Barr & Barr (No 2)
[2023] FedCFamC1F 80
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barr & Barr (No 2) [2023] FedCFamC1F 80
File number(s): MLC 11085 of 2018 Judgment of: MCNAB J Date of judgment: 23 February 2023 Catchwords: FAMILY LAW – the sale and distribution of proceeds of a business that is now in liquidation – Where enforcement has been declared impractical – Where orders made for spousal maintenance Legislation: Child Support (Assessment) Act 1989
Family Law Act 1975 (Cth) s 66E, 77, 79A, 83
Cases cited: Barr & Barr [2022] FedCFamC1F 441
Barr & Barr [2022] FedCFamC2F 31
Division: Division 1 First Instance Number of paragraphs: 38 Date of hearing: 3 February 2023 Place: Melbourne Counsel for the Applicant: In Person Counsel for the Respondent: In Person
Table of Corrections 24 February 2023 Order 5 added and Order 3 amended 27 February 2023 Orders 3, 4, 5 and 7 Amended ORDERS
MLC 11085 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BARR
Applicant
AND: MS BARR
Respondent
order made by:
MCNAB J
DATE OF ORDER:
23 FEBRUARY 2023
THE COURT ORDERS THAT:
1.Order 2 to 8 of the Final Orders of 17 February 2022 be set aside.
2.Order 6 of the Orders made on 22 November 2022 be set aside.
3.The husband pay to the wife spousal maintenance of $500 per week, to be paid each Monday, starting Monday 27 February 2023, for the period of two years until 24 February 2025 inclusive.
4.The husband continue to meet the private health insurance costs of the wife and children until February 2025.
5.The husband continue to meet the school fees of the public school, together with extracurricular costs associated with the schooling.
6.The husband’s application filed 30 September 2022 be dismissed.
THE COURT ORDERS BY CONSENT THAT:
7.The wife meet the private health insurance costs for herself and the children from February 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Barr & Barr has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Division 1) Rules 2021 (Cth) on 27 February 2023
McNab J:
This matter comes before the court by way of an Application in a Proceeding filed by the applicant husband, Mr Barr, on 30 September 2022. The respondent wife in this matter is Ms Barr. The matter came before me for an interim defended hearing on 3 February 2023, and both parties appeared in person.
The husband relies on his application, financial statement filed 30 September 2022, and two affidavits in support, filed 30 September 2022 and 27 January 2023. The wife relies on her response and affidavit in support filed 15 December 2022 and financial statement filed 10 January 2023.
On 3 February 2023, orders were made that by 4pm on 10 February 2023, the wife file and serve an affidavit from her treating medical practitioner pertaining to her medical conditions, a proposition in relation to the duration and effect of any condition, and her capacity to work. No affidavit has been filed. A letter from the wife’s treating medical practitioner was forwarded to the court subject to a condition imposed by the wife that the contents of same not be distributed to the husband. In these circumstances, the court cannot rely on or refer to that report.
In his application, the husband sought that:
(1)Pursuant to s 79A of the Family Law Act 1975 (Cth) (the Act), paragraphs 2 to 8 inclusive of final property orders made on 17 February 2022 be discharged;
(2)Pursuant to s 83 of the Act, the husband’s obligation to pay spousal maintenance to the wife in accordance with paragraph 13 of the final orders be discharged.
The relevant court orders provide:
2.Each of the parties do all such acts and things as may to necessary to sell the business “[B Business]” (operating under the structure of [Barr Pty Ltd]) (“the business” and “the sale”)
3.By way of consequential arrangements for the sale:-
(a)The selling agent be appointed as agreed between the parties, with such agreement to be confirmed in writing, within 14 days of the date or the Husband's election to sell, and with the Wife to nominate three selling agents within 7 days, and the Husband to choose one of those selling agents within 7 days thereafter;
(b)The method of sale be as agreed between the parties upon considering the recommendations of the selling agent;
(c)The reserve price for the sale be $427,500 unless otherwise agreed between the parties in writing.
(d)The Husband have primary responsibility to liaise with the selling agent with respect to the sale but shall advise the Wife in writing of any significant occurrences with respect to the sale as they occur and send a monthly update in writing by the 5th day of each calendar month to the Wife as to the progress of the sale;
(e)The Husband shall give the Wife no less than five business days notice of his intention to enter a contract for the sale and the particulars of the sale;
(f)The Wife be and is hereby restrained from contacting (including by correspondence) the selling agent more frequently than once per fortnight and any such contact shall be polite, business like and limited to matters pertaining to the sale;
(g)The Wife be at liberty to appoint a nominee ("Wife's Nominee") to observe negotiations (where practical) and liaise with the selling agent;
(h)The Husband shall do all acts and things necessary to ensure that the Wife is informed in writing within 24 hours of:-
(i) Any prospective purchaser for the business;
(ii) Any offers to purchase the business; and
(iii)Any proposed variation to the terms and conditions of sale including mode of sale.
(i)The Wife’s nominee be permitted to attend the initial appointment with the selling agent, be provided with a copy of terms and conditions of sale, and be informed of how the sale is to be conducted; and
(j)Unless agreed in writing, the Wife be and is hereby restrained from making direct contact with any potential purchasers of the business SAVE THAT she be at liberty to refer potential purchasers to the selling agent.
4.Contemporaneously with the payment or upon settlement of the sale, the Wife do all acts and things and sign all necessary documents to transfer to the Husband, at his expense, her shares in the Company known as [Barr Pty Ltd].
5.Pending the payment or the sale, the Husband:-
(a)will continue to operate the Business in the ordinary course of business, including but not limited to ensuring the payment of the obligations and debts of the Business as and when they fall due;
(b)is restrained (unless otherwise agreed in writing) from further encumbering the Business save to make the payment to the Wife;
(c)be permitted to draw a salary of $115,000 gross per annum from the business pending the sale; and
(d)on a monthly basis, until settlement of the sale, provide the Wife with a list of expenses paid by the business together with invoices and bank statements (but nothing in this order requires the Husband to produce a reconciliation prepared by him).
6.The proceeds of the Sale of the Business (including any surplus cash held in the business accounts) upon settlement and the monies in the bank accounts of the business, shall be disbursed as follows:-
(a)first, to pay all costs and commissions associated with the sale;
(b)second, to meet the outstanding liabilities and expenses of the Business including but not limited to creditors, wages, salaries, employee entitlements and tax liabilities, but not capital gains tax;
(c)third, (if necessary) to pay any tax debt assessed to the Wife for tax liabilities arising from distributions to her from the [Barr Family Trust] in the last 3 financial years;
(d)fourth, the sum of $50,000.00 to be held in the trust account of [E Solicitors] (“the escrow funds”) pending the finalisation of any Capital Gains Taxation liabilities associated with the Sale (CGT Liabilities) and once the Husband lodges the financial returns of the [Barr Family Trust] following the Sale and upon receipt of the consequent Notice of Assessment, such sum be paid to the Commissioner of Taxation from the escrow funds, subject to paragraphs 9 and 10 hereof;
(e)fifth, to pay out the [Motor Vehicle 1] in the possession of the Husband ([Motor Vehicle 1]);
(f)sixth, such proportion of the remaining net proceeds to the Wife such that she retains 60% of the total net asset pool available for division between the parties, after accounting for the Wife already receiving $50,000 and the sum of $61,930 by way of part property settlement;
(g)seventh, such proportion of the remaining net proceeds to the Husband such that he retains 40% of the total net asset pool available for division between the parties as determined by the Court after accounting for the Husband already receiving $105,000 by way of part property settlement and legal expenses;
(h)eighth, the Wife pay to the Husband from her share pursuant to order 6(f) the sum of $11,380 being the reimbursement of costs for the Family Report, business valuer and mediator in these proceedings.
7.In the event of there being a deficit in the escrow funds relative to the CGT Liabilities, the Husband will be liable for 40% of the deficit and the Wife liable for 60% of the deficit.
8.Upon the payment of any taxation liabilities pursuant to order 6(d) herein any surplus funds shall be disbursed as follows:-
(a)60% to the Wife; and
(b) 40% to the Husband.
In his recent affidavit filed 27 January 2023, he states that he seeks the following additional orders:
(1)That the wife or any acquaintance be restrained from making any contact with his place of work or attempting to find his place of work;
(2)That the wife pay her superannuation distribution of 50% to the husband as per final orders of 17 February 2022;
(3)That the wife abide by the parenting orders relating to drop off times and locations, with a bond of $5,000 if the wife unilaterally breaches these orders;
(4)That the 9/5 split of time with the children be reinstated; and
(5)That the wife use appropriate and polite language in communications between the parties.
The wife in her response sought that:
(1)Pursuant to s 77 of the Act, the husband pay the following expenses:
(a)Spousal maintenance to the wife in the sum of $1,000 per week over a period of three years;
(b)The children’s school fees;
(c)The wife’s outstanding gas/electricity bill of $5,638.83;
(d)The wife’s outstanding hospital bill of $2,091; and
(e)The wife’s outstanding legal fees of $24,430.
(2)The husband provide proof of his job title and salary from his employer.
In her affidavit, she seeks the following additional orders:
(1)That she have sole parental responsibility of the children; and
(2)That parenting orders be revised so the children’s time with the husband be reduced to 3 nights per week rather than 4.
This matter last came before me by way of an Application for Enforcement filed by the wife on 4 April 2022 to enforce final property orders made on 17 February 2022 in relation to the sale and distribution of proceeds of the husband’s business (orders 2 and 6), B Business, and spousal maintenance sufficient to cover the wife’s rent and health insurance premiums (order 13). On 21 June 2022, I made orders dismissing the wife’s enforcement application and gave reasons detailing that the business had been placed into voluntary administration, approved by resolution in a meeting of creditors on 18 March 2022, and no breaches of director’s duties were identified by the appointed administrator. In those circumstances, it had become impossible to enforce an order for sale and distribution of proceeds of that business. In my reasons, I noted that neither party had made an application to vary the final orders under s 79A of the Act.
I also noted that the parties had effectively spent a sum on legal fees which represented approximately 80% of the ascertained final asset pool.
Parenting orders were made by consent on 14 January 2020. There is currently no application to change these orders, but there are issues relating to compliance with the orders.
BACKGROUND
By way of brief background, I refer to [16] of my earlier judgment:
The husband is 47 [now 48] and the wife is 50. The parties commenced living together in [early] 2004, married in [early] 2006, and separated in June 2017. There are two children of the marriage. [Y] born […] 2010, and [X] born […] 2013. Both [Y] and [X] live primarily with the wife and spend five nights per fortnight with the husband during school term, and half of school holidays and special occasions.
The orders of 22 November 2022 specify that the husband pay the wife the sum of $500 per week as child support pending the outcome of the hearing on 3 February 2023. The wife gave evidence that there was no child support application on foot, and the husband is $5,000 behind in child support payments. As I explained to the parties on 3 February 2023, the order that the husband pay the wife a sum as child support was beyond power and would be set aside.
The husband has given evidence that he has recently obtained employment, although does not wish to disclose details of his employer due to his fear of the wife contacting them. He has provided redacted payslips evidencing his salary of $200,000 (gross) per annum. The wife remains unemployed, and gives evidence that she is experiencing financial hardship and poor health.
The husband does not accept that the wife is experiencing financial hardship, and does not believe she requires substantial financial support. He argues that her claims are inconsistent with her going on holidays, enrolling the children in private school, taking herself and the children to private hospitals, renting a beach house in addition to her residential property, and purchasing Motor Vehicle 2. She also received a lump sum payment from G Bank as a settlement of a legal dispute, but has not disclosed any details relating to this.
The husband gives evidence that as a result of his business being liquidated, he owes significant debts, and cannot afford the spousal maintenance sought by the wife.
He gives evidence that he has been paying the wife and children’s health insurance, rent, the children’s extracurricular and school expenses and fees.
The wife gave evidence that the holiday related to attendance at a close friend’s funeral, and it was not a family holiday. She gave evidence that her Motor Vehicle 2 was a 2009 model that she received as a trade in from her old car, and did not require out of pocket funds. She has not provided any details of the car in her material. In relation to her attending private hospitals, she gave evidence that the private hospital is located closer to her residence. In relation to the beach house, she says her parents pay for the property, and she maintains it because it is close to her parents, who are not well.
The wife’s affidavit repeats many of the allegations that were dealt with in the final hearing before Judge Stewart. She also details what she believes are B Business’s profits, and says that she did not believe the business needed to go into liquidation. I dealt with this in my reasons of 21 June 2022 finding that there were valid reasons for the liquidation of the company.
The wife, by her affidavit, gives evidence that she has current total outstanding debts of approximately $32,959. She disputes the husband’s evidence that she has been given large sums of money over the last several years. That evidence is at odds with the findings of Stewart J. in her reasons for judgment at [42], [43] and [73]. The wife gives evidence that she has average weekly expenses of about $1,200.
She also gives evidence that the stress of these proceedings has had a significant impact on her health, and states she has been in hospital multiple times since mid-2022, and has undergone several operations. Orders were made for the wife to file an affidavit from her treating medical practitioner which outlined her current health status and a prognosis regarding her capacity to work now and in the future. A letter was provided to the court by the wife from her treating doctor (not an affidavit), but the wife has said she does not want that information to be disclosed to the husband. In those circumstances I will not refer to that information. I do accept that the wife has experienced significant ill health and accept her evidence that she has required surgery. In her affidavit of 15 December 2022, the wife annexed a number of invoices from the emergency department of F Hospital, which I have also had regard to.
The wife placed before the court a letter that she has written to the Chief Justice of the Federal Circuit and Family Court of Australia on 29 January 2023. This letter contained complaints against Judge Stewart and two legal practitioners, who were the husband’s solicitors during the final hearing in 2022. The complaint is not relevant to this application.
CONSIDERATION
Section s79A of the Act provides:
S 79A Setting aside of orders altering property interests
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e)a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
In my judgment of 21 June 2022, I detailed the circumstances of B Business. For ease of reference, I set out the relevant paragraphs below:
[8][In early] 2022, the business was placed into voluntary administration. This voluntary administration was approved by resolution in a meeting of creditors on 18 March 2022, and the appointment of the Administrator, [Mr C], was formalised. According to the husband’s affidavit of 16 May 2022, the cost of placing the company into administration was $16,500. The circumstances of the administration were that the company’s profitability had been decreasing over previous years, with losses of $50,332.65 recorded for the financial year ended 30 June 2020, and losses of $313,454.75 for the period ended [early] 2022, according to the Administrator’s report prepared 6 April 2022 (“the report”). The husband explained that the decline was a consequence of “a highly messy divorce that has been ongoing for a number of years and the ongoing impacts of COVID-19”. He cites a reduction in sales of 45% in the period prior to being placed into administration. The company ceased trading [in] 2022 out of fear of trading insolvent. The franchise agreement was terminated [in] 2022.
[9]In the report, no breaches of director’s duties were identified, and assets and liabilities at the time of administration were summarised as follows:
Assets Low ($) High ($) Cash at bank 527 527 Debtors 20,000 29,974.55 Motor Vehicles 24,500 37,000 Plant & Equipment 25,000 27,890 Real Estate 0.00 0.00 Stock on hand 0.00 0.00 Work in progress 0.00 0.00 Total assets 70,027.00 95,391.55 Liabilities Low ($) High ($) Secured creditors 13,952.93 13,952.93 Priority creditors 832.68 832.68 Unsecured creditors 253,532.79 253,532.79 Contingent liabilities 0.00 0.00 Total Liabilities 268,318.40 268,318.40 Net Deficiency $198,291.40 $172,926.85 [10][In] 2022, during the second creditors’ meeting, the Australian Taxation Office voted for the business to be wound up. Estimated Administrator’s fees for the completion of winding up of the company are $70,051, and a further $1,245.67 in disbursements. Consequently, the Orders dealing with the application of the profits of sale including distribution to the wife cannot be given effect to because the company that owns the business is in liquidation and the business has ceased to trade.
[11]The wife claimed to be a creditor and lodged a formal notice of debt for $326,000, but the Administrator found this to be unsubstantiated.
…
[21]The affidavit filed by the husband on 16 May 2022 was in response to the Court Orders of 2 May 2022 and gave evidence of the circumstances of the company conducting the business being wound up. The affidavit exhibits a report to creditors of the Company prepared by [Mr C], the Administrator, dated 8 April 2022 and minutes of the second meeting of creditors held on 13 April 2022. At that meeting it was resolved that the company be wound up and that [Mr C] be appointed liquidator.
[22]The Administrator’s report noted:
‘“Due to a highly messy divorce that has been ongoing for a number of years and the ongoing impacts of COVID 19 the business unfortunately has not been able to operate at the same level it was with sales and profitability. This has unfortunately meant that I have had to put the business into voluntary administration. The landlord was also threatening to take possession due to unpaid rent. All staff entitlements have been fully paid including super and leave balances etc. Sales reduced by over 45% over this period of COVID with our core markets in aged care reducing their spending on signage overt this period. [In] March I terminated the employment of all remaining employees which have been fully paid out. The company had been profitable for many years prior to these effects’.
The Chairman noted the Company’s profitability had been declining ad was moving into a loss position and referred to the company’s internally produced financial records.
The Chairman stated that recorded a loss of $50,332.65 for the year ended 30 June 2021 and $313,454.75 for the period ended [early] 2022.”
[23]The affidavit sets out evidence of cost of the Administration being $16,500 of which $10,597.09 has been paid by the husband’s partner. The husband gave evidence that he has funds of $10,441.02 $NZ in an account in New Zealand and says that those funds comprise an inheritance from his grandmother in New Zealand and are presently held in an account in his wife’s name to protect the funds from creditors.
[24]As to the use of funds held in the business’ bank account, he gave evidence of the expenditure of funds to pay creditors, particularly the landlord of the business premises who was pressing for payment and threatening proceedings based on a personal guarantee signed by the husband A settlement was reached which resulted in the payment of $30,000 which was funded by company funds ($18,700) and by the husband’s partner ($11,300). Written evidence of that settlement and the payments to the landlord were before the Court.
…
[29]In my view, the husband has provided a rational explanation for the appointment of an administrator and the subsequent winding up of the company owning the business. The company was, at the time of the appointment of the administrator, unprofitable and had significant creditors. It also had 8 employees and a responsibility to make provision for the employment entitlements of those people. Continuing to trade may have exposed the husband to significant personal liabilities and the lack of profitability of the business may have made the sale of the business difficult.
[30]The evidence does not support a finding that money has been hived off by the husband or that the insolvency of the business has been brought about by the husband diverting funds. Nor is there evidence that the husband has access to a fund of money that would enable him to pay and amount representing the putative value of 60% of the business as found by Judge Stewart. The husband gave sworn oral evidence at the hearing on 14 June 2022 and was cross examined by the wife. The husband referred to the bank accounts of the business and was able to give explanations regarding the use of the funds. I am not persuaded that the husband has diverted funds for the purpose of defeating the Orders since Judge Stewart heard the evidence at trial and reserved her decision. Business funds have been used to pay child support and some other non-business purposes, but not at a level where the Court could reasonably find that the husband had contrived a circumstance by diverting funds to place the company in administration. The wife refers to revenues of the business but fails to refer to the ongoing liabilities of the business which go to profitability. I cannot see any evidence to support a finding that [D Accountants] have acted dishonestly in its administration of the company.
The evidence establishes that the husband's compliance with order six of the final orders of 17 February 2022 have become impracticable because of the liquidation of B Business, given that there are no other matrimonial assets identified sufficient to meet the payment to the wife, and where the judgment did not provide for the payment of a specified sum. That order must be set aside. It follows that orders 2 to 8 of the final orders must be set aside as they are contingent upon the sale of the business.
In relation to order 13 the final orders, those orders were predicated on the sale of the business and the proceeds being distributed following the sale. They were also made on the basis that they would remain in place only until the sale of the business and distribution of funds.
The evidence filed by the husband establishes that he does not have the capacity to pay the sums ordered in order 13 of the final orders. The husband earns a gross income of $200,000 which would result in him receiving an income net of tax in the sum of about $140,000. Otherwise he has negligible funds in a bank account. He swears in his affidavit that he has a liability to his current partner of $16,500 which relate to the costs of the administration of B Business, $11,500 being a debt to his current partner who used a redraw facility to pay a negotiated rental amount due to the landlord of the business (in circumstances where the husband guaranteed the payment of rent); and $16,690 owing to his father. He also states that he faces potential bankruptcy proceedings arising from personal guarantees given in the course of operating the business. He sets out in his sworn financial statement that he is repaying the loans to his father and partner at $500 per week.
He gives evidence that he currently pays $602 per week for his current accommodation. He deposes that he has been paying $400 per week as child support in addition to private health insurance for himself, wife and children at $288, and he is also paying school fees and extracurricular expenses including uniform costs and camp/excursion costs. That expenditure totals about $3,700 per week. His statement of affairs shows that he has an average weekly income of $3,849 and expenses (including tax) of $3,679.
In this matter there has been no assessment of child support pursuant to the Child Support (Assessment) Act 1989. The wife is currently receiving Centrelink payments and is experiencing poor health. I accept that she is currently unable to support herself adequately without maintenance being paid by the husband:
(a)by reason of the care of the children; and
(b)by reason of the physical incapacity brought on by the medical conditions.
In relation to capacity of the husband pay maintenance, I find that he does have the capacity to pay $500 per week as spousal maintenance, and that he should continue to meet the private health insurance costs of the wife and children, meet the school fees of the public school, together with extracurricular costs associated with the schooling.
I do not accept the husband's assertions that the wife has no need for spousal maintenance. The court does not accept that the wife’s attendance at a private hospital emergency department with one of the children to be profligate. The hospital was local and the alternative was a public hospital which was not. Similarly, I do not regard the wife’s purchase of Motor Vehicle 2 or her trip to Queensland provide evidence to support a finding that she does not require spousal maintenance.
I will make the orders operative for two years from the date of the order. I will make an order discharging order six of the orders made on 22 November 2022 as such order is beyond power given that the court does not have jurisdiction to make orders for child support whilst the children are resided in Australia (s 66E of the Act).
The parties have each sought of the court to make orders regarding the operation of the parenting orders, and as noted above the wife sought effectively go behind final orders by seeking orders that the husband pay legal costs, incurred in the course of the final hearing. I decline to make those orders. The husband does not have the financial capacity to pay these sums.
The wife also sought orders in relation to medical expenses. The husband does not have the capacity to pay those expenses in addition to the monies he is also directing to the wife and children (including private health expenses).
Insufficient evidence has been filed for the court to make orders regarding parenting and no application has been filed in relation to same. The current parenting orders continue to apply and must be followed.
As was noted by Judge Stewart in her reasons, the parties have exhausted their funds in legal proceedings and would appear to have been living a lifestyle which has been beyond their means for some time by reason of their expenditure on legal fees amongst other things.
These orders reflect the current need of the wife for spousal maintenance and the husband's capacity to pay. I have paid little regard to the debts that the husband refers to in his affidavit to his partner and his father. There is no evidence before the court that they are current liabilities in the sense that any demand for payment has been made or that they are currently due and payable.
As for the matters raised by the father in his affidavit of 27 January 2023 (set out in [6] above), there is no application to vary parenting orders or to deal with enforcement of final orders. Further, given the way matters have panned out for both parties, it may be prudent for the husband to leave matters where they lie in relation to the orders regarding superannuation. That is a matter for him to consider and I do not by these comments purport to make any ruling on the question of enforcement of orders regarding superannuation.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 23 February 2023
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