Beeston & Quint
[2023] FedCFamC1F 658
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beeston & Quint [2023] FedCFamC1F 658
File number(s): SYC 7625 of 2021 Judgment of: SMITH J Date of judgment: 9 August 2023 Catchwords: FAMILY LAW – Property – interim hearing – 9-18 month de facto relationship – one child - where approximately $10-11 million property pool – where wife has received $2.3 million in interim property payments and has $1.8 million cash – where wife seeks substantial ongoing spouse maintenance, child support variation and litigation funding, or further interim property payment, on basis that $1.8 million should be quarantined to purchase outright a house in Suburb B and that she is therefore unable to adequately support herself and the parties child – where husband’s recent pleadings concede wife’s entitlement to a further $272,395 in property alteration on his assessment of property pool – where significant funds available in controlled money account: Held. Dismiss applications for spouse maintenance, child support variation and litigation funding. Order further interim property distribution of $272,395. Legislation: Child Support (Assessment) Act 1989 (Cth) Pt VII, s 117
Family Law Act 1975 (Cth) Pts VIIIAB, XII, XV, ss 90SE, 90SF, 90SM, 106A, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166 Division: Division 1 First Instance Number of paragraphs: 68 Date of hearing: 17 March 2023 Place: Newcastle Counsel for the Applicant: Ms Spain Counsel for the Respondent: Mr Cummings SC ORDERS
SYC 7625 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BEESTON
Applicant
AND: MS QUINT
Respondent
ORDER MADE BY:
SMITH J
DATE OF ORDER:
9 AUGUST 2023
THE COURT ORDERS THAT:
1.Within 28 days the Applicant and Respondent do all things, and sign all documents, necessary pay to the Respondent $272,395 from the controlled monies account held by Broun Abrahams Burreket, such payment being an interim property distribution pursuant to s 90SM of the Family Law Act 1975 (Cth).
2.Otherwise dismiss the Application in a Proceeding filed 26 October 2022 and the Application for Review filed 14 February 2023.
3.Unless a party files an application for Costs pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 within 28, days reserve the question of costs of the Application in a Proceeding filed 26 October 2022 and the Application for Review filed 14 February 2023 to the Final Hearing.
4.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to orders 1 to 3 above, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
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 the pseudonym Beeston & Quint has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
This is a review[1] of a registrar’s orders[2] dismissing an interim application[3] in de facto property proceedings[4] pursuant to the Family Law Act 1975 (Cth) (“the Act”) filed by Ms Quint (aged 41) (“the wife”) seeking orders that Mr Beeston (aged 42) (“the husband”):
(1)pay her ongoing spouse maintenance of $1,742 and when she purchases her own home $1,854 per week indexed annually to CPI;[5] and,
(2)pay her $655 per week for a child support, requiring a departure order pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”);[6] and,
(3)pay her $275,000[7] in “litigation funding” from monies in a controlled monies account pursuant to s 117, or ss 90SE or 90SM of the Act.[8]
[1] MFI 1, page 5, Application for Review filed 14 February 2023.
[2] Orders entered 8 February 2023.
[3] MFI 1, pages 17–24, Application in a Proceeding filed 26 October 2022.
[4] The husband initiated parenting proceedings on 19 October 2021. The wife responded to parenting on 29 November 2021. The wife added property on 21 October 2022.
[5] MFI 1, page 23, the Application as filed sought between $1,738 and $1,940 per week at orders 2–3; MFI 1, page 2, orders 1–2, the submissions at Review were as per the wife’s Minute of Interim order sought on 17 March 2023.
[6] MFI 1, page 23, the Application as filed sought $815 per week. The application seeks ancillary orders relating to child support.
[7] MFI 1, page 24–25, the Application as filed sought payment of $269,000 for legal costs and $85,000 for repayment of debts.
[8] MFI 1, page 115, Wife’s Outline of Case Document (Review Hearing) filed 9 March 2023.
The husband moves for the dismissal of the wife’s review application.[9]
[9] MFI 2, page 2, Amended Reply to Response for Final Orders filed 10 March 2023.
The wife presently lives rent free with her parents in their Suburb B home. She is the primary carer for the parties’ only child X born 2020.[10] The wife does not work at present and says she has no current earning capacity.
[10] MFI 1, page 35, Affidavit of Ms Quint filed 9 March 2023, paragraph 14.
The husband is a manager in the financial services industry on a substantial income. He lives in a house he owns in Suburb C. The child spends time with the husband pursuant to court orders.
At the hearing of the wife’s application the registrar made orders by consent that pursuant to s 117 CSA Act there be a departure from the administrative assessment of child support for the child dealing with medical fees not covered by Medicare or private insurance. The relevant Notice to the Child Support Administration Agency was before the Court. The husband’s consent to that departure was submitted by the wife to meet the requirement for the finding of the statutory threshold required for the making of a further departure order.
The registrar also made consent orders requiring the husband to provide certain information to the wife concerning certain assets and to provide notice prior to selling or encumbering assets. This was in response to the wife’s application for injunctions to preserve the matrimonial property pool. Those consent orders adequately addressed the preservation issue.
The registrar otherwise dismissed the wife’s application and made orders for the filing of submissions on costs. The costs order was stayed, and then overtaken by the wife’s application for review.
This matter was heard before me on 17 March 2023. Since that date the matter has been listed for final hearing in May 2024 before another Judge.
REVIEW HEARING
The parties were represented by solicitors and counsel. Senior counsel for the wife announced with his appearance that he was appearing pro bono. Senior Counsel’s decisions in that regard are not a relevant factor for consideration in these applications and I give it no weight.
The wife submitted an electronic Court Book consisting of 189 pdf pages marked for identification (MFI 1). The wife relied on or read the following:
(1)The Application for Review filed 14 February 2023.
(2)The Application in a Proceeding filed 26 October 2022.
(3)The Affidavit of Mr D, the maternal grandfather, filed 26 October 2022.
(4)The Affidavit of the wife filed 9 March 2023.
(5)Financial Statement of the wife filed 9 March 2023.
(6)The Outline of Case Document (Review Hearing) filed 9 March 2023.
(7)The husband’s Reply filed 9 November 2022, in which he proposed a further final property adjustment to the wife of $330,239.
(8)Expert Report authored by Mr E dated 16 September 2022 (Exhibit A).
(9)Letter from O’Sullivan Legal addressed to Broun Abrahams Burreket dated 1 February 2023 (Exhibit B).
(10)Wife’s Supplementary Tender Bundle consisting of 39 PDF Pages (MFI 3).
(11)The Wife’s Balance Sheet unfiled dated 8 March 2023.[11]
[11] MFI 1, page 96.
The husband submitted an electronic Court Book consisting of 225 PDF pages, which was marked for identification (MFI 2). The husband relied on or read the following:
(1)The Amended Reply filed 10 March 2023.
(2)The Affidavit of the husband filed 10 March 2023.
(3)Financial Statement of the husband filed 10 March 2023.
(4)The Case Outline filed 10 March 2023.
(5)Correspondence between Broun Abrahams Burreket and O’Sullivan Legal consisting of 3 PDF pages (MFI 4).
Exhibits from the Court books are referred to as necessary.
BACKGROUND
The parties met in about late 2019 or early 2020 and commenced living together in either early or mid-2020. The child was born in 2020. They finally separated on either 2 April 2021 or 16 June 2021. The separation continues to be acrimonious.
On the wife’s evidence the parties cohabited for 18 months. On the husband’s evidence for nine months. Neither party disputes the existence of a de-facto relationship. It was a short relationship.
There is a dispute about contributions which I cannot determine. However, at cohabitation the wife says the husband owned four properties including a 5-bedroom house in Suburb C and a house in City F.[12] The wife says this was worth $6,943,725. At cohabitation the wife says she had assets of $1,798,000 the majority of which was the $1.7 million value of her unencumbered property at Suburb G.[13]
[12] MFI 1, page 34 [9].
[13] MFI 1, page 45 [53]–[54].
The wife sold her property and the parties purchased the former matrimonial home for $3,050,000. She said she contributed $1,630,100 and the husband $437,646 to the purchase of the former matrimonial home at Suburb H with the mortgage in her sole name.[14]
[14] MFI 1, page 46 [57].
The former matrimonial home sold in early 2022 for $4,300,000.[15] The monies were placed in a controlled monies account.
[15] MFI 1, page 47 [64].
The husband is a manager in the financial services industry. The wife says he earnt more than $384,000 in the year to 1 April 2022 and is likely to receive pay rises and bonuses.[16] There is a dispute about the true extent of his income which I cannot determine. It is, however, significant.
[16] MFI 1, page 34 [9].
The wife has a degree. She has worked in an area related to her degree but says this was in roles mainly focussed on stakeholder engagement. She ceased work since late 2020. The wife has the full time care of the child. She returned to work one day a week for a period in late 2021. She ceased work as she says she was unable to cope with the strain of working and being a single parent.
The wife says that she is “…compelled to make this Application to the Court as I require interim financial support to continue my role as primary care giver for [X] until I am in a position to return to employment”.[17] She says she will be unable to return to full-time work until the child is “at least” in primary school.[18]
[17] MFI 1, page 34 [12].
[18] MFI 1, page 34 [10].
The wife says that she met all of the child’s expenses for the first eight months of separation. The wife says she estimates the child’s weekly expenses are $815 and that they will be to $945 per week when they move.[19] The husband is assessed as being liable for $461 per week child support which he pays.[20]
[19] MFI 1, page 37 [19].
[20] MFI 1, page 37 [18].
The acrimonious nature of the parties’ relationship means that at present the parties pay equally for supervised changeovers pursuant to orders of 9 February 2022. That apparently costs each party approximately $473 per week, or $946 per week in total. The supervised changeovers appear to be at places to meet the parties’ convenience rather than at a change-over centre.
The wife says this supervision continues to be necessary.[21] Whether supervision is required as a consequence of one or the other parties’ behaviours is not something I am in a position to make any findings about, or attempt to place any weight on, in this interim application.[22]
[21] MFI 1, page 37 [20b].
[22] See for example Exhibit B, Letter O’Sullivan Legal to Broun Abrahams Burreket dated 1 February 2023.
The wife says she also pays $120 for a babysitter for three hours on a Monday to facilitate her visits to her psychologist as well as $35 per hour to visit a health specialist once a fortnight and occasionally to go out. She says she pays for all other costs for the child.
The wife says “I am unable to afford my legal fees moving forward and do not want to lose my legal representation”.[23]
[23] MFI 1, page 36 [17f].
The wife’s draft balance sheet,[24] was constructed from the parties’ financial statements and positions. I was informed by counsel that this document sufficiently accurately represents the parties’ competing views of the overall asset pool for the purpose of this application. I proceed on that basis.
[24] MFI 1, page 96–98.
I set out the table below noting that item 4 is intentionally omitted as it does not appear in the draft balance sheet.
ASSETS Ownership Description Wife’s estimated value Husband’s estimated value 1 J Controlled Monies Account (Held by …) $780,171 780,170 2 H J Street, Suburb C $4,500,000 3,897,000 3 H Shares in K Financial Fund (… Shares) USD $56,535/AUD $83,061 $85,790 5 H L Bank account …32 (1 March 2023) $117,113 $117,113 6 H L Bank account …31 (1 March 2023) $95 $95 7 H L Bank Account …37 (1 March 2023) $0 $0 8 H L Bank Account …70 (1 March 2023) $1 $1 9 H L Bank Account …37 (1 March 2023) $0 $0 10 H L Bank Account …41 (1 March 2023) $0 $0 11 H M Ltd (1 March 2023) $378,800 $378,800 12 H N Ltd (1 March 2023) $198,210 $198,210 13 H O Company (1 March 2023) $22,351 $22,351 14 H P Ltd (1 March 2023) $16,694 $16,694 15 H Q Ltd (1 March 2023) $44,850 $44,850 16 H R Ltd (1 March 2023) $12,150 $12,150 17 H S Ltd (1 March 2023) $90 $90 18 H T Ltd (1 March 2023) $15,526 $15,526 19 H U Ltd (1 March 2023) $2,317 $2,317 20 H V Company (1 March 2023) $35,852 $35,852 21 H V Company (1 March 2023) $24,433 $24,433 22 H Y Group (1 March 2023) $24,462 $24,462 23 H W Company (1 March 2023) $63,281 $63,281 24 H Z Pty Ltd $1,327,260 $715,658 25 H Loan to Mr Beeston (Z Pty Ltd) $276 26 H BB Pty Ltd (trustee company of Beeston Family Trust) Nil Nil 27 H Beeston Family Trust NK $100 28 H Beneficiary account - Beeston Trust $81,698 $81,698 29 H CC Pty Ltd $0 $0 30 H ANZ Account …68 (offset for …08) (1 March 2023) $1,004,074 $1,004,074 31 H ANZ Account …99 (offset for …59) (closed) $0 $0 32 H ANZ Account …81 (1 March 2023) $569 $569 33 H ANZ Account …49 (1 March 2023) 15,383 $15,383 34 H ANZ Account …72 (Equity 2 offset) (1 March 2023) $167,000 $167,000 35 H ANZ Account …01 (1 March 2023) $0 $0 36 H ANZ Account …76 (Equity 1 offset) (1 March 2023) $325,000 $325,000 37 H DD Financial Services Account …55 (1 March 2023) $0 $0 38 H DD Financial Services Transfer …71 (1 March 2023) ($31) 39 H Motor Vehicle1 $40,000 $30,680 40 H Motor Vehicle 2 $12,750 $9,400 41 H Contents $5,000 $3,000 42 H Artwork (see notes) $28,300 $27,300 43 J Commsec shares … (1 March 2023) $18,023 $18,023 44 W Commsec shares … (8 March 2023) $45,682 $45,682 45 W CBA Smart Access …35 (8 March 2023) $8,903 $8,903 46 W CBA Offset Acccount …60 (8 March 2023) $37 $37 47 W CBA Savings …76 (8 March 2023) $545 $545 48 W CBA Offset Savings …92 (8 March 2023) $516 $516 49 J CBA CDIA Account …54 (8 March 2023) $530 $530 50 W CBA CDIA Account …74 (8 March 2023) $2,580 $2,580 51 W Contents $5,000 $5,000 52 W Motor Vehicle 3 $50,000 $50,000 53 W CBA Term Deposit …97 $1,600,000 $1,600,000 54 W Net bank saver CBA …67 $224,185 $224,185 55 W Addback: Interim distribution from sale proceeds of Suburb H property Nil $200,000 56 W Addback: distribution for supervision costs and Dr FF Report Nil $9,476 Total $11,199,399 $10,264,800
It is common ground that between 17 January and about 10 November 2022 the wife received just over $2.3 million in interim property distributions from the sale of the Suburb H property.
There is over $700,000 remaining in the controlled monies account.
The wife says in her trial affidavit that she only consented to accept such a large sum because the husband would not agree to the payment of a smaller sum, and she was in dire financial circumstances. She says she believes the husband would only agree to the payment of this substantial sum “to force me to fund mine and [X’s] living costs from capital and further deplete the property pool available to me to support [X] and myself in the future”.[25]
[25] MFI 1, page 36 [17d].
The wife has expended approximately $450,000 and retains at her disposal approximately $1,835,000 in term deposits. The wife says her expenditure includes $120,000 for legal fees, $97,000 to repay loans to family and friends for funds advanced to help her to support herself, and $35,000 for a car. I am not in a position on an interim application to make any findings concerning the reasonableness or otherwise of the wife’s expenditures.
The wife and child presently live with the maternal grandparents in their home in Suburb B. The maternal grandfather is a retired health professional. The maternal grandmother still works part-time. Two of the wife’s three siblings are also health professionals. The two siblings who are health professionals also live in Suburb B. One lives next door to the maternal grandparents and the other nearby. The wife says she relies on her families support and so “wish[es] to purchase a property in or near my family in [Suburb B] and in proximity to the school [X] will likely attend with her cousins”.[26] The wife says she has looked for a property as far afield as Suburb EE, approximately 6km away, but that the additional travel time to Suburb EE would add too much travel time to the child’s change-overs.
[26] MFI 1, page 35 [15].
SUBMISSIONS AND DECISION
The wife’s Case Outline[27] identified the first area of dispute as whether the wife had a need for spousal maintenance and the husband the capacity to meet the need.
[27] MFI 1, page 114, Outline of Case Document (Review Hearing) filed 9 March 2023.
The significant question in argument was whether or not the wife’s possession of $1.8 million cash means that she does not meet the criteria in s 90SF(1)(b) that the obligation arises “only if” she is “unable to support … herself adequately” taking into account the considerations in subsection (3).
The essence of the wife’s case is that the mere possession of $1.8 million in cash does not allow her to “adequately support herself”, maintain the parties’ child, or pay for legal representation, as she will need to use all of this money to have any chance of purchasing a property “in the [Suburb B] area”.[28] Given that Suburb B is notoriously one of the most expensive suburbs in Australia, I proceed on the basis that this is likely correct.
[28] MFI 1, page 40 [33].
The wife submitted that her need to live near her family means that the applicable authorities are those that state that a party with limited capital is not, or should not be, required to use up that capital for their maintenance.
The essence of the husband’s case is that the wife is not entitled to live in one of the most expensive suburbs in Australia merely because her parents and two, of her three, siblings are health professionals whose earning capacity means they can afford to. He submitted that $1.8 million in cash is not limited capital. He submitted that the wife she does not meet the statutory criteria, as illuminated by the authorities, for the making of any of the orders sought on an interim basis.
I note that the wife says she has no current earning capacity. The husband disputes that there is no earning capacity, although was circumspect in asserting the extent to which she has effective earning capacity.
For the purpose of these interim proceedings I accept that the wife has no current earning capacity and is unlikely to have any prior to the final hearing by reason of her parenting obligations and her mental health.
The husband says he has no capacity to make any payments of spouse maintenance. Given his income, his extensive assets and most importantly the substantial sum of cash available to the parties in the controlled monies account, I do not accept that submission.
I have considered the other matters that must be taken into account,[29] particularly as raised by the parties, including the adequacy of the assessed child support payments which the husband is making as discussed elsewhere.
[29] Family Law Act 1975 (Cth) s 90SF(2)–(3).
I am not satisfied, taking into account the parties’ relationship history and property pool, that the need for a reasonable standard of living or the concept of adequate support requires the wife to be able to purchase outright a property in or about Suburb B. I do not accept the wife’s submission that her $1.8 million in cash is to be treated as effectively unavailable and so not a relevant factor when considering the “property … of each of the parties”.
While there is clear authority that a party with limited capital should not be required to expend it in their own support, I do not consider that the $1.8 million in cash available to the wife brings this case within that category of cases so that the principle should be applied for the benefit of the wife in this application.
To the extent to which the wife says that the husband effectively forced her to take over $2.3 million dollars in cash, rather than smaller sums which could have entitled her to claim ongoing spousal maintenance, so forcing her to use the money she says is the capital she needs for the housing she wants, the trial judge at the final hearing will have a broad discretion concerning the treatment of add-backs for interim distributions, and the expenditure of costs, taking into all relevant matters to make final orders that are just and equitable.
I dismiss the spousal maintenance aspect of the wife’s application as I am not satisfied she satisfies the statutory criteria.
The husband pays the assessed child support. The husband consented to a variation to cover medical expenses. I assume, but do not find, that the husband’s agreement to vary the child support assessment to require him to pay the costs of the child’s uninsured medical expenses requires me to approach the matter on the basis that “special circumstances” are established.
However, the special circumstances conceded by the husband were, on his case, met by the consent orders. The husband’s concession does not therefore implicitly require me to make a further variation. The question then is whether it is appropriate in the exercise of my discretion to make any further variation to the child support assessment.
The wife’s submission is that because of the need for very expensive change over supervision, all of the child support is effectively used in payment for that service. The husband sought to suggest that this was due to the wife’s conduct. I cannot make any findings at an interim hearing.
I am not persuaded that the wife has established that it is appropriate for there to be a further variation in the assessed child support on an interim basis. The wife has $1.8 million cash so there is no risk of the child going without prior to the final hearing. While the wife’s father says they cannot stay at his house indefinitely there is no evidence he is likely to make her leave prior to the final hearing. The Trial Judge will be able to take all of these matters into account in making final orders for property adjustment.
I dismiss the child support variation aspect of the wife’s application.
The wife’s application for payment of $275,000 was termed “litigation funding”, but submitted both in writing and orally to be justified either by reference to either s 117 (costs), or s 90SE (spousal maintenance), or s 90SM (interim alteration of property interests) of the Act.[30] The basis of each of these claims is different.[31]
[30] MFI 1, page 115, Outline of Case Document (Review Hearing) filed 9 March 2023.
[31] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166.
I find the wife’s case for this payment is not made out on the basis of a lump sum spousal maintenance payment, for the same reasons as given above.
I find that the payment is not made out on the basis of an interim costs orders pursuant to s 117 of the Act on an interim basis. There is no relevant disparity in financial capacity to conduct the litigation to final hearing and no inability on the part of the wife to meet her assessed future legal costs. The issue of whether to add-back legal costs, or to what extent, will be for the Trial Judge, noting also that how much the wife elects to expend on the litigation is a matter for her, as for all parties.
The wife’s application in the alternative for a further interim property distribution of $275,000 is in a different category.
The wife’s case is that the sum the husband agreed to distribute to her was intentionally set at a figure less than she was entitled to by an amount that put her at a forensic disadvantage. In effect by making her take much, or most, of what she was entitled to she says he intended to increase her litigation costs as a percentage of the sum in dispute. The inference is that this was a litigation tactic to pressure her to walk away from her further reasonable entitlement to a property adjustment.
The husband’s reply filed 9 November 2022 stated that the wife should receive a further $330,239.[32] The husband’s amended reply filed 10 March 2023 stated that the wife was entitled to “$2,096,700 + an amount equivalent to 5% of the total property pool (noting that the wife has received to date $2,337,545).[33] That is the husband’s pleading placed before the Court in the week before the interim hearing.
[32] MFI 1, page 128, husband’s Reply to Response for Final Orders filed 9 November 2022.
[33] MFI 2, page 3, husband’s Amended Reply to Response for Final Orders filed 10 March 2023.
I calculate 5% of the total property pool, adopting husband’s balance sheet net figure which he conceded was an accurate statement of his position for this matter rather than the wife’s higher figure, at $513,240. Added to $2,096,700 that is $2,609,940. That $2,609,940 less the paid sum of $2,337,545 = $272,395. So on the husband’s response in November 2022 the wife was entitled to a further $330,239 and in his response filed the week before the hearing of this application he told the Court that the wife was entitled to a further $272,395, which is a small fraction of the overall pool and a small part of the monies in the controlled monies account.
In oral submissions the husband sought to walk backwards from this figure, for a variety of reasons in respect of which I cannot make findings. His position before me was that the wife was entitled to a further adjustment, but that it is now reduced to just over a further $200,000.
The wife maintains she is entitled to a greater sum than the amounts conceded by the husband.
On the husband’s pleading a payment of $272,395 is the appropriate sum for the wife to receive leading to the final resolution of the property proceedings.
Assessing, as best I can on an interim basis, the relative contributions and other relevant issues, and noting that the husband’s oral submissions on why that figure had reduced by approximately $75,000 in the days between 9 and 17 March 2023 were not easy to follow, I consider $272,395 to be a reasonable estimate of, at least, the further adjustment the wife is likely to receive.
The husband submitted that any further payment may not be reversible. I reject that argument. I accept that the wife seeks to hold the major part of her current capital to invest in a house. In the unlikely event that a further sum distributed exceeds the wife’s entitlements by the approximately $75,000 the husband now says would be involved the trial judge will be perfectly entitled to make an order requiring the wife to pay the husband that sum.
The husband submitted that given the wife has $1.8 million in cash, his concession that she is entitled to a further distribution and the fact that the money is in a controlled monies account is not a sufficient basis to justify a further payment. In many cases that would be a compelling submission and my initial inclination was to dismiss the wife’s application entirely and to leave the matter to a final hearing.
However, each case is to be determined on its own unique facts.
The history of the litigation, including, the distributions and the husband’s pleading, together with all of the other material before me, satisfy me that on balance it is just and equitable to make an order that the sum of $272,395 conceded by the husband on his pleadings the week before the hearing be paid to the wife as a further interim property distribution.
The appropriate order is for the wife to be paid $272,395 from the controlled monies account on the basis that it is a further interim property distribution pursuant to s 90SM of the Act.
Each party should consider filing offers in relation to costs. As I am not the Trial Judge, and as the issue was not addressed in submissions, I will not make an order to that effect.
The parties are at liberty to make applications for costs in relation to this interim application pursuant to the Rules. However, although the wife was ultimately successful in one regard, I will indicate that my preliminary view is that there would be no costs order at this time, and that any issues concerning the costs of this application and the review should form part of the final hearing at which time the Trial Judge will be better able to assess precisely what has been occurring in this litigation, whether the litigation process has been treated in any aspect as a forensic game, and if, or where, any costs orders should lie.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 9 August 2023
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