Boyd & Logan
[2024] FedCFamC2F 1716
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boyd & Logan [2024] FedCFamC2F 1716
File number: MLC 4983 of 2024 Judgment of: JUDGE SYMONS Date of judgment: 2 December 2024 Catchwords: FAMILY LAW – PROPERTY – interim – sole use and occupation of former matrimonial home – whether parties prevented from making application by operation of s 114AB(2) of the Family Law Act 1975 (Cth) – de facto spousal maintenance – where capacity to pay maintenance not in issue – whether expenses claimed by de facto wife are reasonable – application by de facto wife for litigation funding reflecting significant disparity in the financial circumstances of the parties – application of costs power for litigation funding orders – whether payment should be characterised prior to trial Legislation: Family Law Act 1975 (Cth), ss 68B, 68Q, 90SE, 90SF, 114, 114AB, 117
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Family Violence Protection Act 2008 (Vic), ss 1, 2, 80, 81
Cases cited: Brown & Brown (2007) FLC 93-316; [2007] FamCA 151
Cartwright & Manzetto [2013] FamCA 1015
Elliott v Hopkins (No 2) (2023) 68 Fam LR 127; [2023] FedCFamC1A 142
Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 FamLR 123; [2005] FamCA 158
[2020] FCCA 2468 (unreported)
Genesalio & Genesalio (2020) 61 Fam LR 1; [2020] FamCAFC 113
Kannis & Kannis [2002] FamCA 1151
Lao & Zeng [2021] FedCFamC1A 17
M and M [2002] FMCAfam 212
Marchant & Marchant (2012) 49 Fam LR 1; [2012] FamCAFC 181
Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA
32
Parson & Parson [2023] FedCFamC1F 382
Rice & Rice [2020] FamCAFC 174
Salvage & Fosse (2020) 61 Fam LR 45; [2020] FamCAFC 144
Spears & Caro [2020] FamCA 985
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 158 Date of last submissions: 1 August 2024 Date of hearing: 24 July & 1 August 2024 Place: Melbourne Counsel for the Applicant: Ms H Renwick Solicitor for the Applicant: Taussig Cherrie Fieldes Counsel for the Respondent: Ms R Stoikovska SC Solicitor for the Respondent: Lander & Rogers ORDERS
MLC 4983 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BOYD
Applicant
AND: MR LOGAN
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
2 DECEMBER 2024
THE COURT DECLARES THAT:
1.The payment of $30,000 to the applicant de facto wife made pursuant to order 13 of the orders made on 24 July 2024 be characterised as a litigation funding order.
THE COURT ORDERS THAT:
2.Pursuant to the provisions of section 90SE of the Family Law Act 1975 (Cth) (Act), the de facto husband:
(a)pay to the de facto wife the sum of $1,468 per week by way of periodic maintenance, with the first payment to be made by 5.00pm on the day following these orders and, weekly thereafter by way of direct deposit into the de facto wife’s nominated account; and
(b)cause to be paid the following expenses as and when they fall due in respect of the real property situate at and known as B Street, Suburb C (Suburb C) and indemnify the de facto wife in relation thereto:
(i)the principal and interest repayments for the ANZ loan secured by mortgage over title to Suburb C;
(ii)rates, taxes, utilities and insurance;
(iii)streaming service subscriptions;
(iv)Wifi;
(v)gardener and landscaper on a weekly basis; and
(vi)house and pool cleaner on a weekly basis.
3.Pursuant to the provisions of section 117(2) of the Act the de facto husband do all acts and things and sign all such documents as required to pay to the de facto wife the sum of $70,000 by way of interim costs order within seven (7) days.
4.Leave is granted to the applicant to issue more than five (5) subpoenas.
5.All extant interim applications, save as to costs are dismissed.
THE COURT ORDERS BY CONSENT THAT:
6.Within seven (7) days the parties do all acts and things and sign all documents necessary to write to:
(a)Mr D, E Accounting Firm;
(b)Mr F, G Accounting Firm; and
(c)Mr H, J Valuations
to obtain an estimate of their fees, and timeframe for completion of their report, to value the respondent’s entities and the Logan Group as defined at order 9 of the orders made on 24 June 2024, and upon receipt of the estimates, engage the expert with the lowest estimate of fees of the three proposed above.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
This matter concerns an application in a proceeding filed by the de facto wife, Ms Boyd, on 1 May 2024 by which she seeks orders for spousal maintenance in the amount of $1,800 per week and a lump sum payment of $70,000 from the de facto husband, Mr Logan, to be characterised as an order for interim costs.
Mr Logan, seeks an order for his sole use and occupation of the parties’ former marital home, located at B Street, Suburb C (Suburb C property).
BACKGROUND
Ms Boyd is aged 47. Mr Logan is aged 52.
Ms Boyd works as a community worker and is a sole trader, operating her own business out of the Suburb C property, where she currently resides. She has a declared income of approximately $400 a week and claims to be otherwise financially dependent on the support of Mr Logan. Ms Boyd has three adult children from a previous relationship, one of whom resides with her in the Suburb C property. Ms Boyd says she suffers from anxiety and depression but is otherwise in good health.
Mr Logan is a company director of various entities that wholly own a business in Suburb K. In the financial year ending 30 June 2023, these entities produced income of more than $7.7 million, of which approximately $800,000 was distributed to Mr Logan as income. In his financial statement, Mr Logan records weekly income of $15,268. Mr Logan is currently living with his parents in Suburb L. He has three children of a previous relationship, who are all aged 18 years of age and older. Mr Logan’s youngest children are twins and have this year been completing their final year of schooling. They live with their mother although this has not always been the case and Mr Logan would like them to return to live with him in the Suburb C property. Mr Logan had a a medical episode in late 2023 and says that he has struggled with his mental health following the parties’ separation but is otherwise in good physical health.
The parties began their relationship in 2015 although the date on which they commenced cohabitation is contested. It is agreed however that following the purchase of the Suburb C property in mid-2017, both parties began living there along with Ms Boyd’s son and Mr Logan’s sons.
The parties purchased the Suburb C property as tenants in common. There is a mortgage over the Suburb C property in favour of ANZ Bank in the amount of approximately $1.5 which is listed in both parties’ names. Ms Boyd acknowledges that the parties’ interests are recorded as to 30/70 (applicant/respondent) on the title to the Suburb C property, but she says that it was never the intention of the parties that these proportionate interests would carry through to and inform the parties’ entitlements upon separation.
Mr Logan, on the other hand, says that a financial agreement was drafted but not executed prior to settlement of the Suburb C property, which made provision for Ms Boyd to retain 30 per cent of the net equity in the event of separation. He says that it was agreed that he would meet all mortgage repayments and property-related outgoings for the Suburb C property, and it appears that this is in fact what has occurred. According to the parties, the Suburb C property has a value of between three and four million dollars.
In late 2020, the parties purchased a house located at M Street, Suburb N (Suburb N property). According to Ms Boyd, the Suburb N property is valued at $3 million.[1]
[1] Paragraph 18 of the affidavit of Ms Boyd dated 17 July 2024 (Boyd affidavit).
In early 2023, the parties purchased a property located at O Street, Suburb N (O Street). Ms Boyd deposes to it having a value of at least $330,000.[2]
[2] Paragraph 17 of the Boyd affidavit.
In late 2023, Mr Logan suffered a medical episode. He was discharged from hospital the following day and returned to live briefly in the Suburb C property.
The parties separated on 29 December 2023, at which point Mr Logan vacated the Suburb C property and commenced living with his parents.
In early 2024, Ms Boyd changed the locks of the Suburb C property because according to her, Mr Logan and his children had attended the property “on either very short notice, or unannounced to collect their personal items on combined 10 occasions…”.[3] Since this time, Ms Boyd has continued to live in the Suburb C property with her son, and Mr Logan claims that he has been unable to access the property.
[3] Paragraph 67 of the Boyd affidavit.
In early 2024, an interim intervention order was made against Mr Logan, identifying Ms Boyd as the protected person. In mid-2024, an interim intervention order was made against Ms Boyd, identifying Mr Logan as the protected person. The intervention orders assume a greater significance in this application than might ordinarily be the case, for reasons to which I will return.
THE CURRENT APPLICATION
Earlier related orders
On 1 May 2024, Ms Boyd filed an application for final property settlement.
On 24 June 2024, the parties came before Judicial Registrar Taylor, who made orders (June orders) listing this interim matter before me. In addition, the June orders included orders made by consent relating to discovery by Mr Logan and valuations of the parties’ property to be facilitated jointly. The June orders also included the following:
13. Within seven days of the Respondent pay the Applicant the sum of $30,000, with the characterisation of such sum to be determined at the Interim Defended Hearing and these funds are to be applied towards the Applicant’s 50% share of valuation fees and mediator fees.
Orders now sought
Ms Boyd seeks the following orders and declarations:[4]
[4] Applicant’s case outline filed 19 July 2024 (Applicant’s case outline), page 9.
1.THE COURT DECLARES THAT the payment of $30,000 to the applicant de facto wife in accordance with order 13 of the orders made on 24 July 2024 be characterised as a litigation funding order.
2.Pursuant to the provisions of section 90SE of the Act, the de facto husband:
a) pay to the de facto wife the sum of $2,000 per week by way of periodic maintenance, with the first payment to be made by 5.00pm on the day following these orders and, weekly thereafter by way of direct deposit into the de facto wife’s nominated account; and
b) cause to be paid the following expenses as and when they fall due in respect of the real property situate at and known as [B Street, Suburb C] (“[Suburb C]”) and indemnify the de facto wife in relation thereto:
i.the principal and interest repayments for the ANZ loan secured by mortgage over title to [Suburb C];
ii.rates, taxes, utilities and insurance;
iii.[streaming service] subscriptions;
iv.Wifi;
v.gardener and landscaper on a weekly basis; and
vi.house and pool cleaner on a weekly basis.
3.Pursuant to the provisions of section 117(2) of the Act the de facto husband do all acts and things and sign all such documents as required to pay to the wife the sum of $100,000 by way of interim costs order within seven (7) days.
4.Leave is granted to the applicant to issue more than five (5) subpoenas.
5.For the purposes of order 9 of the orders dated 24 June 2024, the parties do all such acts and things as may be required to appoint [Mr P] of [Q Firm] as single expert to value the Respondent’s entities and the [Logan] Group as provided for by those orders within seven (7) days.
Ms Boyd also seeks an order that Mr Logan pay her costs incidental to her interim application on an indemnity basis.
Mr Logan seeks the following orders:[5]
[5] Annexure B of the Respondent’s case outline filed 19 July 2024 (Respondent’s case outline).
UNTIL FURTHER ORDER
1. That the Respondent have sole occupation and use of the property situate at [B Street, Suburb C] more particularly described in the Certificate of Title as Volume […] Folio […] ([Suburb C] Property).
2. For the purposes of paragraph 1, the Applicant:
a) forthwith vacate the [Suburb C] Property (or such other time as deemed appropriate by the court);
b) leave the [Suburb C] property in good order and repair and in a presentable condition;
c) be restrained from removing any household furniture or contents without the prior written consent of the Respondent; and
d) not approach to within 500 meters of the [Suburb C] property or instruct any third party to approach within 500 meters of the [Suburb C] property without written consent from the Respondent.
3. Within 48 hours of the Applicant vacating the [Suburb C] Property, the Respondent pay or cause to pay the sum of $70,000 to the Applicant with such sum to be characterised by the trial judge.
4. The Respondent pay the Applicant:
a) a sum equal to one month's rent and any bond payable calculated at up to $650 per week by way of spousal maintenance other than periodic; and
b) the sum of $700 per week by way of periodic spousal maintenance.
Mr Logan also seeks an order that Ms Boyd pay his indemnity costs related to the interim application.
EVIDENCE
Ms Boyd relies on the following material:
·Initiating application filed 1 May 2024.
·Her financial statement filed 1 May 2024.
·Her Genuine Steps Certificate filed 1 May 2024.
·The affidavit of Mr R filed 1 May 2024 (Mr R affidavit).
·Her affidavit filed 17 July 2024 (Boyd affidavit).
·Her case outline filed 19 July 2024.
·Her costs notice dated 23 July 2024.
Mr Logan relies on the following material:
·His response to final orders filed 20 June 2024.
·His Genuine Steps Certificate filed 20 June 2024.
·His financial statement filed 20 June 2024.
·His affidavit filed 17 July 2024.
·The affidavit of Ms S filed 17 July 2024.
Unusually in a matter listed for interim hearing, some limited cross-examination of Ms Boyd, Mr Logan and Mr Logan’s former wife, Ms S, was permitted. As a result, the hearing was accommodated over two days: 24 July and 1 August 2024. On both occasions Ms Boyd was represented by Ms Renwick of counsel and Mr Logan by Ms Stoikovska of senior counsel.
At the outset of the hearing, I was informed that a position had been agreed regarding the appointment of a joint single expert and one of the orders that appear at the beginning of this judgment makes provision for this to occur. I was also informed by Ms Renwick that her client wished to amend her application such that she was now seeking the amount of $1,800 by way of periodic maintenance, rather than the amount of $2,000 which was reflected in her draft orders. Ms Renwick explained that the amendment was made because Ms Boyd no longer sought the costs related to other adults for whom she incurred expenses, namely her children.
It further evolved that Mr Logan agreed to pay Ms Boyd a further lump sum amount of $70,000. The outstanding issue being whether this payment should be characterised now and if so, whether it, along with the payment of $30,000 made pursuant to the June orders, should be characterised as litigation funding.
ISSUES
Arising from the orders sought by the respective parties, the issues that I am required to determine are:
(a)Whether an order should be made granting Ms Boyd periodic maintenance and if so, in what amount?
(b)Whether Mr Logan should be granted sole use and occupation of the Suburb C property.
(c)Whether it is appropriate to characterise the payment made to Ms Boyd pursuant to the June orders and if so, how it should be characterised.
(d)Whether the interim payment by Mr Logan to Ms Boyd of $70,000 should be treated as an interim costs order (or litigation funding) or whether its characterisation should be deferred to trial.
SOLE USE AND OCCUPATION
Although this is technically Ms Boyd’s application, it is convenient to deal first with the order that Mr Logan seeks and which Ms Boyd resists, namely, that Mr Logan have sole occupation and use of the Suburb C property. This is because a decision to make or refuse such an order may have consequences for the balance of the orders sought (and resisted) and because Ms Boyd submits that there is a jurisdictional impediment to the making of such an order in the circumstances of this case.
The threshold issue
Ms Boyd’s submissions
Ms Boyd submits that an order for sole use and occupation is not available to Mr Logan because of the operation of s 114AB(2) of the Family Law Act 1975 (Cth) (Act). This sub-section provides:
(2)Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory, in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a) where the person instituted a proceeding:
(i)the proceeding has lapsed, been discontinued, or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b) where the person took other action – neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
Ms Boyd submits that this conclusion follows from an appreciation of the following circumstances:
First, against a background of alleged family violence during the parties’ relationship and a series of provocative and intimidating communications sent by Mr Logan to Ms Boyd and/or to Ms Boyd’s lawyer following the parties’ separation and relating to Ms Boyd’s occupation of the Suburb C property, Ms Boyd applied to the Magistrates’ Court for a family violence intervention order in early 2024.[6]
[6] Exhibit A1.
In the application, Ms Boyd provided an explanation for why an intervention order was needed that included:
[In early 2024] I received a letter from the respondent via my lawyer threatening to attend the property after he had vacated about 2 and a half months ago with his own locksmith with no notice afforded to me…I am fearful after his latest email that he is threatening to return to the property with his three adult sons to change the locks without notice.
Ms Boyd submits that by these statements and others appearing in the application, she was clearly putting before the Magistrates’ Court the issue of her fear of Mr Logan returning, her requirement to have sole use and occupation of the Suburb C property, and the allegations of family violence.
Ms Boyd submits that it is also significant that one of the conditions sought in the application was that Mr Logan not “go to or remain within 200 metres of any address or any other place where a protected person lives, works or attends school/childcare”.
Second, in early 2024 Mr Logan made his own application in the Magistrates’ Court for an intervention order.[7]
[7] Exhibit A2.
In the application, Mr Logan provided an explanation for why an intervention order was needed that included:
[Early] 2024 In the latest incident I sent a text message to the resp on Saturday asking her for access to the property to collect my kids winter school uniforms, winter clothing, some jewellery, the playstation and some items relating to [sports activities] and school. Rather than agree for me to collect these items she told me to write to her lawyers. I contacted the resp’s lawyers regarding collecting this property on Saturday […]. I sent a follow up email to the lawyers at 10.40 am on [Monday]. I was advised that the items I requested would be boxed and available Monday […] at 12.30.
…
In the absence of a Family Court order for sole use and occupancy of the home, I have equal rights of access, as do my children, who permanently reside there. The respondent has continued to deny myself and my children right to access our home with a Family Court order allowing her to do so. I have the same and equal rights to attend on the property any time I wish but am obstructed from doing so. I have reported the family violence to police at [Suburb T] police station.
Ms Boyd submits that by these statements and others appearing in the application, Mr Logan is squarely putting before the Magistrates’ Court the issue of the occupation of the former matrimonial home.
Ms Boyd submits that it is also significant that one of the conditions sought in the application was that Ms Boyd not “go to or remain within 200 metres of [U Street, Suburb L], Vic or any other place where the protected person lives, works or attends school/childcare”.
Ms Boyd submits that the orders sought by Mr Logan in his case outline (being those reproduced at [19] above) mirror almost precisely those which you would expect to obtain in the Magistrates’ Court.
Third, in mid-2024, interim orders were made in the Magistrates’ Court that applied to both parties and which made it an offence for them to commit family violence against the other and to intentionally damage any property.[8] The balance of the parties’ respective applications were adjourned to late 2024.
[8] Exhibit A3.
Fourth, Mr Logan has sent emails to Ms Boyd’s instructor which, she says, indicate that he is engaging with the Magistrates’ Court proceeding and contesting Ms Boyd’s application for sole use and occupation. By way of example, on 6 April 2024 Mr Logan sent an email to Ms Boyd’s lawyers which, in part, read:[9]
Further she has an “interim” intervention order that states only that family violence isn’t committed against her (attached below), which it has not been, nor has ever been, nor should she ever worry about.I can assure you that I never again wish to be in her company, nor have anything to do with her. However that interim order does not preclude me from attending the property. Orders to not approach the property were sort (sic), among many other things, but not granted. The magistrate would have his reasons for not granting them, but safe to say that they weren’t necessary, and has set a final hearing date of [late 2024] at 9.30 am to explore the matter in more detail…
[9] Annexure MSB-6 to the Boyd affidavit.
And then, on 11 April 2024, Mr Logan sent a further email to Ms Boyd’s lawyers in which he said, amongst other things: “Your clients interim order has now been linked to my application, and although I am not 100% certain, I believe that I should be able to defend those baseless claims and seek from the court to have that order removed altogether”.[10]
[10] Annexure MSB-6 to the Boyd affidavit.
Fifth, on 20 June 2024 Mr Logan filed his response in this Court in which he sought orders including an order for sole use and occupation of the Suburb C property. Ms Boyd submits that at the time that he did so, two things of significance had already occurred. The first, Mr Logan had taken a step in proceedings – he had resisted Ms Boyd’s application for an exclusion order, and he had brought his own application for exclusion and restrictions. The second, both of the parties were, at that time, restrained from committing family violence or intentionally damaging property.
Ms Boyd submits that these circumstances fall squarely within the exclusion zone created by s 114AB(2) of the Act and that judicial support for this conclusion can be found in the following two decisions.
The first – Genesalio & Genesalio [2020] FamCAFC 113 – was described by counsel as concerned with applications by the husband and wife for exclusion orders relating to the former matrimonial home in Magistrates’ Court family violence proceedings. The wife then filed an application for sole use and occupation in the (then) Federal Circuit Court and an order was made. An appeal by the husband challenging the making of the order for sole use and occupation was upheld by Strickland J who found that the order had been made in breach of s 114AB(2) of the Act.
Counsel for Ms Boyd drew the Court’s attention to paragraphs [117]-[118] of Genesalio. These passages, along with those that contextualise them ([114]-[116]) read:
114. The husband submits that because the wife had instituted the proceedings identified above in the Magistrates Court at Melbourne, she was not entitled to institute proceedings in the Federal Circuit Court of Australia seeking sole use and occupation. Plainly those proceedings were in relation to the same matter as the Magistrates Court proceedings, and those latter proceedings were proceedings which could have been instituted in the Federal Circuit Court of Australia pursuant to s 114 of the Act.
115. However, the wife submits that s 114AB(2)(a)(ii) applies, and thus the wife was not prevented from instituting the proceedings in the Federal Circuit Court of Australia, seeking sole use and occupation.
116. The argument is that no order having been made excluding the husband from the home, that can be viewed in the same way as if an order had been made but had been set aside, or had lapsed.
117. The difficulty with that submission is that where proceedings have already been commenced in the state court, the purpose of the subsection is to prevent there then being two sets of proceedings in different courts, wherein the same matter is being litigated.
118. Thus, the prime example of where the subsection applies, is where proceedings are still on foot in the state court at the time a party seeks to institute proceedings in relation to the same matter in the federal court. In other words, the precise situation here.
And so too, Ms Boyd submits that the situation in the present case is on all fours with that considered in Genesalio.
The second decision – Spears & Caro [2020] FamCA 985 – is relied upon by Ms Boyd for the proposition that the words “any other action” as they appear in s 114AB(2) are to be construed broadly and are capable of comprehending the steps taken by Mr Logan in connection with the dual Magistrates’ Court proceedings.
Counsel for Ms Boyd took the Court to paragraphs [24]-[25] of Spears & Caro to illustrate the point. These passages read:
24. Returning to this case, the “matter” being the exclusion of/sole authority to occupy premises pursuant to s 114 is the same “matter” as under the Territory law. That these are construed as the same matter is consistent with a finding to the same effect by Strickland J in Genesalio & Genesalio [2020] FamCAFC 113 where his Honour observed:
the purpose of the subsection is to prevent there then being two sets of proceeding in different courts, wherein the same matter is being litigated.
25. Finally, in relation to the first of the three matters, s 114AB is not limited to restraining persons who have instituted proceedings, but extends the restraint to a person who has taken any other action under the relevant law. It may be observed that the phrase “or any other action” is of the widest possible import, being limited only by the requirement that the action be under the relevant law. It is a phrase that incorporates participating in litigation and, in this case, covers undertaking acts to compromise proceedings taken under the legislation.
Mr Logan’s submissions
Mr Logan submits that his application for sole use and occupation is not caught by s 114AB principally for two reasons.
The first proceeds by reference to his intervention order application[11] and the condition identified at paragraph 5 (reproduced at [36] above). Mr Logan submits that because the property identified was his parents’ property, located in Suburb L, his application had nothing to do with and did not “put in issue” the Suburb C property.
[11] Exhibit A2.
The second is that, according to Mr Logan, his application in this Court is brought under s 114(2A) of the Act, which brings different consequences and requires a different analysis in its intersection with s 114AB. Mr Logan submits for this reason that the decisions of Genesalio and Spears & Caro do not directly assist because in neither of those cases was s 114(2A) discussed; the parties had proceeded under s 114(1) instead, reflecting their marital status.
Section 114(2A) provides:
In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:
(a) make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and
(b) if it makes an order or grants an injunction under paragraph (a) – make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:
(i)that residence; or
(ii)a specified area in which that residence is situated;
Mr Logan submits that his application for an intervention order is properly characterised as one by which he seeks orders for his own safety based on allegations of family violence and one that seeks orders in respect of a property that is not a “specified residence of the parties”. He has not instituted proceedings under State legislation in respect of Suburb C and neither has he taken “any other action” in response to Ms Boyd’s intervention order application, within the meaning (even broadly defined) of that term as it appears in s 114AB.
Mr Logan submits that Ms Boyd’s Magistrates’ Court application was one made under State Legislation – the Family Violence Protection Act 2008 (Vic) (State Act). Mr Logan submits that the purpose of the State Act is the promotion of the safety of individuals in the context of family violence which he says can be taken or inferred from provisions of the Act including s 1, which identifies the purpose of the Act as being to maximise safety for children and adults who have experienced family violent, to prevent family violence to the greatest extent possible, and to promote accountability of perpetrators of family violence for their actions. He also refers to ss 2 and 80 of the State Act which he contends reflect or give effect to a similar protective purpose.
The application made by Mr Logan in this Court, on the other hand, is one brought in the context of a de facto financial cause (there being extant property proceedings) and under a provision of the Act whose purpose is to grant injunctions in respect of the use or occupancy of a specified residence of the parties. Mr Logan submits that while ultimately, as part of an application made under the State Act, an order of similar effect might be available, it would occur as a by-product of an application that is directed at securing the safety of the applicant and would be achieved through the application of what were described as “machinery provisions” or conditions that might attach to an intervention order.
While Mr Logan accepts that s 114(2A) appears under the same section as s 114(1), he submits that the two provisions are not the same. For example, by recourse to s 114(1) a party can seek an injunction for personal protection of a party to the marriage, an injunction restraining a party to a marriage from entering or remaining in the matrimonial home and an injunction in relation to property, much like can be achieved through an application for an intervention order. On the other hand, none of these restraints can be achieved through an application made under s 114(2A), which instead operates on a “specified residence”.
Mr Logan submits, against this analysis, that the decision of Spears & Caro is unreliable because it involves a conflation of cause of action – being, in the case of the State Act, an application for an intervention order – and the relief that might be available in pursuit of the cause of action which, in appropriate circumstances, might include a condition excluding the respondent from the protected person’s residence (refer s 81(2)(b) and/or prohibiting the respondent from approaching, telephoning or otherwise contacting the protected person (s 81(2)(d)).
This is said to be manifest in paragraph [23] of the decision which represents the culmination of a line of reasoning that commences at [18]. These passages, which are directed at the interrelationship between s 114AB and Division 11 of the Act, read:
18. “Matter” is protean in its meaning, and so it is unsurprising that as it arises in different contexts, it adopts different nuances, and further unsurprising that determining its content in a particular statutory context may be less than straightforward.
19. In this instance, it is the meaning of “matter” that enables full force to be given to Division 11 whilst maintaining the effect of s 114AB. A construction of “matter” that incorporates the cause of action pursued, understood within the cause of action’s statutory context achieves such a result.
20. It may be observed that when the order being dealt with under Division 11 is grounded in s 68B or s 114, Division 11 is only concerned with the order insofar as it “expressly or impliedly requires or authorises a person to spend time with a child”. The “matter” with which the order is concerned has its roots in Chapter VII and is founded on the obligation of the court to make orders with the paramount consideration as the best interests of the child, determined in accordance with s 60CC and the Objects and Principles of Part VII. Such a matter relates to the unique statutory context and purposes of Part VII, as distinct from the Territory Family Violence legislation. While it is true that there is some overlapping of the objectives, understood in a broad sense, of Part VII and the Family Violence Act, each, for example referring to a child’s best interests as a consideration, the concern of the Family Violence Act is not the same as Part VII, and the child’s best interest is not its paramount consideration.
21. The result of this difference is that the “matter” of spending time with a child being addressed in Division 11 is distinct from the matter being addressed in the Territory or State legislation.
22. Section 114AB requires that there be a coincidence of the “matter” pursued in the State or Territory with that for which relief could be obtained under s 114 or s 68B. Such a coincidence does not occur where the relief pursued under ss 114 or 68B is that to which Division 11, insofar as it deals with time with a child, applies.
23. On this construction there is no impediment to the operation of Division 11 posed by s 114AB, and nor does Division 11 impinge upon the operation of s 114AB. Where the injunctive relief concerns time with a child, Division 11 controls the interaction with State and Territory orders. Where the injunctive relief available from s 68B or s 114 coincides with the relief available under the State and Territory legislation, and there is a coincidence of the “matters”, the interaction is controlled by s 114AB.
Mr Logan submits that if the reasoning in Spears & Caro is correct then the logical extension creates problems in the sense that it would always mean that if a party approached a state court with an application “asking for everything”, that party would become the determiner of the jurisdiction, whether they were genuinely ever going to in fact obtain sole use and occupation. This played out in the present case according to Mr Logan because it was evident on Ms Boyd’s material that she and her solicitors understood that Ms Boyd did not have sole use and occupation and her application, although framed as one for retention of property, was really motivated by her concern that she couldn’t afford to live somewhere else.
Mr Logan identified a further consequence being that if the respondent to an application for an intervention order did nothing to resist the application they would not fall foul of s 114AB(2) of the Act and would therefore be entitled to bring an application under s 114(2A) for sole use and occupation. On the other hand, a party in an equivalent position to Mr Logan would, by virtue of bringing his own application for an invention order in the state court, be barred from the benefit of that section. This was said to create a “bizarre and very inconsistent situation” which could not have been the intention of those who drafted the legislation and was contrary to the interests of justice.
Responsive submissions of Ms Boyd
Ms Boyd’s counsel submitted that the Court ought not be concerned with resolving Mr Logan’s challenge to the reasoning in Spears & Caro in circumstances where the Full Court decision of Genesalio provided the complete response given its factual similarity to the present case. Here, like in Gensalio, Ms Boyd has Magistrates’ Court proceedings on foot which involve an application for sole use of the Suburb C property to the exclusion of Mr Logan. At the time that Mr Logan brought his own application for sole use orders, he was aware of Ms Boyd’s application, and he contested it as part of the Magistrates’ Court proceedings.
Ms Boyd submitted that there was no legislative warrant to carve out injunction proceedings brought under s 114(2A) from the generally expressed prohibition contained in s 114AB of the Act. The provision is clearly directed at an application for an injunction in the context of financial proceedings (this being the domain of s 114) or an application for an injunction in the context of parenting proceedings (this being the territory occupied by s 68B).
Resolution of the threshold question
The submissions made on Mr Logan’s behalf have much force. Ultimately, I am not persuaded however, that on the facts of this case, any difference in the wording and/or scope of s 114(2A) (compared with s 114(1)), has consequences for the application of s 114AB of the Act to either party’s proposed applications for sole use and occupation of the Suburb C property. As I will explain, I consider that the reasoning employed in Genesalio applies equally to the facts of this case to produce the result that neither party is permitted to seek injunctive relief in the terms respectively proposed.
In coming to this conclusion, I accept the submission of Ms Boyd that her application for an intervention order which, I note, was made under a “prescribed law of a State or Territory” for the purposes of s 114AB(2) of the Act, was directed, amongst other things, at her obtaining (or maintaining) sole use and occupation of the Suburb C property.
I also accept that when he filed his own application for an intervention order and explained, amongst other things, that he had “equal rights of access” to the Suburb C property, Mr Logan was responding to Ms Boyd’s application for an intervention order and, thereby taking “any other action” in respect of the matter of the sole use and occupation of the Suburb C property.
If I am wrong in that conclusion, I am satisfied that the position had crystalised by mid-2024. On that date, the Magistrates’ Court of Victoria made orders that cast obligations on both parties that they refrain from the commission of family violence and although not formally, had essentially consolidated the two intervention order applications so that it was clear that the matter of the sole use and occupation was extant and common to both proceedings, and Mr Logan continued to take action in respect of that matter. A further consequence was that Mr Logan did not enjoy the benefit of s 114AB(2)(b) at the time that he filed his application under s 114(2A) of the Act on 20 June 2024 or when he made arguments directed at the application in July and August 2024 when the proceeding was before the Court.
I am not persuaded by the argument that there was a lack of symmetry between the matters raised by Ms Boyd’s intervention order application and the matters raised in Mr Logan’s application to this Court. With respect, it seems to me that the focus on the protective purpose of the family violence order regime overlooks the clear statutory intent of s 114AB(2), which, as was made clear in the binding authority of Genesalio, is to prevent there being two sets of proceedings in different courts, wherein the same matter is being litigated. Self-evidently, the purpose of protection can be achieved through various means, including through an injunctive order of the kind sought by Ms Boyd in the Magistrates’ Court.
I have considered whether the construction of s 114AB(2) urged on me by Ms Boyd would create unintended consequences of the kind identified by Mr Logan. I have concluded that it would not.
While, of course, a first in time application made under a “prescribed law of a State or Territory” may have consequences for the jurisdiction of this Court, this will not invariably be the case. Instead, a case specific inquiry will determine whether or not there is coincidence of “matter” and whether s 114AB(2) is, as a result, engaged. Unmeritorious applications will persist in either forum.
In the case of the putative non-participant in an intervention order application it seems to me that their recourse to s 114 might not be as unrestricted as Mr Logan suggests. While it is not necessary to speculate as to each of the different contingencies, at least two are readily foreseeable. In the first scenario, orders made by the State court would operate inconsistently with any orders sought by the respondent under s 114 of the Act. The State made orders would operate subject to any declaration made under s 68Q of the Act by a court having jurisdiction under Part VII of that Act (s 176 of the State Act). On the second scenario, no orders would be made and/or the intervention order application would not be actively pursued. The mischief to which s 114AB(2) is directed, being, active, parallel proceedings, would be avoided.
Finally, to the extent that it might have been suggested that s 114AB(2) ought not to apply to applications made under s 114(2A), because of textual differences between this provision and s 114(1), I reject that submission.
It has been recognised, consistently, that s 114(2A) of the Act, which was introduced as part of the suite of amendments contained in the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) and which is applicable to de facto couples “mirrors s 114(1) as applicable to married couples”: [2020] FCCA 2468 (unreported).
The difference in wording and the more limited scope of s 114(2A) (compared with s 114(1)) most likely reflects the more limited power of the Commonwealth to legislate with respect to de facto relationships given the reliance on referral of powers and the definition of “de facto financial cause”. Had the legislature intended to exclude s 114(2A) from the operation of s 114AB(2), it would have said so explicitly.
I wish to record that had I taken a different view about the application of s 114AB(2) to Mr Logan’s application for sole use and occupation I would have nonetheless refused to make the orders sought by him.
As the Full Court observed in Elliott v Hopkins (No 2) [2023] FedCFamC1A 142 at [35] the principles to be applied in making an order for sole use and occupation of the former matrimonial home pursuant to s 114(1)(f) (and by analogy, s 114(2A)(a)) may be summarised as (internal citations omitted):
a) the Court may make such an order as it thinks proper.
b) there are no words of limitation in s 114(1) other than the requirement that the grant of an injunction be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it.
c) an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances.
d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court grant an exclusion order.
e) the Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together.
f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order.
g) the test for making an order for exclusive occupation is an objective one.
h) the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen.
i) the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together.
j) while the decision ought not be made merely on the balance of convenience, in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of conveniences requires that one party have the sole occupation of the home.
k) it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened.
The battlelines in this case were drawn largely around the matters reflected in sub-paragraphs (f) and (i), although both parties sought to paint a picture of the other as an aggressor and responsible for tensions within the relationship. At an interim stage, even with limited cross-examination, it is difficult to form a view about where the truth lies. It is in any case unnecessary.
Mr Logan emphasised that he had solely funded the purchase of the Suburb C property and that his proposal for final orders involved its retention. Mr Logan continued to pay all property related outgoings.
Mr Logan submitted that it was impracticable and not sustainable for him to continue living with his elderly parents in their home or for his twin boys (aged 18) to live with their mother, Ms S, given that the arrangement was intended to be temporary and involved a dislocation that was disruptive to their year 12 VCE studies.
As far as Mr Logan’s financial contributions to the Suburb C property are concerned, I do not consider they tip the balance in his favour given that they are considerations that can be accounted for (as appropriate) in the final property settlement and involve the continuation of the status quo.
While I accept that Mr Logan has a longer commute now that he is living with his parents and finds it challenging at times to live in a smaller home, I consider that it would be well within his means to obtain alternative rental accommodation for himself that would provide the amenity that he is used to, including proximity to work and to his children. Mr Logan essentially conceded this in cross-examination.
As far as Mr Logan’s twin sons are concerned, the evidence of Ms S, who was briefly cross-examined, satisfies me that the case for their return to the Suburb C property was overstated. Ms S told the Court that she was in good health and had a good relationship with the twins who had, by this time, been living with her for seven months. Ms S described her home as a large home with a pool. Ms S confirmed that each boy had his own room. She agreed with the proposition put to her that the boys appeared comfortable living with her.
The issue of the disruption to the boys’ VCE study was ultimately a red herring. Apart from the fact that any benefit they would derive from a move back to the Suburb C property would be short-lived in the scheme of the time taken to move and the exam period (October/November 2024) there was no evidence to suggest that their study while living with Ms S was in any material way compromised. The letter produced by Mr Logan from a senior teacher at the boys’ school referred to disruptions in the boys’ education that was attributable to their living arrangements, high level sporting commitments and the health of their father.[12] The author of the letter recommended stability and continuity, which it seems to me, is precisely what the boys’ mother, Ms S, is presently providing to them.
INTERIM SPOUSAL MAINTENANCE
[12] MRL-02 to the Logan affidavit.
Legal principles
Ms Boyd seeks an order that Mr Logan pay her the amount of $1,800 by way of spousal maintenance. Mr Logan confirmed during the interim hearing before me that he was prepared to pay Ms Boyd the amount of $1200 instead.
Ms Boyd’s application is brought pursuant to s 90SE(1) of the Act, which provides:
After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.
Section 90SF identifies the matters to be taken into consideration in relation to maintenance and relevantly provides:
1) In exercising jurisdiction under section 90SE…the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
a) only to the extent that the first-mentioned party is reasonably able to do so; and
b) only if the second-mentioned party is unable to support himself or herself adequately whether:
i.by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
ii.by reason of age or physical or mental incapacity for appropriate gainful employment; or
iii.for any other adequate reason.
1) In applying this principle, the court must take into account only the matters referred to in subsection (3).
In Parson & Parson [2023] FedCFamC1F 382 at [32]-[38] Schonell J set out the following summary of the principles to be applied in applications of these kind which I adopt on the basis that the effect and substance of the different legislative provisions for married and de facto parties is the same.
34. The Full Court in Bevan & Bevan (1995) 92-600 identified the requisite elements necessary to the making of a spousal maintenance order. The applicant for relief bears the onus of establishing that they are unable to support themselves adequately by reason of the matters set out in s 72 of the Family Law Act 1975 (Cth) (“the Act”), including having regard to any relevant matter referred to in s 75(2).
35. There is no liability to pay spousal maintenance unless the need of the applicant is first established. If the applicant cannot establish an inability (which will not be inferred) to support themselves, then an order for maintenance cannot and will not be made (see Rowan and Rowan [1977] FamCA 100; (1977) FLC 90-310 and Stacy and Stacy (1977) FLC 90-324).
36. Determination of the question of whether an applicant for spousal maintenance can support themselves adequately is not to be determined by reference to any fixed or absolute standard but by reference to the matters referred to in s 75(2) of the Act (see Mitchell and Mitchell (1995) FamCA 32; (1995) FLC 92-601 at 81,995). In Atwill and Atwill [1981] FamCA 72; (1981) FLC 91-107, Nygh J at 76,792 held:
“Adequately” imports relativity. Subsistence may be adequate for some applicants but not for others. It must be viewed in the light of para. (g) of sec. 75(2) “a standard of living that is in all the circumstances reasonable”…
37. While in Wilson and Wilson [1989] FamCA 34; (1989) FLC 92-033, their Honours held at 77,453:
…A standard of living that in all the circumstances is reasonable for the party claiming maintenance is not necessarily the same standard as that enjoyed by the party who is ordered to pay maintenance…Similarly, the standard of living that in all the circumstances is reasonable for the wife in this case, is not necessarily the same standard as that enjoyed during cohabitation…
38. While in Redman and Redman [1987] FamCA 2; (1987) FLC 91-805, the Full Court observed at 76,081:
…Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1987] FamCA 57; (1978) FLC 190-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.
The parameters of the dispute
In his case outline, Mr Logan acknowledges that his income stems from his interest in the Suburb K business which produces (according to his financial statement) weekly pre-tax income of $15,268. Mr Logan accepts that there is no argument that he has capacity to pay periodic spousal maintenance. Mr Logan identifies the question as whether Ms Boyd is unable to support herself adequately and what level of support is appropriate. There does however appear to be at least a tacit acceptance, by reason of the offer to make payment to Ms Boyd of a weekly amount of $1,200 that there is at least a need for support to this extent. The real dispute it seems to me is how much is reasonable in the circumstances of this case.
Ms Boyd’s case
Ms Boyd submits that she has a need for periodic maintenance because she is unable to support herself adequately by reason of her limited capacity for remunerative employment.
As far as factors that bear on Ms Boyd’s capacity for employment, she deposes to being in reasonable health but that her depression and anxiety have exacerbated post-separation. Ms Boyd deposes, without explication, that her mental health has made focusing on work more difficult for her. Ms Boyd annexed to her affidavit a letter from her GP, Dr V dated July 2024 which referred to the deterioration of her relationship with Mr Logan having caused Ms Boyd “immense stress and anxiety”.[13]
[13] Annexure MSB-2 to the Boyd affidavit.
Ms Boyd deposes that she earns gross income of $400 per week by running a business from the Suburb C property. Ms Boyd operates the business as a sole trader.
It is Ms Boyd’s evidence that she established the business as essentially a hobby and that she doesn’t otherwise have any qualifications. Ms Boyd suggests that she was limited in her pursuit of other qualifications because during her relationship with Mr Logan she undertook the majority of the domestic duties for him and his children, freeing Mr Logan up to earn an income.
Ms Boyd acknowledges that there are no children of the parties’ relationship but in her evidence, refers to one of her children (Mr W, aged 23) living with her on a full-time basis and a second child (Ms X, aged 18) splitting her time between Ms Boyd and her father.
Mr Logan’s case
Mr Logan takes issue with the extent of Ms Boyd’s capacity for employment. He says that Ms Boyd is in good health and has no responsibility for minor children or any other person. He notes that Ms Boyd has a history of past employment and submits that Ms Boyd has not produced admissible evidence (beyond a self-serving bare assertion) as to why she is unable to exercise such workforce skill as she possesses to her maximum capacity.
Mr Logan submits that there is no evidence that Ms Boyd has made any effort to join another business, increase her clientele or that she has sought to work in the capacity of employee in her field of training and experience. Mr Logan invited the Court to conclude (by reference to M and M [2002] FMCAfam 212) that Ms Boyd is intentionally underemployed. Mr Logan also submits that there is no evidence that the parties’ relationship in any way negatively impacted Ms Boyd’s capacity for employment. He contends that he is only obliged to contribute to the reasonable maintenance of Ms Boyd to the extent that she is unable to support herself and, in this context, submits that she is not entitled, in the post-separation environment, to continue to view her employment capacity as a “hobby”.
Ms Boyd’s expenses
In her financial statement filed on 1 May 2024 Ms Boyd identifies average weekly income of $900 (comprising $400 from her business and $500 being an amount received weekly as a distribution from the income of Mr Logan’s business). Ms Boyd identifies weekly expenses of $2,155 for herself in Part N to the financial statement.
Ms Boyd was cross-examined about her income and expenses. During that process she gave evidence including that:
·Her adult son, Mr W, has been in full time employment as an apprentice since early 2024. No allowance is made in Ms Boyd’s financial statement for contributions made by Mr W to household expenditure.
·Mr Logan continues to pay the mortgage over the Suburb C property, as well as the utilities and internet.
·Ms Boyd was uncertain as to the amount identified as shortfall each week in her financial statement.
Ms Boyd acknowledged that in her tax return for the financial year ending 30 June 2023[14] she claimed an amount of $5,381 in expenses related to the business use of her motor vehicle; $3,900 for driving and $1,481 for repairs, maintenance and parking.
[14] Exhibit R1.
Ms Boyd explained that the amount of $3,900 had been calculated using the cents per kilometre method. She accepted that this translated to a claim for driving 5,000 km per year (or 92 kms per week) for ostensibly business reasons.
This produced the following exchange:[15]
Yes. But it is true when I say, and you have to agree, that you do not use your car – you do not drive 92 kilometres a week for business purposes for a [business] that you operate from home?---I agree. It sounds crazy.
Right. Thank you. So therefore, that being so, that sum of $3900 actually comes back into your income, or income available to you, because it’s not a genuine expense?---Okay.
[15] T52, line 1-8.
Ms Boyd agreed that the bank statements for her CBA and Y Bank accounts disclosed that as of 1 January 2024, she had a combined balance of $34,695 in funds and yet in her financial statement (made in May 2024) Ms Boyd disclosed a combined cash and share portfolio of $44,000. Ms Boyd agreed that she had purchased shares since the time that Mr Logan left the Suburb C property.
The husband’s counsel, Ms Stoikovska SC, invited the Court to find that Ms Boyd’s expenses had been exaggerated. This was not just the case regarding her claims in respect of her motor vehicle (in Part N she identified weekly expenses of $100 each for petrol and repairs for a total of $10,400 per annum, in addition to a further $100 for fares/car parking) but her claims for household supplies and household repairs in the amounts of $100 and $250 per week, respectively and her claim for repairs – furnishing and appliances – in the amount of $100. Ms Boyd was questioned as follows about household items:[16]
Okay. Household supplies, another $100 a week – what household supplies do you say you purchase that cost $100 a week? This is over and above food, over and above other expenditure. What household supplies were you referring to when you completed the document?---Household supplies, meaning things for the home.
Like what, though?---Could be anything from something that I may have to purchase from [a store].
Like what?---Well, could be – I might be wallpapering the wall that week, you know. I might be buying a new drill or---
Buying a new what?---Drill.
For what?---To fix the curtains. I might be – anything from detergents to cleaning supplies to chemicals to salt for the pool to – could mean anything like that.
How does – sorry, how does wallpapering the house or buying a drill have anything to do with matters that are – financial matters that are necessary for your support?---Well, you asked me. You asked me what is considered a household supply, so I’m saying that to me would be considered an item that would be---
[16] T60 line 16-35.
Later, the following exchange took place concerning the claim for repairs to furnishings and appliances:[17]
Repairs and furnishings and appliances - $100 a week. Another $100 a week. That’s $5200 for the year. You’ve produced no document that would indicate – you have provided nowhere in your evidence – you don’t even have to have the document, but you haven’t said anywhere in your affidavit, “Look, I’ve had to repair the couch because it fell apart,” or “I don’t have a kitchen table because” - I don’t know – or “The dishwasher has broken. I’ve had to fix it”. There’s no such evidence, is there? A I right?---No, there isn’t any.
Right. But what you do is, again, you pick a guesstimate figure under the heading of Furnishings and Appliances, and just picked a figure?---I tried to work out roughly what we would spend over a year on things like that, and then I tried to work it out into a weekly – an amount. That’s what I tried. I tried to guess what we would spend. I don’t have access to anything. I don’t have access to his email, to documents.
[17] T63 line 12-25.
It was a consistent feature of Ms Boyd’s responses that she had been compromised in her ability to identify her level of expenditure against different items because Mr Logan had historically been in control of the parties’ finances and maintained the records of bank accounts that documented their purchases. It was the case that credit card statements requested by Ms Boyd’s lawyers (and the subject of the June orders) were not produced until the eve of the second day of the interim hearing.
Mr Logan was asked about his own spending during cross-examination. In this context he was taken to a Westpac Mastercard statement for the period September to October 2023.[18] Mr Logan agreed that it recorded expenditure of around $5,000 for the month ($1,150 per week) on predominantly food, drinking and transport-related items, and that it was not necessarily an unusual month in terms of the level of spending.
[18] Exhibit A6.
Mr Logan was also taken to a statement for an ANZ Frequent Flyer card in his name for the period October to November 2023[19] which he agreed recorded spending for food and personal expenses and ordinary expenses throughout the relationship. Mr Logan agreed that the amount of $4,359 spent on the card during that month was “pretty standard expenditure”. Mr Logan agreed, somewhat reluctantly, that based on the spending documented in these two accounts, an amount of roughly $500 per week on food was “pretty standard” during the relationship. Mr Logan did however seek to qualify this concession by pointing out that spending across the month would relate variously to four, five, six, seven or eight people; this being a reference to the adult children of both parties.
[19] Exhibit A7.
In explaining how he had populated the figures in Part N of his own financial statement, Mr Logan told the Court that he had taken the roughly $9,000 of expenditure across the two credit cards and then performed a reconciliation of the two accounts to arrive at a total weekly spend for himself of $3,000.
Mr Logan agreed that during the parties’ relationship, Ms Boyd had purchased, with his consent, various luxury items.
Ms Boyd’s Part N expenses are recorded as follows:
ITEM TOTAL FOR YOU FOR CHILDREN
(IF APPLICABLE)OTHER ADULTS
(IF APPLICABLE)Food E$700 E$500 $NIL E$200 Household supplies E$100 E$100 $NIL E$NIL House repairs [this covers the significant storm damage and bathroom renovations] E$250 E$250 $NIL $NIL Gas (Paid by Mr Logan) $NIL $NIL $NIL $NIL Electricity (Paid by Mr Logan) $NIL $NIL $NIL $NIL Internet (Paid by Mr Logan) $NIL $NIL $NIL $NIL Telephone E$25 E$25 $NIL $NIL Motor vehicle $NIL $NIL $NIL $NIL - petrol E$100 E$100 $NIL $NIL - maintenance E$100 E$100 $NIL $NIL Fares/car parking E$100 E$100 $NIL $NIL Clothing and shoes E$150 E$150 $NIL $NIL Children's activities $NIL $NIL $NIL $NIL Child minding $NIL $NIL $NIL $NIL Medical, dental and optical (not including health insurance premiums) E$50 E$50 $NIL $NIL Entertainment/hobbies E$100 E$100 $NIL $NIL Holidays E$150 $150 $NIL $NIL Education expenses, including fees and levies $NIL $NIL $NIL $NIL Chemist/pharmaceutical E$50 E$50 $NIL $NIL Gardening/lawnmowing $NIL $NIL $NIL $NIL Cleaning (house/pool) $NIL $NIL $NIL $NIL Repairs - furnishings and appliances E$100 E$100 $NIL $NIL Dry cleaning E$20 E$20 $NIL $NIL Books and magazines E$10 E$10 $NIL $NIL Gifts E$200 E$200 $NIL $NIL Hairdressing, toiletries E$150 E$150 $NIL $NIL Other necessary commitments (specify) $ NIL $NIL $NIL $NIL TOTAL $ 2,355 $ 2, 155 $ NIL $ 200
In addition to these items, Ms Boyd claims personal expenditure for car insurance, health insurance and car registration in the combined amount of $61. Her total claimed expenditure is $2,416.
Mr Logan submitted that the totality of the evidence showed that Ms Boyd’s expenses had been exaggerated and that she had inflated her claim in the knowledge that she had been in a relationship with a wealthy man who had, during the course of that relationship, been generous both to her and to her adult children.
I consider that there is some merit to this submission although I am also mindful of two principles that can inform the assessment of reasonable need. The first is that in circumstances where Mr Logan did not produce relevant financial statements until very recently, and where those statements were capable of shedding light on the nature and extent of household expenditure during the relationship, from which Ms Boyd might have derived assistance, I consider there is scope to err on the side of generosity to Ms Boyd who might otherwise be seen to be disadvantaged by the lack of complete candour.[20]
[20] Kannis & Kannis [2002] FamCA 1151 at [51].
The second long-standing principle, recognised by the Full Court in Brown & Brown (2007) FLC 93-316 is that where possible, both spouses should continue to live after separation at the level which they previously enjoyed, if this is reasonable.
Having brought these principles to account, it does however seem to me that several amounts, claimed by Ms Boyd as being items of her weekly expenditure, cannot be regarded as reasonable in her current circumstances.
The first item is the amount of $700 for food which Ms Boyd apportions as to $500 for herself and $200 for “other adults”. The adult is Ms Boyd’s son, Mr W (on occasion, her daughter, Ms X). Mr W is in full time employment and in any case, Mr Logan has no obligation to contribute to his maintenance. Ms Boyd’s amendment to the amount of maintenance sought appears to acknowledge this. As far as the amount of $500 referable to Ms Boyd is concerned, while it has the appearance of being on the higher end of the scale and is less than the amount claimed by Mr Logan in his financial statement ($250) if the credit card statements referred to earlier provide a proper point of comparison, I consider that the amount of $500 is within the range of spending for food reflected in those statements.
The second item is the amount of $250 claimed for house repairs. Ms Boyd’s explanation of the basis for this claim was vague and unsatisfactory given that at the time of her evidence, she had been living in the Suburb C property without Mr Logan for around seven months. While I accept that Ms Boyd has some expenses related to house repairs, I propose to discount this item to the amount of $150.
The third set of items that warrant closer attention are the amounts of $100 claimed in respect of motor vehicle petrol, maintenance and “fares/car parking” for a total of $300 per week. While Ms Boyd conceded that she drove very little in connection with her business I am prepared to accept that she incurs petrol expenses associated with personal driving in the amount claimed. Ms Boyd’s evidence about the cost of maintenance and fares/car parking was unsatisfactory. I propose to discount these two items by $50 each.
The fourth item that I consider to be overstated is the amount of $100 claimed in respect of repairs – furnishings and appliances. Ms Boyd’s evidence about this item is set out above (at [101]). It does not provide an adequate explanation for the amount claimed. I propose to discount this item by $50.
Mr Logan was critical of the amounts claimed by Ms Boyd for gifts ($200) and for hairdressing/toiletries ($150). I note that Mr Logan claims expenditure of $100 per week on gifts. I see no reason why Ms Boyd’s claim should not mirror his, in circumstances where no satisfactory explanation has been provided by her as to the necessity for expenditure of this amount ($5,200 per year). I do not propose to make any adjustment to the amount claimed for hairdressing/toiletries. Ms Boyd explained that she attended a hairdresser regularly and as Mr Logan’s credit card statements reveal, not insignificant amounts of money were spent by the parties on personal and lifestyle items during their relationship.
At this interim stage I assess Ms Boyd’s reasonable and necessary weekly expenses at $1,868, comprising:
·Part N expenses - $1,805
·Car insurance – $25
·Health insurance – $19
·Car registration - $17
Ms Boyd’s capacity to fund her expenses
As noted earlier, there is no question that Mr Logan is in a position to fund Ms Boyd’s claim for spousal maintenance. However, there is a residual question as to the capacity of Ms Boyd to support herself.
It is not easy to obtain a precise picture as to the income received by Ms Boyd from her business. In her financial statement she identifies this as an amount of $400 per week (pre-tax). In her tax return for the financial year ending 30 June 2023, she declares income from “[business] sales” in the amount of $26,440 ($508 per week) although this amount is offset by claimed business expenses, some of which Ms Boyd conceded, did not properly reflect a business use.
At this interim stage however and where Mr Logan did not seriously challenge the figure attributed to income, I will proceed on the basis that it is the amount of $400 per week. I have taken out of account the income provided by Mr Logan as this will be reconciled in any order made for the payment of spousal maintenance going forward.
Mr Logan’s principal challenge is to the efforts made by Ms Boyd to improve her earning capacity. He is also dismissive of what he describes as “self-serving” statements directed at her capacity to work due to an inability to concentrate.
The cross-examination of Ms Boyd left me with the impression that Ms Boyd was understating her earning capacity and/or did not regard seriously the obligation to maximise her earning potential. I formed this impression based especially on Ms Boyd’s reluctance to acknowledge that matters she identified as impediments to her productivity while in a relationship with Mr Logan (described as last-minute events, holidays and sporting engagements) were not a feature of her life post-separation. I was also unimpressed by the lack of evidence of steps taken by Ms Boyd to increase her business clientele in the period since Mr Logan left the Suburb C property. I infer from this that no such steps have been taken. However, while unsatisfactory, at this interim stage with imperfect information, I am unable to be positively satisfied that Ms Boyd could in fact be earning more than she does currently so as to undermine the basis for a maintenance order.
This is not a situation where Ms Boyd has decreased her employment activity post-separation. Instead, it appears that she is engaging with her business at a level commensurate with that which occurred during her relationship with Mr Logan. A question no doubt for trial will be whether she should or could be doing more.
A final point which arose during hearing was whether any order for maintenance should take account of Ms Boyd’s “property” in the form of cash savings and share portfolio. As discussed earlier, at the time she made her financial statement, Ms Boyd had $44,000 between these two assets classes. Mr Logan submitted that given the amount of savings held by Ms Boyd, the amount of maintenance that he proposed was appropriate.
While it is true that the ability of a party to support oneself is not to be determined by reference only to income, the cases also recognise that a party is not required to exhaust their capital before seeking maintenance[21] and it is appropriate that a reasonable amount of capital be retained by a party and not be taken into account in determining eligibility for maintenance.[22] I consider in this case that the amount held in savings/shares by Ms Boyd is not of such significance that it should be taken into account in determining eligibility for and/or the extent of any maintenance.
[21] Rice & Rice [2020] FamCAFC 174.
[22] Mitchell and Mitchell (1995) FLC 92-601 at 81,995.
The result of the foregoing is that I find on an income of $400 and expenses in the amount of $1,868, there is a weekly shortfall to Ms Boyd in the amount of $1,468. I consider it proper that an order be made requiring Mr Logan to pay spousal maintenance to Ms Boyd in that sum.
HOW SHOULD THE COURT APPROACH THE LUMP SUM PAYMENT MADE BY MR LOGAN TO MS BOYD?
Mr Logan has made a payment of $30,000 to Ms Boyd pursuant to the June orders. He has agreed to make a further payment to Ms Boyd of $70,000.
Mr Logan submits that neither payment should be characterised now with this question reserved to the trial judge.
Ms Boyd on the other hand submits that the sum of $70,000 (as well as the earlier payment of $30,000) should be appropriated to her legal expenses.
In Salvage & Fosse [2020] FamCAFC 144, Watts J identified four possible sources of power for the making of an order for interim provision of litigation expenses, being the powers to make orders as to: property (s 90SM and s 90SS(1)(h) and (k), costs (s 117(2)), maintenance (s 90SE) and injunctions (s 114(2A)(c)).[23] His Honour observed that identification of the source of power was important because this would determine the relevant considerations for the making of the order.[24] A similar sentiment was expressed by Ryan and Aldridge JJ in their joint judgment.[25]
[23] Salvage & Fosse at [57].
[24] Salvage & Fosse at [56].
[25] Salvage & Fosse at [11].
It is not clear precisely which power Mr Logan says is engaged in the making of the order for payment to Ms Boyd that he proposes; that is perhaps intentional, given that he asks the Court to defer characterisation until trial.
Ms Boyd, on the other hand, explicitly invites the Court to make an order under s 117 of the Act. Mr Logan actively resists this course.
Section 117(1) of the Act provides as a general rule that each party to proceedings should bear their own costs.
Section 117(2) of the Act reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are justifying circumstances having regard to the matters set out in s 117(2A).
It is settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 FamLR 123, the Full Court observed:
41. …Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
In Salvage & Fosse, Watts J observed as follows:
62. When considering whether it is just to make an interim order for the provision of litigation expenses pursuant to s 117(2), the court shall have regard to the matters set out in s 117(2A) of the Act. In Zschokke (at 83,217) the Full Court said:
If the order is to be made under s 117(2) then, in our view, the matters contained in s 117(2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in the sub-section (notably paragraphs (d) failure by one party to comply with court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub-section, as is permitted by paragraph (g)…
63. In relation s 117(2A)(a), apart from the general financial circumstances of each of the parties to the proceedings, the Full Court in Zschokke identified the following particular considerations:
a)a position of relative financial strength on the part of the respondent;
b)a capacity on the part of the respondent to meet his or her own litigation costs;
c)an ability on the part of the applicant to meet his or her litigation costs.
63.As to such other relevant matters, under s 117(2A)(g), the plurality in Strahan at [96] and [141] specifically adopted the following considerations referred to in Paris King Investments at [30]:
a)the applicant should have “at least an arguable case for substantive relief which deserves to be heard”;
b)there should be evidence of the applicant’s “likely costs of litigation” (see also Wilson and Wilson (1989) FLC 92-033 at 77,453); and
c)it is not “an essential pre-condition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.
Ms Boyd’s case for a costs order
Ms Boyd submits that two s 117(2A) considerations are engaged in her case and justify the making of an interim costs order.
The first consideration is the significant income earning disparity between the parties; the applicant earns $400 per week and Mr Logan’s most recently disclosed taxable income from various entities was $7.7 million. Reflecting this, Mr Logan has met the costs of his legal fees to date from income as can be discerned from his costs notice.
Ms Boyd submits that the question of interim costs should not be approached according to a commercial paradigm but instead should reflect the not uncommon reality that one person of a relationship holds all of the finances. Ms Boyd submits that a litigation funding order would simply equip her with a “fighting fund” and operate to, in part, level the playing field between the parties.
The second consideration relied upon by Ms Boyd is that described in s 117(2A)(c), being the conduct of the parties to the proceedings in relation to the proceedings. Ms Boyd submits that this consideration is engaged by Mr Logan’s conduct in sending a series of emails to her lawyers, including some sent after Mr Logan had formally engaged his own lawyers, and which were designed to harass and intimidate Ms Boyd. Excerpts from two of these emails are referred to at [40]-[41] above.
Ms Boyd also identifies as relevant conduct, the failure of Mr Logan to comply with disclosure obligations. She notes, as is the case, that the June orders required Mr Logan to provide discovery of a number of identified documents within 21 days. As at the date of the interim hearing (24 July 2024) this had not occurred. It was only shortly prior to the second day of the interim hearing that Mr Logan produced the outstanding credit card statements. Ms Boyd submits that this conduct prolongs and complicates the litigation and increases the cost impost on her.
As far as it is a requirement that Ms Boyd demonstrate an arguable case for substantive relief, she submits that this is established even on Mr Logan’s case. In this respect she refers to the orders proposed by Mr Logan in his response to initiating application that would see Ms Boyd receive 30% of the net value of the Suburb C property. In circumstances where the Suburb C property has equity of at least $1.5 million, Ms Boyd would stand to receive by way of property distribution, an amount that far exceeds what she seeks for litigation funding.
Ms Boyd relies on the Mr R affidavit as evidence of her likely costs of litigation. Mr R projects future legal costs of $188,655.55 and identifies the type of work in respect of which these costs will likely be incurred. The costs notice filed by Ms Boyd on 23 July 2024 records that as at that date she had incurred $89,460 in costs and she had sourced payment for these costs as to $3,255 from personal savings and the balance through litigation funding with Z Company at an interest rate of 9.85%. Ms Boyd submits that she cannot personally fund continued litigation and that she should not be placed in a situation where she is compelled to borrow at above commercial rates.
Why Mr Logan opposes a costs order and/or submits that characterisation of the payment at an interim stage is unwarranted
Mr Logan’s primary contention is that in circumstances where Ms Boyd will receive a total payment of $100,00 which she may choose to apply to the cost of litigation, she has in effect obtained what she is after (funding for litigation) and it is premature and unnecessary for the Court to designate the character of this payment (in both tranches).
As far as Ms Boyd relies on the costs power in s 117 of the Act, Mr Logan says that the two decisions to which she made reference - Salvage & Fosse and Lao & Zeng [2021] FedCFamC1A 17 - can be distinguished from the facts at hand. This is because in both decisions, the lack of available funding for litigation would have denied the applicant the opportunity to prosecute a threshold issue which would have stymied proceedings from the outset.
Mr Logan submits that on Ms Boyd’s case, which would involve a property distribution of 70/30 per cent in Mr Logan’s favour, she would stand to receive an amount in excess of $12 million. Even if Mr Logan was to succeed on a foreshadowed Stanford argument, Ms Boyd would still end up with a reasonably significant adjustment reflecting her 30 per cent interest in the Suburb C property. The point of this analysis being that where the outcome was yet unknown and where there was a prospect of Ms Boyd obtaining a significant settlement, it could not be said that Ms Boyd was a candidate for a costs order. The justifying circumstances necessary to displace the general position that parties are responsible for their own costs had not yet been fully exposed and/or might never eventuate.
The circumstances of this case justify a costs order in favour of Ms Boyd
I consider that the approach promoted by Mr Logan side-steps the purpose of an order for litigation funding that was identified by the Full Court in Salvage v Fosse as directed at redressing the unfairness of a party who holds all of the assets being able to apply those assets to pay lawyers to act for them while the other party languishes without recourse to the same pool. While Ms Boyd may ultimately receive a significant property settlement, I am not required to prognosticate as to this outcome. Instead, the question before me, where an application made under s 117 of the Act is actively prosecuted, is whether in all the circumstances a costs order is justified.[26]
[26] Salvage v Fosse at [14].
Having reflected on the evidence and submissions of the parties I consider that the obvious financial inequity between the parties justifies an order for litigation funding under s 117(2) of the Act in favour of Ms Boyd. I am unable to identify any significant point of distinction between this case and those relied upon by Ms Boyd as supporting her application. In point of principle, both of these cases involved an application of the considerations identified in s 117(2A) and a finding that the circumstances justified the making of a costs order in favour of the party who lacked access to and control over assets. Indeed, in Lao & Zeng, the same considerations which I consider to be engaged in this case – namely, the disparate financial circumstances of the parties, matters of conduct and the identification of an arguable case for substantive relief – were decisive of the outcome. It is not a necessary feature of a successful application made under s 117(2) that the litigation to which funds are to be applied concerns a threshold issue. The type of inequity that engages the provision can occur at any stage of a proceeding.
I accept that Ms Boyd faces significant challenges in funding her application which are not experienced by Mr Logan. It is also relevant, although not essential to my finding, that Mr Logan has engaged in conduct, especially the lack of financial disclosure, that almost certainly has contributed to the costs incurred by Ms Boyd. Furthermore, I am satisfied that Ms Boyd has an arguable case for substantive relief.
I accept that I am not required to characterise the payment of $70,000 to be made by Mr Logan or the earlier payment made by him pursuant to the June orders. It is well established that provided that the source of power for the payment is identified, its characterisation can be fixed by the trial judge.[27] However, where I am satisfied that the conditions for the making of a litigation funding order exist, I see no reason why this characterisation should be deferred. I will make a declaration and an order in the terms proposed by Ms Boyd.
[27] See, for example, Cartwright & Manzetto [2013] FamCA 1015 at [27] referring to Marchant & Marchant (2012) 49 Fam LR 1, [40]-[42].
What if any further orders should be made?
Ms Boyd seeks an order that she be granted leave to issue more than five subpoenas. She submits that such an order is necessary in light of the lack of disclosure provided by Mr Logan during the proceedings to date. Ms Boyd wishes to avoid the need to return to the Court in the event of further non-compliance.
Mr Logan did not address this proposed order in his written outline or in submissions made on his behalf by his senior counsel. I consider that an order of the kind sought by Ms Boyd should be made having regard to the difficulties she has experienced in obtaining financial disclosure from Mr Logan.
Finally, Ms Boyd sought an order that Mr Logan pay a suite of expenses associated with the Suburb C property, including the mortgage, rates, taxes, utilities and insurance and various streaming subscriptions and cleaning services.
The case was argued by both parties on the basis that these expenses had been paid by Mr Logan during the parties’ relationship and he had continued to pay them following the parties’ separation. The financial statements relied upon by the parties reflected a situation where Mr Logan was responsible for these expenses and Ms Boyd, accordingly, made no claim for maintenance by reference to them. There was no suggestion from Mr Logan that he would do anything other than continue with this financial commitment. However, to put the matter beyond doubt and to ensure that at least on this issue, there is no need to approach the Court again, I will make orders in the terms proposed by Ms Boyd.
I will otherwise dismiss all extant interim applications, save as for costs.
If a party wishes to pursue an application for costs, they should do so within 28 days and in the proper form.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 2 December 2024
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