Walford and Walford (No 2)

FAMILY COURT OF AUSTRALIA

WALFORD & WALFORD (NO. 2)

[2009] FamCA 878

FAMILY LAW – CHILD SUPPORT

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Gyselman [1991] FamCA 93
Re F: Litigants in person guidelines (2001) FLC 93-072

APPLICANT:

Ms Walford

RESPONDENT:

Mr Walford

FILE NUMBER:

MLF

6901

2002

DATE DELIVERED:

21 AUGUST 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

24, 25 & 26 February, 15 & 16 July, 4, 13 & 17 August 2009

REPRESENTATION

THE APPLICANT:

IN PERSON

COUNSEL FOR THE RESPONDENT:

MR COLEMAN

SOLICITOR FOR THE RESPONDENT:

COLEMAN LAWYERS

Orders

That in respect of the assessment dated 4 January 2008 for the child … born … August 1997 concerning the period from 1 February 2007 to 30 April 2008, for the purposes of calculating the child support obligation of the father, the child support income amount for him shall be fixed as follows;
(a)for the period from 1 February 2007 to 30 June 2007, the sum of $34,499 per annum;
(b)for the period from 1 July 2007 to 30 April 2008, the sum of $5747 per annum.
That in respect of the period 1 May 2008 to 30 June 2008, for the purposes of calculating the child support obligation of the father in respect of the said child, the child support income amount for him shall be fixed at $5747 per annum.
That in respect of the assessment dated 4 March 2008 in relation to the said child concerning the period from 1 July 2008 to 30 September 2009, for the purposes of calculating the child support obligation of the father, the child support income amount for him shall be fixed in the sum of $18,200 per annum.
That the wife’s application filed 28 November 2008 and the response thereto filed by the husband on 9 February 2009 are otherwise dismissed.
That should either party seek orders relating to costs arising out of these proceedings, such application shall be in writing and filed and served no later than 4.00pm on 4 September 2009 to which a response shall be filed and served by the other party by no later than 4.00pm on 18 September 2009 and the applying party shall thereafter have a right of reply which shall be filed and served no later than 4.00pm on 25 September 2009.
That upon any application for costs being made, the application be determined by me in chambers and judgment delivered thereafter accordingly.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6901 of 2002

MS WALFORD

Applicant

And

MR WALFORD

Respondent

REASONS FOR JUDGMENT

Ms Walford and Mr Walford appeared before Guest J on 20 December 2007 and subsequently 21 December 2007 whereupon his Honour made final property and parenting orders. What was then left outstanding was a dispute about child support. The reason for those issues remaining incomplete was on the husband’s view, there was not sufficient time and the wife’s view, that discovery had not been completed. Neither matters now.
On 28 November 2008, the wife filed an application seeking that the child support issue be determined.
When the case came before me, it became clear that an assessment of child support had been made by the Child Support Agency and a review had been sought. On the review, the Agency determined that there was no basis for change because the matters that had been raised were too complex. The wife lodged an objection against that decision but the review officer’s decision was subsequently upheld. Those matters enlivened the jurisdiction of this Court to deal with the child support issue.
Throughout these proceedings, the wife was the applicant. She represented herself. The husband was the respondent and was represented throughout by his solicitor Mr Coleman.
The wife’s application sought the following:
1.That pursuant to Section 117 of the Child Support (Assessment) Act 1989, there be a Departure from the Administrative Assessment of Child support payable by [the husband] to [the wife] for the child […] born […] August, 1997 (“the child”) as follows:
(a)      for the periods
(i)       1st January, 2007 until the 31 December, 2008,
(ii)      1^st January, 2009 to 30 June, 2009;
(iii)     1 July, 2009 to 30 June, 2010;
(iv)     1 July, 2010 to 30 June 2011;
(v)      1 July 2011 to 30 June 2012;
(vi)     1 July 2012 to 3 June 2013
the amount of child support payable is $866.66 per month ($200.00 per week) increased on 1 July each year in accordance with increases in the Comsumer Price Index for Melbourne commencing 1 July 2009.
2.That pursuant to Section 124 of the Child Support (Assessment) Act 1989, the husband shall provide child support for the child […] to the wife pursuant to the above order, as follows: -
(a)To pay all school fees, tuition fees, book allowance, excursion costs incurred or levied by any school that the child attends; and such payment is to be credited against the husband’s child support liability at the rate of $30.00 per week for the period 1 July 2009 until 30 June 2013.
On 9 February 2009, the husband filed a response. He sought:
1. That the application be dismissed.
2. That the applicant pay the costs of this application.
3.That child support for the purposes of the child […] born […] August 1997 be assessed and payable by the applicant at $200 per week and increasing each year thereafter by $50 per year.
Despite those apparently simple propositions of both parties, the case changed significantly as it wandered along. Although she was unrepresented, the wife told me that some of her documents had been prepared by her former solicitor. In her final address, the wife was critical of how her case had been confined by her application. What she was referring to was the fact that whilst she was pursuing much more, the application was really covering the period of 1 January 2007 until now and from now until 30 June 2013.
To make matters more difficult, the wife attached to her affidavit two assessments only that related to the relevant periods to which I have referred. The court was asked to depart from the assessments and those were the assessments upon which the wife relied upon.
On 24 February 2009, the wife gave me details of the material she relied upon. When I pointed out that the assessments from which she wished to depart were not consistent with her orders sought, she changed her orders sought to a departure from the assessed period. That is:
(a) for the period from 1 February 2007 to 30 April 2008; and
(b) from 1 July 2008 to 30 September 2009.
It will be seen in those two assessments that there is a gap of two months but in this case, it matters little because having heard the evidence, I am able to work out what the child support should be for that particular period and I intend to include it in my orders.
In addition to those matters, the wife wanted a determination as to the future child support to be paid by the husband effectively until the child of the parties turned 18 years of age. In addition, the wife sought that all school fees, tuition fees, book allowances and excursion costs be paid by the husband and that of whatever he paid, $30 per week be credited against any assessment of child support. I was unable to ascertain why the $30 per week credit would be given.
The husband departed from his documented position as well on the basis that he was no longer working full-time although he was employed on a part-time basis and otherwise relied upon Centrelink benefits. In what was an assertion from the bar table, the wife said that he had been a Centrelink recipient for years but the evidence shows that he has been in receipt of those benefits since 2008.
The hearing was commenced on the afternoon of 24 February 2009 and resumed on 25 February 2009. On 26 February 2009, the wife did not attend because of illness and I heard evidence from her doctor who said her stroke-like symptoms should subside over a matter of days. The hearing then had to be adjourned until July.
I resumed the matter on 15 July 2009. On 16 July 2009, the wife complained that the husband had not produced documents and asserted that he had money overseas. She then sought an adjournment to issue a raft of subpoenae. It was also the husband’s position that in the property proceedings before the parties, he had provided all documentation required of him.
On 4 August 2009, I heard argument about subpoenae and allowed the wife to issue more precise subpoenae returnable on 13 August 2009.
The subpoenae issued by the wife largely related to two areas. The first related to documents and particularly from friends and people who had business arrangements with the husband. The second related to two witnesses who the wife had pursued for the purposes of giving evidence. I made it clear to the wife that simply issuing a subpoena to give evidence did not necessarily mean that I would permit the evidence to be led without some indication of what the witness was to say. It must also be said that at this point in time, the wife’s evidence had been completed.
On 13 August 2009 on the return of the subpoenae there were still problems with the production of documents. The wife then sought specific orders that the recipients appear on the following Monday morning which was the date upon which the hearing was to resume. The majority of the argument by the recipients was about the fact that they had been asked to produce documents but had not been offered compensation for the time that would be involved. That was important having regard to the fact that they were all apparently in various businesses.
One of the late subpoenae was addressed to the husband because the wife said that notwithstanding I had made orders for disclosure, the husband had not presented the documents required of him. Specific arrangements had been earlier made that the wife attend upon the offices of Mr Coleman for the purposes of the documents being examined. There were apparently difficulties making appropriate times for that arrangement but ultimately when it did occur, the wife said the documents were not all there. The husband’s position was that he had produced all of the documents. The wife denied that but asked no questions of the husband about that bearing in mind that he was in the witness box giving evidence.
During this time also, of the two subpoenae to give evidence, one of them was addressed to the husband’s girlfriend but when she appeared on 17 August 2009, the wife said she was not going to call her. This was rather curious having regard to the assertions of the wife about what the girlfriend had said to her. There was no doubt that the husband’s girlfriend was present at court.
A subpoena was also issued to give evidence to a Mr RL. He is or was a private detective who in the property proceedings had been engaged by the wife. He produced a medical certificate having been served with the subpoena to show that he was unwell. Again, the wife did not persist in calling him.
It must be noted that several of these persons wrote letters to the Court complaining about their expenses and the lack of time to respond. In the case of Mr RL, he set out some rather extraordinary allegations. None of those matters has been taken into account by me in respect of any of the issues that I have to determine.
The whole exercise relating to subpoenae must have cost the wife an enormous amount of money and I am doubtful as to whether it achieved anything. One of the subpoenae that she sought to issue in July was to a recipient in New Zealand and I made specific orders under the relevant legislation because the wife was asserting that the husband was holding money in that country. Nothing further was said by the wife about that assertion.
Accordingly, on 17 August 2009, the case resumed and concluded. The husband was in the witness box in July and resumed his evidence in cross-examination by the wife.
By way of general background, the wife is 41 years of age and employed in beauty services by occupation. The husband is 40 years of age and currently unemployed although he has skills in the computer technology area.
The parties lived together from 1989, were married in February 1995 and separated on 14 April 2002.
The only child of the relationship is a daughter born in August 1997. The child is now almost 12 years of age. She lives predominantly with the wife although the husband asserted and the wife did not deny that the child spends over 40 per cent of the time with him.
The wife said that upon separation in 2002, the parties executed a child support agreement but that ended on 2 October 2005. Under the child support agreement, the husband was to pay child support at the rate of $200 per week.
With the cessation of the child support agreement, the parties’ obligations reverted to the child support assessment system.
It seemed common ground that by the time the parties were at court in December 2007 before Guest J, there were considerable arrears. Those arrears were paid in the property proceedings. Unless I stipulate otherwise, the following facts constitute findings of fact.
For the purposes of these proceedings, I have applied the standard set out in s 140 of the Evidence Act 1995 (Cth). That standard is the balance of probabilities. The onus in the application lies with the wife.
The wife’s evidence was that the basis of her application was the “income earning capacity” of the husband. Grammatically, that does not make sense but in endeavouring to get to the bottom of the case, I obtained from the wife her position. She said that she was arguing that the husband’s income as described to the Child Support Agency was incorrect. In addition, now that she accepted he was in receipt of Centrelink benefits, he should be assessed on the basis of his earning capacity. For reasons which I shall set out, I reject the views of the wife.
The wife gave evidence. Apart from one matter to which I shall refer, I found her to be focussed. This case has gone on for a long time and her views about what the husband was earning and what he was doing with his earnings, borders on obsession. There was a long lead-in time to this case and notwithstanding the complaints by the wife about lack of disclosure, I was not able to see any serious attempts were made to pursue documentation. An example of that problem can be seen in the fact that the wife issued a number of subpoenae well after the case had started and that shortage of time created problems not only for the wife but also for the recipients of the subpoenae. In addition, it wasted an enormous amount of court resources.
In Re F: Litigants in person guidelines (2001) FLC 93-072, the Full Court set out a number of matters that should be provided by way of information to litigants who are unrepresented to ensure that there was procedural fairness. Those obligations included informing the litigant of the manner in which the trial was to proceed, procedures relevant to litigation, basic assistance concerning obtaining details from witnesses and ensuring that if there is any injustice to a litigant in person relating to the calling of witnesses, assistance is provided. The Full Court said that a judge may provide general advice to a litigant about objections to admissible evidence, deal with possible claims of privilege and clarify the substance of the submissions of the litigant in person.
The Full Court also required that a court draw attention to the law applied in relation to the issues before it, could question witnesses, identify how matters were put before the Court, suggest procedural steps that may be taken by a party and clarify orders.
In this case, I have endeavoured to do all of that. It must be remembered however that throughout these proceedings, the wife consistently told me that she had spoken to counsel who was providing advice. For example, she said that a lawyer whom she did not name, had told her what to put in a subpoena. Thus, with the assistance of her legal advisers, she had the material to commence the proceedings and throughout the hearing, she obviously sought advice. Notwithstanding that, her cross-examination often went outside of the period of the assessment and I allowed some latitude on the basis that she endeavoured to show me that there was some relevance in very old material.
I am satisfied on all of the opportunities that the wife had, that she had ample opportunity to have her case heard and determined.
The husband gave an appearance of resignation. This has been a long saga for him. He maintained consistently that he had not changed his position and that there was little more he could do. At times when asked about old matters, he indicated he could not recall and I am satisfied he was not being evasive. At other times in respect of issues about which the wife was persistent, he gave his evidence responsively.
It as only at the end of the case when I questioned the husband about the nature of his financial statements for a trust that I satisfied myself that he really had no idea how his own structure operated. That series of questions by me added to his credibility. There was no evidence that I could find to show that the husband had lied in any court proceedings or had been dishonest with the Australian Tax Office. The wife asserted otherwise but produced no evidence that would satisfy any test under s 140(2) of the Evidence Act.
The wife’s evidence was that the husband up until 11 July 2006 was continuing to earn significant income as a self-employed IT professional. The income was received through a company C Pty Ltd to whom I shall refer in these reason as C Company.
It is clear that in addition to the husband not having a very good understanding of his own corporate structure, the wife has even less. She constantly confused businesses using trading names and corporate entities.
The wife set out and I accept, the husband had contracts in the past with H & P and J & J all of which provided substantial gross income.
The wife set out the income for the period between 2002 and 2004 where C Company had a gross income of $326,913. Subsequent years were less but still significant. None of this evidence was relevant because it predated the period of the proposed departures. It may have had some impact and relevance on the question of the husband’s future earning capacity but having regard to the findings that I shall make below, it is now irrelevant.
The wife said that since the expiration of the child support agreement, the Agency had assessed the husband on the basis of an extremely low amount despite his “clear capacity to earn significant income”. I shall return to the subject of the income below. C Company is the trustee of the Walford Discretionary Trust. The husband is now the sole director of the trustee. What will become apparent is that the husband has in recent years had the capacity to manipulate his income by the use of the trust.
The child support assessment issued on 15 January 2008 was based on a declared child support income of $29,167.
For the period from 1 July 2008 to 30 September 2008, the husband’s income for child support purposes was shown as $29,167.
The wife said that the difficulty was that the assessment did not “examine” the sources of such income and in particular the distributions through the trust. The wife was right. However, for reasons which I hope will be clear, it makes little difference. The nub of the wife’s case however was not so much the distributions from the trust but the way in which the profit and loss statement was structured. The focus if not the obsession of the wife was in establishing that that profit and loss statement was not genuine. I reject that based upon the evidence presented to me particularly having regard to the fact that the husband was cross-examined at length over a number of days.

The wife set out in some detail what she had ascertained from bank statements that were in her possession but all of those matters predominately predated the assessment periods. That evidence was, according to the wife, drawn by her solicitor who also drew the application.
An example of the confusing and largely irrelevant evidence was that the wife said that the gross income of the company (C Pty Ltd) for 30 June 2007 was $186,825. She then said:
The gross income of the husband of the company for the six months to 5 December 2007 was $83,775.
This assertion came from a summary of the husband’s contract income prepared by the wife herself but I was unable to ascertain its relevance because it was the income of either C Company or the husband’s contract income run through a bank account. None of it made sense.
Importantly, notwithstanding the assertions of gross earnings to which the wife constantly drew my attention, it was clear that the company was the alter ego of the husband. I have no evidence however nor any understanding of what it genuinely cost to generate the gross income so that I could work out what the husband’s true income position was. That was so because the wife’s own evidence was that she accepted that the company would have incurred expenses associated with the generation of income. She said however that the distributions were designed to minimise the taxable income. She did not however address the issue of the expenses in the profit and loss statement.
Considerable evidence was put into the wife’s affidavit by her practitioner about payments by the husband to his brother in 2003 and again in July 2005. What that was about was irrelevant to the assessment period.
There were also distributions on 23 June 2006 to the husband’s brother and his brother’s wife and a payment of $22,000 made to the husband’s brother on 1 May 2007. All of those matters were responded to by the husband and despite vague cross-examination, I am satisfied that the husband explained the details in full. One of those issues related to the payment of money to the husband’s brother pursuant to an invoice. The husband’s brother was one of the people who received a subpoena. The wife told me that the husband’s brother had satisfied the subpoena. I can only conclude therefore that what she was asserting about the husband’s brother and hence the husband’s distributions to his brother was clearly just not right.
One of the other people who received a subpoena was Mr G. The wife said that whilst invoices had purportedly been submitted in support of payments which were claimed as contractors, no documentary evidence in relation to the underlying contracts or agreements had ever been produced. She said the invoices were particularly scant and lacking any detail as to the work undertaken warranting the payment made. For his trouble, Mr G received two subpoenae. He objected to the first on the basis that it was imprecise and the wife would not satisfy the costs of him searching for the document.
Mr G attended pursuant to an order I made because as far as I could see, he was really disputing the wife’s suggestion that the conduct money that she had provided to him to come from Geelong was sufficient. What he was after was compensation for time spent searching for the records. He went into the witness box and gave some evidence. He conceded that his records were a mess but then said that he was a photographer by profession. Notwithstanding Mr G was subpoenaed to produce documents, I gave the wife an opportunity to cross-examine him not only about the expenses that he claimed but also the invoices themselves. The wife was asking me to infer that there was some collusion between the husband and Mr G and that the invoices were not true. His response to the wife’s questions was forthright. He was able to say that the invoices that he had sent to the husband had been paid and although not necessarily prompt, they were paid around the time that they were sent. He was asked when he started his business and he said that he believed it was in the late 1980s. The wife then pointed out to him that a document in her possession showed that it was in 2007 but his response was that it was not possible. His only explanation for why some company might have had that view was that he had to renew the registration every three years and it may very well have lapsed. He told me that he paid top rate tax and that he was registered for GST. The wife put to him that he was not but he looked puzzled and said that he was.
He was able to describe to me the nature of the project that he had undertaken for the husband and that was set out in the invoices that he had sent to the husband. He said that whilst he was a photographer, work was work and this was something relating to graphic designs and that was within his expertise. He said that all of this work took time and research.
He was adamant that he paid tax on the invoices when they were paid and that they were certainly not fabricated.
I accept Mr G was a truthful witness. There is no suggestion by the wife to the contrary.
In respect of the relevant assessment periods, the wife set out that distributions were made by the husband in his capacity as the director of C Company from the trust. She was right. In 2007, the husband paid $1333 in four distributions to four children including the parties’ daughter.
In my view, this is the gravamen of the case. The wife also asserted that the husband’s brother and sister in law had ceased operations as of 31 December 2006 and therefore could not have been receiving payments under invoices by them to C Company. Documents produced by the wife showed that the ABN status for the husband’s brother and sister in law had been cancelled from 31 December 2006 and that there was no current business. I am not sure what difference that makes from a taxation point of view and the wife did not say. What the wife was asserting was that the brother and sister in law were claiming on an invoice for a company which did not exist. The husband’s explanation about the payment and the invoice was satisfactory. He explained the work that his brother had done and how he was paid and why that was structured for tax purposes. In my view, if there was anything untoward about the conduct of the husband and/or the brother or sister in law, it is a matter that can be taken up with the Australian Taxation Office.
In relation to the wife’s evidence, she also pointed out that the trust had also paid expenses associated with the maintenance of some investments in what looked like pine plantations. There was also a wine plantation scheme. The wife’s assertion was that these deductions had a direct impact on the distributions. I think what she really meant was that the deductions reduced the gross income and in her view, that should not have been allowed. In respect of the two assessment periods, I disagree for reasons to which I shall turn in a moment.
The wife presented limited evidence from her own perspective. She said she derived income from her business of beauty services and that it had been nominal. She showed income of $12,280 in 2007, $15,175 in the following year and $14,955 for the year ended 30 June 2006. She said that the husband also had a nominal bank account held by a company named TW Ltd overseas. There had been considerable dispute in this Court during the property proceedings about production of those documents. Whilst the wife constantly referred to the absence of production, no application was made to me in relation to the enforcement of any previous orders.
The wife then asserted that the husband had expended monies equating to £80,000 on purchasing rare coins, overseas travel and similar items over a period of two to three years. She said money was coming out of the account to an unknown foreign account in regular lump sum payments and to use her words, it was never established where that money was actually going and what it was for. She said she believed the husband had the capacity through the overseas company to continue undertaking overseas contracts.
I reject all of that evidence. The husband gave me a plausible explanation about how the overseas contracted companies worked and how it was set up through a solicitor with whom he had a professional relationship. He explained to me that money was brought back to Australia and that he paid tax on it. There was no basis for me to find that there was anything untoward about what he was doing. If there was, it can be taken up in another place.
In addition, the assertions by the wife predate the assessment period. She was not able to point to any evidence to show that there was still money in overseas accounts.
In paragraph 40 of her affidavit, the wife set out that the husband’s partner was receiving single parenting payments from Centrelink. She said that there were discussions with her clients who told her all about these things. The husband denied all of this. More importantly, this was the girlfriend that the wife had subpoenaed and whom she ultimately did not call to give evidence. I am perplexed as to what she was endeavouring to do but it did her no credit. More importantly, I shall turn in a moment to the wife’s own credibility problems. It was difficult to know how to deal with the wife having regard to her assertions that the husband and his girlfriend were all acting illegally in one form or another and yet she too must be tarred with the same brush.
The wife then set out that she had now married her partner and he was a school teacher with an annual income of $75,500.
As for the future, the wife said that the husband would not accurately declare his income because of the trust and that she was bearing the responsibility of all of the expenses for the child.
In relation to the private school issue, the wife said that the child continued at her primary school and that there were currently arrears outstanding and unpaid. The husband said that he had not paid them because he had not received an invoice. The wife did not pursue the matter.
The wife then broadly accused the husband of not being honest because he was living a lifestyle inconsistent with his taxable income as declared. To some extent, the wife was right about that and I shall return to that issue in respect of his drawings from the trust. However, there is no evidence to show an expansive and lavish lifestyle. For example, the husband drives an old car which no longer belongs to him and he is in receipt of Centrelink benefits and working part-time. He lives in rented accommodation.
When called to give her evidence, the wife said of the invoices, that where the husband claimed them as deductions in the profit and loss statement of the trust, they were in fact not paid. She said if they were, there was an arrangement in place that the money would be paid back again. She then added that she had not looked into that. That is certainly consistent with the evidence that I heard. There is no evidence to support the wife’s assertion. In addition, the wife conceded that she had no evidence that the various accounts of the company were still being operated.
The wife then produced the 2006-2007 trust financials of the husband. This document is the only significant piece of evidence that assists me. The wife said that the husband had transferred some R2 Company shares to Mr G in November 2008 but then said that there was a debt on them and this was by way of discharging the debt so that the husband was relieved of the obligations which he clearly set out in the trust financial document.
When the wife was cross-examined by Mr Coleman, she conceded she had no evidence to say that the work was not done as set out in the invoices. She said that there was no evidence that she had to show that they were invalid. She said there was no evidence to show that the payments had not been made on the invoices. She said that the various invoices that she included from 2002 could not be established as being unpaid. She also had no evidence that any monies that might have been paid were in fact repaid by the recipients of the sums. In relation to the various structures of which she was aware, she acknowledged that there were no other structures about which she had any evidence nor was there any evidence that she had to show that the structures were still operating.
The wife then conceded that although she had accused the husband of all manner of fraud, she too had been less than honest about her claims from Centrelink. He complaint against the husband left me in no doubt that she would have me ignore her own conduct. It did her credit little good. Interestingly, part of the wife’s complaint about the husband was his use of the structures to manipulate his income. I am quite satisfied that the wife has a good understanding of the issue because she was able to do much the same by way of deductions for taxation purposes.
In relation to the husband’s current position, the wife acknowledged that the husband was receiving Newstart allowances and she had no evidence in relation to his property and financial resources other than those which he had disclosed himself.
The wife’s new husband gave evidence but he did not advance anything that would assist the wife’s case.
The wife then called Ms H who assists her in the business. Ms H said that she had also helped the wife financially and that money advanced was a loan some of which was repaid when the wife gave Ms H the coins she had received from the property settlement. A number of matters were put to Ms H in cross-examination in an effort to show that the wife’s business was financially better than she was alleging. Ms H said that she had not been paid since the previous Christmas which at that stage of the proceedings, was two months before but she was unable to tell me how much was outstanding to her. Ms H’s evidence did not advance the wife’s case.
The wife relied otherwise upon her financial statement. That document set out that she had expenses for the child on a weekly basis of $356. She was not challenged about that figure. She said her income was $291 per week from the business that she conducted.
I am able to find on the basis of just the statement of financial circumstances that the wife alone is unable to pay all of the expenses associated with the day to day care of the child.
The husband was called to give evidence. He relied upon an affidavit filed 26 February 2009 and a financial statement.
The husband in his financial statement showed that he was unemployed and in receipt of $350 per week from Centrelink. By the time the hearing resumed in July, the husband’s income position had altered. He was working two days per week and adjustments were made to his Centrelink payments and he thought he was receiving about $500 per fortnight. Somehow, he paid $300 per week rental on his accommodation and had living expenses of $398 per week. Of that, $221 was attributable to the child’s expenses. The husband was not challenged about his figures but it was difficult to understand how he could afford to live. Apart from a car and some contents, he had no property.
The husband’s affidavit was filed in response to that of the wife. He denied he had a significant income. He maintained that his work had dried up and his line of business was now being done predominantly overseas.
The husband acknowledged being a director and shareholder of C Company through which his business had been conducted. He said, and the wife seemed to agree, he had not operated the business since June 2008.
C Company owed $51,538 in a Magistrates Court judgment debt. The husband produced a notice of judgment which showed the creditor as MO Pty Ltd. The wife tendered the 2007 financial statements of C Company. As at 30 June 2007, the balance sheet showed C Company owed MO Pty Ltd $43,956. How the debt climbed to $51,538 in a space of just over one year was not explored or explained.
The husband said the company should be liquidated but he had no money to do so. The husband said the company had no assets.
When I examined the balance sheet of the trust, its only asset apart from a nominal bank balance, was a debt due to it by the husband because of his drawings against the trust. If MO Pty Ltd endeavoured to enforce its debt, on what evidence I have, it could not succeed. If there was action to liquidate the company and hence the trust, it is conceivable that the only avenue of recovery by a creditor would be against the husband because he owes the trust $64,608. It is clear on the husband’s asset position that he has no prospect of satisfying that debt.
When a further analysis was undertaken of the trust balance sheet and after I raised the subject with the husband, two things became apparent. First, the husband treated the trust resources as his own. Secondly, the husband spent more each year than his potential entitlement to the distributable profits of the trust. For example, at the start of the 2006-2007 financial year, the husband owed the trust $48,821. The trustee, albeit the husband in his capacity as a sole director, distributed $29,167 to himself but then took it back again by simply reducing the $48,821 loan account. But, during the financial year, the husband drew $44,954 in drawings. As at 30 June 2007, the husband owed the trust $64,608. As such, if the creditor pursued the trust, the husband would be pursued in turn. It was in reality, a pointless exercise.
Two other important points need to be made about the trust. First, the trust declared profit of $34,499 of which the husband was the beneficiary of $29,167. The other beneficiaries were the parties’ child and the husband’s nieces and nephew. They each received a distribution of $1333. The husband could not justify the distribution other than it was a way of paying his brother. It matters little because the husband was entitled to $34,499 not $29,167 and he distributed those funds to himself and the children. He may try to explain that as a tax effective way of either reducing his own tax or paying something for his brother but it is not an acceptable way of manipulating the child support system.
When I examined the child support assessments, it became apparent that the Child Support Agency was working off the husband’s taxable income. That now needs to be rectified.
A second point is that the wife disputed the accuracy of the profit and loss statement of the trust. The wife alleged that the husband was spending beyond his means and the only way that that could occur was if he was using funds of the income of the trust. She said that the expenses of the trust were not genuine and this was the focus of the majority of her case. Despite asking a variety of questions, I was unable to find out how C Company in its capacity as trustee of the trust managed to fund the husband’s expenses and drawings. There was no overdraft facility and no apparent credit card liability.
I gave the wife an opportunity to further cross-examine the husband about the distributions by the trust because in the 2005-2006 year, the husband distributed $28,861 to himself and the balance up to $51,949 went to trust beneficiaries other than the husband. The dilemma here is just how to deal with all of that evidence because I was only asked to deal with two assessment periods and the 2005-2006 financial year was not part of that. I have accordingly ignored it because I intend to rectify the assessments for the periods pursued by the wife by putting into the formula the appropriate level of income for the husband.
It was also clear that the husband was using the trust to draw funds for his personal use as I have described. Just how that could impact on child support was hard to gauge. If someone has such a structure and uses the trust funds as a piece of property or as a financial resource, the Child Support (Assessment) Act 1989 allows a court to make adjustments. Here the wife did not address that issue but in any event, the husband has the creditor problem to which I have referred already.

The wife’s real focus was on the accuracy or otherwise of the profit and loss figures.
I have already referred to the wife’s claim above about the husband paying his brother in 2003 and 2005. Both of those amounts were outside of the relevant assessment periods. However the husband said that on 1 May 2007, he paid his brother $22,000 for work done. The wife alleged that it was a distribution but the trust financial document tendered by the wife said otherwise. It is not recorded as a distribution but rather as payment to the husband’s brother in some form of contract arrangement. The husband maintained that and I accept that that is what the evidence shows.
The husband did say he had received accounting advice that he could make payments to his brother through the trust. That however seems only to have applied to the 2005-2006 year. If I accepted that was what the husband was endeavouring to do in the 2006-2007 year, it was only being done through the nieces and nephew. I am not sure I could draw that inference. The wife certainly did not assert such.
I turn then to the focus of the wife’s case.
In the trust profit and loss statement, the husband claimed and was allowed by the Australian Taxation Office, deductions for the costs of some investments. Normally a negative gearing expense could not be allowed to reduce child support, but here, it seems the debt on one was subsequently written off by the transfer of the shares and the other assets were taken into account in the property settlement. It was said by the husband that these investments would have ultimately produced taxable income and although that might have been years away, technically the child support would have been picked up in that income year. The position is more difficult here where the assets and liabilities were the subject of the property settlement. I do not know what the real effect of the losses was but I find that it would not be just and equitable to simply ignore the expenses of maintaining the asset which very soon thereafter became the subject of the property settlement. Accordingly, I have rejected the wife’s argument that the expenses should be added back to the husband’s income.
The wife also pointed to the fact that the husband had claimed subcontractors of $85,722. She alleged these were not incurred in that financial year. I reject that suggestion.
Over a period of the last 12 months, the wife has pursued the husband to produce evidence that not only did the subcontractors produce invoices but that they were paid. The wife had significant difficulty in this pursuit because she alleged the husband had not produced all of his bank statements. The husband denied that saying he had produced everything and not just once. The wife seemed to abandon that pursuit on the last day of the hearing although in final address, she said she had not been herself. As a means of double checking the husband’s assertion, the wife subpoenaed the various invoice contractors to whom I have referred. All of them or most, were friends of the husband. The wife experienced the difficulties to which I have referred because of the way she approached the issuing of those subponae.
I have already pointed out that I have accepted the evidence of Mr G and that he was in fact paid by the husband.
Another person who received a subpoena was Mr P who produced some records saying that he had destroyed records after five years. He also produced a bank statement. The wife did not thereafter pursue Mr P. In any event however it seems looking at the invoice relating to Mr P that it was not relevant to the assessment period. Mr P seems to have gone to the trouble of finding a bank statement showing that he was paid by the husband.
The wife also pursued Mr K. Mr K objected to giving documents because he had not been personally served with the subpoena and he had sought, and had not been given an assurance that if he searched for the documents which were now some six years old, he would be paid his reasonable expenses.
The wife argued that after an examination of the husband’s bank records, the payments out did not match what he said had occurred. She put to the husband that his expenditure was on personal items. She called no evidence to establish all of that. Importantly, the trust financials which she produced were drawn by the husband’s accountant and the wife did not subpoena him to produce his working papers to prove the documents were not correct. She did not call the accountant either.
Whilst there might be an opportunity here to draw an adverse inference against the husband because he too did not call the evidence of these contractors nor his own accountant who prepared the financials, he maintained that he had produced documents to the wife and presumably to the Australian Taxation Office. I am satisfied that with Mr G being called only to produce documents but also willing to give evidence about the nature of the work done, any adverse inference ought not to be drawn against the husband.
It is also important to note that Mr G adamantly pointed out that he had accounted to the Australian Taxation Office for his income from the husband and paid his tax. No doubt if the wife is not satisfied about that, she can pursue Mr G through the Australian Taxation Office. As I said, I found him a credible witness.
The wife asked a number of questions of the husband about a relationship he had with a solicitor named EN. Mr EN is now deceased. The wife went back to 2001 on this issue. Doing the best I can with this evidence, the husband’s position was that he owed Mr EN for work associated with an overseas corporate entity. This was the entity that the wife asked details from the husband about known as TW Pty Ltd.
The husband said that he owed Mr EN for work associated with the overseas entity. He said he did not pay EN when invoiced. In turn, he did work for EN and by arrangement, the debts were offset although some money changed hands. The wife asked questions about how and when the money was paid and what adjustments occurred. I could see nothing relevant to the assessment periods in these questions.
The wife pursued Mr EN through the Law Institute of Victoria. The responsible officer attended having received a subpoena which I had not authorised. The Law Institute of Victoria became the owner of the records of Mr EN. The Law Institute of Victoria searched for a number of hours and produced what documents it could find from the records of Mr EN. I expressed my gratitude to them because they did not seek any costs or expenses against the wife. Whatever was produced was not used by the wife and the subject did not become relevant thereafter.
Mr EN according to the husband set up an overseas entity and money changed hands through various accounts. The wife put to the husband that there were significant sums of money overseas. These various accounts were the subject of subpoenae by the wife. None of the material apparently pursued by the wife seemed to assist her because it was not put before the Court. The wife put to the husband that he had not accounted properly for the overseas money. He denied it saying he brought the money into Australia and declared it properly to the Australian taxation authorities. In putting these assertions, the wife produced no evidence to show what the husband said was untrue. If the wife knew of something illegal, fraudulent or improper because of what happened during the marriage, she did not put that directly to the husband. If that was what occurred, no doubt she can face the investigation of any Australian Taxation Office officer.
I am satisfied on the husband’s evidence that I can accept the profit and loss statement of the trust to be accurate.
The other deductions in the profit and loss statement were unremarkable.
Because of the way the wife put her case namely that the husband’s income was not correct, much of the evidence about the wife’s own financial position became irrelevant. Part of that case related to the assertion that the husband had a good earning capacity. She cross-examined him about getting work and he said he was able to get part-time work and some of it was for Mr G. As for full time work, the husband said that he had applied as he had to for Centrelink purposes. He said most businesses were not taking staff. He produced various documents to show his attempts. He also said he could not work off-shore because he had the responsibilities in relation to the child.
In addition to the matters to which I have referred, the wife also attacked the husband’s credibility on the basis of something he wrote in 2000 about “family law, protection and de facto spouse”. He said he had looked at a website and wrote those things down whilst doing some research. If that occurred in 2000, it is hard to see its relevance years later specifically in relation to the two assessment periods that I am dealing with.
In respect of departure applications, the law is clear.
Section 117 of the Child Support (Assessment) Act 1989 says:
Court may make departure order
(1)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.
Grounds for departure order
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i)the duty of the parent to maintain any other child or another person; or
(ii)special needs of any other child or another person that the parent has a duty to maintain; or
(iii)commitments of the parent necessary to enable the parent to support:
(A)himself or herself; or
(B)any other child or another person that the parent has a duty to maintain; or
(iv)high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia)because of special needs of the child; or
(ib)because of high child care costs in relation to the child; or
(ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(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
(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.
High costs involved in enabling parent to care for a child
(2B)A parent's costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(2C)If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A)The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:
(a)the costs are incurred by a parent or a non‑parent carer; and
(b)the child is younger than 12 at the start of the child support period.
(3B)Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(3C)Child care costs for a non‑parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da)the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5)In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i)any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6)In having regard to the proper needs of the child, the court must have regard to:
(a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b)any special needs of the child.
Income, earning capacity, property and financial resources
(7)In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A)In having regard to the income, property and financial resources of a parent of the child, the court must:
(a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b)disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a)one or more of the following applies:
(i)the parent does not work despite ample opportunity to do so;
(ii)the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full‑time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)the parent has changed his or her occupation, industry or working pattern; and
(b)the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i)the parent's caring responsibilities; or
(ii)the parent's state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Direct and indirect costs in providing care
(8)In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9)Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
Definition of resident child
(10)For the purposes of this section, a child is a resident child of a person only if:
(a)the child normally lives with the person, but is not a child of the person; and
(b)the person is, or was, for 2 continuous years, a member of a couple; and
(c)the other member of the couple is, or was, a parent of the child; and
(d)the child is aged under 18; and
(e)the child is not a member of a couple; and
(f)one or more of the following applies in respect of each parent of the child:
(i)the parent has died;
(ii)the parent is unable to support the child due to the ill‑health of the parent;
(iii)the parent is unable to support the child due to the caring responsibilities of the parent; and
(g)the court is satisfied that the resident child requires financial assistance.

If there was any doubt about that, it was put to rest by the Full Court in Gyselman [1991] FamCA 93. There the Full Court said that the structure of s 117 identified concisely the matters about which the Court had to be satisfied. Section 117(1)(b) identified a clear three step process:
(a)whether one or more grounds of departure in s 117(2) was established; and if so
(b)whether it was “just and equitable” within the meaning of s 117(4) to make a particular order; and
(c)whether it was “otherwise proper” within the meaning of s 117(5) to make a particular order.
The Full Court pointed to the fact that each of the three separate issues had to be addressed.
Section 117(2) sets out the grounds for departure from administrative assessment. It is important to note that each of the grounds is prefaced by the words “in the special circumstances of the case”. As the Full Court said in Gyselman, whilst it is not possible to define with precision the meaning of the term special circumstances, as a generality it was intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. If not, the intention of the legislature was that the administrative formula should apply.
The only ground in s 117(2) upon which the wife could rely is (c)(ia) and (ib).
I am satisfied that the wife has made out a ground because the husband has made distributions through the trust which in turn reduced his income in the 2006-2007 year. These are special circumstances because the trust is the alter ego of the husband. If as the Full Court said, there had to be something out of the ordinary because the formula should otherwise apply, then the husband has an advantage and used it to reduce his income. I note that s 43 of the Act now clearly permits various adjustments to the taxable income of a person but that was not operative for the purposes of at least the first assessment in this case.
I have no evidence about what happened in 2007-2008 because neither party presented to me the financial statements of the trust or of the husband’s income position other than I have his financial statement filed in the Court in 2009.
I am satisfied that in 2008-2009, the husband has only received modest income mostly through Centrelink and not through the use of the trust.
In respect of s 117(1)(b)(ii), a court must be satisfied that it is just and equitable as regards the child, the husband and the wife to make the order.
In relation to what is just and equitable for those purposes, a court needs to turn to s 117(4). I have set that out above. I have had regard to the clear indication that both parents have a duty to maintain the child. I understand her proper needs as outlined by the wife and not challenged by the husband in relation to living expenses. I am satisfied there are no opportunities for the child to contribute to her own support. I have already made a finding that I accept the husband’s income save for the adjustments that I propose to make and although I have some reservations about the wife’s income, there is little doubt that her amount is modest. I have also looked at the earning capacity of each party and found that the husband does not have an opportunity at the moment to pursue his chosen profession and he seems to have satisfied Centrelink in terms of work availability. As such, I am satisfied that the husband can do little more at the moment. There is certainly no evidence to the contrary. I have taken into account the commitments of each parent as set out in their respective financial statements which indicate their capacity to support themselves. I have no doubt that the wife is carrying the substantial burden of supporting the child and it may even be possible that depending upon the wife’s financial circumstances, she will have to pay child support to the husband. That is a matter for the Child Support Agency in the assessment as the subject was not a matter litigated before me.
In all the circumstances, having regard to the restrictions on the husband in particular and the paucity of evidence, I am still satisfied that the orders I propose to make are just and equitable in relation to the husband, the wife and the child.
The third step then is to decide whether the order is proper. Having regard to the fact that the husband is a pension recipient and I am proposing to make adjustments to the formula having regard to the way he used the trust previously to reduce his child support income, I find that the orders I am proposing to make are proper in all the circumstances. They certainly reduce as much as possible the burden on the taxpayer.
As best I can determine therefore the summary of the evidence is as follows. The first of the two assessment periods is 1 February 2007 to 30 April 2008. The husband was assessed for child support on an income of $28,861 during that time. The husband actually earned $34,499 to 30 June 2007, that is from 1 February 2007 to 30 June 2007. From 1 July 2007 until 30 April 2008 which is the second part of the assessment period C Company had stopped trading in June 2008 and the evidence is that the husband’s contracts ended in May 2008. His income therefore from 1 July 2007 to 30 April 2008 and extended to 30 June 2009 was $5747. That is set out in paragraph 85 of the husband’s affidavit and it was not challenged by the wife.
In respect of the second assessment period which is 1 July 2008 to 30 September 2009, the husband declared an income of $29,167. From 1 May 2008 until now, the husband says in his evidence that he has earned $500 per fortnight although in his financial statement filed with the Court, he said that his earning was $350 per week or $700 per fortnight. It seems to me that the latter is an admission against interest and he should be assessed on that sum.
Section 118 of the Act sets out the orders that may be made under this particular Division of the Act. The only order open to me having regard to all of the evidence is a variation of the husband’s child support income. Having regard to his income as it is now portrayed, it would not be appropriate for me to alter the annual rate of child support. Similarly, having regard to the fact that the husband spends significant time with the child and the wife did not challenge any of that, it would not be appropriate for me to vary the cost percentage under the formula. The other opportunities in s 118 really do not apply in this case. The only one that is relevant is the husband’s child support income. I propose therefore to make an order that in respect of the assessment periods, the husband’s income be altered in terms of what has in fact been the reality.
The wife also sought payments be fixed in advance by way of departure. Based on the husband’s income, property and financial resources, there is no evidence to enable me to make those sorts of orders into the future. Having regard to the fact that the wife would have to show special circumstances for the formula not to be applied, I see no reason in this case for that to occur.
The wife also sought orders under s 124 of the Act for the husband to pay all of the schooling expenses with some modest adjustment against his child support entitlement. Here, as with the future orders to which I have just referred, I could not find that the husband has the capacity to pay such expenses.
Accordingly, I propose to make the orders set out at the start of these reasons.
The parties also agreed that I should deliver reasons as soon as practicable and thereafter make provisions for any further applications that either party may make in relation to costs.

I certify that the preceding One Hundred and Thirty One (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 21 August 2009

[2009] FamCA 878

21 AUGUST 2009

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