WPH V ITP HC AK CIV 2009-404-000462 [2009] NZHC 696 (10 June 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                       CIV 2009-404-000462


                IN THE MATTER OF              an appeal under the Property
                                              (Relationships)
Act 1976

                BETWEEN                       WPH
                                              Appellant

           
    AND                           ITP
                                              Respondent


Hearing:        3 June 2009

Appearances:
P K Cobcroft for Appellant
             A P Miller for Respondent

Judgment:       10 June 2009


                  RESERVED JUDGMENT
OF RANDERSON J




                      This judgment was delivered by me on 10 June 2009
                     at 11.30 am, pursuant
to r 11.5 of the High Court Rules




                                   Registrar/Deputy Registrar




Solicitors:     Rennie Cox,
PO Box 6647, Auckland
                Millers, PO Box 14-520, Panmure, Auckland
Counsel:        P K Cobcroft, PO Box 47-345, Ponsonby,
Auckland




WPH V ITP HC AK CIV 2009-404-000462 10 June 2009
Introduction


[1]    The     appellant   Mr   H   appeals   against
  a   judgment    delivered   by
Judge B H S Neal in the Auckland Family Court on 16 December 2008 in
proceedings under the Property
(Relationships) Act 1976.


[2]    Judge Neal found that Mr H and the respondent Ms P were in a de facto
relationship which commenced
in October 1997 and ended on 27 February 2005. In
making this finding, the Judge rejected Mr H's contention that the de facto
relationship
ended in January 2002 immediately before the legislation was amended
with effect from 1 February 2002 to cover de facto relationships.
The Judge found
that the family home shared by the couple at 11 T Street was relationship property.
The T Street property had been
acquired by Mr H in 1990 and registered in his name.
The Judge made no orders in respect of another property in Rotorua which was
registered in the name of a family trust settled by Mr H.


[3]    In this appeal, the sole issue is whether the Judge was correct
to find that the
parties were in a de facto relationship within the meaning of the Act during the
period from January 2002 until
27 February 2005. Mr H accepts there was a de facto
relationship between himself and Ms P in the period prior to January 2002, during
which time the parties had two children together who were born in August 1997 and
September 2000 respectively.


The Judge's findings


[4]    The Judge found that the parties met in May 1995, at which time Ms P had
two children residing with her from a previous
relationship. There was disputed
evidence as to when the couple began living together. The Judge found that the
evidence on this
point lacked detail but was satisfied that the de facto relationship
between the parties commenced in October 1997. It was on that
date that Mr H
accepted Ms P moved into his T Street property. It is common ground that the
T Street property comprises a dwelling
described as the main house at the front and a
self-contained unit of two levels at the rear. Mr H designated the main house as

11A T Street and the rear unit as 11 T Street. The main house and the rear unit are
joined by a passageway but the rear unit also
has a separate outside entrance. There
was disputed evidence about how readily access could be obtained between the main
house and
the unit. It is clear that at various times, the rear unit has been rented but
both the main house and the rear unit have been used
by the parties and their children
from time to time. As well, to help with expenses, students were taken in as
boarders in the main
house.


[5]    Initially during the relationship, Ms P was in receipt of a domestic purposes
benefit. However, on July 2001 she
took up employment and her benefit ceased.
Mr H had been operating an airport shuttle business and also seems to have been
employed
in other unspecified capacities. In January 2002, he was diagnosed with a
brain tumour and was no longer able to operate the shuttle business or
to undertake
employment. He says that, in consequence, he moved into the rear unit alone and
commenced receiving a sickness benefit
on a single person basis. He maintained
that there were difficulties in the relationship with Ms P at that stage and he asked
her
to sign an agreement contracting out of the provisions of the Act. He also says
that Ms P consulted a lawyer in December 2001 and
again in January 2002.


[6]    Mr H's account is best described in his own words from an affidavit he swore
on 26 September 2007:

       In January 2002 I asked the applicant to enter into a contracting out
       agreement so that I could ensure that the property
at T Street remained my
       separate property for the benefit of my adult children as well as my children
       with the applicant.
The applicant refused. At about the same time I found a
       draft affidavit relating to property proceedings in the Family Court
("D").
       This had been completed by the applicant in pen. This was the final show
       for me and I knew our relationship
as a couple was over.

       In early January 2002 after receiving medical advice that I had a brain
       tumour that needed to
be removed I decided that the only way that I could
       keep the property at T Street separate was to ensure that the applicant
and I
       did not live in the property together. I went onto the single person's sickness
       benefit at this time. I said
to the applicant that the only way that we could
       parent our children together would be if I moved into the rear unit. T Street
       is divided into two units and we were each separately responsible for our
       own finances. The applicant agreed and she
began to live on her own with
       the children at 11A T Street. I paid the mortgage, rates and insurance in
       respect of
both properties.
       The result was that the applicant, from January 2002 lived at 11A T Street
       while I lived at 11 T
Street, .... I attach marked "E" bundle of five letters
       confirming the applicant's address as 11A T Street.

[7]    Effectively,
Mr H's contention was that, although the parties continued to
live under the same roof, they were living in separate households,
maintained
separate finances, their sexual relationship had ceased and their relationship was
limited to their role as co-parents
in respect of the children.


[8]    Ms P strongly disputed Mr H's account. She accepted there were difficulties
in the relationship
from time to time but maintained they remained together as a
couple in a de facto relationship during the relevant period. There
were times when,
for short periods of two or three days, Mr H would "lock himself away" in the rear
unit but generally they shared
the double bed in the upper level of the rear unit. She
accepted she had seen a lawyer in December 2001 out of concern about alleged
abuse by Mr H towards herself and the children but denied seeing a lawyer in
January 2002. She also accepted that a draft affidavit
for relationship property
purposes had been prepared around this time but was not pursued. Ms P maintained
that the sexual relationship
between the parties continued right through until their
ultimate parting some years after 2002. She denied Mr H had moved on any
permanent basis into the rear unit. She says she took time off work in 2002 to care
for Mr H.


[9]    It is not in dispute that
Ms P operated the shuttle business with effect from
January 2002 onwards. She did so on a part-time basis while also undertaking
other
employment. Mr H accepted that this business had been set up by Ms P and himself
although, curiously, Ms P denies that and
says it was Mr H's business. It appears
that the shuttle business continued to be operated until December 2004 when the
account at
the Westpac bank for the business was closed. A bank statement was
produced dated 6 December 2004 showing the business bank account was sent c/- of
Ms P at 11A T Street.


[10]   The Judge accepted
that the parties had always maintained separate bank
accounts and that Mr H always paid the outgoings on the T Street property. In
that
respect, as the Judge noted, there was no difference before and after January 2002.
The Judge relied on the following further
factors as indicating an on-going de facto
relationship beyond January 2002:


       ·   While each party had separate finances,
there was evidence of a degree of
           interdependence.
       ·   School fees were paid by each of the parties at different
times depending
           on who had the ability to do so.
       ·   The parties ran a business together and although some of the
money went
           through Ms P's bank account, it was used by both of them.
       ·   At times the parties hosted students as
boarders, the income from which
           went into Ms P's bank account but was withdrawn and paid to Mr H from
           time
to time by her.
       ·   When Mr H became ill in January 2002, Ms P took time out to care for
           him, to look after the
children and to operate the shuttle business.
       ·   As late as September 2004 and March 2005, Mr H took Ms P's car for
    
      warrant of fitness inspections.
       ·   Ms P arranged funeral insurance for the entire family including Mr H in
       
   May 2002.
       ·   The parties continued to attend events together and the public
           presentation of the parties as
a couple remained the same throughout the
           relevant period.
       ·   Electricity accounts for the T Street property continued
to come to Ms P
           after February 2002 at 11 T Street.


[11]   Although the Judge did not make any explicit findings as
to credibility, he
clearly preferred Ms P's account of the living arrangements. He stated at [21]:

       In a statement to the
Police on 24 February 2005 the applicant says that she
       was living in the house and the respondent was living in the contained
unit
       which was attached to the house. That tends to corroborate the respondent's
       version of the situation at that time,
but having heard each of the parties and
       having regard to the evidence, I am of the view that given the ongoing
       family
situation that existed that the applicant's version of the living
       arrangements is more likely to be correct up until that
period of volatility in
       late 2004 and early 2005.
[12]   The overall conclusions of the Judge were expressed at [25] and
[26] as
follows:

       When I take into account each of the matters that are set out in s 2D(2)
       which of course are not
exhaustive and then stand back and view the
       relationship overall, it is my view that even if the respondent had been
    
  residing in the back unit in an attempt to protect the property status that is
       not conclusive of whether they were living
together as a couple. In the
       circumstances of this case I consider that the parties have continued to live
       together
as a couple.

       In my view the de facto relationship was in existence as at 1 February 2002
       and continued, albeit that
it deteriorated in quality towards the end, through
       until 27 February 2005.

[13]   The Judge observed at one point of his
judgment that it did not appear to be
disputed that a sexual relationship continued between the parties after January 2002.
It is
accepted that the Judge was in error on that point, Mr H maintaining that the
sexual relationship came to an end in January 2002.
This point is one of a number
relied upon by Ms Cobcroft in supporting Mr H's contention that the Judge erred in
finding that the
de facto relationship continued beyond January 2002.


Approach on appeal


[14]   Counsel were in agreement that the onus is upon
Mr H (as the appellant) to
show that the Judge's conclusion was wrong. But they differed as to the basis on
which an appellate court should intervene in decisions made by the Family Court.
Ms Cobcroft emphasised
that an appellate court is fully entitled to substitute its
views on questions of fact and submitted that there is no rule of law
requiring the
High Court to defer to the Family Court even in a finely balanced case: D v S  [2003]
NZFLR 81 (CA). On the other hand, Mr Miller submitted that the correct approach
is that adopted in cases such as May v May  (1982) 1 NZFLR 165 and that an
appellate court should not simply substitute its discretion for that of the Judge at first
instance. He submitted that
the appellant must show that the Judge acted on a wrong
principle, failed to take into account some relevant matter, took into account
some
irrelevant matter or that the Judge was plainly wrong.
[15]   These authorities overlook the recent decision of the Supreme
Court in
Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141. The Supreme
Court decided that, in a general appeal against
the exercise of an evaluative judgment
involving issues of fact and degree, undue deference need not be paid to the Court at
first
instance. If the appellate court would have come to a different conclusion from
that reached by the Judge, it must follow that the
original decision was wrong and
the appellate court should then intervene.


[16]   In Blackstone v Blackstone  (2008) 19 PRNZ 40, Glazebrook J, writing for the
Court of Appeal, held that appeals from a discretion are not affected by Austin,
Nichols and that
the principles in May v May (above) continue to apply. Some
reasonably plain ground ought to be made out before an appellate court
will
intervene.


[17]   I propose to adopt the approach that some reasonably plain ground should be
made out before this Court intervenes
on appeal while recognising, consistently with
Austin, Nichols, that the appellate court should form its own opinion without undue
deference to the assessment of the lower Court. I accept, however, that on issues of
credibility, an appellate court should give
appropriate weight to the conclusion of the
Judge at first instance who has had the advantage of seeing and hearing the
witnesses.
That is of some significance in the present case where the Judge heard the
parties cross-examined at length and also heard from Ms
P's sister who had sworn an
affidavit and was also cross-examined.


Relevant Law


[18]   The section which is critical to the resolution
of this appeal is s 2D Property
(Relationships) Act, which provides:

       2D          Meaning of de facto relationship

     
       (1)     For the purposes of this Act, a de facto relationship is a
                     relationship between 2 persons (whether
a man and a woman, or
                     a man and a man, or a woman and a woman)--

                     (a)   who are both aged
18 years or older; and
                     (b)   who live together as a couple; and
                   (c)   who are not married
to, or in a civil union with, one
                         another.

             (2)   In determining whether 2 persons live together
as a couple, all the
                   circumstances of the relationship are to be taken into account,
                   including
any of the following matters that are relevant in a
                   particular case:

                   (a)   the duration of
the relationship:
                   (b)   the nature and extent of common residence:
                   (c)   whether or not a sexual
relationship exists:
                   (d)   the degree of financial dependence or interdependence, and
                       
 any arrangements for financial support, between the
                         parties:
                   (e)   the ownership, use,
and acquisition of property:
                   (f)   the degree of mutual commitment to a shared life:
                   (g)  
the care and support of children:
                   (h)   the performance of household duties:
                   (i)   the reputation
and public aspects of the relationship.

             (3)   In determining whether 2 persons live together as a couple,--

     
             (a)   no finding in respect of any of the matters stated in
                         subsection (2), or in respect of
any combination of them, is
                         to be regarded as necessary; and
                   (b)   a Court is entitled
to have regard to such matters, and to
                         attach such weight to any matter, as may seem appropriate
      
                  to the Court in the circumstances of the case.

             (4)   For the purposes of this Act, a de facto relationship
ends if--

                   (a)   the de facto partners cease to live together as a couple; or
                   (b)   1 of the
de facto partners dies.

[19]   If the parties were no longer living in a de facto relationship as at
1 February 2002 then the provisions
of the Act do not apply to their relationship
(s 4C(2)).


[20]   On the facts of the present case the focus of the inquiry must
be on
s 2D(1)(b), namely whether the parties were living together as a couple at
1 February 2002. Subsection (2) requires an examination
of all the circumstances of
the relationship including the nine identified factors. Subsection (3) clarifies that it
is not necessary
for the Court to make specific findings on the identified factors and
that the weight to be attached to any such factors is a matter for the Court to the
extent considered appropriate in the circumstances of the case.


[21]   As the Full Court in Scragg v Scott  [2006] NZFLR 1076 observed at [64]:
       In determining whether a de facto relationship exists Courts are often
       required to assess multiple
pieces of circumstantial evidence. That is why
       the indicia set out in s 2D are inclusive but not exhaustive. If sufficient
       pieces of evidence exist which, when viewed cumulatively, and through the
       application of common sense and proper reasoning,
satisfy the finder of fact
       that the relationship is a de facto relationship then the statutory test is met.
       Weight
to be given to individual pieces of circumstantial evidence may vary.
       If both parties say they are in a de facto relationship
that may well be
       decisive direct evidence, depending upon the existence of other
       characteristics. Parties may simply
present to the outside world in a
       particular way. They may share an emotional bond or association over an
       extended
period and act in a way, inconsistent with any view other than that
       they are in a de facto relationship. It is the cumulative
weight of all factors
       whether specified in the Act or not (because as was made clear by the
       minority judgment in Ruka
(above) "there will be others"), which is decisive.
       The approach must be broad, with various factors to be weighed up in an
       evaluative task, similar to those the Courts are frequently called upon to
       undertake when drawing conclusions from
circumstantial evidence.

[22]   A common sense objective evaluation of relevant factors is required and care
must be taken not to
treat the factors identified specifically in s 2D(2) as necessarily
determinative of the outcome of the central inquiry.


[23] 
 The relevant authorities were recently considered by Priestley J in
Benseman v Ball  [2007] NZFLR 127. The Judge helpfully reviewed the authorities
on desertion or separation under the former Matrimonial Proceedings Act 1963 and
the
determination of when a married couple were "living apart" prior to the 2002
amendment of the Matrimonial Property Act 1976. These
authorities discussed the
requirements for physical separation accompanied by a mental element "adverse to
cohabitation."


[24]
  After reviewing these authorities, Priestley J concluded:

       [43] The reciprocal rights and duties of spouses to consortium
arose out of
       a marriage. New Zealand legislation, so far as the Act is concerned, does not
       distinguish between de facto
relationships and marriages. Consortium is not
       an incident of a de facto relationship in the sense that it is a legal duty
such
       as marriage imposes on spouses. Nonetheless it would be unreal, given the
       policy of the Act and related family
legislation, to invoke different tests for
       de facto relationships and marriages. The rupture of consortium which
       desertion
or living apart brought to a marriage is, in my judgment,
       qualitatively identical to the cessation of cohabitation which can
occur in de
       facto relationships. Usually, but not always, a physical separation will be
       conclusive evidence of the
cessation of the relationship. In some cases, the
       necessary animus must be established.
       [44] The acceptance of a two
faceted approach to the determination of
       whether parties to a de facto relationship are living together as a couple for
 
     the purposes of the Act is evident in the Family Court decisions of O v K
        [2004] NZFLR 507 (FC) and Ferguson v Fish (FC North Shore, FAM-2003-
       044-1895, 13 September 2004, Judge Ryan).

       [45] In O v K Judge
Fitzgerald found that s 2D required the same approach
       to analysis as that under the Matrimonial Property Act when determining
the
       date of separation (at 511). This approach was approved by Judge Ryan in
       Ferguson v Fish who went on to state that:

               [17]    "Living apart" which is in my view the same as
               "ceased to live together as a couple" involves
a physical
               separation and a state of mind by either or both parties
               deciding to no longer cohabit.

       [46] Against that background, it would be an error to construe, as Mr
       Benseman has done, para [51] of Scragg v Scott
as authority for the
       proposition that a de facto relationship remains afoot until such time as one
       party communicates
the end of the relationship to the other. Such an
       approach would be an over simplification. Cohabitation is an important

      aspect of the necessary inquiry. But there must also be a focus on whether
       one party regards the relationship as being
at an end. Ultimately, as the Full
       Court observed in Scragg v Scott, this will be a matter of inference.

       [47] Relationships
of varying quality will obviously exist between partners
       and spouses post-separation. What courts must examine is the totality
of the
       evidence to determine, often inferentially, the date on which the critical
       ingredient of consortium or living
together as husband and wife or a couple
       came to an end. On the facts of this case, although Mr Benseman might not
      
have considered he and Mrs Foster had ceased living together as husband
       and wife, quite apart from the recital in the August
2001 agreement, there
       was ample evidence that Mrs Foster had a different view. Her animus would
       suffice.

[25]   Ms
Cobcroft also referred the Court to the summary of principles adopted by
Barker J in U v U  [1994] NZFLR 474 at 478 when considering the expression
"living apart" under previous legislation. In that case, Barker J accepted that spouses
may
"live apart" in the same residence. Or, to put the matter another way, the parties
may no longer be "living together as a couple"
even though living under the same
roof. In the end, the evaluative task must be one of fact and degree taking into
account all of
the circumstances of the case.


Grounds of appeal


[26]   The grounds of appeal advanced by Ms Cobcroft may be summarised as
follows:
       a)     The Judge placed insufficient weight on the statement Ms P gave to
              the police on 24 February 2005.

      b)     The Judge failed to identify any qualitative change in the relationship
              between the parties as at February
2005 (when he found the
              relationship had ended).
       c)     The correct characterisation of the relationship was
that the parties
              were separated co-parents living in the same property in order to care
              for the children.
       d)     The Judge placed too much weight on evidence that was without
              foundation or was wrong.
       e)    
The Judge placed undue weight on his erroneous factual finding that a
              sexual relationship continued after January 2002.
       f)     The Judge gave undue weight to the addresses given by Mr H when
              obtaining the warrants of fitness for
Ms P's motor vehicle.
       g)     The Judge failed to weigh factors pointing against a finding that the
              parties continued
to live together as a couple after 1 February 2002.


Discussion


[27]   The evidence before the Judge comprised affidavits from
the parties and
Ms P's sister. In addition, a substantial body of further documentation was produced
at the hearing when the parties
were cross-examined. There being no suggestion that
the Judge applied any wrong legal principle, the onus is on Mr H to establish
that,
viewed overall, the Judge's conclusion on the evidence was wrong.


[28]   I have reviewed the entire transcript of evidence
and all the affidavit and
other documentary evidence. I am not persuaded that the Judge's assessment was
wrong. Indeed, I am satisfied
that the Judge was entitled to reach the conclusion that
the parties were still living together as a couple on and after 1 February
2002. It is
appropriate in the circumstances of this case to recognise the advantage the Judge
had in seeing and hearing the witnesses
and in preferring the account given by Ms P.


[29]   Dealing in turn with the points raised by Ms Cobcroft, Ms P's statement to
the police in February 2005 that "she was living in the house and Mr H was living in
the self-contained unit" did not greatly assist
Mr H's case because it related to a state
of affairs some three years after the relevant date. The Judge was entitled to reach
the
conclusion that "given the ongoing family situation that existed that the
applicant's version of the living arrangements is more
likely to be correct up until
that period of volatility in late 2004 and early 2005". By that stage, it is common
ground that the
parties were in serious dispute, Ms P having applied for protection
and occupation orders in December 2004. This fact is also sufficient
to dispose of
Ms Cobcroft's second ground of appeal. Clearly, there was a qualitative change in
the relationship as at February 2005
involving a major breakdown in the relationship
of the parties.


[30]    The submission that the correct characterisation of the
relationship was of
separated co-parents living in the same property was not seriously open on the
evidence. Key factors here are
Mr H's acceptance that Ms P's earnings were used to
pay shared bills; his acknowledgement that he was present as a "support role"
for the
homestay students accommodated at the address from the Oceania College in 2002
"because they wanted a family, they prefer
like a husband and wife and she wanted
me to be there..."; his acceptance that he arranged to take her motor vehicles to
obtain warrants of fitness in 2004 and 2005; the fact
that Ms P had taken out funeral
insurance with Tower Insurance in 2002 for both herself, Mr H and all the children;
the high probability
on the evidence that Mr H received the benefit of at least some
of the earnings from the shuttle business after February 2002 (as
evidenced for
example by a payment of $800 in August 2002); Mr H's acknowledgement that
Ms P took time off work to care for him after
his operation on 2002; the fact that
electricity accounts were sent to Ms P at 11 T Street between 2002 and 2004 both for
that property
and the Rotorua property; Ms P's evidence (supported by her sister) of
the ongoing relationship of the parties as a couple and the
social functions they
attended as a couple; and a portrait photograph of the family group in 2004.


[31]    As already noted, it
is accepted that the Judge erred in finding that there did
not appear to be any dispute that a sexual relationship continued. And,
it is also
accepted that the Judge mentioned in several other parts of his judgment that the
sexual relationship continued. However,
as Mr Miller submitted for Ms P, it was
open for the Judge to reach the conclusion that the sexual relationship did continue.
The
Judge was entitled to prefer Ms P's evidence on this point, particularly when she
was not cross-examined on this issue. Given all
the other evidence of the ongoing
nature of their relationship between 2002 and 2005 and the fact that they continued
living under
the same roof, it was reasonable for the Judge to conclude in all the
circumstances that the sexual relationship did continue.


[32]   Ms Cobcroft submitted that the Judge was wrong to treat the warrant of
fitness issue as noteworthy. She focused her attention
on the different addresses
given by Mr H when he took Ms P's car to obtain the warrant.                         On
23 September 2004
the address given was 11A T Street and on 30 March 2005 it was
11 T Street. Ms Cobcroft submitted that the 2004 address was consistent
with Mr
H's evidence that Ms P was by then living in the main house (which he had
designated as 11A) and, on the 2005 occasion, she
had moved to another address
altogether so the address of 11 T Street was given.


[33]   I must say I have difficulty in accepting
the significance of the subtleties over
the addresses. The distinction between 11 and 11A T Street was not official. I was
told that,
in fact, there are no separate letter boxes. As well, the references to 11 and
11A were so variable as to suggest the choice was
somewhat random. In any event,
despite the suggestion that the parties were simply "co-parenting", the fact that Mr H
obtained the
warrant of fitness on each occasion for Ms P's car is more consistent
with the Judge's finding than not. It was not something explicable
solely on the
basis that he was helping with the care of the children.


[34]   As to possible negative factors that it was said
the Judge did not consider, it
is clear that the Judge did take into account that the parties had separate bank
accounts and that
there was no evidence of joint acquisition of property. That state
of affairs existed throughout the relationship. The Judge also
noted that Ms P had
consulted a lawyer in December 2001 and cannot be said to have disregarded that
fact. He was entitled to accept
her explanation that she was considering a separation
at that time but did not take the issue further and the relationship continued.


[35]   Ms Cobcroft also submitted that the Judge did not take into account the fact
that Mr H applied for and obtained a single
person's sickness benefit in January
2002. I do not regard this as a significant factor. It was not highlighted in evidence
at the
hearing and there may have been other explanations for Mr H's conduct in this
respect. Importantly, the Judge was entitled to prefer
Ms P's overall view of the
relationship given the concessions made by Mr H in a number of respects as already
identified and the corroboration of Ms H's account by her
sister, the documentary
evidence and photographs.


Conclusion


[36]   I am not persuaded that the Judge was wrong to conclude that
the parties
remained in a de facto relationship over the period he defined. It follows that the
appeal is dismissed.


[37]   I am
not aware whether the appellant is legally aided. If not, there will be an
award of costs in favour of the respondent against the
appellant on a 2B basis with
disbursements to be fixed by the Registrar.


[38]   If the appellant is legally aided, then counsel
should advise the Court within
two weeks of the date of this judgment.


[39]   The Family Court is now at liberty to proceed with
the determination of any
outstanding issues.




                                               ______________________________
 
                                                       A P Randerson J
                                                       Chief
High Court Judge