Webster & Webster

[2008] FamCA 1257

FAMILY COURT OF AUSTRALIA

WEBSTER & WEBSTER [2008] FamCA 1257

FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth)

Kelly & Kelly (1981) FLC 91-007
Molier & Van Wick (No. 2) (1981) FLC 91-001
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (No. 1) (1986) CLR 681
Clement &Clement (1981) FLC 91-013
Sampson & Harnett  [2007] FamCA 732
Dewinter & Dewinter (1979) FLC 90-605
Storey v Storey (1945) 80 CLR 597
Blunt v Blunt (1943) AC 517

APPLICANT: Ms Webster

RESPONDENT: Mr Webster

FILE NUMBER: (P) SYF 2900 of 2006

DATE DELIVERED: 12 March 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Ryan

HEARING DATES: 20 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Bridger

SOLICITOR FOR THE APPLICANT: Jo-Anna F S Moy

COUNSEL FOR THE RESPONDENT: Mr P Livingstone

SOLICITOR FOR THE RESPONDENT: Watson & Watson

Orders

1. That all orders made in these proceedings on 21 December 2007 and 22 February 2008 are discharged.

2. That by way of property settlement it be ordered as follows:

   (a)That within 21 days of the date hereof the wife shall pay to the husband the sum of THREE HUNDRED AND EIGHTY-NINE THOUSAND FOUR HUNDRED AND SIXTEEN DOLLARS AND TWENTY-FIVE CENTS ($389,416.25) (“the principle sum”).

   (b)THE COURT NOTES that all Child Support arrears be discharged as from the date of the wife’s compliance with Order 2.1 and the wife be thereafter at liberty to seek an administrative assessment of child support.

   (c)That within 21 days the wife shall deliver to the husband the … book of drawings.

   (d)That unless otherwise specified in these orders, each party is declared solely entitled to the exclusion of the other to all other property and chattels, together with current and potential superannuation benefits of whatsoever nature and kind in the possession of such party as at the date of these orders and, that for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof;  insurance policies are deemed to be in the possession of the beneficiary thereof;  and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age and working future provides the conditions for payment out of such entitlements.

   (e)Simultaneously with the wife’s compliance with Order 2.1 the husband shall do all acts and things and execute all documents necessary to effect a transfer to the wife of his right, title and interest in the property at …, K.

   (f)Simultaneously with payment by the wife and the transfer referred to in Order 2.5, the wife shall do all things necessary to cause the mortgage with ANZ Bank Limited to be discharged.

   (g)That the payment of the principle sum carry interest at the rate provided by the Family Law Rules calculated from the due date of the payment, i.e. 2 April 2008, and until payment of the full amount.

   (h)That the interim parenting orders made 17 July 2006 be discharged as and from today.

   (i)That within 21 days both parties shall file such notices as may be required to discontinue their Appeal and Cross Appeal.

3. That each party shall pay his/her own costs of the proceedings.

4. That all outstanding Applications and Responses filed in this matter are dismissed.

5. That all documents produced upon subpona are to be returned within 7 days.

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

FAMILY COURT OF AUSTRALIA  AT NEWCASTLE

FILE NUMBER: (P) SYF 2900 of 2006

MS WEBSTER

Applicant

And

MR WEBSTER

Respondent

REASONS FOR JUDGMENT

1. This is an application that the Court grants a stay of property and parenting orders made on 21 December 2007.  These orders are set out below.

   1.        That all prior parenting orders are discharged.

   2.That the parties have shared parental responsibility for the children [J] born […] June 1990, [E] born […] August 1992 and [S] born […] February 1995.

   3.        That the children live with the applicant wife, [Ms Webster].

   4.That the child [S] shall spend time with the respondent husband, [Mr Webster], as follows:

   (a)during school term on alternate weekends commencing Friday at 6.00 m and concluding Sunday at 7.00 pm;

   (b)for one half of the end of terms one, two and three school holidays as agreed but in default of agreement the second half;

   (c)for one half of the Christmas holidays commencing at 3.00 pm on 25 December annually;

   (d)on the husband’s birthday if this happens to fall on a day when [S] is not otherwise due to spend time with the husband, commencing at 9.00 am and concluding at 5.00 pm if it is on a weekend, and commencing from after school until 7.00 pm in the event that it falls on a school day;

   (e)      from 9.00 am to 7.00 pm each Father’s Day;

   (f)       during school terms from after school each Tuesday until 7.00 pm;

   (g)on each of the children’s birthdays, if the children are not otherwise spending time with the husband in accordance with these orders, then from 9.00 am until 1.00 pm if it is a weekend day or from after school until 7.00 pm;

   (h)      at such other times as the parties agree.

   5.That in the event [S] wishes to change any of the weekend or school term periods with the husband, the wife shall notify the husband of any proposed alterations not later than 7 days prior to the relevant period.

   6.That in the event [S] wishes to change any of the school holiday periods with the husband, the wife shall notify the husband of any proposed alterations not later than 42 days prior to the commencement of the relevant school holidays.

   7.That for the next 18 months [E] will spend no less than the first weekend in each calendar month that [S] is with the husband also with her father. 

   8.That each party does all acts and things and executes all documents necessary to request the Principals of the children’s schools to forward to both parties copies of all school reports, school photographs, any notifications and other documents relevant to the children’s welfare and education, and in this regard, both parties shall be permitted to attend any functions at the children’s school to which parents are normally invited.

   9.That each party provides the other with details of his or her residential addresses and contact telephone numbers as they may be from time to time.  Should there be a change in either party’s contact details, such party must provide written notice to the other within 7 days of such change.

   10.That neither party is to discuss these proceedings with or in the presence of the children.

   11.That neither party is to denigrate the other party or members of the other party’s family in the children’s hearing or presence.

   12.In the event [S] and [E] are spending time with the husband on their birthdays then, provided that the birthday falls on a weekend, the children shall spend time with the wife from 9.00 am to 1.00 pm, with the wife to collect and return the children for that purpose.

   13.In the event [S] and [E] are to spend time with the husband on the Mother’s Day weekend, that order is suspended from 9.00 am on the Mother’s Day weekend.

   14.During school holidays, orders which provide for [S] to spend time with the husband on weekends and during the week are suspended.

   15.That within 42 days of the date of these orders, the wife shall pay to the husband the sum of $367,105.

   16.Simultaneously with payment by the wife pursuant to order 15 above, the wife shall do all things necessary to cause the mortgage over the former matrimonial home to the ANZ Bank (account number […]4) to be discharged.

   17.Simultaneously upon the wife’s compliance with orders 15 and 16 above, the husband shall do all acts and things and execute all documents necessary to effect a transfer to the applicant wife of his interest in the former matrimonial home situate at and known as [the K property] in New South Wales.

   18.In the event the wife fails to comply with orders 15 and 16 above within 42 days from the date of these orders, the parties shall do all acts and things and sign all documents necessary to cause the former matrimonial home to be listed for sale by private treaty with an estate agent at a price to be agreed between them but in default of agreement within 14 days at a price nominated by an estate agent appointed by the President or his nominee of the Property Institute of Australia, NSW Division and then do all acts and things and sign all documents necessary so as to effect a sale of the property with the sale proceeds to be applied in the following manner:

   (a)in payment of the amount due to the ANZ Bank (housing loan account number […]7);

   (b)      in payment of the estate agent’s commission and associated fees;

   (c)      in payment of legal fees in respect of the sale;

   (d)      in payment to the husband of forty (40) percent of the balance;  and

   (e)the balance remaining to the wife from which she shall immediately pay the husband $99,927.

   19.In the event that the property has not sold within five months from order 18 becoming operative, the parties will do all acts and things necessary to cause the property to be listed for sale by public auction with an estate agent and at a reserve price to be agreed between them, but in default of agreement within 14 days at a reserve price nominated by an estate agent appointed by the President or his nominee of the Property Institute of Australia, NSW division and then do all acts and things and sign all documents necessary so as to effect a sale of the property.

   20.That within 42 days the wife shall deliver to the husband his […] book of drawing and his jewellery referred to in the reasons for decision published in these proceedings this day.

   21.That unless otherwise specified in these orders, each party is declared solely entitled to the exclusion of the other to all other property and chattels together with current and potential superannuation benefits, of whatsoever nature and kind in the possession of such party as at the date of these orders, and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the beneficiary thereof; and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.

   22.That in the event of either party neglecting or refusing to execute all or any necessary instruments to give effect to these orders or any of them, a Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 to execute all such necessary instruments in the name of the defaulting party.

   23.That pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   24.A parties’ solicitor who caused documents to be produced under subpoena shall forthwith uplift such documents and return them to their owner.  

   25.      Subject to any costs application all outstanding applications are dismissed.

2. By her application filed on 5 February 2008 the wife (“the applicant”) has applied for a stay of orders 1, 4, 5, 6, 7, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23.  The effect of the applicant’s stay application is, if granted, all orders that the respondent sees the children are suspended and he would receive nothing by way of property adjustment until the applicant’s appeal is determined.  Summarised by her Notice of Appeal filed 18 January 2008, the applicant proposes that she pays the respondent $150,000 in lieu of $367,105 and that all parenting orders are discharged.

3. The husband (“the respondent”) filed a response to the applicant’s stay application on 20 February 2008.  Although he says that a stay is not warranted he concedes that the court may grant a stay of the property orders but only if the applicant pays him $200,000 and provides an undertaking to prosecute her appeal expeditiously.  By Notice of Cross-Appeal filed 11 February 2008, he seeks to increase the payment the applicant is ordered to make to $530,000.  Concerning the children’s orders, he seeks to extend orders 4 and 14 so that E spends time with him when S does. 

Relevant law

1. The power to order a stay is discretionary.  The general principles have been considered in a number of cases including Kelly & Kelly (1981) FLC 91-007 at 76,105; Molier & Van Wik (No. 2) (1981) FLC 91-001; Jennings Constructions Limited  v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681 at 683 and 685, and in parenting cases Clement and Clement (1981) FLC 91- 013. See also Sampson & Harnett  [2007] FamCA 732.

2. From these cases it is clear that a stay should not be ordered as a matter of right and an applicant for such an order must establish a ground for it.   The authorities indicate that as a general approach the following matters are relevant:

   ·Whether refusing a stay will render a successful stay nugatory or make it impossible or impracticable to restore the position;

   ·any hardship that would be suffered by the applicant and the respondent as a result of granting or refusing the stay;

   ·the merits of the appeal;

   ·whether there has been a delay in applying for the stay,

   ·the applicant’s bona fides and,

   ·the time it is expected for the appeal to be heard.

3. In Clement and Clement (1981) FLC 91-013, Nygh J said at 76,175:

   In determining whether a stay should be granted, the welfare of the child is the paramount consideration.  It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible.  If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.

4. It is important to understand the nature of an appeal to the Full Court of the Family Court of Australia.  In Dewinter and Dewinter (1979) FLC 90-605, the Full Court of the High Court, (at page 78-091) reads:

   I return to consider whether the errors made by the learned primary Judge vitiated the orders which he made in the exercise of his discretion. The principles which should govern an appellate Court hearing an appeal against an exercise of discretion are well settled. They were stated in House v King (1936) 55 CLR 499 at pages 504-5 as follows: "It is not enough that the Judges composing the Appellate Court consider that if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate Court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

5. In Storey v Storey (1945) 80 CLR 597 both Latham CJ at page 600 and Rich J at page 604 cited from the judgment of Viscount Simon LC in Blunt v Blunt (1943) AC 517 at page 526 as follows:

   If it can be shown that the Court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters, or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.  In such a case the exercise of discretion might be impeached because the Court's discretion will have been exercised on wrong or inadequate materials. There are many other authorities from Young v Thomas 1892 2 Chancery 134 at page 137 to Australian Cole and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, that recognise that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error, but it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary Judge.

6. Turning then to the applicant’s stay of the property orders.  During the course of submissions, the applicant conceded that a stay of the property orders could be granted upon conditions that she pays the respondent $150,000 within 28 days.  The applicant was represented variously by her solicitor, Ms Moy and later her counsel, Ms Bridger. Unfortunately, in many respects their submissions were contradictory.  It was difficult to understand precisely what the applicant proposed vis a vis the stay of orders 16 and 17, namely that the wife discharge the ANZ mortgage secured upon the former matrimonial home and that the husband transfer his interest in the home to her.  In a submission which bore little relationship to the applicant’s affidavit filed 5 February 2008, Ms Moy informed me that the applicant’s aunt, Ms I agreed to advance the applicant the funds required to discharge the ANZ mortgage. This is conditional upon the respondent transferring his interest in the home to the applicant.  Although the applicant refers to her aunt’s position concerning her refusal to advance funds sufficient to enable the applicant to comply with the orders, she makes no mention of the arrangements to which Ms Moy referred.  Ms Bridger, when making submissions concerning hardship emphasised that the respondent, as a joint registered proprietor of the former matrimonial home, should be able to raise funds sufficient to meet his financial needs pending the hearing of the appeal and secure any advance against his interest in the home.  Neither Ms Moy nor Ms Bridger sought to amend the stay application so as to require the respondent to transfer the home to the applicant pending the hearing of the appeal.  This is an issue to which I shall return later.  I mention it here to highlight the confusing presentation of the applicant’s stay application.

7. Returning to the matters requiring consideration then, the first is whether refusing a stay will render a successful appeal nugatory.  The applicant contends that if she is required to pay more than $150,000 and/or discharge the ANZ mortgage, she does not have the funds available and the family home must be sold.  At par 68 of my reasons I make findings concerning the parties’ assets, liabilities and financial resources as at the date of hearing.  These are set out below.  There is no challenge to these findings on appeal.

Assets	11.	$
The K property (J)	12.         Agreed	1,050,000
Wife’s bank account	13.         Agreed	8,002
Toyota Prado (W)	14.         Agreed	44,000
Painting “[…]” (W)	15.         Agreed	3,000
Book of pen drawings (H)	16.         Agreed	1,200
Household contents (H)	17.         Agreed	6,117
Household contents[1] (W)	18.         Agreed	25,000
Jewellery (W)	19.         Agreed	22,850
7,581 L Pty Ltd Shares (H) @ $0.435[2]	20.	3,297
1,500 units Australian Pipeline Trust (W) @ $3.48[3]	21.	5,220
4,850 ANZ Bank shares (W) @ $27.24[4]	22.	132,114
1,400 Westpac Bank shares (W) @ $28.80[5]	23.	40,320
5,432 AGL shares (W) @ $13.22[6]	24.	71,811
701 IAG shares (W) @ $4.20[7]	25.	2,944
3,137 Alinta shares[8] (W)	26.         Agreed	45,486
Wife’s jewellery owned before cohabitation	27.         Agreed	4,000
Husband’s jewellery	28.         Agreed	3,000
2004 Hyundai motor vehicle (H)	29.         Agreed	18,000
TOTAL	30.	1,486,361
Superannuation assets	31.	$
Wife’s Superannuation	32.         Agreed	10,669
Australian Super (H)	33.         Agreed	7,371
MLC Master Key Superannuation (H)	34.         Agreed	120,140
ING Superannuation (H)	35.         Agreed	21,360
Total Superannuation Assets	36.	159,540
TOTAL ASSETS	37.	1,645,901
Liabilities	38.	$
ANZ mortgage (J)	39.         Agreed	382,055
Husband’s credit cards	40.         Agreed	63,622
Wife’s credit cards	41.         Agreed	25,546
D Car Dealership (H)	42.         Agreed	18,000
TOTAL LIABILITIES	43.	489,223
TOTAL NET ASSETS	44.	1,156,678

[1] Excluding artwork

[2] ASX close of trade 18/12/2007

[3] APA Group website COB 18/12/2007

[4] ASX close of trade 18/12/2007

[5] ASX close of trade 18/12/2007

[6] ASX close of trade 18/12/2007

[7] ASX close of trade 18/12/2007

[8] Exhibit “C”

1. The respondent points out that the applicant has approximately $300,000 in shares which are readily realisable.  Hence whether $150,000 or $200,000 is ordered by way of a conditional stay, the respondent submits the applicant can make this payment without putting her ownership of the former matrimonial home in jeopardy.  The respondent does not require the mortgage to be paid out pending determination of the appeal and in effect concedes that a stay of this order.  On this basis the applicant’s continued occupation and ownership of the former matrimonial home is not jeopardised.  A stay on terms does not render the appeal nugatory.

2. If I understood Ms Moy correctly, Ms I now agrees to pay out the ANZ mortgage and advance the applicant $150,000, provided the respondent transfers his interest in the former matrimonial home to the applicant.  Ms Moy submitted that proceeding in this fashion enables Ms I to avoid paying unnecessary mortgage payments.  It also avoids hardship to the applicant by virtue of her needing to dispose of income producing assets.  The difficulty with this approach is that is inconsistent with the applicant’s application, her affidavit and her counsel’s submissions.  When I tried to reconcile applicant’s solicitors and counsels submissions I remained confused about whether the applicant sought a conditional stay of orders 16 and 17 or whether she wanted the house transferred so that Ms I would discharge the ANZ mortgage.  If this is the applicant’s preferred approach, it is immediately apparent that a stay on these conditions does not render the appeal nugatory.  As it is feasible that Ms Moy represented the applicants preferred position, provided she files an amended application and affidavit seeking orders in accordance with Ms Moy’s submission I will consider the issue further.

3. The applicant contends that there is a serious risk that the respondent will use any monies received to pay his legal costs and credit cards.  As a consequence, it is submitted that there is a serious risk that in the event her appeal succeeds, she would be unable to recover the excess.  The respondent has credit cards debts of $63,622 and $97,000 outstanding legal fees.  The applicant’s fees in the substantive hearing were paid by her aunt.  She points out that the respondent has few assets and owes her approximately $11,000 for child support.  The respondent agrees his child support arrears are in the sum alleged.   He says he intends to use his property adjustment to discharge these liabilities.  As my findings above reveal he has few assets and in the event that the applicant’s appeal succeeds I agree that there is a risk she may experience some difficulty in recovering the excess.  This weighs in favour of granting the stay on the applicant’s terms.  However, if a stay is given on the terms suggested the maximum amount that the applicant may need to recover is $50,000.  When one has regard to the respondent’s income, the risks associated with recovery warrant little weight.  

4. Concerning hardship, the applicant contends that the potential loss of the family home will cause her and the children real hardship.  J is in his High School Certificate year and E her School Certificate year.  I agree that requiring the sale of the family home is likely to be upsetting for the children during a year in which their educational interests require as little stress as possible.  However, as I have already found, there is little likelihood that the former matrimonial home needs to be sold.  The applicant says it will cause her hardship if she is required to sell a portion of her share portfolio.  Presently she receives $229 per week income from her shares.  At par 110 of my reasons I find that the applicant’s total income is $3,065 per week (including share investment income).  At par 116 I make findings concerning her expenses.  I find that the applicant’s total personal expenditure is $2,159.96, with an additional $303.50 per week specific child related expenses.  As these figures do not include day to day household expenses, I find that the applicant’s total average weekly expenses are at least equivalent to her total weekly income.  There is no challenge to these findings.  If the applicant sells two-thirds of her share portfolio, on a pro rata basis her share investment income would fall from $229 per week to $78 per week.  When one considers that only a few weeks ago the applicant had sufficient money to travel with the three children overseas, it is difficult to see how this modest reduction in her income could be described as creating hardship for her and the children.

5. At par 111 of my Reasons I find that the respondent earns approximately $12,000 per month gross.  This equates to $2,770 per week.  I deal with his expenses at par 117 and find that his total personal expenditure is $2,446 per week.  There is no challenge to these findings.  While this enables the respondent to meet his necessary day to day living expenses, he is without sufficient funds or resources to pay pressing liabilities; namely outstanding legal fees, child support arrears and credit card debts.  Credit card debts usually attract high rates of interest.  Although the respondent’s outstanding legal fees do not appear to be subject to penalty interest for non-payment, this is a pressing liability which the respondent is concerned to address.  If he receives $150,000 he needs to find another $21,000 to discharge his pressing liabilities.  Denying him the funds to do so is tantamount to hardship and weighs in favour of a stay upon conditions that he is paid $200,000.

Conclusion

1. The applicant has presented a notice of appeal which as far as the property orders is concerned lacks particularity, and if the appeal is prosecuted with this notice of appeal, the applicant will be in great difficulty when it comes to arguing her case. An applicant must establish that the appeal is prosecuted on substantive grounds and I have already found that the notice of appeal does not raise grounds that I could accept suggest that there is a reasonable prospect of its success.  I make the same observations in relation to the grounds concerning the parenting orders.  Counsel submitted that the applicant intended to amend her Notice of Appeal in fashion she was unable to explain.  There is nothing to which I was taken which indicated that the appeal falls within the category of cases raising “substantive grounds.”

2. The applicant’s representatives failed to enquire of the Appeals Registrar when her appeal is likely to be heard.  Counsel commented that she is briefed to appear in an appeal which will be heard in June 2007, from which I was invited to infer that this matter could be listed within about 6 months.  On further enquiry counsel explained that the matter to which she makes reference has been expedited.  The parties agree that there is no basis upon which this appeal would be expedited.  At best it appears that this appeal may be listed for hearing in about September 2008.  I agree with the respondents counsel that it is curious that the applicant makes no concession to prosecute her appeal expeditiously.  The issue having been raised the applicant agrees that she will do so and submits to an order to this effect.

3. Concerning the children’s issues, if a stay is granted the effect is that the earlier interim orders spring into effect.  This means that the children will spend more time with their father than ordered on a final basis.  There is a fundamental inconsistency between the stay and the outcome contended for on appeal.  Simply put by granting a stay of the parenting orders the applicant well receive a worse outcome, to her, than these orders provide.  My final orders are closer to the applicant’s position than the earlier orders.  It seems to me her position on the stay application vis parenting orders is curious and possibly ill conceived.  The application for a stay of the parenting orders cannot be seen as bona fide and will simply create more confusion for the children.

4. In the circumstances of this case, there will be a partial and conditional stay of the orders.  So as to give the applicant an opportunity to clarify the ambiguity concerning her position viz a vie the respondent transferring to her his interest in the former matrimonial home I make directions enabling her to pursue this issue further.

5. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate

Date:  12 March 2008