ARMINGTON & ARMINGTON
[2019] FCCA 1233
•13 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARMINGTON & ARMINGTON | [2019] FCCA 1233 |
| Catchwords: FAMILY LAW – Interim contested property proceedings – Spousal Maintenance – weight given to s.75(2) factors – Wife has not been in employment since separation – Wife seeks to maintain lifestyle with allowance significantly above that of child support assessment –Husband argued lack of financial capacity to pay – spousal maintenance granted on six month basis while Wife finds employment. |
| Legislation: Corporations Act 2001 (Cth), ss.440D, 471B Evidence Act 1995 (Cth), s.140 Federal Circuit Court Rules 2001 (Cth), rr.9.04, 11.01)(1), 11.02(2), 15.08(2)(a), 15.09, 15.12 |
| Cases cited: American Cynamid (No.1) v Ethicon Ltd [1975] AC 396; [1975] All ER 504 |
| Applicant: | MS ARMINGTON |
| Respondent: | MR ARMINGTON |
| File Number: | MLC 1627 of 2016 |
| Judgment of: | Her Honour Judge C. E. Kirton QC |
| Hearing dates: | 4, 5, 6 March 2019 |
| Date of Last Submission: | 6 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 13 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Werner |
| Solicitors for the Applicant: | Taussig Cherrie Fildes |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Self-represented |
| Counsel for Proposed Respondents: | Mr Snyder |
ORDERS
Pursuant to r.11.02(2) of the Federal Circuit Court Rules 2001 (Cth) the following be joined as Respondents to this proceeding:
(a)Company A (ACN …), as Second Respondent;
(b)COMPANY B (Pty Ltd (ACN …), as Third Respondent;
(c)Company C Pty Ltd (ACN …) in its own capacity and as trustee for the Armington Family Trust, as Fourth Respondent.
Until further order, and subject to sub-paragraph (2)(d) of this order, each of:
(a)The Husband;
(b)The Second Respondent; and
(c)The Third Respondent;
are hereby restrained by themselves, their servants and/or agents from:
(i)Transferring, disposing, alienating or encumbering or dealing with in any manner whatsoever any interest or shareholding they have in any corporate interest or trust, without the Wife’s prior written consent;
(ii)Transferring any share standing in their name or in the name of any partnership, trust or company over which they have control;
(iii)Dealing with, transferring, disposing, alienating or encumbering any matrimonial assets of whatsoever nature;
(iv)Amending and/or altering the terms of any trust deed;
(v)Exercising any power of appointment or any other power under any deed of trust;
(vi)Acting in any way to diminish the value of the matrimonial assets; and
(vii)Doing any act or thing which may affect the Husband’s interest and/or shareholding, held directly or indirectly including but not limited to the following companies:
A.AACN … PTY LTD (formerly Company D Pty Ltd (ACN …);
B.AACN … PTY LTD (formerly Company E Pty Ltd (ACN …);
C.Company F Trust;
D.Company G;
E.Armington Pty Ltd;
F.AACN … Pty Ltd (formerly known as Company H Pty Ltd) t/a Company H;
G.Company J Pty Ltd;
H.Company K Pty Ltd as trustee for the Company F Trust;
I.Armington Pty Ltd as trustee for the Mr Armington Family Trust;
J.Company L Pty Ltd as trustee for the Company L Trust;
K.AACN … PTY LTD (formerly known as Company K Group Pty Ltd);
L.Company K Holdings Pty Ltd;
M.AACN … PTY LTD (formerly Company K Holdings Pty Ltd) (ACN …).
N.Company M Pty Ltd;
O.Company N Pty Ltd;
P.Company O;
Q.Company P Pty Ltd.
(d)Otherwise than in the ordinary course of business and save and except with the written consent of the Wife, with any request for consent to be upon not less than 21 days’ notice in writing to the Wife.
Until further order the Husband pay or cause to be paid:
(a)To the Wife by way of interim spousal maintenance as and from Monday 13 May 2019 and each Monday thereafter for a period of six months:
(i)The sum of $1,219 per week less any amount actually paid each week pursuant to any administrative assessment for child support by the Husband to the Wife (excluding arrears);
(ii)The sum of $1,000 per week in relation to the Wife’s rent, with the payments to commence as and from Monday 13 May and for a period of six months thereafter.
(iii)The Wife’s private health insurance at the current level of cover.
(e)By way of non-periodic child support for each of the children [X], born … 2001 and [Y], born … 2004 (Children):
(i)All costs associated with the Children’s attendance at their current private schools including but not limited to:
a.All tuition, registration and attendance fees together with school levies and contributions to school funds;
b.All costs associated with school excursions, trips and camps;
c.All costs associated with school uniforms, school equipment and other requirements for attending school;
d.All costs associated with sports including sports uniforms, sport shoes, fees, tuition fees and lessons whether organised through the school or externally to the school; and
(ii)One Hundred percent of all medical expenses for the Children including but not limited to:
a. All private health insurance (including extras);
a. All gap expenses not covered by health insurance or Medicare;
b. All out of pocket costs of any dental, optical, orthodontic treatment or allied health professional services for the Children.
(f)All vet costs associated with the Children’s dogs.
All payments to the Wife pursuant to Orders 3 shall be paid by the Husband by direct debit to such bank account as the Wife may nominate from time to time in writing.
The Husband do all such things and sign all such documents as are necessary to have any school accounts placed in his name so that the invoices are forwarded directly to the Husband.
The Husband within seven days of being requested to do so by the Wife, reimburse the Wife any expenses paid by the Wife in relation to Orders 3(b) and (c), which would otherwise be payable by the Husband pursuant to these orders, upon the Wife providing to the Husband a copy of the invoice or proof of payment of the invoice, with such reimbursement to be made by direct debit into the Wife’s nominated bank account.
AND THE COURT NOTES THAT:
A.For the purposes of Order 3, the current assessment of Child Support payable by the Husband to the Wife, dated 1 March 2019 is $629.07 a week.
IT IS NOTED that publication of this judgment under the pseudonym Armington & Armington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1627 of 2016
| MS ARMINGTON |
Applicant
And
| MR ARMINGTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings commenced by the applicant Ms Armington (Wife) on 25 February 2016 seeking an alteration of property interests pursuant to s.79 of the Family Law Act 1975 (Cth) (Act). This matter was listed for final hearing on 4 March 2019 with an estimate of five days. This was the third occasion that the proceeding had been listed for final hearing, the previous occasions being 16 April 2018 and 13 June 2018.
At the commencement of the hearing on 4 March 2019 the Wife made an application for an adjournment of the hearing and the respondent Mr Armington (Husband) supported the application.
In November 2018 the Husband had, without the consent of the Wife, sold business interests subject to this proceeding to companies associated with his father at an apparent undervalue. The Wife sought the adjournment of the hearing whilst further discovery in relation to this transaction was undertaken and an application was made for other respondents to be joined to the proceeding. A valuation of the Husband’s business interests had also not been completed pursuant to previous Court orders.
The Wife sought a number of other interim orders pending the adjourned final hearing of this matter. This judgment is in relation to the interim orders sought by the Wife.
Issues in Dispute
The following interim issues were in dispute in this proceeding:
a)Whether the proposed Second, Third and Seventh Respondents should be joined as respondents to the proceeding.
b)Whether an interlocutory injunction should be ordered restraining the Husband and the proposed Second and Third Respondents from dealing with their own assets and the assets of 17 other companies.
c)Whether an order should be made for the Husband to pay spousal maintenance to the Wife and if so for how much.
Synopsis
I have determined that:
a)The proposed Second, Third and Seventh Respondents should be joined as respondents to the proceeding.
b)An interlocutory injunction should be ordered restraining Husband and the proposed Second and Third Respondents from dealing with their own assets and the assets of 17 companies other than in the ordinary course of business.
c)That the Husband should pay for a period of six months commencing from the date of these orders:
i)Spousal maintenance to the Wife in the sum of $1,219 a week less any amount actually paid by the Husband pursuant to any administrative assessment for child support, with the first payment to be made on Monday 13 May 2019;
ii) The sum of $1,000 per week in relation to the Wife’s rent, with the payments to commence as and from Monday 13 May 2019 and for a period of six months thereafter; and
iii) The Wife’s private health insurance at its current level of cover for a period of six months from the date of these orders.
Background
The Husband was born on … 1967 and is currently age 51 years. The Wife was born on … 1972 and is currently age 46.
The parties were married on … 1997 and commenced cohabitation on that date. Final separation took place on 1 December 2011 and a Divorce Order was made on 13 September 2016.
There are three children of the marriage: Ms Q, born … 1999 (Ms Q), currently age 19; [X], born … 2001 ([X]), currently age 17; and [Y], born … 2004 ([Y]), currently age 15.
Ms Q commenced studies at the … University in March 2019 and she moved to Canberra in February 2019. Ms Q is staying at a hall of residence located on campus[1]. [X] and [Y] are attending School R in Suburb S. [X] is in year 12 and [Y] is in year 9.
[1] Wife’s Affidavit, filed 21.2.19, at [26].
Procedural History
This proceeding was initially commenced by the Wife on 25 February 2016 for final property orders. An Amended Initiating Application was filed on 3 October 2016 where the Wife sought interim orders for discovery and spousal maintenance.
On 26 June 2017 orders were made by consent that:
a)The proceeding was listed for a final hearing on 16 April 2018 with an estimate of two days.
b)The Wife withdrew her application for interim spousal maintenance and the Court noted that the Husband agreed to pay the Wife the sum of $1,425 per week, without admitting the Wife’s need for such support or his capacity to pay.
c)A Court expert be appointed pursuant to r.15.09 of the Federal Circuit Court Rules 2001 (Cth) (Rules) to provide a report of the value of the property to the parties and the Court.
On 9 February 2018 the Court made orders that included:
a)The parties attend a private mediation by no later than the first week of April 2018.
b)The Husband forthwith do all acts and things and sign all such as were required to secure the release of ninety thousand dollars ($90,000) from a NAB term deposit account … (Term Deposit) held as rental guarantee for rent due and payable by Company K and that the money be applied as follows:-
i)Seventy five thousand dollars ($75,000) to the Wife by way of partial property settlement; and
ii)Fifteen thousand dollars ($15,000) to the Wife’s solicitors on trust for payment of the Court expert fees to value the businesses.
c) Until further order or agreement, the Wife to facilitate two hundred thousand dollars ($200,000) of the Term Deposit being used as security for the payment of rent as it had been to date, noting that she would not be required to execute any further documents in respect of any further guarantees.
On 16 April 2018 the final hearing of the proceeding was adjourned to 12 June 2018 with an estimate of four days. Orders were made which included orders that:
a)The parties were given leave to rely on adversarial experts in relation to the valuation of the Husband’s interest in Company G pursuant to r.15.12 of the Rules.
b)Pursuant to r.15.08(2)(a) of the Rules any of the Husband’s or Wife’s adversarial experts confer with Mr T, chartered accountant (the Court expert) and provide a joint statement in accordance with r.15.08(2)(a) on or before 8 May 2018.
c)The Husband to file and serve an amended response to the Initiating Application within seven days.
Consent Orders were also made on 16 April 2018 which included that:
a)The Husband was to provide the Wife with discovery of various documents within 10 days. These documents included:
i)The 2017 tax returns (or draft tax returns) for 16 companies and trusts;
ii)Australian Taxation Office tax portal printouts for each of the 16 entities referred to in the preceding paragraph and for the Husband personally, for the period 1 July 2017 to 16 April 2018;
iii)Copies of all leases (and variations) in relation to Company D Pty Ltd or any other entity for which the Wife had given guarantees;
iv)Statements for a NAB debtors finance account for the period 16 June 2016 to 1 July 2017;
v)Statements for a NAB term deposit account from February 2012;
vi)Armington Superannuation Fund financial statements and tax for the years ended 30 June 2015 and 2016;
vii)A summary of all contributions made to the Armington Superannuation Fund from 30 June 2016.
b)The Wife was to provide to the Husband with discovery of all bank statements from various ANZ accounts within 10 days.
On 13 June 2018 the final hearing of the proceeding was adjourned to 4 March 2019 with priority and with an estimated hearing time of five days. Orders were made which included orders that:
a) By 4 February 2019 each party was to file and serve:
i)An updated financial statement;
ii)Updated affidavits as to their financial positions and that of the Husband’s entities but limited to events which had taken place since their last trial affidavits were filed;
b)The parties were to instruct the single expert Mr T to prepare an updated valuation of the Husband’s business entities as at 30 September 2018, at the parties shared expense;
c)By 1 November 2018 the Husband was to have completed the management accounts of his entities up to 30 September 2018 and company draft income tax returns for the financial year 2018;
d)By 14 November 2018 the Husband was to have provided the single expert with all documents necessary to enable the updated valuation to be completed;
e)By 1 December 2018 the Husband was to serve upon the Wife for the audited financial year 2017 and financial year 2018 financial statements for the parties self-managed superannuation fund and the financial year 2017 and draft financial year 2018 income tax returns and the Wife was to sign all necessary documents as may be reasonably required in order for this to be done.
On 21 February 2019 the Wife filed a Second Further Amended Initiating Application (Second Amended Application). The Second Amended Application sought interim and final orders that the following parties be joined as respondents to the proceeding:
i)Company C Pty Ltd (ACN …) in its own capacity and as trustee for the Armington Family Trust;
ii)Company A (ACN …);
iii)COMPANY B (AUST) Pty Ltd (ACN …);
iv)AACN … PTY LTD (formally Company D Pty Ltd ACN …);
v)AACN … PTY LTD (formally Company E Pty Ltd ACN …); and
vi)AACN … PTY LTD (formally Company K Holdings Pty Ltd ACN …).
The Second Amended Application sought interlocutory injunctive orders that the Respondents each be restrained by themselves, their servants and/or agents from dealing with their assets and the assets of 18 companies associated with the Husband.
The Second Amended Application also sought interim spousal maintenance orders that the Husband pay or cause to be paid to the Wife:
a) The sum of $1,440 per week;
b) The sum of $2,005 per week in relation to the Wife's rent;
c)The Wife's private health insurance at the current level of cover;
to the Wife’s nominated bank account with the first payment to be made on Monday 4 March 2019 and weekly thereafter.
The Second Amended Application sought orders that the Husband pay to Ms Q by way of interim adult child maintenance the following:
a) The sum of $150 per week weekly in advance increasing with upward movements in CPI on 1 July 2020 and annually thereafter;
b) All accommodation costs (including fees charged by any hall of residence).
The Second Amended Application sought orders that the Husband pay to the Wife child support for [Y] and [X] as follows:
a)By way of periodic child support for each of [Y] and [X] $300 per week per child payable weekly commencing 4 March 2019;
b)By way of non-periodic child support for each of [Y] and [X] (Children):
i)All costs associated with the Children's attendance at their current private school including but not limited to:
a. All tuition, registration and attendance fees together with school levies and contributions to school funds;
b. All costs associated with school excursions, trips and camps;
c. All costs associated with school uniforms, school equipment and other requirements for attending school;
d. All costs associated with sports including sports uniforms, sports shoes, fees tuition fees and lessons whether organised through the school or externally to the school; and
ii)All medical expenses for the Children including but not limited to:
a. All private health insurance (including extras);
b. All gap expenses not covered by health insurance or Medicare;
c. All out of pocket costs of any dental, optical, orthodontic treatment or allied health professional services for the Children.
c)All payments of child support be paid to such bank account as the Wife may nominate from time to time.
d)That with respect to the Children's school expenses, the Husband do all such things and sign all such documents as are necessary to have any school accounts placed in his name so that the invoices are forwarded directly to the Husband.
e)That the Husband within seven days of being requested to do so reimburse to the Wife any expenses paid by her which would otherwise be payable by the Husband upon the Wife providing to the Husband a copy of the invoice or proof of payment of the invoice, such reimbursement to be made by direct debit into the Wife's nominated bank account.
The Second Amended Application also sought interim orders that within seven (7) days the Husband do all such acts and things and sign all such documents as are necessary to release all of the funds in the Term Deposit to the Wife’s solicitors on behalf of the Wife, including finding alternative security as may be required by the landlord.
The Second Amended Application also sought final orders that included:
a)A declaration pursuant to s. 78 of the Act that:
i)As the trustee for the Armington Family Trust holds any interest it has in the Company G Unit Trust on behalf of the Husband;
ii)Company C Pty Ltd holds its interest in all of the Company K businesses (as a valued by accountant) on behalf of the Husband.
b)The Husband pay to the Wife the sum equivalent to 60% of the net assets of the parties, excluding any amount paid by way of spousal maintenance and from the Term Deposit.
c)In the alternative to the preceding paragraph, the sale of business(es) agreement constituted by the Sale of Business Contract between Company D Pty Ltd, Company E Pty Ltd, Company K Holdings Pty Ltd, Company A (AUST) and COMPANY B (AUST) Pty Ltd on 18 November 2018 be set aside pursuant to s.106B of the Act.
d)Orders similar to those sought as interim spousal maintenance, adult child maintenance and child support orders, as set out in paragraphs 18 to 21.
On 21 February 2019 the Wife also filed an Affidavit (Wife’s February 2019 Affidavit) deposing to events since April 2018. The Wife also filed a Financial Statement on 21 February 2019 (Wife’s 2019 Financial Statement)[2].
[2] Wife’s Financial Statement, filed 21.3.19.
On Monday 4 March 2019 this matter was listed for final hearing with priority and had an estimate of 5 days. On the morning of the first day of the hearing Mr Snyder appeared as Counsel for the proposed Fourth and Fifth Respondents who are as follows:
a)AACN … PTY LTD (formerly Company D Pty Ltd ACN …), the proposed Fourth Respondent;
b)AACN … PTY LTD (formerly Company E Pty Ltd ACN …), the proposed Fifth Respondent.
Mr Snyder informed the Court that the proposed Fourth Respondent was in liquidation and that the proposed Fifth Respondent was in voluntary administration.
At the commencement of the hearing Counsel for the Wife informed the Court that both the Husband and the Wife consented to an adjournment of the hearing[3]. The reason for the adjournment was that the single expert report which was to be prepared by Mr T, had not been prepared in relation to two central assets in the asset pool. These assets were:
a)A business operated by the Company K Group and under the control of the Husband; and
b)A corporate advisory group operating under the name of Company G.
[3] Transcript T2:34-37.
In the circumstances Counsel for the Wife was not in a position to proceed with the Wife’s application for final orders pursuant to s.79 of the Act. Counsel for the Wife however sought to proceed on the following applications:
a)Application for leave to proceed against the proposed Fourth in liquidation and the Fifth Respondent in administration;
b)An Application to join the proposed Second, Third and Seventh Respondents to the proceeding;
c)An injunction binding a number of parties;
d)Interim spousal maintenance;
e)Interim adult child maintenance and interim child support.
Mr Snyder advised the Court that Mr U of … Liquidators was acting as the liquidator of the proposed Fourth Respondent and the administrator of the proposed Fifth Respondent. Mr Snyder sought an adjournment of the application for leave to proceed against the Fourth and Fifth Respondents on the basis that:
a)There was no application pursuant to the Corporations Act 2001 (Cth) in the Second Amended Application for leave to proceed against the proposed Fourth and Fifth Respondents.
b) Mr U had only been served with the Second Amended on Wednesday 27 February 2019 and therefore had only two business days to take instructions and to consider the joinder application.
c)Mr U may, after further considering the application, not oppose the leave to proceed application.
In response Counsel for the Wife submitted that the hearing of the leave to proceed application should be adjourned to Friday 8 March 2019. Counsel proposed to amend the Second Amended Application to seek leave pursuant to the Corporations Act 2001 (Cth) to proceed against the proposed Fourth and Fifth Respondents and to clarify the relief that was being sought against these Respondents. Counsel proposed that the Third Further Amended Application would be filed and served by 5.00 pm the following day, Tuesday 5 March 2019. Counsel anticipated that the only material that would be relied on in support of the application would be about a half a dozen subpoenaed documents.
Mr Snyder opposed the hearing of the leave to proceed application on Friday 8 March 2019. This was on the basis that:
a)The relief presently sought in the Second Amended Application potentially had a significant impact on the unsecured creditors and would prolong the liquidation.
b)Mr U would only be notified of the terms of the amended form of relief in the Third Further Amended Initiating Application by 5.00 pm the following day. This would again give him only two days to consider the application.
c)There were complex matters for consideration pursuant to s.440D and 471B of the Corporations Act 2001 (Cth) and Mr U should be given sufficient time to properly understand the position of the proposed Fourth and Fifth Respondents in the proceeding.
d)There was no urgency in having the application heard as the substantive trial was to be adjourned to the latter part of 2020.
I then made the following Orders in relation to the Wife’s application for leave to proceed against the proposed Fourth and Fifth Respondents:
a)The application be listed for an interim defended hearing on 12 April 2019 with an estimated hearing time of 1 day.
b)The Wife have leave to file and serve a Third Further Amended Initiating Application on or before 18 March 2019.
c)Any further affidavit material relied on by the Applicant to be filed and served on or before 18 March 2019.
d)Any affidavit material to be relied upon by the proposed Fourth and Fifth Respondents and a Response to be filed and served on or before 8 April 2019.
e)The costs of the proposed Fourth and Fifth Respondents of this day be reserved.
Mr Snyder and his instructing solicitor were then excused from appearing further at the hearing on 4 March 2019.
After hearing evidence and submissions in relation to the various interim issues in dispute referred to in paragraph 17-22, on 6 March 2019 I made the following Orders:
a)Judgment be reserved.
b)The final hearing be adjourned to 3 August 2020 with priority and with an estimated hearing time of 5 days.
c)The Wife to file and serve an application in a case and supporting affidavit in relation to forensic audit evidence by 27 March 2019 at 4.00 pm.
d)The Husband to file and serve a Response and supporting affidavit by 5 April 2019 at 4.00 pm.
Mr V Granted Leave to Appear
On the second day of the hearing on 5 March 2019, Mr V, the Husband’s father, attended the hearing. Mr V sought leave to appear on behalf of:
a)Company A (ACN …), the proposed Second Respondent;
b)COMPANY B (AUST) Pty Ltd (ACN …), the proposed Third Respondent;
c)Company C Pty Ltd (ACN …) in its own capacity and as trustee for the Armington Family Trust, the proposed Seventh Respondent.
(Armington Companies).
Mr V informed the Court that as a result of his background he was aware that it was usual for a company to be represented by legal counsel[4]. He said that he had received correspondence from the Wife’s solicitors in relation to the hearing on Friday 1 March 2019 and that he hadn’t read the correspondence until the following day. Mr V said that he had spoken to his solicitor over the weekend. He also confirmed that he was able to afford a lawyer to appear at the hearing[5].
[4] Transcript T47:31-32.
[5] Transcript T48:6-31.
Mr V elected not to engage a lawyer to appear on behalf of the Armington Companies at the hearing on 4 or 5 March 2019, notwithstanding that he conceded that he had the financial capacity to do so and had discussed this proceeding with his solicitor on the weekend of 2 and 3 March 2019.
Mr V produced an affidavit which he had affirmed on 5 March 2019 and which was filed that day. Mr V deposed that he “owned and effectively controlled” each of the Armington Companies[6].
[6] Affidavit of Mr V, filed 5 March 2019, at [6].
Neither Counsel for the Wife or the Husband opposed Mr V appearing at the hearing on behalf of the Armington Companies.
The objects and purposes of the Federal Circuit Court of Australia Act 1999 (Cth) are set out in ss.3 and 42. They are:
a)To enable the Court to operate as informally as possible in the exercise of judicial power[7].
b)The Court must proceed without undue formality and the Court must endeavour to ensure that the proceedings are not protracted[8].
[7] Section 3(2)(a) Federal Circuit Court of Australia Act 1999 (Cth).
[8] Section 42 Federal Circuit Court of Australia Act 1999 (Cth).
Taking into consideration these objects and purposes and also that there was no opposition to Mr V being granted leave to appear on behalf of the Armington Companies, I granted leave pursuant to r.9.04 of the Rules[9]. Leave was granted for 5 March 2019 only. It was also limited to the hearing of the Wife’s application to join the Armington Companies and to the hearing of the application for an interlocutory injunction against the Husband and the proposed Second and Third Respondents.
[9] Transcript T52:41-52:9.
Documents Relied on by the Parties
The Wife relied upon the following documents:
a)Second Amended Application.
b)Wife’s February 2019 Affidavit.
c)Wife’s 2019 Financial Statement.
d)Wife’s Affidavit, filed 3 April 2018 (Wife’s April 2018 Affidavit).
e) Wife’s Affidavit, filed 9 April 2018.
f) Affidavit of Mr W, filed 1 March 2019.
g) Affidavit of Service, affirmed by Ms X on 4 March 2019 filed on 22 March 2019.
h) Affidavit of Mr T, filed 10 April 2018.
The Husband relied upon the following documents:
a)Affidavit of the Husband, sworn and filed on 5 February 2019.
b)Affidavit of the Husband, affirmed on 4 March 2019 and filed on 19 March 2019.
c)c) Husband’s Financial Statement, filed 5 March 2019 (Husband’s March 2019 Financial Statement).
On 5 March 2019 the Husband’s Counsel provided to the Court a Further Amended Response to Initiating Application[10] however this document has not subsequently been filed. Accordingly the Court will place no reliance upon it.
[10] Transcript T44:9-13 and 44:33-36.
The Armington Companies relied upon the Affidavit of Mr V, filed 5 March 2019.
Application to Join Armington Companies
In the Second Further Initiating Application the Wife sought to join six additional companies as Respondents to the proceeding as discussed in paragraph 17. At the hearing on 6 March 2019 Counsel for the Wife sought to proceed only with the application to join the Armington Companies to the proceeding.
Wife’s Submissions on the Application to Join Armington Companies
The Wife deposed that at the time of separation the Company K business was being operated through Company K Pty Ltd as trustee for the Company F Trust. Of the 12 shares in the Company F Trust, the Wife, the Husband and Mr Armington each held 4 shares[11]. The Wife and the Husband were the directors of Company K Pty Ltd[12].
[11] Wife’s April 2018 Affidavit, at [23].
[12] Ibid, at [22].
After separation the Husband operated the Company K business without reference to the Wife. In approximately June or July 2015 the Wife discovered, through searches undertaken by her solicitors, that Company D Pty Ltd had taken over the conduct of the Company K business activities and held all assets previously held by Company K Pty Ltd and the Company F Trust[13]. The Husband had without reference to the Wife, altered the structure of the Company K business, including establishing a new trust, Company L Equity Trust and corporate trustee, Company L Equity Pty Ltd. He also incorporated:
a)Company D Pty Ltd.
b)Company K Group Pty Ltd.
c)Company M Pty Ltd.
d)Company E Pty Ltd.
e)Company H Pty Ltd[14].
f)Company K Holdings Pty Ltd.
[13] Ibid., at [23] and [25].
[14] Ibid., at [24].
The Wife deposed that at the time of separation the Husband and Wife also had an interest in a business trading as Company G. At the time of separation the Wife deposed that the Husband and Wife held 45% of the units in the Company G Unit Trust through which the Company G Partnership business was run.[15] In or around 1 July 2015 the structure of and ownership interests in Company G as trustee for the Company G Unit Trust was also altered by the Husband. The Husband now asserts that his legal interest in the Company G Unit Trust is only 20%. The Wife was not informed of the restructure prior to it taking place[16].
[15] Ibid., at [25].
[16] Ibid., at [35], [37] and [46].
Subsequent to the last occasion that this proceeding was before the Court on 13 June 2018 the Husband sold the businesses conducted by Company D Pty Ltd, Company E Pty Ltd and Company K Holdings Pty Ltd to the following entities which are controlled by Mr Armington (Sale):
a)Company A, the proposed Second Respondent.
b)COMPANY B (Aust) Pty Ltd, the proposed Third Respondent.
Prior to the Sale the Husband changed the names of the vendor companies[17] as follows:
a)Company D Pty Ltd (ACN …) to AACN … Pty Ltd, which was registered on 20 November 2018[18].
b)Company E Pty Ltd (ACN …) to AACN … Pty Ltd, which was registered on 20 November 2018[19].
c)Company K Holdings Pty Ltd (ACN …), the proposed Sixth Respondent to AACN … Pty Ltd which was registered on 8 February 2019[20].
[17] This judgment will continue to refer to Company D Pty Ltd and Company E Pty Ltd by their original names to avoid confusion.
[18] Exhibit A5, ASIC Current & Historical Organisational Extract AACN … Pty Ltd, 5.3.19.
[19] Exhibit A6, ASIC Current & Historical Organisational Extract AACN … Pty Ltd, 5.3.19.
[20] Wife’s February 2019 Affidavit, at [29] and Exhibit A4, ASIC Current & Historical Organisational Extract AACN … Pty Ltd, 5.3.19.
The Sale is evidenced by a Sale of Business Contract, dated 18 November 2018[21] (Contract of Sale). The parties to the Contract of Sale are expressed to be:
a)The vendor: AACN … Pty Ltd; AACN … Pty Ltd; and AACN … Pty Ltd.
b)The purchaser: Company A (proposed Second Respondent) and COMPANY B (Aust) Pty Ltd (proposed Third Respondent).
[21] Exhibit A3, pp. 125-148.
The Contract of Sale states:
a)The Price for the Businesses was $318,000, exclusive of GST.
b)The deposit was $1.00.
c)“Company A to acquire only the payroll services contract with Funds in Court for the consideration of $1.00.
All other assets are acquired by COMPANY B (Aus) Pty Ltd”[22].
[22] Exhibit A3, p 131.
Subsequent to the Sale:
a)An administrator was appointed for Company D Pty Ltd (ACN …) on 27 November 2018 and the liquidator was appointed on 4 January 2019 pursuant to a creditors’ winding up[23].
b)An administrator was appointed for Company E Pty Ltd (ACN …) on 31 January 2019[24].
[23] Exhibit A5, ASIC Current & Historical Organisational Extract AACN … Pty Ltd, 5.3.19.
[24] Exhibit A6, ASIC Current & Historical Organisational Extract AACN … Pty Ltd, 5.3.19.
The Wife deposed that the Husband informed her by email on 2 September 2018 that he had engaged …Business Brokers to sell Company D Pty Ltd and Company E Pty Ltd and that the sale price was $2,000,000[25]. The Wife did not oppose the Husband selling the business, however she was concerned that the sale should be transparent and that the business was sold at market value. The Wife was also concerned that the business brokers were not appropriate agents, as their business did not “[…] focus on corporate sales but rather small businesses such as restaurants, regional stores and post offices”[26]. The Wife asked the Husband if she could be involved in the process of the sale however the Husband refused[27].
[25] Ibid., at [31].
[26] Ibid., at [31].
[27] Ibid., at [31].
On 6 September 2018 the Wife’s solicitors wrote to the Husband’s solicitors, Mills Oakley, advising that they had been instructed that the Husband had engaged business brokers in relation to the Sale of Company D Pty Ltd and that the Wife:
a)Agreed to the business being sold but did not agree to BUSINESS BROKERS being engaged.
b)Proposed that … or … be engaged for the sale, as both specialised in selling large professional service firms.
c)Was concerned that BUSINESS BROKERS had been engaged by the Husband because they do not specialize in corporate business sales[28].
[28] Ibid., at [32].
On 11 September 2018 Mills Oakley wrote to the Wife’s solicitors and advised that the Husband had executed an Exclusive (Sole) Agency Engagement with BUSINESS BROKERS for the sale of Company D Pty Ltd that expired on 29 September 2018. Mills Oakley:
a)Did not provide a copy of the Exclusive (Sole) Agency Engagement.
b)Advised that the Husband would keep the Wife advised of any offers received by BUSINESS BROKERS and would not execute a contract for sale under the terms of the Exclusive (Sole) Agent Engagement without the prior consultation with the Wife.
c)Advised that in the event that the parties did not receive an offer to purchase the business prior to the expiration of the Exclusive (Sole) Agent Engagement the Husband was “open to discussing alternative brokers moving forward” and proposed an informal conference on or around 15 October 2018 in order to “further discuss potential avenues for the sale of the business and potential settlement of the matter overall” [29].
[29] Ibid., at [33].
On 30 October 2018 the Wife’s solicitors wrote to Mills Oakley and requested copies of all correspondence to and from BUSINESS BROKERS in relation to the proposed sale and no response was received[30].
[30] Ibid., at [35].
On Friday 16 November 2018 at 5.02 pm Mills Oakley wrote to the Wife’s solicitors and advised that[31]:
a)Whilst the business had been listed for sale for a six week period “no genuine expressions of interest or offers were made for the business during that time”.
b)By a letter from the Australian Taxation Office (ATO) dated 9 November 2018 the ATO had advised that it was not prepared to enter into a payment arrangement for the outstanding debt of $1.7 million owed by Company K and insisted on the liability being paid in full.
c)No further funding was available from the National Australia Bank or Mr V and Ms Y[32] to satisfy the ATO obligations.
d)As a result Mr V and Ms Y had advised Company D Pty Ltd under the terms of their loan agreement that they had called in their loan to be paid.
e)The Husband had advised Mr V that the loan was not able to be paid and as a result Mr V and the Husband had agreed for Company D Pty Ltd and Company E Pty Ltd to be sold.
f)Mr Armington had agreed to acquire the assets of the companies, consisting of the equipment, goodwill and intellectual property and would also assume the employee entitlements.
g)“The net consideration for the business to be paid by Mr V (through a company he controls) equates to an amount of not exceeding the value of the current loan to Company D Pty Ltd”[33].
[31] Ibid., at [36].
[32] The Husband’s Mother.
[33] Wife’s February 2019 Affidavit, at [36].
There was no information provided to the Wife’s solicitors in the letter from Mills Oakley, dated 16 November 2018 in relation to the loan claimed to be owing to Mr V and Ms Y[34].
[34] Ibid., at [37].
On 20 November 2018 the Wife’s solicitors wrote to Mills Oakley and requested that no action be taken by the Husband, as foreshadowed in their letter, dated 16 November 2018. The Wife’s solicitors also requested an authority from the Husband to receive from BUSINESS BROKERS copies of their files. She also sought copies of all correspondence with the ATO. No response was received[35]. The Wife’s solicitors wrote to Mills Oakley again requesting disclosure and asking whether the Husband would:
[…] undertake not to take any steps to sell or divest himself of the business foreshadowed in your letter dated 16 November 2018 without our client’s written consent to do so.
The Husband did not provide any undertaking[36].
[35] Ibid., at [39].
[36] Ibid., at [40].
On 28 November 2018 Mills Oakley wrote to the Wife’s Solicitors and forwarded a copy of the Contract of Sale, which indicated that the assets of the businesses were sold for $318,000.
On 31 January 2019 the Husband provided a letter of demand from Mr V and Ms Y, dated 16 November 2018 stating that they demanded the monies lent to be repaid within 30 days of the date of the letter. The Husband sold the businesses two days after the letter of demand on 18 November 2018, before the expiration of the notice period[37]. The Husband has produced an email sent by him on 21 November 2018 to Mr V stating:
Just confirming, we are not able to make the loan repayment in full. We do not have the available funds[38].
[37] Ibid., at [45].
[38] Ibid., at [46].
This email was sent three days after the Contract of Sale is claimed to have been entered into. The Wife does not accept that the Sale was legitimate[39].
[39] Ibid., at [45] to [48].
The Wife has sought to join the Armington Companies to this proceeding because she is seeking an interlocutory injunction restraining the Husband and Company A Pty Ltd (the proposed Second Respondent) and COMPANY B (Aust) Pty Ltd (proposed Third Respondent) from dealing with any of the matrimonial assets and a number of companies they have acquired as a result of the Sale[40].
[40] Second Amended Initiating Application, at Interim Orders [7].
Company A (the proposed Second Respondent) was registered on 3 October 2018. Mr Armington is the sole director. The sole shareholder is Company C Pty Ltd, which does not hold its shares beneficially. Mr Armington is the sole director of Company C Pty Ltd[41].
[41] Wife’s February 2019 Affidavit, at [59(a)].
COMPANY B (Aust) Pty Ltd (the proposed Third Respondent) was registered on 3 October 2018. Mr Armington is the sole director. The sole shareholder is Company C Pty Ltd, which does not hold its shares beneficially. Mr Armington is the sole director of Company C Pty Ltd[42].
[42] Ibid., at [59(b)].
The Wife is also seeking by way of final order a declaration pursuant to s. 78 of the Act against the proposed Seventh Respondent, as set out in paragraph 23[43]. In the alternative the Wife is seeking a final order that the Contract of Sale be set aside pursuant to s.106B of the Act[44].
[43] Second Amended Initiating Application, at Final Orders [2].
[44] Ibid. [26].
In relation to the Wife’s application to join Company C Pty Ltd (proposed Seventh Respondent), Mr Armington is the director and shareholder of this company and the sole appointor of the Mr V Family Trust. Company C Pty Ltd is the trustee of the Mr V Family Trust, which the Husband now claims holds 20% of the Husband and Wife’s interest in the Company G partnership.
The Wife relies upon the Valuation of the Armington Group, dated 23 March 2018[45] by Mr T, wherein Mr T expressed the view that the Husband and the Wife continue to hold a 40% interest in the Company G partnership[46].
[45] Affidavit of Mr T, filed 10.4.18.
[46] Ibid., filed 10.4.18, Annexure “T-3”, at [2].
The Wife submits that to the extent that it is necessary for the Court to make a declaration in relation the Husband and Wife’s interest in the Company G partnership being 40%, Company C Pty Ltd is sought to be joined as a party.
Proposed Respondents’ Submissions on the Application to Join Armington Companies
Mr Armington opposed the application to join the Armington Companies. The affidavit filed by Mr Armington did not depose to any relevant matters relating to the joinder application.
Mr Armington provided to the Court an account as to the reasons why the Sale had taken place[47]. Mr Armington said that:
[47] Transcript T75:45-83:16.
a)[…] the application went to the ATO for relief or some payment arrangement, in terms of debt to the ATO […]. There had been a precedence of several such arrangements, but this one failed[48].
[48] Ibid., T76:41-44.
b)[…] at that point, it was determined, in consultation with Mr Z, that the entity was probably insolvent. The business, therefore, faced the possibility that any one of the creditors, particularly the ATO, could have enforced liquidation immediately. Hence, there was a need to act quickly if we were going to avoid that. Liquidation would have meant everything was all over. Everything was finished[49].
[49] Ibid., T76:46-77:4.
c)I had concerns about [the Husband’s] continuity in employment, certainly at the salary level that he enjoys in the position as managing director of this company. That was fundamental, as it happens, to the continuation of quite generous family support payments to [the Wife]. That was all going to come to an end unless we could in some way, provide continuity of the Company D business entity[50].
d)He was an accountant of many years’ experience and at the time of the Sale he recognised that:
[…] the business would probably require somewhere between minimum 6, probably 8 or 900,000 in terms of working capital. That was in addition to any number that one might put on the actual purchase. So I looked at what I was prepared to pay, irrespective of what any valuation […][a] valuer may put upon the business. It was insolvent.[51]
e)The sale price of $318,000 was calculated by reference to the three year prior earnings of the company when it was multiplied by a:
[…] multiple which these valuers use of around three point something, […] this was part of our consideration, that this 318,000 at least looked about right. We weren’t going to get into the argument of whether it was adequate or not. It was more driven by what I was prepared to pay which was not a cent more than that because I knew, on top of that […] the amount of money that’s sitting there that I’ve provided in working capital to this day is $485,000 […]. I’m going to have to add to that number, that is, presuming the company survives[52].
f)The Sale was important to preserve the relationship between the Company K business with Company G. This was particularly important as Company G has offices in the office of Company K[53].
[50] Ibid., T77:5-10.
[51] Ibid.,T77:25-30.
[52] Ibid., T77:38-46.
[53] Ibid., T80:42-44.
Mr Armington also provided to the Court an account as to the circumstances of his ownership of 20 percent of Company G. Mr Armington said that he acquired this interest in Company G as a result of forgiving a debt of $65,000. This debt was described by Mr Armington as being a “joint debt” of the Husband and the Wife and it was for “tax payments made on behalf of both of them”[54]. Mr Armington said that the reason he forgave the debt was as a “familial concession”[55]. Mr Armington wanted to relieve the Husband of the debt obligation and in doing so he acquired 20 per cent of Company G[56].
[54] Ibid., T79:1-2.
[55] Ibid., T78:42-43.
[56] Ibid., T79:5-6.
Mr Armington said that at the time of acquiring the interest in Company G the business was six months old and it was valued to be basically worthless[57]. Mr Armington also said:
[57] Ibid., T79:11-13.
It’s now suggested that it doesn’t belong to me. And part of the reason for that is that all the income from that - that is, all the income from my 20 per cent of equity – has been continuing to … [the Husband] […] He and I signed an agreement at the time of acquiring that equity that I would continue to allow him to have the earnings from the equity until such time as he was in a position to discontinue that[58].
[58] Ibid., T79:15-20.
[…]
I didn’t need the money, I suppose, so I allowed that - until such time as things changed, then I wanted to receive that income in the future[59].
[59] Ibid., T79: 28-29.
Mr Armington contended that any restraint on the ownership of Company A or COMPANY B (Aust) Pty Ltd was contrary to the position he took as these were entities which he owned[60].
[60] Ibid., T82:30-33.
Husband’s Submissions on the Application to Join Armington Companies
It was the Husband’s position that he could not consent to the joinder of the Armington Companies as he was not a director or shareholder of any of the companies[61].
[61] Husband’s Affidavit, filed on 19 March 2019, at [25].
At the hearing on 5 March 2019 the Husband’s Counsel submitted that the Armington Companies were clearly parties that held assets of the businesses and the Wife sought to set aside the transfer of those assets. It was submitted that in those circumstances the Armington Companies should be joined to the proceeding. The Husband’s Counsel submitted that the Husband neither consented to or opposed the application[62].
[62] Transcript T73:42-74:10.
Relevant Law in Relation to the Application to Join Armington Companies
Pursuant to the Rules a party may not include a person as a party after the first court date without the leave of the Court[63]. A person whose participation is necessary for the Court to finally determine all matters in dispute must be included as a party. Rule 11.01(1) provides:
Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.
[63] Rule 11.02(2).
The Wife seeks an interlocutory injunction as discussed in paragraph 18. The power of the Court to grant injunctive relief in relation to property proceedings is contained in s.114 of the Act. Section 114 provides:
114(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
[…]
(e) an injunction in relation to the property of a party to the marriage;
Paragraph (e) of the definition of “matrimonial cause” in s.4(1) of the Act states that a matrimonial cause means:
(e) proceedings between the parties to a marriage for an order or injunction arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB);
Section 114(3) of the Act provides:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise […], in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
The Wife also seeks final orders for a declaration pursuant to s.78 of the Act as discussed in paragraph 23(a). Section 78 of the Act provides:
(1)In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.
(2)Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.
In the alternative, the Wife seeks an order pursuant to s.106B of the Act as discussed in paragraph 23(b). Section 106B provides:
(1)In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
[…]
(4)a party or person acting in collusion with a party may be ordered to pay the costs of any other party or of a bone fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.
Application to Join Armington Companies - Consideration and Conclusion
The Wife’s Second Amended Application seeks the interlocutory injunctive orders discussed at paragraph 18 and final orders discussed at paragraph 23(a) and (b), which include claims against the Armington Companies.
The factual basis for the Wife’s claims are discussed in paragraphs 47 to 71. The Wife raises serious claims against the Armington Companies, which if made out will affect their legal interests if orders are made pursuant to s.78 or alternatively s.106B of the Act.
There was no persuasive argument put to the Court in opposition to the joinder application. I note that whilst Mr Armington addressed the Court at some length, none of the matters which have been included in this judgment were included in an affidavit by Mr Armington.
Therefore pursuant to r.11.01(1) of the Rules I determine that the participation of the Armington Companies in this proceeding is necessary for the Court to completely and finally determine all matters in the proceeding and they must be included as parties to the proceeding. Orders will be made accordingly.
Interlocutory Injunction Application
On 4 March 2019 Counsel for the Wife provided to the Court a Minute of Orders Sought on Behalf of the Wife (Minute of Proposed Orders). The Minute of Proposed Orders included a form of order for an interlocutory injunction against the Husband in paragraph 7 and the proposed Second and Third Respondents. On 6 March 2019 Counsel for the Wife provided to the Court a copy of paragraph 7 of the Minute of Proposed Orders with an amendment. The following paragraph sets out this proposed amended order. The additional words “otherwise than in the ordinary course of business” have been included by agreement between Counsel for the Wife and Counsel for the Husband as being appropriate, if the Court considered it appropriate to grant the interlocutory injunction[64].
[64] Transcript T108:37-110:17.
The Wife seeks the following interlocutory injunction (Proposed Order):
Until further order, each of:
a) The Husband;
b) Company A (ACN …); and
c) COMPANY B (AUST) Pty Ltd (ACN …);
are hereby restrained by themselves, their servants and/or agents from:
(i)Transferring, disposing, alienating or encumbering or dealing with in any manner whatsoever any interest or shareholding they have in any corporate interest or trust, without the Wife’s prior written consent;
(ii)Transferring any share standing in their name or in the name of any partnership, trust or company over which they have control;
(iii)Dealing with, transferring, disposing, alienating or encumbering any matrimonial assets of whatsoever nature;
(iv)Amending and/or altering the terms of any trust deed;
(v)Exercising any power of appointment or any other power under any deed of trust;
(vi)Acting in any way to diminish the value of the matrimonial assets; and
(vii)Doing any act or thing which may affect the Husband’s interest and/or shareholding, held directly or indirectly including but not limited to the following companies:
A.AACN … PTY LTD (formerly Company D Pty Ltd (ACN …);
B.AACN … PTY LTD (formerly Company E Pty Ltd (ACN …);
C.Company F Trust;
D.Company G;
E.Armington Pty Ltd;
F.AACN … Pty Ltd (formerly known as Company H Pty Ltd) t/a Company H;
G.Company J Pty Ltd;
H.Company K Pty Ltd as trustee for the Company F Trust;
I.Armington Pty Ltd as trustee for the Mr Armington Family Trust;
J.Company L Pty Ltd as trustee for the Company L Trust;
K.AACN … PTY LTD (formerly known as Company K Group Pty Ltd);
L.Company K Holdings Pty Ltd;
M.AACN … PTY LTD (formerly Company K Holdings Pty Ltd) (ACN …).
N.Company M Pty Ltd;
O.Company N Pty Ltd;
P.Company O;
Q.Company P Pty Ltd.
Otherwise than in the ordinary course of business and save and except with the written consent of the Wife, with any request for consent to be upon not less than 21 days’ notice in writing to the Wife.
Wife’s Submissions on Interlocutory Injunction Application
The basis for the Wife’s application for an interlocutory injunction is discussed in paragraphs 47 to 71.
The Wife’s Counsel made further submissions in relation to the application for an interlocutory injunction. Two bundles of documents were produced which had been selected from documents subpoenaed from Mr Z and BUSINESS BROKERS by the Wife’s solicitors, relating to the sale of Company D Pty Ltd and Company E Pty Ltd[65] . Prior to the Sale Mr Z were the external accountants for the Armington companies and Company G.
[65] Exhibit A3 and Exhibit A7.
Counsel submitted that the following matters relating to the Sale were of concern and relevant to the interlocutory injunction application:
a)The Sale was a sale of assets rather than a sale of shares.
b)The Sale was to purchasers who were not at arms-length.
c)The matters referred to in paragraph 54 took place shortly after the Sale.
d)The consideration for the Sale of $318,000 was less than 50 per cent of the value of both the companies claimed by the Husband when the proceeding was last before the Court on 13 June 2018. On that occasion the Husband’s position was that the companies were worth $720,000 net of liabilities and the Wife’s position was that they were worth $1,050,000[66].
[66] Transcript T57:17-24.
e)The Single Expert Report of Mr T (Mr T Report)[67] found that the entities had an enterprise value collectively of $2 million less the debts[68]. As this was a sale of assets rather than a sale of shares, the assets were transferred to the purchaser entities, however the debts remained with the vendor companies. Therefore the consideration of $318,000 was less than one sixth of the value that the single Court expert had assessed to be the value in the Mr T Report in March 2018.
[67] Affidavit of Mr T, filed 10.4.18, Annexure “T-2”.
[68] Ibid., filed 10.4.18, Annexure “T-2”, at [Appendix 1].
f)The Contract of Sale provided that:
*Company A to acquire only the payroll services contract with the Funds in Court for the Consideration of $1.00.
All other assets are acquired by COMPANY B (Aust) Pty Ltd[69].
[69] Exhibit A3, at [131]
The Mr T Report described the business of Company E Pty Ltd as follows:
This company was established in 2016 to carry out the payroll services that are outsourced by the Supreme Court of Victoria. These services were previously provided by Company D Pty Ltd and the Company F Trust pursuant to an agreement with the Court which commenced on 1 July 2012. This agreement provides that the group will employ and provide full payroll services for the Court’s administrative staff, as listed, at a fixed margin of 6%. The fee charged to the Court is always paid prior to the payment of the salaries and on-costs, accordingly the business is fully self-funding[70].
[70] Mr T Report, at [4].
Therefore Company E Pty Ltd had acquired this fully self-funded, stable business with a model client for $1.00.
g)The names of Company E Pty Ltd and Company D Pty Ltd were changed as discussed in paragraph 51. The reason for the change of name has not been explained and there is no obvious commercial basis for changing the names. It was suggested that the change of name was deliberate to make the companies less recognisable prior to going into voluntary liquidation and voluntary administration.
h)There was clear evidence that a sale to entities associated with Mr Armington, instead of a sale to an arms-length purchaser, was contemplated months prior to the Sale in November 2018, on the following basis:
i)The Exclusive (Sole Agency) Engagement between Company D Pty Ltd and BUSINESS BROKERS, dated 29 August 2018[71] includes a handwritten annotation:
[71] Exhibit A3, at [62-69].
No commission other than the retainer of $400 inc GST will be payable if the business’s (sic) are sold or transferred to a member or members or past member or members of the vendor’s family[72].
[72] Ibid, at [69].
ii)The letter from Mr Z to the Husband, Mr Armington and the Armington Group of Companies, dated 10 September 2018 restating their terms of engagement[73] (Engagement Letter) includes the following as part of the scope of services provided by Mr Z:
[73] Ibid., at [91-[98].
Provision of advice in relation to your business structure, including taxation advice, assistance with establishment of entities, attendance at meetings and liaison with … accountants (Mr U), your solicitors and bankers as and when required[74].
[74] Ibid., at [92].
Mr U is the liquidator for Company D Pty Ltd and the administrator of Company E Pty Ltd. It was suggested that the only rational inference as to why there is a reference to Mr U in the Engagement Letter, was because it was planned to place these companies into liquidation after they were sold.
j)In an email dated 29 August 2018 from the Husband to Mr AA at BUSINESS BROKERS the Husband provides financial information and a narrative to BUSINESS BROKERS and said:
As I mentioned on the phone, this sale process is highly sensitive so please keep the Armington name off all documents until you have fully qualified the potential buyer[75].
[75] Exhibit A7, at p.59.
The letter forwarded with this email concludes with:
Although all offers will be welcome and considered, it is expected that to be successful an offer of well in excess of $2 million will be required[76].
[76] Ibid., at p.61.
k)In an email dated 30 August 2018 from Mr Armington to Mr AA at BUSINESS BROKERS, Mr Armington says:
In regards to price, as stated in the narrative, $2,000,000 is mentioned only as a minimum expectation and not a price at which Armington would necessarily sell[77].
[77] Ibid., at p.83.
Therefore not only was the controlling mind of the vendor telling BUSINESS BROKERS that the sale price was at least $2 million but also the controlling mind of the purchasers was saying the same thing.
l)There was no evidence that any money had moved from Mr Armington through his entities to the vendor companies.
m)After September 2018 Mills Oakley withdrew as solicitors on the record for the Husband. It was submitted by Counsel that circumstantial evidence pointed towards ‘the colour of fraud’ and that fraud is interpreted broadly to include an“[…] attempt to defeat a legitimate claim in a court proceeding”[78]. Counsel further submitted that the Husband’s Affidavit filed on 5 February 2019 (Husband’s February 2019 Affidavit) filed in his own name:
[78] Transcript T68:28-35.
On the face of the document it has all the hallmarks of a document which was prepared by Mills Oakley and it just so happens that it is witnessed by John Mazzotta of Mills Oakley […] Fair inference is that it was drawn up by the solicitor. There was an amended response handed up this morning which was circulated yesterday[79].
[79] Transcript T68:42-69:2.
n)There was no evidence from Mr Armington or Mr BB from accountants relating to the Sale. Mr BB, a partner of accounting firm had provided an Affidavit on behalf of the Husband in anticipation of the final hearing in June 2018[80]. The Affidavit from Mr BB deposed to the restructure of the Company K business effective from 1 July 2014. It was submitted that in circumstance where the Husband had failed to explain the absence of evidence from these witnesses, that the rule in Jones v Dunkel[81] applied. An inference should therefore be drawn that these witnesses would not have assisted the Husband’s case.
[80] Affidavit of Mr BB, filed 4.4.18.
[81] (1959) 101 CLR 298, at 308, 312 and 320-1.
o)The letter from Mr T to the Wife’s Solicitors, dated 1 March 2019[82] (March 2019 Mr T Letter) said that:
[82] Exhibit A1.
i)He would be assisted by a forensic audit of the financial information that he had been provided to date.
ii)He was concerned that:
[…] the information provided does not disclose the true profitability of the trading entities for the year ended 30 June 2018 and potentially for the period since. I specifically refer to the report prepared in May 2018 by Mr Z, the Armington group advisers and accountants, which referred to a forecast 2018 full year profit of some $900,000. The actual results reported by Mr Z, prior to provision for non-recoverability of inter-entity loans, was a loss of some $550,000 for that year. This represents a loss of some $770,000 in the June quarter. In my view, this situation lacks credibility. Mr BB, a partner at accounting firm, was on the Armington advisory board at that time and ought to have had access to up to date financial information at all times. As the Mr Z report was delivered in May 2018, the results to that date ought to have been known with some greater certainty than is apparently evident from the referenced report.
Further, regarding Company G Unit Trust, I am in possession of a message from a Mr CC of accountants, to [the Husband] and [Mr Armington], dated 29 June 2018 in which, at item 1, he stated in relation to estimating income tax liabilities, that Company G is forecast to derive taxable income of approximately $800,000 for the year ended 30 June 2018. The actual taxable income reported was only $343,000. Again, this statement was made in late June 2018, when accurate results should have known with reasonable accuracy (sic). In my view, this again demonstrates a lack of credibility over the reported results.
p)The vendor and the purchaser failed to make provision for the release to the Wife of a term deposit which was held as security for a bank guarantee on a lease of premises occupied by one of the Armington companies. The lease of the premises had expired. The Contract of Sale made no provision for a substitute security from the purchaser, leaving the Wife’s term deposit exposed in the event that the landlord sought any remedy against the tenant once the premises were vacated.
i)q) That the Husband’s February 2019 Affidavit was an “opaque whitewash”[83] on the basis that:
j)i) On the Husband’s own case at sometime between June 2018 and November 2018 over $1 million in revenue debt surfaced “apparently, falling out of the sky”[84].
ii)If there was any serious pressing of Australian Tax Office liabilities in June 2018, it was in the Husband’s interests to have told the Court and the Wife’s solicitors about it at that time.
[83] Transcript T71:6.
[84] Ibid., T71:2.
On the basis of these submissions Counsel for the Wife submitted that it had been demonstrated that there was a serious question to be tried, as required in American Cynamid (No.1) v Ethicon Ltd[85] and the balance of convenience was in favour of the Wife.
[85] [1975] AC 396, at 407; [1975] All ER 504 at 510.
The Wife did not agree to provide an undertaking as to damages[86]. Counsel for the Wife relied on Blueseas Investments Pty Ltd v Mitchell and Company McGillivray[87] and Janko & Janko[88] in support of the argument that the Wife should not be required to give an undertaking. It was submitted that the interlocutory injunction as sought could not cause prejudice to the Husband and therefore not cause damage.
[86] Transcript T106:26.
[87] (1999) FLC 92-856.
[88] [2018] FamCA 353.
Husband’s Submissions on Interlocutory Injunction Application
The Husband’s Counsel made no submissions opposing the interlocutory injunction save as to the wording of the injunction, as discussed in paragraph 89.
Mr Armington’s Submissions on Interlocutory Injunction Application
Mr Armington opposed the interlocutory injunction being made against the proposed Second Respondent and the proposed Third Respondent. I refer to the discussion in paragraph 76.
Relevant Law in Relation to Interlocutory Injunctions
The power of the Court to grant injunctive relief is contained in s.114 of the Act. Section 114 is discussed in paragraphs 80 to 82.
In Yunghanns & Yunghanns[89] the Full Court of the Family Court said that in proceedings for interlocutory injunctions the Court, before making an order, is required to find that there is a serious issue to be tried and that the balance of convenience supports the making of the order: American Cynamid (No.1) v Ethicon Ltd[90].
[89] (1999) FLC 92-836, at 85,723.
[90] [1975] AC 396, at 407; [1975] All ER 504 at 510.
In relation to the giving of an undertaking as to damages by the applicant for an interlocutory injunction the Full Court of the Family Court said in Blueseas Investments Pty Ltd v Mitchell and Company Billivray[91]:
[54]It should be noted that these principles in relation to undertakings as to damages are principles of equity derived from civil litigation. There is, we think, an additional highly relevant matter that distinguishes litigation under the Family Law Act from ordinary civil litigation: that is the fact that very often the wealth of the parties is controlled by one rather than both of them. This in turn means that it is not uncommon for one of the parties to have no means of meeting any liability that may be incurred pursuant to an undertaking as to damages.
[…]
[57]No doubt in ordinary civil litigation the impecuniosity of a party is a matter that may be relevant to the issue of balance of convenience. For the reasons already stated however, we consider that family law cases must be looked at in a different light. In our view it would be unconscionable to accept a broad principle that the impecuniosity of a party in family law proceedings would be given such weight as to prevent an injunction being granted or the other requirements for the grant of such an injunction are present. Indeed, it may then be doubtful whether the impecuniosity of one of the parties to family law proceedings would usually be a factor militating against a grant of interim interlocutory injunctions if the other tests for the grant of the same were otherwise satisfied. That is not to say that such a factor would never be relevant but in the present circumstances at least, where the injunction may have the effect of preserving the only piece of property to which the wife might have recourse, it would be unreasonable in the extreme for in her impecuniosity to operate to prevent an injunction being granted[92].
[91] (1999) FLC 92-856.
[92] Ibid., at 86,128.
Evidence
The standard of proof in this case is the balance of probabilities[93].
[93] Section 140 Evidence Act1995 (Cth).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Interlocutory Injunction – Consideration and Conclusion
I have considered the matters in paragraphs 47 to 71 and paragraph 93 and it is evident that the Husband restructured the Company K recruiting business in 2014 without the knowledge of the Wife. It is also evident that the Husband entered into the Contract of Sale without the knowledge of the Wife and in circumstances where the Wife’s solicitors were expressing serious concerns about the conduct of any proposed sale and opposed any contract of sale being entered into without the Wife’s agreement.
By entering into the Contract of Sale the Husband has sold assets of Company D Pty Ltd and Company E Pty Ltd to companies associated with his father Mr Armington, in a transaction that has many hallmarks of a non-arm’s length transaction.
The matters raised in the March 2019 Mr T Letter referred to in paragraph 93(o), confirm my opinion that there is a serious question to be tried: American Cynamid (No.1) v Ethicon Ltd[94]. The Wife has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the final hearing the Wife will be entitled to relief: Australian Broadcasting Corp v O’Neill[95] .
[94] [1975] AC 396, at 407; [1975] All ER 504 at 510.
[95] (2006) 227 CLR 57.
I am also satisfied that the balance of convenience favours the granting of the interlocutory injunction. The Proposed Order maintains the status quo, permits trading in the ordinary course of business and prevents the further potential dissipation of assets pending the final hearing.
I accept that in the Wife’s current financial position, where she has no access to capital and no independent source of income, that requesting an undertaking as to damages is not appropriate: Blueseas Investments Pty Ltd v Mitchell and Company McGillivray[96].
[96] (1999) FLC 92-856, at [57].
I determine that the Proposed Order relates to property of a party to the marriage: s.114(1)(e) of the Act.
I determine that having regard to the matters discussed in paragraphs 103 to 108, that pursuant to s.114(3) of the Act it is just and convenient for orders to be made in terms of the Proposed Orders. I will make orders accordingly.
Wife’s Application for Spousal Maintenance and Child Related Costs
The Wife sought orders that until further order:
a)The Husband pay or cause to be paid to the Wife:
i)By way of interim spousal maintenance:
A. The sum of $1,440 per week;
B.The sum of $2,005 per week in relation to the Wife’s rent;
C.The Wife’s private health insurance at the current level of cover;
to be paid into the Wife’s nominated bank account with the first payment to be made on Monday 4 March 2019 and weekly thereafter.
ii)By way of non-periodic child support for each of the children [Y] and [X]:
(1)All costs associated with the Children’s attendance at their current private schools including but not limited to:
a. All tuition, registration and attendance fees together with school levies and contributions to school funds;
b. All costs associated with school excursions, trips and camps;
c.All costs associated with school uniforms, school equipment and other requirements for attending school;
d.All costs associated with sports including sports uniforms, sport shoes, fees, tuition fees and lessons whether organised through the school or externally to the school; and
B.One Hundred percent of all medical expenses for the Children including but not limited to:
a. All private health insurance (including extras);
a. All gap expenses not covered by health insurance or Medicare;
b. All out of pocket costs of any dental, optical, orthodontic treatment or allied health professional services for the Children.
iii)All vet costs associated with the Children’s dogs.
b)That all payments of child support be paid to such bank account as the Wife may nominate from time to time.
c)That with respect to the Children’s school expenses, the Husband do all such things and sign all such documents as are necessary to have any school accounts placed in his name so that the invoices are forwarded directly to the Husband.
d)That the Husband within seven days of being requested to do so, reimburse the Wife any expenses paid by the Wife in relation to sub-paragraphs 110(ii) and (iii), which would otherwise be payable by the Husband pursuant to these orders, upon the Wife providing to the Husband a copy of the invoice or proof of payment of the invoice, with such reimbursement to be made by direct debit into the Wife’s nominated bank account.
It was submitted by Counsel for the Wife that any amount payable by the Husband pursuant to sub-paragraphs 110(i)A and B was to be reduced by the amount that the Husband was assessed for child support payments[97]. This was agreed to by Counsel for the Husband. At the time of the hearing on 5 March 2019 Husband’s child support assessment was $629.07 per week[98].
[97] Transcript T97:45-98:21.
[98] Exhibit A8.
The Husband also agreed to make the payments for the Children referred to in paragraphs 110(a)(ii) and (iii)[99]. Therefore the only issue for the Court to consider was the Wife’s spousal maintenance application. The Husband opposed the Wife’s application for spousal maintenance[100]. Both the Husband and the Wife were cross examined in relation to this issue.
[99] Transcript T142:36-43.
[100] Husband’s Affidavit, filed 19.3.19, at [27].
Relevant Law in Relation to Spousal Maintenance
The law in relation to spousal maintenance is located in Part VIII of the Act. Section 80(1)(b) provides that the Court may make an order for the payment of a weekly, monthly, yearly or other periodic sum.
Section 72 of the Act sets out the requirements for an order for spousal maintenance. Section 72 provides as follows:
(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).
Therefore the first matter which must be answered in order to determine the rights of a party to spousal maintenance, in this case the Wife, is whether or not she has demonstrated that she is unable to support herself by reason of one of the factors set out in s.72(1).
In Bevan & Bevan[101] the Full Court considered the power of the Court to make orders under s.74 and said the following:
[101] (1995) FLC 92-600.
Taken together then, we would state the law as being that an award of spousal maintenance requires:
1. a threshold finding under s.72;
2. a consideration of s.74 and s.75(2);
3. no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
4. discretion exercised in accordance with the provisions of s.74, with “reasonableness in the circumstances” as the guiding principle[102].tau
[102] Ibid., at pp. 81, 981-81,982.
Section 74(1) of the Act provides that:
In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
Section 75 states the following:
Matters to be taken into consideration in relation to spousal maintenance
(1) in exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
Section 75(2) then sets out the matters the Court must take into account when deciding whether to make any order for spousal maintenance. The following list is an exhaustive list as the Court may only take into account the matters referred to in s.75(2).
Section 75(2) provides:
The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of the child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a state or territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to other party; and
(g) whether parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling the party to undertake a course of education or training or to establish him or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditors debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person – the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii) or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support agreement under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Section 75(3) states that:
In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
Consideration
Section 72(1) Right of Spouse to Maintenance
The first matter which must be answered in order to determine the rights of a party to spousal maintenance, in this case the Wife, is whether or not she has demonstrated that she is unable to support herself by reason of one of the factors set out in s.72(1).
Counsel for the Wife submitted that since separation the Wife has been wholly reliant upon the Husband for her support and she has not been in paid employment for 19 years. Counsel said that the Wife “was not going to find it easy to break into the work force”[103]. It was submitted that the parties chose to set up traditional roles within their marriage and the Wife had continued in that occupation throughout.
[103] Transcript T174:20.
Counsel for the Husband relied on Bevan & Bevan[104] and the principles referred to in paragraph 116. Counsel submitted that the Wife did not overcome the initial threshold in s.72(1) because she had the capacity for gainful employment, however she chose not to exercise it.
[104] (1995) FLC 92-600.
The Husband deposed that he did not accept that the Wife had a reasonable need for spousal maintenance seven years after separation. The Husband said:
On [the Wife’s] own evidence, she has experience in employment. [The Wife] is capable of finding employment in these or related fields.
I spoke to [the Wife] numerous times about getting paid employment, even pointing her in the direction of job vacancies I knew about that she had a good chance of securing. On every occasion she refused[105].
[105] Husband’s Affidavit, filed 19.3.19, at [32] and [33].
Counsel submitted that the Wife:
a)Had been the beneficiary of the Husband’s largesse and significant financial support over the past eight years since separation.
b)Did not want to find employment because she had been well supported in a lifestyle that appealed to her.
c)Blamed the Husband as a reason for not finding employment;
d)Had not undertaken any courses to improve her training.
e)Was not genuine about wanting to obtain employment.
f)Used the Children as an excuse for not working, by saying that she had to drive a daughter studying VCE to and from school to save 15 minutes each way, so that the daughter could study more.
Counsel for the Husband submitted that for these reasons the Wife did not meet the requirements of s.72(1) of the Act and that the application for spousal maintenance should therefore fail at the initial threshold.
When cross-examined the Wife said that:
a)She had looked at … roles on SEEK. She said that that she did not have a lot of computer skills[106].
b)She had not undertaken any courses since separation to improve her skills and had not considered undertaking any such courses[107].
c)In 2014 she spent $50,000 developing a business entitled “…”. The business ultimately did not proceed[108].
d)She was interested in starting her own business as an ….
e)She had not applied for any positions for employment in the past 8 years since separation[109].
f)She said that the Husband and his behaviour was the reason that she had not been able to consider looking for employment.
[106] Transcript T118:46:119:13.
[107] Ibid., T121:4-8.
[108] Ibid., T124:26-124:45.
[109] Ibid., T118:39-40.
Having considered the Wife’s February 2019 Affidavit, the Wife’s April 2018 Affidavit and the matters referred to in paragraph 128, I am satisfied that the Wife has made no effort to obtain appropriate gainful employment to support herself since separation and that the Wife is reasonably able to obtain some form of gainful employment.
However I take into consideration the matters in s.75(2)(c), that the Wife has been the primary carer of the Children for all their lives. I also take into account matters relevant to s.75(2)(k), that the Wife has been out of the workforce since late 1999[110], now over 19 years. In reality it may take the Wife some time to actually obtain employment. I intend to make orders that give the Wife six months to find employment.
[110] Wife’s April 2018 Affidavit, at [124].
Therefore I find that the Wife is presently unable to support herself adequately pursuant to s.72(1)(c) by reason of having been out of the workforce for over 19 years. Consequently I find that s.72(1) of the Act has been satisfied.
I will now consider each of the matters referred to in s.75(2) as far as they are relevant.
Section 75(2)(a) the age and state of health of each of the parties;
The Wife is 46 years of age, having been born on … 1972. The Wife is in good health. The Husband is 51 years of age, having been born on … 1967. The Husband also is in good health.
Section 75(2)(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
Wife
The Wife’s income, property and financial resources are set out in the Wife’s 2019 Financial Statement. The Wife’s weekly income is $34 from a rental guarantee and $1,440 from maintenance and child support paid by the Husband. The Wife’s total weekly income is $1,474.
The Wife has $90,882 held in a National Australia Bank Account, which is held as a rental guarantee. At the time of the hearing this money was not accessible to the Wife[111]. The Wife has a 30 per cent entitlement in the Armington Superannuation Fund which was valued at $98,900 as at 31 December 2018. The Wife owns 12 ordinary shares in Company N Pty Ltd and 4 ordinary shares in Company K Pty Ltd.
[111] At the hearing there was a claim for orders against the Husband as referred to in paragraph 22. On 12 April 2019 at a subsequent hearing the Court was advised that this issue had resolved and a determination by the Court on this issue was no longer requested by the Wife.
The Wife has the following liabilities[112]:
a)Loan from Mr DD (brother) for legal fees, living expenses and rent - $230,648.
b)Mr Z for production of documents in compliance with a subpoena - $2,000.
[112] Wife’s 2019 Financial Statement, at [53] and [54].
Husband
The Husband’s income, property and financial resources are set out in the Husband’s March 2019 Financial Statement. The Husband deposed that he receives an average weekly income of $7,632 from the following sources[113]:
a)Salary from COMPANY B (Aust) Pty Ltd of $5,769. The Husband’s gross annual salary was $300,000 as at 31 January 2019[114].
b)The sum of $1,382 being income from a distribution from Company G Unit Trust (Company G) to Armington Pty Ltd. In 2018 the annual distribution was $71,884[115].
c)The sum of $481 from Airbnb income from Property EE[116].
[113] Husband’s March 2019 Financial Statement, Part D and Part O.
[114] Ibid., at [9].
[115] Ibid., at [11] and [O].
[116] Ibid., at [15].
The Husband was cross-examined in relation to his income. It was put to the Husband that the taxable income of Company G in 2018 financial year was in fact $800,000. This was based upon an email sent from Mr CC of Accountants to the Husband on 29 June 2018[117]. Mr CC was Mr BB’s assistant at accounting firm[118]. The email included the following:
Company G Unit Trust is forecast to derive taxable income of approximately $800,000. Both the Mr V Family Trust and Armington Pty Ltd own 20% of the units, and as a result are expected to receive approximately $160,000 each[119].
[117] Exhibit A9.
[118] Transcript T137:27-28.
[119] Exhibit A9, at [1].
The Husband said that this email was wrong and that the amount of $800,000 “was a forecast”[120]. The Husband could not remember sending a response to this email.
[120] Transcript T137:26-29.
The Husband was cross-examined in relation to the ‘Agreement re Distribution from Company G (Company G Distribution Agreement), between Company C Pty Ltd, Mr and Mrs Armington and the Husband, dated 22 February 2012 and 15 March 2012[121]. The Company G Distribution Agreement said:
This agreement is made between [the Husband], and the beneficiaries of the Armington Family Trust, Mr V and Ms Y.
This is to confirm the agreement that, until further notice, all distributions from Company G in respect to the unit holding of Company C ( as trustee for the Armington Family Trust) as recently acquired, when paid are to be transferred back to [the Husband](or an associated entity ). This is to be treated as an “ in -family” private arrangement, and is made solely as a means of assisting him to meet the self-imposed financial undertakings provided by him to his family, and at the same time, to enable him to enjoy at least a modest lifestyle during the period prior to finalising his divorce settlement.
It has been agreed that [the Husband’s] other sources of income alone are unlikely to be sufficient to meet those particular financial needs. If circumstances change and that is not seen to be the case, it is agreed that the distributions will remain with the Armington Family Trust[122].
[121] Affidavit of Mr V, filed 5 April 2018, Annexure “V-1”.
[122] Affidavit of Mr V, filed 5 April 2018, Annexure “V-1”.
Mr Armington deposed in relation to the Company G Distribution Agreement:
On 22 February 2012, [the Husband] and I entered into a formal agreement that all earnings derived by me from my unit holdings in Company G would be transferred back to [the Husband] or one of his associated and nominated entities, until such time that the funds were not required by him to personally maintain a reasonable standard of living. While income has been distributed by Company G to Ms Y and myself, that income has ultimately been utilised for the benefit of [the Husband] and [the Wife][123].
[123] Affidavit of Mr V, filed 5 April 2018, at [19].
Counsel for the Wife put to the Husband that pursuant to the Company G Distribution Agreement he receives 40 per cent of the revenue of the Company G and the Company C Pty Ltd (as trustee of the Armington Family Trust) paid the tax. The Husband said that this arrangement had occurred until recently, however the Husband said that he believed that Mr Armington had received a dividend distribution of $25,000 in January 2019[124]. The Husband also said that “since Christmas there would have probably have been two I would think distributions” to Mr Armington[125]. Counsel put to the Husband that there was “not one word” about recent distributions in the Husband’s Affidavit filed on 5 February 2019 and the Affidavit affirmed on 4 March 2019[126]. The Husband eventually responded “I can’t recall whether I did or I didn’t”[127].
[124] Transcript T139:27-28.
[125] Transcript T140:16-18; see also T166:27-35.
[126] Transcript T140:31.
[127] Ibid., T141:18-19.
The following do not make any reference to Company C Pty Ltd (as trustee of the Armington Family Trust) or Mr Armington recently receiving and retaining a dividend distribution from Company G:
a)Affidavit of the Husband, sworn and filed on 5 February 2019.
b)Affidavit of the Husband, Affirmed on 4 arch 2019 and filed on 19 March 2019.
c)Husband’s March 2019 Financial Statement.
d)Affidavit of Mr V, filed 5 March 2019.
Further when Mr Armington addressed the Court on 5 March 2019 he did not make any reference to Company C Pty Ltd (as trustee of the Armington Family Trust) or Mr Armington recently receiving and retaining a dividend distribution from Company G[128]. Mr Armington said:
It’s now suggested that it doesn’t belong to me. And part of the reason for that is that all the income from that - that is all the income from my 20 per cent of equity - has been continuing to…[the Husband][129].
[128] Ibid., T75:45-83:16.
[129] Ibid., T79:15-18.
The Husband was cross examined in relation to the Financial Reports and Income Tax Return for the Company G Unit Trust for the Year ending 30 June 2018[130]. The Husband agreed that for the financial year 2018 Armington Pty Ltd had received $71,884 from Company G[131]. The Husband conceded under cross-examination that he had also received another $71,884 which had been distributed to Company C Pty Ltd[132]. The Husband then gave evidence that from 1 July 2018 Armington Pty Ltd only received 20 percent of the dividend distribution from Company G[133].
[130] Exhibit R1.
[131] Transcript T159:18.
[132] Ibid., T159:30-31.
[133] Ibid., T165:45-166:25.
The Husband acknowledged that he had not reimbursed Company C Pty Ltd (as trustee of the Armington Family Trust) the tax paid on his behalf[134].
[134] Ibid., T140:5-8.
Counsel for the Wife made the following submission in relation to the Company G Distribution Agreement:
[…] I have aggregated as the husband’s income from Company G the income that is attributable to the 20 per cent fractional share of his father. […]
The husband says it’s a loan. His father says it’s a loan. I’ve already indicated earlier that this is very much in dispute as a matter for trial. […]
But we can start from this position. He is getting the revenues. He is not paying tax on his father’s fractional share. If it is a loan, it’s not one that is being pursued by the creditor in any way at all. It’s not one on which he is paying interest. […]
It’s not one that has the least bit of commercial character about it. That document which is exhibited to Mr V’s affidavit filed in April last year, on its face, says this is an in-family arrangement. The word’s intention to enter into legal relations are echoing loud. This is no loan, your Honour. On any view, we know where the money is going, and we know, over seven years now, at least one year of it outside the statute of limitations, this has not been-no one is treating it like a loan. […]
It is got that, on an interim basis, it looks like a duck and walks like a duck […] appearance about it[135].
[135] Ibid., T186:6-39.
The Husband held $6,035 in a Westpac bank account and $110,176 in a National Australia Bank term deposit. The Husband has provided the term deposit as security to Mr and Mrs Armington for a loan[136].
[136] Husband’s March 2019 Financial Statement, at [37] and [O].
The Husband owns a motorbike valued at $6,840 and a motor vehicle valued at $18,000. Armington Pty Ltd owns a 20 per cent share of Company G, which is valued at $230,000[137]. The Husband has superannuation valued at $164,904, based on a 50% entitlement in the Armington Superannuation Fund which was valued at $329,812 at December 2018[138].
[137] Ibid., at [41] and [O].
[138] Husband’s March 2019 Financial Statement, at [45].
The Husband has the following liabilities[139]:
a)Unpaid tax for 2018 financial year - $20,000.
b)Loan from Mr and Mrs Armington for payment of tax - $101,425.
c)Westpac Altitude Black Mastercard - $6,035.
d)Legal Fees - $10,612.
e)Division 7A loans – Armington Pty Ltd -$579,299.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
[139] Ibid., at [K].
The Children live with the Wife and spend three nights each fortnight with the Husband[140]. I refer to the matters in paragraphs 9 and 10.
Section 75(2)(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
The commitments of each of the parties that are necessary to enable the party to support himself or herself
[140] Wife’s February 2019 Affidavit, at [23].
Wife
The commitments that the Wife has that are necessary to enable the Wife to support herself are set out in the Wife’s 2019 Financial Statement. The Wife pays $2,005 a week for rent of the property at Suburb FF. The Wife is on a monthly periodic lease[141].
[141] Transcript T128:24.
The Husband pays the Wife’s health insurance with … and the current weekly amount is $77[142].
[142] Wife’s 2019 Financial Statement, at [18] and [26].
The Wife has house and contents insurance with … at a weekly cost of $14[143]. The Wife deposes to weekly expenses for herself of $814[144]. In relation to this amount:
[143] Ibid., at [26].
[144] Ibid., at [N].
a)The Wife claims the amount of $100 for “Dry cleaning/ironing”. When cross-examined the Wife said that:
“[…] a young girl comes and does four hours of ironing a week. It’s the one thing I cannot do”[145].
The Wife said that she pays $100 a week for ironing. This is an unnecessary expense, therefore I do not make allowance for this item.
b)The amount of $38 is claimed for “Vet/grooming”. The Husband has agreed to pay all vet costs. Therefore I do not make an allowance for this item.
c)The amount of $100 a week is claimed for “Hairdressing/toiletries”. When cross examined the Wife said that this was for the cost of colouring, ‘normal makeup, feminine products […] the basic things that I’ve always purchased”[146]. In the absence of any further evidence as to how this amount is calculated, it is excessive, totalling $5,200 per annum. Therefore I only allow $50 a week for this item.
d)The amount of $30 a week is claimed for “Cleaning (house/pool)”. This is an unnecessary expense and therefore I do not make an allowance for this item.
e)The amount of $40 a week is claimed for “Internet/movies”. This is a significant amount of money being spent on entertainment. Therefore I only allow $20 a week for this item.
[145] Transcript T127:30.
[146] Transcript T128:9-14.
I therefore reduce the Wife’s weekly expenses for herself of $814[147] by $238, making her weekly expenses $576. Including the home contents insurance the Wife’s weekly expenses are $590.
[147] Wife’s 2019 Financial Statement, at [N].
Husband
The commitments that the Husband has that are necessary to enable the Husband to support himself are set out in the Husband’s Financial Statement, filed 5 March 2019.
The Husband deposed to weekly expenses totalling $3,600 that are necessary to support himself as follows:
a)The Husband estimates that his tax liability is $2,108[148].
b)Rent for Property EE of $1,048.
c)Life Cover life insurance premiums of $262.
d)… Income Protection premiums of $82.
e)Westpac Altitude Black Mastercard repayments of $100.
[148] Husband’s March 2019 Financial Statement, at [19]. Transcript T145:15-25.
The Husband also included a claim that all his other weekly expenses totalled $4,779[149]. This amount was calculated by reference to an Annexure to the Husband’s March 2019 Financial Statement. Most of the items claimed are calculated on an annual basis and the Husband gave evidence that the amounts were calculated on actual expenditure last year[150]. In relation to the items relating specifically to the Husband:
[149] Husband’s March 2019 Financial Statement, at [32] and “Annexure A”.
[150] Transcript T144:5-27.
a)The sum of $75,790 is claimed for “Legal”. I do not allow any amount for this item as the Husband has not made any appropriate claim for payment of his legal fees.
b)The sum of $54,496 is claimed for “Rent”. I have not made an allowance for this as rent is specifically referred to in Item 21 of the Husband’s Financial Statement, filed 5 March 2019.
c)The sum of $32,418 is claimed for “Tax”. The weekly amount is $623. I have not made an allowance for this as tax is specifically referred to in Item 19 and Part O of the Husband’s Financial Statement, filed 5 March 2019.
d)The sum of $12,842 is claimed for “Entertainment and travel”. No further information is provided. When cross-examined the Husband gave evidence that he went on a holiday to … in January 2018[151]. I do not make any allowance for this item.
e)The sum of $4,178 is claimed for “Other”. There is no further information provided as to what this claim is for. I do not make any allowance for this item.
f)The sum of $3,726 is claimed for “Car”. The weekly amount is $72.
g)The sum of $864 is claimed for “Clothes”. The weekly amount is $17.
h)The sum of $818 is claimed for “Medical”. The weekly amount is $16.
i)The sum of $776 is claimed for “Fees”. There is no further information provided as to what this claim is for. I do not make any allowance for this item.
j)The sum of $540 is claimed for “Fines”. The weekly amount is $10.
[151] Transcript T149:7-19.
By reason of the amounts not allowed in paragraph 158, the total of the Husband’s expenses in the Annexure to the Husband’s March 2019 Financial Statement is therefore reduced to $115 a week. The Husband’s Financial Statement, filed 5 March 2019 does not provide any information about the weekly amount that the Husband spends on food and utilities.
The total of the Husband’s weekly expenses referred to in paragraph 157 and in paragraphs 158 and 159 is $3,715. This amount does not include any amount the Husband spends on food and utilities.
The commitments of each of the parties that are necessary to enable the party to support a child or another person that the party has a duty to maintain
Wife
The Wife receives child support from the Husband. The Husband has in addition agreed to make additional payments associated with the Children’s school expenses and their pets. I refer to paragraph 112.
Husband
The Husband is assessed to pay child support and the current rate is $629.07. I refer to paragraph 111.
The Husband has also agreed to pay Ms Q’s accommodation costs in Canberra which are $400 a week[152].
[152] Ibid., T146:46-147:7.
I refer to paragraph 158. The Annexure also includes a summary of annual expenses relating to the family. In relation to the items relating to Ms Q and the Children in the Annexure:
a)The sum of $90,163 is claimed for “Education”. When cross-examined the Husband said that this amount was all the money that he spent in 2018 on the education of the Children[153]. Ms Q had a gap year in 2018 and worked and travelled[154]. The weekly amount is $1,734.
b)The sum of $19,590 is claimed for “Kids Allowance, etc”. When cross-examined the Husband said that he paid “pocket money” at the rate of $80, $90 and $100 a week for each of his daughters and that the amount goes up every time they get a year older. The Husband thought that [Y] spent her $80 a week on “food and entertainment”[155]. The Husband also gives Ms Q $100 “pocket money” each week[156]. I do not to make any allowance for this item insofar as it relates to the Children as the Husband is paying child support for the Children. Ms Q was living away from home and at the time of the hearing had not secured casual employment in Canberra whist studying. I therefore allow $100 a week for Ms Q.
c)The sum of $14,153 is claimed for “Medical”. The weekly amount is $272.
d)The sum of $10,009 is claimed for “Entertainment and Travel”. There is no further information provided as to what this claim is for. I do not make any allowance for this item.
e)The sum of $2,830 is claimed for “Gifts”. I do not propose to make any allowance for this item. The Husband is assessed to pay child support.
f)The sum of $2,943 is claimed for “Pets”. The weekly amount is $57.
g)The sum of $1,729 is claimed for “Entertainment”. The weekly amount is $33.
[153] Ibid., T146:35-40.
[154] Ibid., T147:9-15.
[155] Ibid., T149:22-40.
[156] Transcript T147:17 and T149:42-150:1.
The total amount of the Husband’s expenses in paragraphs 162, 163 and 164(a), (c), (f) and (g) is $2,096.
Section 75(2)(e) the responsibilities of either party to support any other person;
Neither party has disclosed an obligation to support any other person.
Section 75(2)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
This is not a relevant consideration.
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
The Wife deposed to the family’s pre-separation standard of living as follows:
[…] we owned two beautiful houses in Suburb S, had immaculately maintained gardens, purchased new European cars every three or four years. Our children were immaculately dressed often in good quality clothes. I had designer handbags and jewellery and Mr Armington also wore designer suits and shoes”[157].
[157] Wife’s April 2018 Affidavit, at [112].
The Wife deposed to her post-separation standard of living as follows:
We wold go out for dinner as a family once a week however I am now unable to take the children out for dinner as I cannot afford it.
When friends invite me to special events such as charity dinners I have to decline as I cannot afford to go. I also have to decline any trips away with my friends[158].
Section 75(2)(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
[158] Ibid.,, at [116] and [117].
The Wife deposed that she plans to start her own business[159]. There was no evidence that the Wife had any qualifications or significant experience in this area. There was no evidence that the Wife was considering undertaking a course of education or training.
[159] Ibid., at [126].
The period of six months of spousal maintenance will enable the Wife to undertake short term education courses, for example enhancing her computer skills.
Section 75(2)(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This is not a relevant consideration.
Section 75(2)(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
The Wife attests to putting considerable time and effort into developing and growing the Company K together with the Husband until the birth of Ms Q in 1999[160]. The Wife has been the primary caregiver of Ms Q and the Children during the marriage and after separation[161]. This has contributed to the income, earning capacity, property and financial resources of the Husband.
Section 75(2)(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
[160] Ibid., at [74]-[76].
[161] Ibid., at [98]-[103].
The parties’ relationship lasted 14 years. They were married on … 1997 and separated on 1 December 2011. I refer to the matters in paragraphs 123 and 127.
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
The Wife wished to continue in her role as Ms Q and the Children’s primary carer during the marriage and after separation. The Husband has supported the Wife’s wishes but now says he can no longer afford to do so.
[X] is now aged 17 and in year 12 and [Y] now aged 15 and is in year 9. They no longer require a full time primary caregiver.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
There is no evidence before the Court that either party is cohabitating with another person.
Section 75(2)(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
This is not a relevant consideration.
Section 75(2)(naa) the terms of any order or declaration to be made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a defacto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
This is not a relevant consideration.
Section 75(2)(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The Husband is assessed to pay child support. I refer to paragraph 111.
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
All relevant considerations are included in this judgment.
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
This is not a relevant consideration.
Section 75(2)(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage;
This is not a relevant consideration.
Consideration
I now consider the issue of the Husband’s income. Counsel for the Wife submitted that the Court should be satisfied that by reason of the matters referred to in paragraph 138 the income that the Husband had received from Company G last financial year was $320,000. On this basis Counsel submitted a Table indicating that the Husband’s income is $12,402 a week or $644,996 per annum.
I am unable to accept this submission on the basis that the email referred to in paragraph 138 is insufficient evidence to the relevant standard of proof that the Husband received or is currently in receipt of an income of $320,000 per annum from Company G.
Counsel for the Wife submitted in the alternative, that the Husband was still receiving 20 percent of the income from Company C Pty Ltd (as trustee for the Armington Family Trust) pursuant to the Company G Distribution Agreement. I refer to paragraphs 141 to 147. In my opinion the weight of the evidence is in favour of this submission. There was evidence apart from the Husband’s evidence when cross-examined, in relation to a recent change to the long standing arrangements made pursuant to Company G Distribution Agreement. Mr Armington addressed the Court at some length on 5 March 2019 and made no mention of any such change. I therefore I find that the Husband is receiving 20 percent of the Company G’s income from Company C Pty Ltd (as trustee for the Armington Family Trust) pursuant to the Company G Distribution Agreement.
I therefore find the Husband’s income to be an average weekly income of $9,014 from the following sources[162]:
a)Salary from COMPANY B (Aust) Pty Ltd of $5,769.
b)The sum of $1,382 being income from a distribution from Company G to Armington Pty Ltd. In 2018 the annual distribution was $71,884[163].
c)The sum of $481 from Airbnb income from Property EE[164].
d)The sum of $1,382 being income from a distribution from Company G to Company C Pty Ltd (as trustee for the Armington Family Trust) pursuant to the Company G Distribution Agreement.
[162] Husband’s March 2019 Financial Statement, Part D and Part O.
[163] Ibid., at [11] and [O].
[164] Ibid., at [15].
The Husband’s weekly personal expenses total $3,715 as referred to in paragraphs 156 to 160. I do make any allowance for an increase in the Husband’s taxation liability on the basis that the Husband gave evidence that the amounts were calculated on actual expenditure last year. The Husband conceded under cross examination that he had received another $71,884 last financial year from Company C Pty Ltd (as trustee for the Armington Family Trust)[165].
[165] Transcript T159:30-31.
Therefore $9,014 less $3,715 leaves $5,299 a week. In the absence of any evidence from the Husband in relation to any expenses paid for food and utilities, I allow $500 for the Husband to live on each week, leaving $4,799 per week.
In accordance with Bevan & Bevan[166] the Court’s discretion must be exercised in accordance with the provisions of s.74 and with “reasonableness in the circumstances” as the guiding principle. In this case the parties have chosen that the Children undertake private secondary education. They have also chosen to support Ms Q with her tertiary education. The Husband has agreed to orders that will cover the Children’s education and the cost of vet bills for the pet dogs. The Husband also pays child support. The Husband’s expenses which I have found to be reasonable are referred to in paragraphs 162 to 165 and they total $3,225 relating to the family. These costs also include the family medical expenses (including the Wife’s health insurance).
[166] (1995) FLC 92-600, at p. 81,981-81,982.
Therefore of the $4,799 remaining the further costs for the family of $3,225 are to be deducted, and then only $1,574 remains.
I have taken into consideration each of the matters relevant to s.74(1) and 75(2) and I determine that it is appropriate to make an order for spousal maintenance in favour of the Wife for a period of six months.
I have found that the weekly expenses of the Wife are $590. If this amount is paid weekly to the Wife, the balance of $984 remains. There is insufficient funds left for the Husband to pay the whole of the Wife’s rent of $2,005 each week. Therefore I am unable to make an order for the full amount of the Wife’s weekly rent. I intend to round the Husband’s weekly payment up to $1,000 per week as a contribution towards the Wife’s rent.
The Wife also seeks the orders referred to in 110(c) and (d). I refer to paragraph 105 of the Wife’s April 2018 Affidavit. No submissions were made by Counsel for the Husband in opposition to making these orders. I therefore will make the orders sought.
Conclusion
I determine that the Wife should receive weekly interim spousal maintenance of $1,219. This amount should be paid less any amount actually paid pursuant to an administrative assessment for child support by the Husband to the Wife, commencing immediately for a period of six months. This is, therefore, the Wife’s weekly expenses of $590 together with the current child support assessment amount of $629. I also determine that the Husband should pay the sum of $1,000 per week in relation to the Wife’s rent and also the Wife’s private health insurance at the current level of cover.
I determine that the Husband should arrange for all school accounts to be placed in his name. I also determine that the Husband is to reimburse the Wife within seven days of any expenses paid by the Wife on behalf of the Husband pursuant to the orders I am going to make.
I intend to make orders accordingly.
I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for judgment of Her Honour Judge C. E. Kirton QC.
Date: 13 May 2019
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