PS & MA - [2005] FMCAfam 486

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PS & MA

[2005] FMCAfam 486

FAMILY LAW – Property – obligation to give full and frank disclosure of material facts – where party fails to give full and frank disclosure the court need not be overly cautious – gifts and advances considered – notional add backs – contributions to workers compensation commutation discussed.

Family Law Act 1975, ss.75, 79
Child Support (Assessment) Act 1989

In the Marriage of Lee Steere (1985) FLC 91-626 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Clauson (1995) FLC 92-593 Russell v Russell (1999) FLC 92-877 Weir v Weir (1993) FLC 92-338 Black v Kellner (1992) FLC 92-287 Junti (1986) FLC 91-759 Mezzacappa (1987) FLC 91-853 Jenkins v Livesey (1985) 1 All ER 106 Luciano (2000) FamCA 401 Townsend v Townsend (1995) FLC 92-569 Bell and Bell [2000] FamCA 1301 Marker [1998] FamCA 42 Wells v Wells (1977) FLC 90-285 Wardman v Hudson (1978) FLC 90-466 In the Marriage of Geyl 7 Fam LR 219 Kowaliw v Kowaliw (1981) FLC 91-092 Fane-Thompson v Fane-Thompson (1981) FLC 91-053 Winnel v Winnel (1984) FLC 91-580 Doherty v Doherty (1996) FLC 92-652 Cerini [1998] FamCA 143 Omacini (2005) FLC 93-218 Farmer & Bramley (2000) FLC 93-060 Norbis (1986) FLC91-712 Parshen v Parshen (1996) FLC 92-720 Aleksovski (1996) FLC 92-705 Figgins (2002) FLC 93-122 Kessey (1994) FLC 92-495 Pellegrino (1997) FLC 92-789 Hauff and Hauff (1986) FLC 91-747 Tomasetti (2000) FLC 93-023
Applicant:	PS

Respondent:

File Number:

PAM2758 of 2003

Judgment of:

Ryan FM

Hearing dates:

14 & 15 September 2005

Delivered at:

Parramatta

Delivered on:

12 October 2005

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr M. Brown

Solicitors for the Applicant:

Browns The Family Lawyers

Counsel for the Respondent:

Mr J. Jobson

Solicitors for the Respondent:

John Cunningham Solicitors

Counsel for the Children’s Representative:

Ms R. Druitt

Solicitors for the Children’s Representative:

Legal Aid Commission of New South Wales

ORDERS

Within two months of the date of these orders the husband pays to the wife the sum of One hundred and thirty six thousand two hundred and ten dollars ($136,210).
At the same time as the husband complies with order (1), he shall give the wife a discharge of mortgage from the Commonwealth Bank of Australia secured on the property at Mt Pritchard or alternatively a release from the Commonwealth Bank in registrable form, whereby the wife is released from any liability pursuant to the mortgage.
Simultaneously thereupon compliance by the husband with orders (1) and (2) the wife shall do all acts and execute all documents as are necessary to transfer to the husband the whole of her right, title and interest in the property situation at Mt Pritchard in the state of New South Wales being the whole of the land in Certificate of Title Folio Identifier 56/730785.
In the event the husband fails to comply with orders (1) and (3) the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate at Mt Pritchard in the State of New South Wales to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale proceeds of the sale be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.
(b)Discharge Commonwealth Bank mortgage registered number 2283918 secured against the property.
(c)46 per cent to the wife.
(d)Balance then remaining to the husband from which he shall immediately pay the wife $26,730.
In the event that the matrimonial home has not been sold by or before a date three (3) months from the date of default with orders (1) or (2) then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the matrimonial home upon the following terms:
(a)The auctioneer shall be a real estate agent.
(b)The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer.
(c)That auction will take place within two months of this order becoming operative.
Each party has the right to bid at the auction.
Until compliance with order (1) and (3) or until completion of the sale the husband has the right to occupy the property to the exclusion of the wife subject to husband paying the council and water rate instalments; household building and contents insurances; repayments in respect of any mortgage secured on the property as they fall due, keeping the property tidy, clean and in repair having regard to its present condition and permitting inspection by agents and prospective purchasers at all reasonable times.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Parramatta

PAM2758 of 2003

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings for the adjustment of property pursuant to section 79 of the Family Law Act 1975.

The applications

PS (“the wife”) started these proceedings when she filed an application for final orders on 23 September 2004. At the end of the hearing, the wife’s solicitor submitted that the court would find the parties’ contributions favour the wife 60 per cent compared to the husband’s 40 per cent and that there should be no further adjustment ordered pursuant to s.75(2). In order to achieve this, the wife proposed that the former matrimonial home at Mt Pritchard is sold and that she receives 80 per cent of its net sale proceeds[1]. However, provided she is not required to wait too long, the wife agrees that the husband is given the opportunity to purchase her interest in the former matrimonial home. In this regard, the wife says the husband should have two months within which to pay her.
[1] Exhibit F
MA (“the husband”) filed his response on 19 November 2004. During closing addresses, the husband’s counsel provided a minute of order[2] setting out the orders sought. Simply put, the husband says the parties’ contributions are equal and pursuant to s.75(2) claims a 10 per cent adjustment in his favour. The husband wishes to keep the former matrimonial home and proposes that he pays the wife $80,000 within two months, upon receipt of which the wife would transfer to him her interest in the former matrimonial home.
[2] Exhibit G

The hearing

When the hearing commenced, the parties asked the court to order that each has residence of their two children. With the assistance of a children’s representative, the residence and contact issues resolved and on the first day of the hearing I made consent parenting orders[3]. Upon finalising the parenting matters the children’s representative was excused from further involvement in the hearing. Because the parenting matters resolved, the affidavit material which addressed parenting issues became irrelevant.
[3] Exhibit A
For the property hearing, the wife relied upon the following evidence:
·Her affidavit sworn 2 September 2005 and her oral testimony;
·Her financial statement sworn 13 September 2005;
·Affidavit of PKS sworn 2 September 2005 and her oral testimony;
·Affidavit of Michael Blight[4] sworn 2 September 2005. This witness was not cross examined and I accept his evidence.
[4] Joint valuer
The husband relied upon the following evidence:
·His affidavit sworn 31 August 2005 and his oral testimony;
·His financial statement sworn 12 November 2004.
Both parties tendered documents.

The issues

The principal issues raised in the proceedings are:
·The nature and extent of advances received from the wife’s family.
·Whether the husband made full and frank disclosure.
·If he did not give full and frank disclosure, the consequences of his failure to give it.
·Contributions to a workers compensation commutation.
·Whether the court should notionally add back part of a workers compensation commutation.
·If the court does so, whether the notionally added back money is the wife’s or husband’s asset?
·What adjustment, if any, should be made pursuant to s.75(2)?

Short history

The husband was born in 1967 and is 37 years old.
The wife was born in 1972 and is 32 years old.
The parties married in Lautoka, Fiji in September 1991. Upon the wife migrating to Australia in 1992, they commenced cohabitation.
In 1994 the parties’ eldest daughter Kinda (not her real name) was born.
In 1997 their youngest daughter Maya (not her real name) was born.
The parties separated in March 2003 when the wife and children left the family home.
On 20 December 2004 the court ordered a Decree Nisi for Dissolution of Marriage which became absolute one month later.
Since 17 January 2005 the children have resided with the husband.
On 13 June 2005 the wife married Mr K. Mr K resides in Jalandhar in India. He has applied to immigrate to Australia.

Parenting orders

It is unnecessary to fully recite the agreed parenting arrangements. Concerning the children’s living arrangements, on a final basis the parties agree the children shall live with their father. For reasons it was unnecessary to explore, contact between the children and the wife has been problematic. Notwithstanding recent contact difficulties the parenting orders provide for rapidly increasing contact arrangements so that by 24 November 2005 the children will have contact with their mother each alternate weekend from after school Thursday until the start of school Monday. In addition, she will have contact on special days and the parties will share school holiday time equally.

Chronology

At the commencement of cohabitation the wife had no assets, liabilities, or financial resources of significance. After her marriage in Fiji, the wife worked in a secretarial capacity in her family’s business. Upon her migration to Australia the wife stopped work and remained at home until 1993 when she commenced a TAFE secretarial course. The wife discontinued this course in April 2003 whilst pregnant with Kinda. The wife has not had paid employment since.
When the parties married, the husband worked full time as an ink tinter. He continued in this employment until 1996. Although in this affidavit the husband claims that the parties’ purchase of the matrimonial home was, “the first property I have ever bought”, when the parties commenced cohabitation he owned a home which he says was worth approximately $100,000. Although the husband knew he was obliged to give full and frank disclosure of relevant financial matters, he makes no mention of this property in his evidence in chief. Ownership emerged during cross-examination. Somewhat lamely, the husband claimed that he did not consider ownership important as although he was the registered proprietor, he claimed no beneficial interest in the property. The husband said the property belonged to his brother, but later said in 1993 he transferred the property to his father. At some point prior to transfer, the property was destroyed by fire. The husband had the property insured and claimed for the fire damage on the insurance policy. The insurance company paid the husband an undisclosed amount pursuant to the claim. The evidence does not reveal what the husband did with the insurance monies. Neither the husband’s brother nor his father gave evidence corroborating this testimony.
Other than the undisclosed property, the husband had no assets or liabilities of significance.
In June 1995 the husband obtained a taxi driver’s licence. He immediately obtained part time work as a taxi driver which he performed in addition to his full time printing position. The husband injured his back at work on 11 November 1996, from which time he received fortnightly workers compensation ranging between $750-800 for the next two years. The husband continued occasional taxi driving work until about 2000. After the husband’s workers compensation payments ceased he received Newstart payments, which payments supplemented the wife’s family endowment benefits.
Until the parties purchased the former matrimonial home, they lived in a rented flat at Ashcroft. In 1996 the parties purchased a home at Mt Pritchard for $124,000. The parties had $14,000 savings and borrowed the balance from the State Bank. Shortly prior to settlement, the home was damaged by fire. The parties were unable to move in until the fire damage was fixed and ultimately moved in, in 1998. After they settled on its purchase, the parties had a garage built and extended part of the home. Unfortunately, the building work was completed without necessary council approval and there are outstanding certifications needed before council will issue an s 149 certificate.
In May 2002 the husband settled his workers compensation claim for $55,000. From this, Centrelink deducted $5,478.75 and ten per cent of the settlement monies were paid to the Health Insurance Commission. After these payments and other expenses were paid the husband received $45,000. The wife says the husband received an additional $9,000, which assertion the husband denies. The wife adduces no evidence corroborating her assertion. Such evidence, it is reasonable to conclude, is readily available, for example, through production of documents under subpoena either from the insurer or the solicitors who acted on the workers compensation claim. Both parties agree the husband deposited the vast majority of his settlement monies into a fixed deposit account in the husband’s sole name. The wife claims the husband deposited $44,000, whereas the husband says he spent $5,000 on the household and banked $40,000 in an ANZ fixed term account. There is no evidence of withdrawals between the establishment of the account and the fixed deposit being broken in late September 2002. As at 25 September 2002 the account’s balance was $41,699.26. Thus it seems likely that the husband deposited $40,000 and the increase represents interest payable on the deposit. I accept the husband’s evidence concerning expenditure of $5000 on the household.
On 25 September 2002 the husband gave the ANZ bank notice that he wished to break his fixed deposit. Because the husband asked for payment in cash, the bank required two days in order to process the transaction. On 27 September 2002 the husband withdrew $40,300 cash from his ANZ bank account. The wife claims the husband told her he loaned the entire sum withdrawn to his brother. She said not long afterwards the husband told her, “My brother brought land in Melbourne”. There is no evidence the husband’s brother purchased land in Melbourne. The husband claims he gave the wife $40,000 cash, which he has not seen since. On the same day the husband withdrew the workers compensation settlement from his ANZ account, the wife complained to police about domestic violence. The husband claims this was a ruse used to force him out of the home so that the wife could keep the $40,300. Two days later, the husband was served with an application for domestic violence order. The order did not require the husband to vacate the home. The parties continued to cohabit and in December 2002 the wife and children visited Fiji for about six weeks.
The parties separated in March 2003. At separation, the wife removed the entire household contents, leaving the husband with a bed and little else.
Since separation the husband has enjoyed exclusive use of the former matrimonial home. He has not repartnered.

Relevant law

The approach to the determination of an application under s.79 is well established by authority. See In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-593. The process involves a part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. The court must then evaluate the matters contained in s.75(2) insofar as they are relevant; any other order made under the Act affecting a party or child; and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or might be liable to provide in the future for a child to the marriage.
In determining what order should be made under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so: s.79(2). It is the justice and equity of the actual orders that the court must consider: See Russell v Russell (1999) FLC 92-877.
One of the important issues concerns a parties’ obligation to make full and frank disclosure, which means that they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said “This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make full and frank disclosure of their financial affairs.” See also Junti (1986) FLC 91-759 and Mezzacappa (1987) FLC 91-853. And further on: “Irrespective of any obligation created by the Family Law Act or the Family Rules that we have identified, in our opinion the obligation of full and frank disclosure applies because of the duty of the Court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106. This is particularly important in cases where the financial circumstances of the parties may be relevant. It is not sufficient for a party to simply adhere to the obligations specified by the rules of court. If the relevant rules are deficient in identifying an aspect of a party's financial circumstance then this is not a basis for a plea that there was non-disclosure because the rules did not identify an aspect of a party's circumstances that may be relevant.”
In Luciano (2000) FamCA 401, O'Ryan J summarised the principles that emerge from these cases as follows.
·“In proceedings in the Family Court in relation to financial matters, there is an obligation of each party to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto.
·The obligation arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party.
·The obligation is not created by the rules or the practice of the court and the rules simply set out the procedure by which that obligation may be fulfilled.
·If there is a deficiency in the practice adopted for the purpose of making such a disclosure, mere compliance with the requirements of the relevant rules if deficient, is not enough.
·If there is non-disclosure in the relevant sense then the failure to disclose undermines the whole process of adjudication of the proceedings in relation to financial matters.
·A finding of non-disclosure may in appropriate cases, depending on the circumstances, result in the other party being granted without more, the relief sought.”

These principles apply to all family law financial proceedings, irrespective of the court hearing them.

Assets and liabilities as at the date of hearing

I find the parties’ assets, liabilities and financial resources as at the date of hearing are as identified in the following table:

Assets as at the date of the hearing	$
The Mt Pritchard property (J)	335,000.00
Add back workers compensation commutation (H)	40,000.00
Toyota Echo (H)	9,000.00
Furniture and personalty (W)	NK
Net non-superannuation assets	384,000.00
Superannuation assets
Print Super (H) (Agreed)	9,109.60
Total superannuation assets	9,109.60
TOTAL ASSETS	393,109.60
Liabilities as at the date of hearing
Commonwealth Bank mortgage (J) (Agreed)	97,000.00
TOTAL LIABILITIES	97,000.00
NETT ASSETS	296,109.60

There are a number of findings that require explanation. The parties jointly retained Michael Blight to value the former matrimonial home. Using a comparable sales methodology, he concluded the former matrimonial homes market value to be $335,000. However, the wife contends that the court should conclude that the home is worth $350,000. This claim is predicated upon Mr Blight’s opinion, “In the absence of any building defect or council orders it is anticipated that the dwelling would sell for $350,000”[5]. On 10 May 2005 the local council wrote to the husband requiring him to submit a series of certificates and statutory declarations, that he install a smoke alarm and provide a report from a practising structural engineer. The gravamen of council’s complaint is that building restorations and completion of a garage were undertaken without necessary building inspections and certificates provided to council. Consequently, Mr Blight concludes, “The fact that the subject dwelling is not council approved will inhibit the marketability of the subject. It is difficult to quantify the amount by which this would reduce the potential marketability, without quotes from those required to satisfy the council’s requirements. However, the discount could be expected to be some premium above the cost a purchaser may expect to incur to ensure compliance. This being said, given that there is a potential for a $22,000 fine, the discount could be expected to be as much as this. This is in spite of the fact that it may cost less than this to comply with council’s requirements. On balance, a discount of say $15,000 is considered appropriate”. The husband was cross-examined concerning estimates he has obtained to complete drainage lines, in order to satisfy council’s requirements. The husband understands that the cost of drainage work is between $5-10,000. There is no evidence concerning the costs of the various inspections and certificates the council requires. Hence, the wife claims the court should be satisfied that the rectification work and certificates are minor and the court should disregard Mr Blight’s $15,000 discount. This submission ignores the reason for the reduction. Mr Blight applies the discount for two reasons. Firstly, because of the costs of rectification work and secondly, marketability is adversely affected because of the potential for a fine. Even if I was satisfied that drainage work would cost no more than $10,000, I am not persuaded that this alone warrants ignoring the valuer’s discount. On its face, the valuer’s discount appropriately recognises the economic consequences of non-compliance with council regulations. Accordingly, I accept the valuer’s evidence as to the value of the former matrimonial home.
[5] Page 5
At separation, the wife removed the contents of the former matrimonial home, which contents were insured with NRMA for $42,000. Based on the content’s insurance policy, the husband contends the wife has furniture and household goods worth at least $42,000. There is no evidence the parties spent anywhere nearly as much as $42,000 on household contents. Relevantly, the statement of insurance does not indicate the terms of the insurance policy. The gravamen of counsel’s submission suggested that at $42,000, the parties insured their contents for replacement with new items. However, for the purpose of this exercise the court is concerned to determine the fair market value of the household contents. That is at their present value, not replacement with new items. As the court does not have reliable evidence concerning the contents of the former matrimonial home, I cannot make findings concerning its value for the purposes of establishing the matrimonial asset pool. However, this issue will be further considered pursuant to s.75(2)(o).
The husband has a Toyota Echo motor vehicle, registered number YPD 370 that the wife purchased on 14 March 2003 for $21,000. The car was transferred to the husband in about September 2003. The parties disagree on its value, but neither provides independent valuation evidence. The court has no evidence concerning mileage or the car’s current condition. The husband asserts his car is presently worth $9,000. It is his case that the car was transferred to him for $10,000, in support of which he relies on unsourced information provided to the RTA[6]. Even if the information included in exhibit D is correct, the information is of little assistance in determining the car’s value for this hearing. Given the paucity of evidence, the proper course is to treat the husband’s assertion that the vehicle is worth $9,000 as an admission against interest.
[6] Exhibit D
On 27 September 2004 the wife’s mother purchased a Toyota Echo motor vehicle for her daughter for approximately $21,000. In addition the wife’s mother paid for its registration and insurance. The parties agree the wife’s vehicle and associated debt to her mother should be excluded from the asset pool. The rationale for this appears to be that the car and debt are roughly equivalent and both involve post-separation transactions which have no obvious connection to the marriage. I agree with this approach.
One of the pivotal issues in these proceedings concerns the treatment of the husband’s workers compensation proceeds. Each of the parties asserts that these monies should be notionally added back and thereafter treated as the other parties’ asset. Simply put each claims the other has approximately $40,000 secreted. In Townsend v Townsend (1995) FLC 92-569 the Full Court determined that wasted property could be notionally added back to the pool of assets. After separation the husband sold the parties most valuable asset, a taxi which sold for $148,000.00. The husband had had the benefit of the money from the taxi and none of the sale proceeds remained. The court found that selling the taxi was a premature distribution of marital property and thus it would be unjust in the extreme to merely treat such conduct by the husband as a matter under s.75(2). The taxi, if it was retained would have been brought into account as any other item of marital property. The Full Court determined the taxi should be brought, “into the pool of assets on a notional basis and make a distribution accordingly.”
In Bell and Bell [2000] FamCA 1301 (unreported) the Full Court makes it clear that notional adjustments are not limited to wasted assets but may also include “identified items of property that have been bona fide disposed of”. Also that “It may also be appropriate, depending on the circumstances, to notionally include in the pool of assets items of property in respect of which no or no reasonable explanation has been given for the assertion that they no longer exist or never existed: Mezzacappa and Mezzacappa (supra). In other words, it is also possible, in appropriate cases, to have regard to, and notionally include in the list of assets, what is called unascertained property the value of which is capable of some identification and quantification. In this case, the trial Judge notionally included in the pool of assets items that were capable of identification and quantification. However, he also found that there were other assets the identity of which was not known but for which an adjustment should be made in favour of the wife. There is no doubt that such a finding is open to a trial Judge.”
The Full Court has been reluctant to notionally add back assets where monies that existed at separation have been spent on reasonably incurred living expenses. Parties are entitled to continue to provide for their own support. In Marker [1998] FamCA 42, Baker, Kay and Chisholm JJ held: “It is well settled that save in exceptional circumstances a trial Judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters set out under s.79. (Wells v Wells (1977) FLC 90-285; Wardman v Hudson (1978) FLC 90-466; In the Marriage of Geyl
7 Fam LR 219). However, the particular justice of the case may make it appropriate to notionally add back assets which have been demonstrated to have been dissipated either during the marriage or post-separation. Normally it is necessary to demonstrate an appropriate basis for doing so, for example by wastage such as gambling or extravagant living. (Kowaliw v Kowaliw (1981) FLC 91-092; Fane-Thompson v Fane-Thompson (1981) FLC 91-053; Winnel v Winnel (1984) FLC 91-580; Townsend v Townsend (1995) FLC 92-569; Doherty v Doherty (1996) FLC 92-652.”)
In Cerini [1998] FamCA 143, the Full Court held, where the monies have been shown to have been reasonably disposed of, the notional add back approach should be the exception and not the rule. Recently, in Omacini (2005) FLC 93-218 the Full Court held “three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
a)Where the parties have expended money on legal fees.”
b)“Where there has been a premature distribution of matrimonial assets.”
c)“In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644.”
In this context the words “assets that no longer exist” are important. In Omacini the Full Court was not concerned with the treatment of identified assets the location of which had not been ascertained. The circumstances of this case are analogous to those the Full Court addressed in Mezzacappa. Thus, although the circumstances of this case do not fall within one of the three categories for add backs referred to in Omacini, on the basis set out in Mezzacappa the court may notionally include the workers compensation funds and treat the asset as being in the possession of the person who has it.
The husband says in about July or August 2002 along with the wife’s mother and brother, the parties discussed setting up an import/export business using his workers compensation payment. To this end on

24 June 2002 he registered a business name “K and M Marketing”. The husband is recorded as its sole proprietor. The husband did not reveal that he had previously registered a business name “K and M Exports” on 30 July 1998[7]. In any event neither business commenced operation. If the husband intended to operate a business jointly with the wife and other family members, I would have expected to see reference at least to the wife on the business registrations. By comparison the wife denies receiving the husband’s money. To the contrary she says that throughout their marriage the husband jealously guarded his income, going so far that even when shopping he kept control of the expenditure. The husband paid his wages into an account the wife could not access. While not necessarily remarkable, it is instructive when one recalls that until Kindas’ birth the wife had no income of her own. After Kindas’ birth the wife received child endowment and later family assistance. For a considerable period these benefits totalled about $30 each week. If the husband wished the wife to genuinely share his income, and later his workers compensation monies, these funds would have been deposited into a jointly operated bank account. Nor do I accept that with his demonstrated determined control of his income and receipt of his commutation, if in late 2002 the wife retained $40,300 that in late 2003 the husband would have handed her mother $16,000 for the Toyota Echo. If the wife kept such a large sum of money in the first instance further large payments seem highly unlikely.
[7] Exhibit B
The husband’s counsel submitted the court would evaluate these transactions within the context of the husband’s desire to save his marriage. If the husband wanted this issue decided in his favour he needed to abide his obligation to give full and frank disclosure. Unfortunately his evidence is defective in too many respects for the court to decide an issue as important as this in his favour when there is such a flimsy evidentiary foundation. Later in these reasons I make findings concerning the husband’s defective financial statement and his failure to disclose income and give a true picture concerning his total financial circumstances. His lack of disclosure suggests access to funds the source of which he has not revealed. It seems highly likely that he continues to have access to his workers compensation payout. It also seems likely he has been using his payout to meet his expenses. Because he failed to fully disclose his income, the extent to which this has occurred is unclear. With full disclosure the husband may well have persuaded me against notionally adding back those funds used to meet his reasonable expenses. However his evidence is so poor in this regard I would be doing no more than plucking a figure out of thin air in order to determine what this sum might be. In these circumstances I am satisfied the husband has secreted and retained $40,000 of his commutation, which funds will be notionally added back as the husband’s asset.

Section 79(4) contributions and other factors

Section 79(4) requires that the court looks at the entirety of the contributions, both financial and non-financial to the welfare of the family, as well as the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation, or improvement of a particular asset and are to be taken into account generally as contributions in a total sense. Farmer & Bramley (2000) FLC 93-060. Post-Coghlan (2005) FLC 93-220 the preferred approach is to adopt a two pool approach; ensuring assets with a similar nature are treated alike. However, in this case, neither party submitted the court should not depart from the usual global approach, nor made submissions adopting the two asset pool approach. It appears their rationale for the global approach being applied to all assets is taken because the husband’s superannuation interest is so small. In these circumstances I have adopted a global approach. Norbis (1986) FLC91-712.
As I have already found, the wife had no assets, liabilities, or financial resources at the commencement of cohabitation. At cohabitation the husband was employed with a printing company, where he had worked from 1988. He makes no claim that at cohabitation he owned assets (including superannuation) or had financial resources of value. However, during the hearing it became apparent that at the commencement of cohabitation the husband was the registered proprietor of a home. Clearly, in failing to disclose its acquisition, value and the circumstances of its later disposition, the husband failed in a material way to give full and frank disclosure of his circumstances. During closing addresses, his counsel argued the husband’s failure in this regard was inconsequential. The argument made is to the effect that even the wife does not identify the property’s value or contradict the husband’s evidence that he did not have a beneficial interest in the property. This argument ignores the wife’s evidence that the husband excluded her from financial transactions during the course of the marriage. Although she was not in paid employment, the husband kept his income in a bank account in his sole name which he alone could access. Although I am unable to come to any conclusion concerning the nature and extent of the husband’s interest in this undisclosed property, his ownership has two pivotal features. Firstly, it detracts from his credit and secondly, it demonstrates that the brother’s trust each other with significant financial transactions and inter mingle their finances.
From the commencement of cohabitation, until the husband’s accident in November 1996, the parties arranged their family’s circumstances along traditional lines. Essentially, the husband was responsible for the family’s financial security and the wife for the home and children. In Parshen v Parshen (1996) FLC 92-720 the Full Court of the Family Court held, “In our view in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s.79 that monies how so ever received by a party during the course of the party’s cohabitation, are used by that party for the benefit of the family unit. Such monies in those circumstances thus constitute a financial contribution by the party who received the money”. Excluding the husband’s workers compensation settlement and property owned at the commencement of cohabitation, these principles apply during cohabitation. Thus I am satisfied that the husband contributed his salary and fortnightly workers compensation payments to joint matrimonial purposes. Similarly, once he started receiving Centrelink payments, he also contributed those payments to joint matrimonial purposes. The wife did likewise.
When the husband received his workers compensation commutation in May 2002 the parties were living together. As the husband’s claim settled, there is no apportioning of loss of income and functionality. However, given its size and his present health it seems likely the majority comprised compensation for loss of earnings. Because I do not have evidence concerning the components of the settlement, it seems to me it is proper to apply the principle in Aleksovski (1996) FLC 92-705 to the settlement. In a joint judgment, Baker & Rowlands JJ held as follows, “In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation for the reason that each and every contribution, which each of the parties makes to the relationship must be weighed and considered at the same time”. Justice Kay, the third member of the Full Court in Aleksovski, did not disagree with this statement of principle. Although in Aleksovski the Full Court was concerned with a common law damages settlement, similar considerations apply to a workers compensation commutation. It follows the husband alone contributed the workers compensation settlement monies. Had the husband put these funds to good use, it may have been this contribution could have been seen as particularly significant. As it is he has preserved a considerable portion, but in doing so the family has endured relative poverty, something which detracts from effectively an extra loading greater than recognising the commutation’s dollar value. The wife’s contributions to the husband’s care as well as other relevant contributions are a different matter. By the time the husband received his settlement, the wife had made significant non-financial contributions for approximately nine years.
One of the key issues concerns advances by the wife’s mother. Situations where a parent advances property as a gift are analogous to those where a party receives an inheritance. Figgins (2002) FLC 93-122. In Kessey (1994) FLC 92-495 the Full Court held that as a general approach a parental gift is to be treated as a financial contribution made on behalf of the child of the donor parent. Where the intention of the donor is not clear the court can look to any special relationship between the donor and one of the spouses and regard the gift as having been contributed by that party. The issue of gifts and advances is further discussed in Pellegrino (1997) FLC 92-789. In that case Chisholm J sagely acknowledged that parents do not usually have an intention as to who they intend to benefit when making gifts to their married children. If the motivating circumstance leading to the gift is the parent/child relationship, the gift may be regarded as the contribution of the son or daughter: and not also of his or her spouse. These principles apply to all intra-familial advances. The relevant nexus in this case to the loans and advances made by the wife’s family and the parties, is the donor’s relationship with the wife. The husband had little involvement in most transactions, a factor which highlights the significance of the wife’s personal relationship. Since separation the wife’s mother has continued to make advances to the wife, however, none have been made to the husband. Taken as a whole, these factors persuade me gifts and other advances made by members of the wife’s family are contributions made on the wife’s behalf.

The wife’s mother operates an exporting business in Fiji. The wife’s brother, who resides in the United States, is also involved in this exporting business. The wife claims that during the marriage, her mother and brother made advances and gifts to the parties. Other than advances which enabled the wife and children to visit the wife’s family in Fiji, the husband denies the parties received gifts or advances from the wife’s family. Because the wife’s mother often conducts inter familial transactions using cash, there is a paucity of documentary evidence supporting the wife’s claim. However, it is clear that the advances often coincide with matched transactions, which it is said the advances facilitated. Relevantly, the wife’s mother was cross-examined at length concerning the purchase of the first of two Toyota Echo motor vehicles. The husband challenged the wife’s mother’s evidence she paid for the car. His challenge fell away, when faced with Mrs A’s Commonwealth Savings Bank records. It became plain the wife’s mother’s evidence concerning the car’s purchase was correct. The husbands’ unsustainable attack on Mrs A’s evidence undermines his claim that she did not make the advances she deposes to in paragraphs 6, 7, 8, 9 and 10 of her affidavit. On balance, I am satisfied the wife’s mother made the following cash advances:
·$400 in 1992 for a dining table.
·Approximately $2,000 in 1993 for the parties return airfares to Fiji.
·$100 in 1994 for a television and stand.
·$1,800 in 1998 coinciding with the parties moving into the former matrimonial home.
·$4,500 in September 2000 for the parties and children’s return airfares to the United States.
·$1,200 sourced from the wife’s brother, for the husband’s airfares to the United States in September 2001.
·$5,000 deposit in March 2001 for a Toyota Camry.
·$1,200 in December 2002 for an extension to the wife and children’s airfares to Fiji.
The husband does not challenge the wife’s evidence that in December 1994, December 1995, August 1996, June 1998, December 1999 and April 2002 the wife and one or both children, visited Fiji. The wife’s mother paid for these trips. The wife alleges the husband travelled with her in September 1996 and June 1998, which the husband denies. This factual dispute would have been readily resolved by production of documents such as passports or movement records from Department of Immigration, Multicultural and Ethnic Affairs. In the circumstances I am unable to conclude whether or not the husband also travelled. Similar issues arise in relation to May 2000 when it is alleged the wife’s brother paid the husband’s return airfares to Fiji. The husband claims the wife’s visits to Fiji were mutually beneficial to the wife and her mother and are not properly categorised as contributions. I do not agree. With these cash advances, the parties were able to avoid additional drains on the husband’s income, accruing savings at a greater rate than was possible if the wife’s mother did not contribute. Although the wife’s mother enjoyed her only daughter’s visits, these trips enabled the children to develop relations with their Fijian relatives without further depleting the family’s modest assets. Accordingly, I am persuaded that the advances made by the wife’s mother supporting these trips are relevant financial contributions made on the wife’s behalf. If these transactions were not taken into account during the contributions phase they would be addressed in the same manner pursuant to s.75(2)(o).
I am also satisfied the wife’s mother advanced $5,000 towards the purchase of the Toyota Camry and Toyota Echo purchased in 2003. The wife’s mother was the conduit for her brother providing $16,000 used to complete the purchase of the 2003 Toyota Echo. In September 2003 when the parties were contemplating reconciliation, the husband purchased the wife’s Toyota Echo. After discussion with the wife’s mother, he gave her $16,000. The husband says this comprised $10,000 for the purchase of the car and a $6,000 loan, which he says remains outstanding. The wife and her mother claim the $16,000 is repayment of the wife’s brother’s advance and the wife’s mother’s $5,000 advance which has not been repaid. When these transactions took place, the husband was largely unemployed and claims to have already given the wife $40,000 from his workers compensation settlement. I do not accept the husband had sufficient monies to both purchase the car and also advance $6,000. His only capacity to do so would have been from his workers compensation settlement. In the circumstances, I prefer the wife and her mother’s evidence that the husband paid $16,000 for the car and that the wife’s mother’s advance has not been repaid. The wife’s mother is content that her advance is treated as a contribution on the wife’s behalf and does not seek repayment of her advance. This is the proper treatment of the transactions.
Since separation the husband has paid all mortgage instalments and statutory charges levied against the former matrimonial home. As he has had sole use and occupation and the expenses are relatively modest, these payments are no more than the reasonable price of his occupation.
For reasons already given, I am satisfied the husband retained $40,000 from his workers compensation settlement and has not accounted in these proceedings for its disposition. As the monies are notionally added into the asset pool, this contribution must be adequately recognised. When the advances from the wife’s family are taken into account, it is still apparent that the husband’s financial contributions exceed the wife’s. Concerning the husband’s superannuation, it appears this comprises employer contributions made while he was in full time employment. There is no evidence the husband made additional voluntary contributions or indeed any contributions following his 1996 accident. Given the paucity of evidence concerning superannuation, it is appropriate to apply the principles identified in Hauff and Hauff (1986) FLC 91-747 and treat the husband’s interest as a joint matrimonial venture to which both parties contributed, the husband directly and the wife indirectly.
Neither party claims s.79(4)(b) contributions.
The wife’s contributions as a home maker and parent are significant. From cohabitation until separation the wife was overwhelmingly responsible for the home. I accept her evidence concerning her home maker and parent contributions and am satisfied that from the birth of their elder child, the wife was primarily and overwhelmingly responsible for the children’s care. Although present in the home to a much greater extent after November 1996 than previously, the husband was nowhere nearly as actively involved in the home and children’s care as the wife. As at the date of separation the wife’s contribution as a home maker and parent significantly exceeds the husband’s. As Ferraro makes clear, her contribution to the welfare of the family must be given significant weight. The wife’s contribution as a home maker and parent continued after separation, with the wife overwhelmingly responsible for the children’s care until mid-January 2005. Since January 2005 the husband has been overwhelmingly responsible for the children’s care. The wife’s post-separation contribution to the welfare of the family exceeds the husband’s.
The orders I propose will not affect either parties’ earning capacity.
Neither party has paid child support to the other.
Having regard to all of the contributions made from the date of cohabitation to the date of hearing and the other factors to which I have made reference, expressed as a percentage of the net value of their assets, this factor favours the wife 54 per cent compared to the husband’s 46 per cent.

Section 75(2) factors

At the date of hearing the husband was 37 years old and the wife was 32 years old. The wife enjoys good health. In November 1996 the husband injured his back at work. Since then, he has not resumed full time work. He has worked part time in both a paid and voluntary capacity. The husband says he has difficulty sitting and driving for extended periods and claims that his back injury continues to cause him discomfort. I accept the husband’s evidence that he has recurring lower back pain and that he finds sitting for prolonged periods problematic. The husband does not require medication, medical treatment or physiotherapy on a continuing basis. The absence of medical evidence creates difficulty for the husband’s contention that his back injury is likely to materially impact on his health and thus earning capacity in the future. While I accept he has back pain I am not satisfied that this is debilitating and has relevant adverse consequences. Consequently I make no adjustment pursuant subsection (a).
I have already made findings about the parties’ assets, financial resources and liabilities. The wife’s income is identified in her updated financial statement. The wife receives $248.50 per week Newstart allowance. She has no other source of income. The wife is unemployed and her entire workforce experience is short periods in her mother’s import/export business. Before she migrated to Australia, the wife completed secondary school and a typing course which enables her to touch type. The wife does not have computer skills and her persistent attempts with Centrelink assistance to find paid work have failed. These limitations coupled with the wife’s relative social isolation seriously compromise the likelihood that she will obtain paid employment. Whilst she has the capacity to undertake training, for example to acquire even basic computer skills, it is mere speculation to postulate that the wife may eventually obtain some form of paid employment. Unfortunately there is a real risk the wife will become dependant on social security payments.
The husband’s financial statement falls short of meeting his obligation to full give full and frank disclosure of his average weekly income. The effect of his evidence in chief is that he asserts a total average weekly income of $200. However his actual income is considerably greater; as he now receives social security calculated on the basis that he has the parties’ two children living with him. Nor is social security the husband’s sole income source. The husband also earns income taxi driving. He drives a maxi-cab for patrons of a local RSL. Although not every weekend, the husband conceded on occasions he works two taxi shifts a weekend. The husband claims he earns $50 net for five hours driving but produced no documents that corroborate his assertion. Given the unsatisfactory nature of this evidence I am not satisfied the husband’s taxi driving income is as low as he suggests. Additionally, the husband works at a chicken store, producing Halal chickens for the local Mosque. The proprietor of the chicken store pays him between $20 and $100 per week, which payment the husband returns to the mosque. In effect, the husband’s work at the chicken store is voluntary and part of a “community org” scheme operated and managed through his mosque. Working at the chicken store, the husband attends mosque at 5.00 am and then goes directly to the chicken store for one or two hours. This happens most weeks on two or three occasions. The husband’s failure to fully disclose his income, including actual social security and from taxi driving reflects poorly on his credibility. I am satisfied the husband has a greater income than disclosed and his earning capacity exceeds that revealed in his documents. The extent to which it does so is uncertain; however with only modest effort, the husband could work significantly greater hours taxi driving than he disclosed. Because of the husband’s non disclosure the court need not take an overly cautious approach and I am satisfied that the disparity in the parties’ income warrant’s an adjustment pursuant to subsection (b) in the wife’s favour.
Subsection (c). Kinda is 11 years old and Maya is 8 years old. Both children reside with the husband and have regular contact with the wife. Day to day primary responsibility for their care will remain with the husband. In Clauson the Full Court of the Family Court held, “In addition it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails”. The husband’s care of the children is enhanced through family support, particularly by his mother and niece. His mother at least is routinely available to care for the children if, for example, a child was ill and needed to stay home from school. Whilst the husband’s primary responsibility for the children’s care must be properly recognised, the assistance available to the husband to date indicates that the children’s care is not as limiting in this instance as many other cases. However, for the reasons outlined in Clauson, I am satisfied there should be an adjustment in the husband’s favour pursuant to the subsection.
Subsection (d). This focuses on the parties’ financial needs, including their financial commitment supporting any children. Even without the children’s expenses factored in, the husband’s financial statement shows his expenses exceeding his income by $142.80 per week. Excluding day to day expenses such as food, clothing and the like, the husband claims total personal expenditure of $342.80 per week. Apparently, he claims to be able to support this expenditure on an average weekly income of $200. I infer that, since assuming the children’s full time care, the husband’s total personal expenditure including the children’s average weekly expenses has significantly increased. The husband’s evidence concerning his financial needs appears to bear little relationship to reality. On his evidence, after paying $162.80 towards the mortgage and $20 per week for rates and levies, he has $17.20 available to meet his expenses. Plainly, this is impossible. This suggests that the husband’s evidence concerning his available income is considerably understated. It also indicates the husband has a source of funds, perhaps greater than his undisclosed taxi driving income, which has not been revealed. The husband’s capacity to meet his expenses may well be sourced from his workers compensation funds. In his financial statement the husband claims he owes $16,000 to his niece. He does not give evidence concerning the reason for any advance or provide any corroboration, for example, through evidence from his niece that he has received $16,000 whether by personal loan or for any other reason. No bank records were produced corroborating these alleged advances. Given the paucity of evidence concerning the alleged loan from his niece, I am not satisfied that the husband borrowed money from her as he claims. Thus, while I am satisfied that the husband’s total expenditure, for himself and the children, exceeds $342.80 per week, it appears likely that the husband has sufficient income to meet his expenditure without increasing his indebtedness. If he wanted to persuade me differently he needed to give a completely honest account of his income and expenditure. The wife’s total personal expenditure is $164.15, which leaves her with $84.35 per week to meet her day to day living expenses. But for the husband’s non disclosure I may have made an adjustment in his favour pursuant to the subsection particularly on the basis of his expenditure for the children. My decision against doing so is one of the consequences of his lack of financial candour.
Subsection (e). Other than the children, the husband has no obligation to support any other person. The wife has remarried, as a consequence of which she and her husband have a mutual obligation to support each other. However, the wife has no financial capacity to support her husband and although legally obliged to do so, the reality is she cannot. She cannot and is highly unlikely to in the foreseeable future. Consequently, I make no adjustment pursuant to the subsection.
Subsection (f). Both parties receive social security. As a consequence of the parenting orders, it is likely that the wife will become eligible to receive a part family tax benefit. I make no adjustment pursuant to the subsection.
Subsection (g). Presently, the wife is living a hand to mouth existence. The husband lives a modest lifestyle. In these circumstances their respective standards of living does not suggest either is entitled to an adjustment pursuant to the subsection.
Subsection (h) – (k). These subsections do not arise.
Subsection (l). I have already taken into account the impact on the husband’s circumstances of his primary care of the children. I make no further adjustment pursuant to the subsection.
Subsection (m). Neither party cohabits with another person. Within the next twelve months, it is likely the wife’s husband will migrate to Australia and they will commence cohabitation. The wife looks forward to a time when her husband supports her financially. However, he has no assets of note and the likelihood that he will be able to support himself, let alone the wife, is highly speculative. The wife’s remarriage does not suggest her financial circumstances are likely to improve. In the circumstances I make no adjustment pursuant to the subsection.
Subsection (n). Section 75(2)(n) achieves a cross-referencing between s.75(2) and s.79(4). The outcome of the assessment of contributions and other factors has resulted in the husband receiving 46 percentage of the available assets compared to the wife’s 54 percentage. Relevantly, the parties agree the husband should have the opportunity to acquire the wife’s interest in the former matrimonial home. This means the husband is able to avoid stamp duty levied on acquisition and solicitor’s costs and disbursements associated with acquiring property. By comparison, if the wife seeks to re-enter the property market, albeit in a most modest fashion, she must incur at least stamp duty of a few thousand dollars. The husband has family assistance available to pay out the wife’s interest in the matrimonial assets and thus it is highly likely that he can avoid paying additional costs of the type the wife is likely to incur. Consequently, I am satisfied that there should be an adjustment pursuant to subsection (n) in the wife’s favour.
Subsection (na). I have already made findings concerning the wife’s future income and earning capacity. Since the children have resided with their father, the wife has not paid child support. It seems likely, that indefinitely the wife will be assessed to pay the statutory minimum, presently approximately $21.67 per month child support.

I am far from satisfied that this level of child support warrants an adjustment in the wife’s favour. In these circumstances I make no adjustment pursuant to the subsection.
Subsection (o). I have already dealt with the workers compensation commutation funds through notionally adding these into the asset pool. The wife has all of the parties’ household belongings. I do not accept her assertion these are valueless. Although acquired over many years, during years when the parties had little discretionary income, these goods have some, albeit modest, value. In the circumstances this warrants a small adjustment in the husband’s favour.
Subsection (p). This issue does not arise.
Having regard to all of the s.75(2) factors I find that it is appropriate that there should be an adjustment in the husband’s favour of seven per cent. This outcome reflects the cumulative outcome of the findings I made pursuant to s.75(2). See Tomasetti (2000) FLC 93-023. Any lesser adjustment, given the size of the asset pool would be notional.

Section 79(2) is this outcome just and equitable?

Because the court must consider the actual orders, not just the percentage distribution under s.79(2), justice and equity in cases like this requires that the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process. It is at this stage that the court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an outcome which distributes the available assets 54 percent to the husband and 46 percent to the wife is just and equitable. These include the husband’s greater financial contribution, including his lump sum workers compensation settlement. To an extent, the significance of his lump sum payment is offset by virtue of the advances made by the wife’s family throughout the marriage. The wife’s homemaker and parent contribution pre-separation is particularly significant and continued in a very substantial way post separation until the children commenced living with their father. The husband’s failure to adequately disclosure his income and expenses makes deciding the appropriate s.75(2) adjustment unfortunately difficult. The most influential factors are the husband’s future care for the children, the wife’s reliance upon social security and her inability to pay adequate child support. Other less influential factors need not be restated here. Overall the outcome is just and equitable.

Structure of the orders

The husband has all of the assets comprising the asset pool which rounded out totals $296,109. The wife is entitled to receive 46 percent which means the husband must pay her $136,210. The husband says he has available funds from within his extended family to pay her. In which case two months is sufficient time within which he must pay the wife. One must strike a just balance between giving the husband sufficient time to make appropriate arrangements and the wife’s difficult circumstances. Giving the husband any longer leaves the wife in parlous circumstances for too long. At the same time as he pays the wife her entitlement, the husband must also give her either a discharge of the Commonwealth Bank mortgage or a full release from the mortgagee in registrable form. These parties have a poor relationship and continuing any financial nexus is likely to be fraught with difficulty as well as offending section 81 notions of finality. If the husband fails to make this payment within two months the former matrimonial home must be sold. The terms and conditions for which will accord with usual practice. Although the former matrimonial home has an agreed value its net sale proceeds cannot be quantified. Excluding the former matrimonial home and the mortgage from the asset pool, rounded out the remaining net assets are $58,109. As the wife has none of these assets upon settlement of the sale of the former matrimonial home the husband must pay her an adjusting amount from his share. The amount he must pay is the sum needed to give her

46 percent of the total assets. Forty six percent of $58,109 is $26,730, the amount which he shall pay.
Pending compliance with these orders the husband shall continue to pay all outgoings, including building insurance, associated with the former matrimonial home. It is continued price of occupation.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 12 October 2005