Allan and Allan

[2008] FamCA 994

FAMILY COURT OF AUSTRALIA

ALLAN & ALLAN [2008] FamCA 994

FAMILY LAW – SPOUSAL MAINTENANCE – interim maintenance – threshold issue of the applicant being able to adequately support herself – assessment of quantum of maintenance - relevant matters

Family Law Act 1975 (Cth) ss 37A(10), 72(1), 75(2)

Mitchell and Mitchell (1995) FLC 92-601
Wilson and Wilson (1989) FLC 92-033
 Redman and Redman (1987) FLC 91-805
Bevan and Bevan (1995) FLC 92-600

APPLICANT: Mrs Allan

RESPONDENT: Mr Allan

FILE NUMBER: SYC 3842 of 2008

DATE DELIVERED: 24 November 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 11 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: G Richardson SC

SOLICITOR FOR THE APPLICANT: Paul & Paul, Lawyers

COUNSEL FOR THE RESPONDENT: M R Aldridge SC

SOLICITOR FOR THE RESPONDENT: John DeMestre & Co., Solicitors

Orders

1. That Order 1.4 commencing with the words “as and from 1 October 2008 the husband pay to the credit of the Wife’s Visa Card a sum of not less than $20,000 per month or such amount as may be necessary to reduce the balance owing to Nil, but being no more than $40,000 per month” and Order 1.5 made 8 September 2008 are set aside.

2. That the husband pay or cause to be paid to the wife by way of interim spousal maintenance the sum of $6,214.00 per week by depositing that amount to the credit of the wife’s nominated bank account less any amount paid or cause to be paid by him to the credit of the wife’s Visa card, the first payment to be made on or before the expiration of seven (7) days from the date of the last weekly or monthly payment made by the husband since 1 October 2008 pursuant to Orders 1.4 and 1.5 made 8 September 2008.

3. That by way of interim spousal maintenance for the wife the husband pay or cause to be paid the council rates, water rates, land tax, unit levies, householder’s insurance premiums and household contents insurance premiums, and all other outgoings in relation to all and any property resided in or occupied by the wife owned by the Allan Family Trust or any trust or company directly or indirectly controlled by the husband or is owned by both or either of the husband and wife.

4. That the application for a stay of proceedings filed on behalf of the husband on 13 October 2008 is dismissed.

5. That the contravention application filed on behalf of the wife on 19 September 2008 shall be listed for directions before Judicial Registrar Loughnan at 10.00am on 9 December 2008.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3842 of 2008

MRS ALLAN

Applicant

And

MR ALLAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. By his Application in a Case filed 26 September 2008 the husband sought a review of the following orders for interim spousal maintenance made by Loughnan JR on 8 September 2008 (“the orders”):

   “1.Orders are made in terms of paragraph 1.4 and 1.5 of the Further Amended Application in a Case as set out hereunder:

   ‘1.4Within 7 days of the date of these Orders that the Respondent Husband do pay the outstanding balance of the Wife’s Visa Card being an amount of not less than $43,000 not more than $49,000 and as and from 1 October 2008 the husband pay to the credit of the Wife’s Visa Card a sum of not less than $20,000 per month or such amount as may be necessary to reduce the balance owing to Nil, but being no more than $40,000 per month.

   1.5That the Respondent Husband do pay to the Applicant Wife by way of spouse maintenance the sum of $10,000.00 per week by depositing same to the credit of the wife’s nominated Bank Account less any monies paid by the Husband pursuant to Order 1.5 [sic].’”

2. The husband also sought a stay of the orders in accordance with his Application filed 13 October 2008.  Senior Counsel for the husband made it clear that the stay was only sought in the event of judgment being reserved for a lengthy period of time.

3. The husband also sought an order for costs.

4. Notwithstanding the orders sought in paragraph 1 of the husband’s Response filed 19 August 2008, it was clear from the conduct of the case by senior counsel on behalf of the husband that an order was sought that the orders be set aside, as opposed to only raising an issue as to quantum of the order.  The orders sought to be set aside are Order 1.4 in relation to the husband’s ongoing liability to make payments to the credit of the wife’s Visa card as from 1 October 2008 and Order 1.5 of the orders.

5. The wife sought an order that the husband’s application for review be dismissed.

6. On 19 September 2008 the wife filed a Contravention Application.  I have not heard that application.  Directions will be made in relation to fixing it for hearing in the event that the wife continues to rely upon it.

7. The husband’s application for review was heard de novo.[1]

   [1] Section 37A(10) of the Family Law Act 1975.

8. The orders reflected the terms of the orders sought by the wife in paragraphs 1.4 and 1.5 of her “Further Further Amended Application in a Case” filed 29 October 2008.

9. Pursuant to s.74 the Court has a discretionary power to make an order for spousal maintenance.

10. Section 72(1) is in the following terms:

    (1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

    (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

    (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

    (c)for any other adequate reason;

    having regard to any relevant matter referred to in subsection 75(2).

11. The case for the husband is that the wife is able to adequately support herself having regard to her available financial resources and reasonable financial commitments and in the alternative, should the wife demonstrate that the terms of any order is “proper” in accordance with s.74 it should reflect a quantum of financial commitments, particularly reasonable expenditure, far less than that sought by the wife.

12. The Allan Family Trust (“the trust”) holds significant assets.  Senior counsel for the husband acknowledged that the trust is the alter ego of the husband for the purpose of these proceedings.  There are other trusts and companies which own real property and other property.  The husband is the appointor in relation to those trusts and together with the wife is a director of relevant companies.  It is implicit from the affidavit evidence of the husband that those trusts and companies are part of a group of entities under the control of the husband.

13. The hearing proceeded on the Papers in accordance with the usual practice and procedure.  Leave was not sought to cross-examine either of the parties.

Historical background

1. The parties cohabited for a period of approximately 40 years.  Cohabitation commenced on their marriage which took place in August 1967.  They separated in late 2007.  Cohabitation was resumed in May 2008.  The parties finally separated on 18 June 2008.  They have lived separate and apart from each other continuously since that time.

2. The wife is 62 years of age and is employed as a manager.

3. The husband is 67 years of age.  He is a company director.

4. There are four children of the marriage who are over the age of 18 years and are independent.

5. The former matrimonial home is the property situated and known as R property.

6. It is not clear from the affidavits of the parties where their respective current residences are, other than implicitly being properties owned by one or other of the commercial entities controlled directly or indirectly by the husband.

7. There are pending property proceedings between the parties in relation to property settlement and spousal maintenance.

The threshold issue

1. It is submitted on behalf of the husband that the wife has not met the threshold issue namely, that she is unable to adequately support herself “for any other adequate reason having regard to any relevant matter referred to sub-section 75(2).”[2]

   [2] Section 72(1) of the Family Law Act 1975

2. The basis of that submission is that the wife’s financial resources represented by her income, superannuation entitlements and ability to access the “M Facility Funds” are such that she is able to adequately support herself.

3. The evidence of the wife’s income, the “M Facility Funds”, the wife’s bank funds, and her superannuation entitlements are set forth in her Financial Statement sworn 10 November 2008 filed in court on 11 November 2008 without objection (“the wife’s financial statement”).

4. The wife’s income amounts to $344.00 per week gross which comprises bank interest/dividends of $194.00 and rent from an apartment in E of $600.00 per month.

5. The wife’s bank funds have a nett balance of $147,874.00.  The M Facility Funds have a credit balance of $248,233.00.  The source of those funds is represented by the “positive cash flow” for the years ended 30 June 2006 and 30 June 2007 as described in Part (O) Item 11 of the wife’s Financial Statement.

6. The wife’s superannuation entitlements in her superannuation fund the “[Mrs Allan] Super Fund” have an estimated gross value of $955,000.00.

7. In relation to the wife’s income, it is clear that it represents a miniscule proportion of the wife’s estimated weekly expenditure.  That expenditure is set forth in annexure “A” to the wife’s financial statement.  The wife contends that her estimated weekly expenses of $10,083.69 represents “what I reasonably require”.  Even if that description is disregarded and the list of expenditure was arbitrarily reduced by a substantial amount, it is unlikely that the wife’s income would be sufficient to meet her reasonable expenditure.  In that regard, I take into account the extreme wealth of the parties including that property namely held in the trust and their lifestyle as set forth in the affidavits relied upon in these proceedings.  Whilst senior counsel for the husband described the itemised list of the expenditure as “a wish list”, understandably he was not able to draw my attention to several items of expenditure which could be met by the wife’s income.  No doubt, that was the basis for one of his submissions that the wife could have recourse to the “M Facility Funds”, her bank funds and superannuation entitlements.

8. With regard to the “M Facility Funds”, Item 11 to Part (O) of the wife’s financial statement alleges that the credit balance of those funds of $248,233.00 must be considered against “trade creditors and commitments exceeding this sum”.  The Affidavit of the wife sworn 10 November 2008 provides particulars of expenses to be paid totalling $227,000.00.  In addition, the terms of the lease from pursuant to which the M Facility operates, requires that capital works and improvements be carried out.  The wife has referred to an architectural estimate of cost of works as being in the range of about $500,000.00 to $750,000.00.  I disregard the reference to expenses to be paid as set out in the wife’s affidavit as it is not clear to me from that affidavit whether there has in fact been a certain amount of doubling up of expenses having regard to the detail provided in paragraph 18 of that affidavit.  The expenses referred to in both relevant paragraphs have not been cross-referenced.  Nonetheless, it is clear that in the immediate future there will be little if any portion of the current credit balance of the M Facility Funds available to be drawn upon.

9. With respect to the wife’s bank funds the wife’s financial statement sets out her liabilities estimated at $63,029.00.  That is represented by credit card indebtedness and prospective legal costs.  The utilisation of the wife’s bank funds in those circumstances will leave a balance that may soon be reduced to nil without financial support provided by the husband.

10. In relation to the wife’s superannuation entitlements this represents a large amount being almost $1,000,000.00.  It was submitted on behalf of the husband that given the wife’s age she is in a position to access those superannuation entitlements.  Senior counsel for the husband quite properly conceded that there may be tax implications having regard to the provisions of inter-related superannuation legislation of some complexity.  My attention was not drawn to the relevant legislative provisions and the regulations made pursuant to such legislation, nor was any submission made as to the manner in which legislation and regulations would impact upon the wife in the event of her seeking to access the capital of the superannuation fund having regard not only to her age but also her financial circumstances and employment.

11. I have concluded that the wife has met the threshold issue for the following reasons.

12. The Full Court in Mitchell and Mitchell held that in relation to the threshold question, whether an applicant can “support himself or herself adequately is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s.75(2)”.[3]

    [3] Mitchell and Mitchell (1995) FLC 92-601 at 81,995

13. In addition, in Mitchell it was held that in relation to the threshold question “nor is that question to be determined upon a ‘subsistence’ level”.[4]

    [4] ibid at 81,995

14. Mitchell is also the authority for the proposition that this issue is necessary to be determined by having:

    “…regard to the standard of living of the parties and the financial circumstances of the other person:  ss75(2)(b) and (g).  The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself ‘adequately’.”

15. The Full Court emphasised that it is a matter then of considering the circumstances of individual cases.

16. Whilst Mitchell was concerned with an application for maintenance on a final basis, I have applied those principles to an application for interim maintenance as it is well established that ss72, 74 and 75(2) equally apply to such applications.[5]

    [5] Wilson and Wilson (1989) FLC 92-033 at 77,441, headnote (b)

17. The trust has high value assets by any measure.

18. The evidence of the wife in her Affidavit sworn 27 June 2008 contains a document written by the husband in which he provides a shorthand description of Australian assets which he estimated to be worth $443,500,000.00 gross.  Amongst assets not included were apartments located in the United Kingdom.  That document was provided by the husband to the wife in the period May to 18 June 2008.  Liabilities were estimated by the husband amounting to $32,000,000.00.

19. The evidence of the husband set out in his Affidavit sworn 12 August 2008 is that the trust pays the wife’s Visa credit card at a rate between $10,000.00 and $20,000.00 every two months.  The credit card has a $40,000.00 limit.  The trust also pays the outgoings on property which the wife uses or occupies.  I find that such evidence implicitly acknowledges that the wife is unable to adequately support herself from her own financial resources without the trust meeting the financial obligations to which I have referred and it does so under the control and direction of the husband.  The evidence of the husband is that the gross Australian asset figure was what he “hoped” might be achieved.  The husband contended that the trust liabilities were approximately $70,000,000.00 and that it had “minimal cash flow”.  A large quantity of documents relating to the financial position of the trust and other entities as well as the husband are included in Exhibit WA1 to the Affidavit of the husband sworn 12 August 2008.  Senior counsel for the husband referred to a pertinent summary of the financial position of the relevant entities including the trust which appears at page 18 of that exhibit.  It is not dated but reflects the position at an unspecified date this year.  It shows a net value of those entities including the trust as being $30,689,000.00.  To that must be added “non trust assets” with a net value of $1,500,000.00 and the undetermined value of “collectables – antiques”.  The affidavit evidence suggests that those items of personalty may have a significant market value.  I accept the evidence adduced on behalf of the husband and make findings accordingly.  I also accept the husband’s evidence that his handwritten document, to which I have referred, represents his view of the potential gross value of the Australian assets which I take into account given his long and successful career in property investment and dealing.

20. There is no issue that the husband and wife enjoyed, and apparently continue to enjoy, a luxurious standard of living.

The quantum of interim spousal maintenance

1. An itemised list of the wife’s estimated weekly expenditure for herself is set out in annexure “T” to her Affidavit sworn 4 September 2008 duplicated in her Financial Statement sworn 10 November 2008 (“the wife’s schedule of expenses”).

2. The wife’s schedule of expenses does not set out her actual current estimated weekly expenses but rather is described as “what I reasonably require”.  In those circumstances it is difficult to draw a comparison between the wife’s estimated expenditure that she is currently meeting or having met for her, as opposed to her reasonable requirements beyond that level of expenditure.  That difficulty is accentuated further by the absence of other affidavit evidence of the wife which refers to and explains what may otherwise appear to be an extraordinary level of her requirements which she contends are reasonable.

3. In approaching the untested review of the evidence, I accept the submissions made by senior counsel for the wife that I am not required to make findings with precision in relation to all items of the expenditure contended by the wife in the course of determining an application for interim spousal maintenance which generally speaking is heard and determined on the papers.

4. That submission is made in accordance with a number of Full Court judgments.[6]

   [6] Redman and Redman (1987) FLC 91-805 at 76,081 followed by the majority in Wilson and Wilson (1989) FLC 92-033 at 77,451.

5. I have accepted the schedule of the wife’s expenditure as representing her reasonable requirements with the exception of the following:

   (a)Entertainment/hobbies - $1,484.12 per week.  That is on the basis of estimated annual expenditure of $77,174.00, the bulk of which includes “golf, starting ($5,000.00);  golf lessons (assume 2 lessons/week at $70.00) $7,280.00;  beverages $36,240.00;  and entertaining friends (assume once a month) $12,000.00”.  Those particular items of expenditure amount to $60,520.00.  Once that expenditure is excluded it is difficult to make a finding on the balance of expenditure.

   (b)Travel - $2,038.85 per week reflecting an estimated annual expenditure of $106,020.00.  That estimated expenditure includes overseas travel and accommodation totalling $72,000.00.  I have excluded that amount.

   (c)Clothing and shoes - $2,000.00 per week.  I have excluded part of that expenditure at the rate of $1,000.00 per week.

6. Whilst I accept that what might be a very high level of expenditure for one person is not necessarily for another.  That will be a relative matter depending upon a number of factors including the lifestyle of the parties and their respective current financial circumstances.

7. My difficulty in accepting the expenditure which I have excluded is that other than the mere statement of the expenditure being “what I reasonably require” there is an absence of evidence to explain those particular items of expenditure as being reasonable in all the circumstances.  In that regard, there is no evidence to illustrate why it is now reasonably desirable for the wife to commence golf with an inherent expenditure at the level to which she refers, or that overseas travel is reasonably required with the consequential rate of expenditure relied upon, or that her reasonable requirement for clothing and shoes would amount to about $104,000.00 per annum, or that expenditure on beverages is estimated at $36,240.00 per annum.  Perhaps the wife is currently engaged in a range of charitable activities including hosting of functions which reasonably require such expenditure.  However, no such evidence has been given.

1. I do not understand the law to be that I should accept that a party has reasonable estimated weekly expenditure by the mere statement of it, even on the hearing of an application for an interim order.  If that was indeed the law, then the Court would simply have to blindly accept alleged reasonable expenditure as required by an applicant as stated by him or her without any other evidence, regardless of the nature or level of the expenditure.  I am not aware of, nor was I referred to any authority for such a proposition.

2. Consequently, I find that the wife’s reasonable estimated weekly expenditure is as follows:

Schedule of estimated weekly expenditure	$10,083.69
Less:
Entertainment/hobbies	1,484.12
Overseas travel – ($72,000.00)	1,385.00
Clothing and shoes	1,000.00	3,869.00
Balance	$6,214.00/wk

1. As s.72(1) makes clear, the liability to maintain a party is also dependent upon the prospectively liable party being “reasonably able to do so”.[7]

   [7] supra at p.2

2. The husband has almost non-existent income for tax purposes.  The husband’s affidavit evidence is that for the year ended 30 June 2007 his income was $47.00 and his expectation is that it would be the same for the year ended 30 June 2008.

3. However, the trust’s liabilities also include the husband’s loan account.  The trust and in particular the drawings that the husband has been able to make on his loan account have been and continue to be the financial resources of the husband by virtue of the control that he has exercised over trust has been able to directly provide financially for himself, the wife and their children as is made clear in his affidavit evidence.  That continues to be the position.  Indeed, the trust is the alter ego of the husband.

4. Annexure “B” to the Affidavit of the wife sworn 4 September 2008 is a copy of the trust’s balance sheet for both June 2005 and June 2006.  The husband’s loan account as at June 2005 was in credit in the sum of $105,666,960.00.  By June 2006 the credit balance had reduced to $102,207,127.00.  That represented a reduction of $3,459,833.00 in 12 months.

5. Annexure “A” to the same affidavit is a copy of the trust’s balance sheet as at December 2007.  The credit balance of the husband’s loan account is shown as $99,020,032.00.  By comparison with the loan account balance as at June 2006, there was a further reduction in the husband’s loan account as at December 2007 of $3,187,015.00 over a period of 18 months.

6. The evidence does not reveal a detailed analysis of the expenditure from the husband’s loan account at his direction over either of the periods referred to in the previous paragraph, except for the provision of a total of about $1,000,000.00 to the parties’ four children during the past few years including:  houses;  cars;  overseas holidays;  living expenses;  cash gifts to each of them which implicitly includes the amount to which I have referred;  payment of between $10,000.00 and $20,000.00 every two months in relation to the wife’s Visa credit card;  and generally supporting the parties’ lifestyle.

7. The evidence of the husband is that during 2007 he decided to disburse $95,000,000.00 of the trust’s indebtedness to him by assignments to the four children of the parties.  The husband’s further evidence is that the relevant loan account indebtedness is now shown in the accounts of the trust equally in the names of the four children.  However, Order 4 made by consent on 8 September 2008 restraining the husband and anyone acting on his behalf “from doing any act or thing or executing any document or instrument to implement perfect or complete the proposed assignment of $80,000,000.00 to the children as proposed in his memorandum dated 1 July 2006”.

8. Accordingly, I have inferred that the assignments to the four children, to which earlier reference has been made, has not been perfected or completed as otherwise it was pointless for that order to have been made.

9. Little evidence (if any) was provided by the husband in relation to cash amounts or other financial benefits that he has received from the trust in contrast to those received by the wife and four children.

10. There appears to be some current restriction in the husband’s capacity to pay or cause to be paid various amounts which have historically supported the lifestyle of the husband and wife.  It seems reasonably clear that the husband has been responding to financial pressure in that certain real estate has been sold or is in the process of being sold and the previous level of indebtedness secured by mortgages have been reduced.

11. The husband has provided two folders of voluminous financial records as Exhibit WA1 to his Affidavit sworn 12 August 2008.  Whilst that documentation is relevant to the understanding of historical and recent financial position of the trust and other entities, neither it nor the balance of the husband’s evidence contained in that affidavit or the Affidavit subsequently sworn on 9 October 2008 provides evidence with precision of funds that he is currently accessing to support his standard of living;  nor description of the nature and extent of his estimated expenses on a periodic basis;  or the manner in which he has reduced his personal expenditure (if at all) in the light of the financial constraints to which he has referred.

12. I have concluded that the husband has the capacity to meet either directly or indirectly the financial commitments and expenses of the wife that I determine are reasonable, particularly relying upon paragraphs 52 to 60 of the Judgment in making that finding.

Conclusion

1. I have determined that an order will be made that the husband pay or cause to be paid interim spousal maintenance in favour of the wife in the sum of $6,214.00 per week.  In addition, an order will be made that the husband continue to pay or cause to be paid the outgoings in relation to property resided in or occupied by the wife implicitly owned by the trust or any other entity which is directly or indirectly controlled by the husband or is otherwise personally owned by the husband and/or the wife.

2. My reasons for doing so are as follows.

3. I have made findings that the wife is unable to adequately maintain herself having regard to relevant matters referred to in s.75(2). I have found that the wife has met the threshold requirement as set forth in s.72(1).

4. The hearing before me was necessarily truncated as interim orders were sought.  The evidence was set forth in the papers and untested.

5. I found that the wife’s estimated reasonable weekly expenditure was of the nature and to the extent earlier referred to in this Judgment.  Whilst senior counsel for the husband submitted that I should have regard to “needs”, I do not accept that that is an accurate description of the basis of the wife’s commitments which support an interim maintenance order.

6. Section 72(1) requires that in relation to an applicant, I must have regard to relevant matters as set forth in s.75(2) for the purpose of concluding whether an applicant for interim maintenance is unable to support “herself or himself adequately”.

7. In these proceedings, I have found that not only does the wife have the estimated commitments on a weekly basis which I have assessed as being reasonable, those findings also take into account the historic lifestyle of the parties, the wealth the parties have enjoyed through the control by the husband of the trust and other relevant entities, and the manner in which the trust in particular has continued to fund the lifestyle of the husband and wife as well as their four children at a high level.

8. I have also found that the husband has a capacity to meet the order which can be exercised on a reasonable basis.  Whilst I have taken into account the sale of real estate to meet financial commitments which the husband has undertaken to be carried out, there has been no evidence adduced by him which reveals both his current personal lifestyle commitments on a periodic basis or “what he reasonably requires” being a description that I utilise in adaptation of that provided by the wife.  In view of the financial constraints to which the husband refers, one might have expected that such evidence would have been set forth in one of his affidavits.  It was important evidence for the husband to have given, arguably more so than much of the voluminous historical material contained in Exhibit WA1 to his Affidavit sworn 12 August 2008.

9. In addition, the husband has not complied with Rule 13.05 which is a mandatory requirement for him to have filed a Financial Statement having regard to the nature of the pending proceedings including the application being determined by me in the interim proceedings.  Whilst some of the material which I would have expected to be included in a financial statement was set forth in his affidavits, the crucial matter of the husband’s estimated current weekly commitments was not.  The husband has been legally represented throughout.  I assumed that the husband has received competent, legal advice and on that basis should have been aware of the requirements in accordance with the Rules.

10. I have also followed the Full Court’s judgments which make it clear that a pre-separation standard of living should not automatically be reflected in an order for either final or interim spousal maintenance.[8]  It is a matter of assessing all of the relevant provisions under s.75(2) in a given case.  I have implemented that approach.

    [8] Wilson, op. cit. per Strauss and Nygh JJ; Bevan and Bevan (1995) FLC 92-600 at 81,981-2

11. I also found that the wife’s capacity to meet her own reasonable requirements so that she may adequately support herself are restricted for the reasons previously given.

12. I have also taken into account that the significant loan account of the husband with the trust presently in credit remains an avenue for financial support for both himself and the wife, albeit to actually fund such support, the finance facilities arranged by the trust at the husband’s direction may need to be relied upon.

13. As previously emphasised, the husband did not give any evidence of the extent to which, if at all, that means of financing lifestyle has impacted adversely so far as he personally is concerned.

14. I will dismiss the application for a stay of proceedings filed on behalf of the husband given the short period of time that has elapsed from the conclusion of the hearing to the orders to be made today.

15. With regard to the contravention application filed on behalf of the wife on 19 September 2008, I will make an order that it be listed for directions before a Judicial Registrar so that it can be heard and determined by a Judicial Registrar in the event that the wife still seeks to proceed with that application.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.

Associate: 

Date:  24 November 2008