 2018 |
| Date of Last Submission: | 31 August 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 19 March 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondent: | Mr Weightman |
| Solicitors for the Respondent: | Carroll & O’Dea Lawyers |
ORDERS
The Amended Initiating Application filed on 29 November 2017 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Peck & Peck is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1358 of 2012
| MR PECK |
Applicant
And
| MS PECK |
Respondent
REASONS FOR JUDGMENT
Introduction
In 2011 after he separated from his wife Ms Peck (“the mother”), Mr Peck (“the father”) was assessed to pay child support in respect of his children [X], [Y] & [Z].
Some money was recovered from him by way of his wages being garnisheed and his tax refunds withheld but by 2017 he owed substantial arrears.
In April 2017 [Z] told his mother that the father was planning to go on a cruise with his new partner and the mother told the Child Support Registrar who made a Departure Prohibition Order.
This invoked some fury in the father. He said as follows in his 9 October 2017 affidavit (spelling as in the original):
On the date of 27/04/2017 I got a letter of childsupport stated that there has been a departure phohibition order on my passport now y I receved this was because of my youngest son told his mother my (ex wife) that I was going on a cruise so she raing up childsupport an told them I was leaveing the country how I know this is my youngest son told me. If she thinks that is funny I don’t cause it was a send off for my parnters mothers ashers. If this is found to b true an childsupport knows of this I would like to file a law suite against her for folse infermashion.[1]
[1] Page 2 of the father’s affidavit filed on 9 October 2017.
The Registrar advised the father that the Departure Prohibition Order could be lifted if he came up with $23,000.00. He said that he didn’t have that sort of money and applied to have the Departure Prohibition Order lifted anyway but his application was refused on 5 October 2017.
The father then turned his attention to getting rid of the arrears.
On 9 October 2017 he filed an application in this court seeking leave pursuant to s. 112 of the Child Support (Assessment) Act (CSAA) to apply for a departure order in respect of the child support assessment periods which were more than 18 months old and seeking a departure order in respect of the periods which were less than 18 months old.
In 2016 and 2017 the father late-lodged his tax returns for the financial years from 2013 onwards and it was his case that the taxable income in those returns should be substituted for the taxable income used by the Registrar in making the assessments from 24 October 2013 onwards.
It was further his case that if the child support assessments were amended in this way not only would he not owe any arrears, the mother would owe him $4,737.20 and he sought an order pursuant to s. 143 of the CSAA that the mother repay this amount to him.
The first respondent mother opposed the father’s application in its entirety.
The second respondent Child Support Registrar provided useful submissions but did not take a position about the outcome.
The evidence
The father relied on his amended initiating application filed on 29 November 2017 and his affidavits filed on 9 October 2017 and 29 November 2017.
The mother relied on her response filed on 15 February 2018 and her affidavit filed on 9 February 2018.
The mother’s counsel cross-examined the father and made oral submissions. The father did not seek to cross-examine the mother and effectively said that his application and affidavits spoke for themselves.
Written submissions were filed on behalf of the Registrar on 1 March 2018 and they were marked as an exhibit.[2] I am grateful to the solicitor for the Registrar for providing submissions which made the issues in the case comprehensible. The Registrar did not otherwise take part in the hearing.
[2] Taken from Exhibit A
Background
The father is 49 and the mother 55. They commenced a relationship in about 1987 and they have three children, [X] born on … 1996 (22), [Y] born on … 1999 (20) and [Z] born on … 2001 (17).
The parties separated in 2009, reconciled in 2010 and finally separated in 2011.[3] The children remained with the mother after the final separation and the Child Support Agency became responsible for collecting child support from the father.
[3] Child Support Registrar’s submissions paragraph 8
At the time of separation the father was earning income as a labourer. He operated a business under the name or style “Business” and was also partly employed on wages.
The father was not happy with the child support assessments which issued and in 2012 and 2013 he made applications to the Registrar for departure orders but his applications were unsuccessful.
The father remained unhappy and on 23 October 2013 he lodged an income estimate of $0 and from the 2013/14 financial year onward he failed to lodge his income tax returns.
As a result the Registrar had to look for other information about the father’s income in order to assess his child support including relying on older returns and contacting his employer to obtain information about his income. The Registrar carried out his task strictly in accordance with the legislation and it was not suggested that he had made a mistake.
The solicitors for the Registrar provided the following information about the assessments which issued between 24 October 2013 and 1 July 2016:
a)24/10/2013 to 30/6/2014 – annual rate $18,467.00 based on replaced estimate income of $93,283.00. This derived from information obtained from the father’s payroll area. His adjusted taxable income for this period of $78,620.00.
b)1/7/14 to 28/7/14 – annual rate of $4,594.00 based on an adjusted taxable income of $40,321.00 in accordance with the father’s 2012/13 tax return.
The father does not seek leave or court orders in respect of this period.
c)1/9/2014 to 19/11/2014 – annual rate $18,841.00 based on provisional income of $89,502.00 due to the father’s failure to lodge his 2013/14 income tax return on time. This is higher than the taxable income of $35,078.00 disclosed in his 2014/15 tax return.
d)20/11/2014 to 31/8/2015 – the father was assessed to pay an annual rate of $16,121.00 based on provisional income of $89,502.00 due to the father’s failure to lodge his 2013/2014 tax return. This is higher than the $35,078.00 recorded in his 2014/15 tax return.
e)1/9/2015 to 2/11/2015 – the father was assessed to pay an annual rate of $10,255.00 based on a provisional taxable income of $65,594.00 due to the father’s failure to lodge his 2014/15 tax return on time. This is higher than the taxable income of $51,371.00 recorded in the father’s 2015/16 tax return.
f)3/11/2015 to 30/6/2016 – the father was assessed to pay an annual rate of $12,518.00 based on a reconciled taxable estimate of $74,738.67 based on the original estimate provided by the father and then an annualised figure for income actually earned in the estimate period. This is higher than the figure of $51,371.00 recorded in his 2015/16 tax return.
On 21 June 2016 the father lodged his 2013/14 tax return which showed a taxable income of $78,620.00. This was lower than the amount of $93,283.00 used to assess child support for the 2013/14 financial year but because the return was lodged late and showed a reduced income the Registrar was under no obligation to amend the assessment made three years earlier.
Sometime in June 2016 the father closed his business and sold the equipment it owned. He maintained that he received $110,000.00 and that it was all used to pay loans owing on the equipment although he has never produced any documentation to verify this.
The father maintained without providing any detail that since he closed the business he had had difficulty obtaining work and that in recent times he had been mowing lawns.
Not long after the father closed his business [Z] began expressing a wish to live in a week about arrangement. He commenced doing so on 25 August 2016 and this change of care has been factored into the child support assessments since that time.
On 23 April 2017 the father lodged his 2014/15 tax return which showed a taxable income of $35,076.00 and his 2015/16 tax return which showed a taxable income of $51,371.00. Again they showed incomes lower than the amount used to assess child support in those periods but again the Registrar was under no obligation to amend the earlier assessments.
On 27 April 2017 the Departure Prohibition Order issued.
On 2 August 2017 the father lodged his 2016/17 return which showed a taxable income of $10,963.00. This return was lodged within time and as a result since 1 September 2017 the father has been assessed to pay child support based on this taxable income.
The assessments from the time the father ceased operating his business in June 2016 were as follows:
a)1/7/2016 to 24/8/2016 – the father was assessed to pay an annual rate of $10,255.00 based on a provisional income of $65,594.00 due to his failure to lodge his 2015/16 income tax return on time. This provisional income is higher than the $10,963.00 which was his 2016/17 income recorded in his tax return.
b)25/8/2016 to 31/8/2016 – the father was assessed to pay an annual rate of $8,320.00 based on a provisional income of $65,594.00 due to his failure to lodge his 2015/16 income tax return. This is higher than the income of $10,963.00 recorded in his 2016/17 tax return.
c)1/9/2016 to 14/2/2017 – the father was assessed to pay an annual rate of $5,177.00 based on an adjusted taxable income of $51,371.00 in accordance with his 2015/16 tax return. This is higher than the income of $10,963.00 in his 2016/2017 tax return.
d)15/2/2017 to 31/8/2017 – the father was assessed to pay an annual rate of $1,875.00 based on an adjusted taxable income of $51,371.00 in accordance with his 2015/16 income tax return. This is higher than the income of $10,963.00 recorded in his 2016/2017 return.
e)1/9/2017 to 30/11/2017 – an amended assessment was issued for this period. The mother became the paying parent and was assessed to pay an annual rate of $1,293.00 based on her adjusted taxable income of $35,397.00 and the father’s adjusted taxable income of $10,963.00. The payments the mother is required to make are offset against the father’s arrears.
After his application to have the Departure Prohibition Order lifted failed the father took a two pronged approach to the problem of how to deal with his arrears.
I have already mentioned that on 9 October 2017 he filed an application in this court which is currently before me seeking to have the assessments from 2013 onward varied so that all arrears disappeared.
However on 16 November 2017 he also filed an application with the Registrar pursuant to s.98B of the CSAA seeking a change of assessment for the period 1 July 2016 to 30 November 2017 which he could do without leave. He submitted that the assessments for this period should be based on his 2017 taxable income of $10,963.00 and not the income the Registrar had used which was based on provisional income deriving from an earlier tax return.
The mother filed a cross-application seeking to reduce the rate payable by her and increase the rate payable by the father on the basis that she did not accept that $10,963.00 was his correct income or alternatively that he was exercising his income earning capacity.
A hearing was promptly conducted into this application by a delegate of the Registrar.
The father was asked by the delegate to provide documents evidencing the sale of the equipment, the repayment of loans from the sale proceeds and his income and expenses and to provide information about how he was making ends meet if his income was only $10,963.00 including providing evidence that his partner was helping to meet his expenses.
He failed to provide any such documents or information and on 29 January 2018 the delegate held that in the absence of that evidence he could not be satisfied that the assessment from 1 July 2016 to 30 November 2017 was unjust or inequitable and he dismissed the father’s application for a change of assessment.
As a consequence the delegate also dismissed the mother’s application, because the effect of dismissing the father’s application was that the father continued to be assessed on an income of $51,371.00.
The issues I need to determine
The issues I need to determine are:
a)Whether the father should be granted leave to apply to this court for departure orders for the period 24 October 2013 to 9 April 2016.
b)If leave is granted whether departure orders should be made.
c)Whether a departure order should be made for the period 9 April 2016 to 1 September 2017.
The application for leave
S. 111(1) of the Child Support (Assessment) Act provides that:
(1) A liable parent, or a carer entitled to child support, (the applicant) may apply to a court having jurisdiction under this Act for leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
S. 112(1) & (2) provide as follows:
(1) If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
As can be seen from the above the court can grant leave for a departure application to be made to either the Registrar or a court. The first port of call is normally the Registrar but the child support cases in respect of [X] and [Y] have ended and cannot be considered by the Registrar.
[Z]’s case could be but as the solicitor for the Registrar pointed out in his written submissions, it is preferable if the cases in respect of all three children are considered by the court if leave is granted rather than that two are considered by the court and one by the Registrar.
In determining whether to grant leave I must have regard to s. 112(4) & (5) which provide that:
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other relevant matter.
The solicitor for the Registrar submitted that leave pursuant to s.112 should only be granted in exceptional circumstances.[4] He referred to the following passage from the judgment of FM Brown as he then was in Bauer & Becker[5] which was handed down not long after s. 112 was introduced into the Act:
[4] Paragraph 62 of the second respondent’s submissions.
[5] Bauer & Becker [2009] FMCAfam480
The legislative provisions, which relate to the amendment of any administrative assessment of child support that is more than eighteen months old were inaugurated following the recommendations of the Ministerial Taskforce on Child Support, chaired by Professor Parkinson. The Taskforce was concerned to limit retrospective applications in respect of child support and the government accepted its recommendations in this regard.
The Taskforce reported as follows:
“An application for change of assessment may currently be made for a virtually unlimited time. This is highly undesirable, as it may open periods to re-examination which have long past, to the detriment of the other parent who finds past child support obligations being retrospectively reviewed. Particularly where a parent wishes to avoid complying with large outstanding child support debts, a belated application to reduce the assessment may be available, undermining the CSA’s ability to enforce debt. In practice, most decisions are not retrospective. However, the currently open discretion to make an application to vary past periods should generally be limited to the immediately preceding child support period.
However, there may be some exceptional circumstances where a parent has a legitimate reason for delaying their application for a change to a past assessment. One such reason is because information has only recently come to light about a payer’s hidden income. In such cases, a process should exist to enable this general limit on retrospective applications to be eased. A court is in the best position to consider the past ‘rights’ of the parties, and determine whether making an exception is appropriate. For this reason the Taskforce proposes that an application should be made to a court (in practice this would be the Federal Magistrates Court), to grant leave to apply out of time. This would be similar to the existing process under s.44 of the Family Law Act 1975 in relation to property and spousal maintenance applications.
Where such application has been made to a court, and the court is inclined to grant it, the court may have before it much of the necessary information and evidence from the parents to consider making a departure order. It may be inefficient to require the parents to return to the CSA to seek administrative determination of the application. In such cases, the court should have a discretion on application by a parent to proceed to determine the substantive departure application itself.”
However while the passage from the report by the Ministerial Taskforce on Child Support makes the purpose of the 2006 amendments clear and does contain the word “exceptional” it would be putting an impermissible gloss on s. 112 to hold that leave should only be granted in exceptional circumstances.
The word “exceptional” is used in s. 136 of the CSAA which relates to an application to set aside binding child support agreements, so the legislature uses this phrase when it chooses to do so and it has not done so in s.112. Further and by way of analogy it was made clear early in the life of the Family Law Act that the interpretation of s. 117(2) of that Act which provides that the court may make an order as to costs if there are circumstances justifying it doing so should not be fettered by a suggestion that “special circumstances” needed to be established before an order as to costs was made.[6]
[6] Jensen & Jensen (1982) FLC 91-263
Just as the court in determining whether to make a costs order must consider the matters in s. 117(2A) I must consider the matters in s. 112(4) & (5) in determining the present application and the first matter I must consider is the responsibility for and the reason for the delay in making an application.
The responsibility for the delay is wholly the father’s and he offered no explanation for his delay in making a departure application in relation to the assessments made between 2013 and 2016.
The father also offered no explanation for his failure to lodge his tax returns other than to make a bare assertion that he thought that once he lodged them his child support assessments would be adjusted. This is simply not credible, indeed given his strong belief that he was being assessed to pay too much child support one would have thought that he would have rushed to file his returns if he thought they would show a reduced income.
While the failure to explain the delay in applying for a departure order is not fatal to his application for leave it is a significant factor to be taken into account. Parliament deliberately amended the CSAA in 2006 to introduce a time limit and prevent people being able to wait years to make departure applications, and sometimes, as is the case here, wait after the child support assessments had ended or all but ended, to bring an application, and if people are allowed to bring an application without explaining their delay it almost defeats the purpose of the amendment.
The second matter I have to consider is the hardship to the father if leave is not granted.
This is difficult to assess. The father may suffer financial hardship if he is left with a child support debt of $23,000.00 but he did not file a financial statement or provide any information about his assets or liabilities so I cannot be sure about that.
The mother will suffer hardship if leave is granted and the assessments are amended in that she will not receive the arrears owing to her, arrears which have built up while she was primarily supporting the children.
The mother provided information about her assets, liabilities and expenses. Her assets are modest and are mainly in the form of an encumbered home. She is working part time and earning $35,000.00 per annum and this has been the case for some while. If the arrears are wiped out the mother would immediately be required to pay child support to the father which as she also has fifty percent care of [Z] could cause her hardship.
The mother would also suffer hardship if she was obliged to pay the father $4,000.00 although this could be alleviated if the court in the exercise of its discretion declined to make an order pursuant to s. 143 requiring her to repay any money.
Pursuant to s. 112(5) I must also consider any other relevant matter and I concur with Judge Brown who said in Yewen & Child Support Registrar & Anor that it was appropriate to ask:
Is the court satisfied that the applicant concerned has made out a prima facie case to have the relevant child support assessment changed?[7]
[7] Yewen & Child Support Registrar & Anor [2014] FCCA 2399
If I grant the father leave to proceed with an application for departure he will need to establish a ground for departure and to persuade the court that it is just and equitable and otherwise proper to depart from the administrative assessments.
The father’s case rested wholly on the fact that the taxable income in his late-filed returns differed from the amounts the Registrar used to assess his child support.
In Boer & Magee[8] I was satisfied based on this mere fact that the applicant’s assessments should be amended but that the facts in that case were unusual.
[8] Boer & Magee [2017] FCCA 1970
The applicant prepared his own tax returns and mistakenly claimed that he was earning double his actual income. After he lodged the returns his child support was reassessed (the Registrar can adjust upwards following the filing of late lodged returns) and he received a large bill for arrears.
He then discovered his mistake and had an accountant prepare amended returns. Based on the income in the amended returns he owed no arrears. However s.56 of the CSAA prohibited the Registrar amending the assessments based on the correct figures because the returns had been filed late and his taxable income was lower than the income used to assess child support and the applicant was required to apply to the court to have the situation rectified.
I was satisfied that the income in the amended returns did accurately represent the applicant’s income and made an order pursuant to s.112 and a departure order.
However I cannot necessarily be satisfied of this in the present case. During cross-examination the father agreed that he had received some cash when he was in business which he did not include in his declared income. He suggested that it wasn’t much but he then digressed into describing earning income from employment.
Those answers together with his failure to provide the evidence the Registrar requested in 2017 about the sale of his business, his failure to provide any explanation for the fluctuations in his taxable income and his failure to provide any credible explanation for why his income had suddenly dropped to $10,963.00 raises a considerable concern about whether any evidence the father gives about his income can be relied on and whether the court should simply accept that the taxable income in his returns represents the entirety of his income for the years in question.
Whether leave is granted is a matter of discretion. The father offered no explanation for his delay in bringing departure applications, did not provide full and frank disclosure about his financial circumstances to allow the court to assess hardship and provided no evidence which suggested that if leave was granted he would be able to satisfy the court that a ground of departure had been established.
It will cause the mother hardship if the previous assessments are reconsidered and I am not satisfied that the father has made out a case for the court to exercise its discretion and grant him leave to bring a departure application in respect of the assessments which were more than 18 months old when his application was filed. His application in that regard will be dismissed.
The departure application for the period from 9 April 2016 to 31 October 2017
The father does not need leave to bring a departure application for this period.
S. 117 (1) of the Child Support (Assessment) Act provides as follows:
Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
If the court is satisfied that it should make a departure order a range of options are available as set out in s.118 (1).
The first thing the father needs to establish is a ground for departure and s.117(2) contains eight grounds of departure. If I understand the father’s case correctly he could hope to rely on s.117(2)(c)(i), (ia) or (ib) which provide that grounds for departure are:
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or(i
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
The father made allegations in his affidavit about [Y] and [Z] earning significant income before they finished school which suggested an intention to rely on s. 117(2)(c)(i) but he did not develop that argument and did not seek to challenge in cross-examination the mother’s evidence that the children only worked part-time in a modest capacity prior to leaving school.
The focus in the father’s affidavit was on his taxable income, in other words his focus was on s.117(2)(c)(ia) and (ib), his assertion being that he was only able to earn $51,371.00 per annum between 9 April 2016 and 30 June 2016 and $10,963.00 between 1 July 2016 and 1 September 2017 and that this was all he was capable of earning.
For three reasons I cannot be satisfied that the father has made out a ground of departure based on either his income or his income earning capacity.
One is that as previously mentioned he admitted in cross-examination that he sometimes received cash which he did not declare. Presumably referring to the 1 July 2016 to 1 September 2017 period he said that he did not have to declare it because it was “under the $18,000.00 threshold.”
The second is that he applied for a departure order in respect of the period 1 July 2016 to 30 November 2017 from the Registrar and the Registrar asked him for information about the sale of his business equipment in June 2016 and how he was supporting himself on an income of $10,963.00 and proof that his partner was helping to support him. The father failed to provide that information and then came to this court seeking a departure order for a similar period while still failing to provide the information.
The third is that save for producing three documents the father failed to comply with a Notice to Produce served on him by the mother’s solicitors. He produced one bank statement for the period 18 March 2017, a letter from Macquarie Leasing dated 15 June 2016 indicating that a loan for business equipment had been paid out but referring to no amount and a BAS statement for the business for the period 1 April 2016 to 30 June 2016 indicating total sales of $111,682.00.
The father was well aware from the proceedings before the Registrar that the mother did not accept that he was only earning $10,963.00 per annum at present or that this was all he was capable of earning given his skills and experience. He confirmed in cross-examination that he was earning a greater income although he seemed to consider any additional amount he earned to be immaterial. He failed to provide any of the information the Registrar had asked him to provide in late 2017 and provided almost no documents in response to the Notice to Produce served on him.
The father bears the onus of establishing a ground of departure and I cannot be satisfied that a ground for departure has been established and the father’s application will be dismissed.
I am conscious of the fact that the child support assessment from 1 September 2017 is now based on the taxable income in the father’s 2017 return. The Registrar is obliged by the CSAA to use this amount given that the return was filed within time. This does not by itself establish that this is the father’s actual income.
The application pursuant to s. 143 of the CSAA
As I have dismissed the father’s applications for departure no need arises for consideration of his s. 143 application.
I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of Judge Terry.
Date: 19 March 2019
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