BRADFORD & BRADFORD

FAMILY COURT OF AUSTRALIA

BRADFORD & BRADFORD

[2012] FamCA 393

FAMILY LAW – PROPERTY – INTERLOCUTORY PROCEEDINGS – Husband sought that a commercial shop property being one of three real properties be sold – Wife opposed – In principal proceedings wife seeks that she have the shop property as part of the final property order – Relevant factors considered – Husband’s application dismissed

FAMILY LAW – SPOUSAL MAINTENANCE – INTERIM PROCEEDINGS – Husband sought discharge of consent interim order for spousal maintenance for wife including retrospectively arrears – Wife opposed discharge and sought order for payment of arrears – In the same proceedings by resolution of wife’s application for a Hogan order the parties consented to an order for the sale of a boat with the net proceeds of sale to be paid to the wife and characterised at the trial – Parties agreed also that the wife have net rental moneys from the commercial shop property as “100% spousal maintenance” – Difficulty on the evidence quantifying wife’s need for ongoing spousal maintenance – Further having regard to the parties’ agreement concerning the shop net rental proceeds not satisfied on the evidence that wife has demonstrated need – In any event not satisfied husband reasonably has capacity to pay ongoing spousal maintenance – Arrears not discharged – Interim spousal maintenance order discharged however from date of hearing

FAMILY LAW – INTERLOCUTORY AND INTERIM PROCEEDINGS – COSTS – Costs reserved to trial judge

Family Law Act 1975 (Cth) s 83, s 72, s 75

Family Law Rules 2004

Fahmi & Fahmi (1995) FLC 92-637
Hansor & Hansor (1969) 13 FLR 439
In the Marriage of Dixson (1985) FLC 91-652
In the Marriage of Lutzke (1979) 5 FamLR 533; FLC 90-714
In the Marriage of P & MP Vakil (1997) 21 FamLR 508
Sparkes & Eberle (unreported) No BR2362 of 1988, Warnick J, 10 July 2000

APPLICANT:

Ms Bradford

RESPONDENT:

Mr Bradford

FILE NUMBER:

BRC

9699

2009

DATE DELIVERED:

28 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

29 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Waterman of Counsel

SOLICITORS FOR THE APPLICANT:

Wiltshire Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hackett of Counsel

SOLICITORS FOR THE RESPONDENT:

Bridge Brideaux Solicitors

Orders

IT IS ORDERED BY CONSENT

In the terms of the minute of orders Annexure A.

AND IT IS FURTHER ORDERED BY CONSENT

Order 9(d) of the orders made on 27 May 2010, restraining the husband from dealing with the Type A Boat, is discharged.
Order 8 of the orders made on 14 February 2011 be varied by substituting the following:
8. All net rental moneys with respect to [… B Street, Gold Coast Suburb P] [(the shop)] be received and retained by the wife and characterised as 100% spousal maintenance, the wife to keep and maintain a record of all such moneys so received and retained, and by her solicitors to provide a copy of such record to the husband’s solicitors within 7 days of any written request.
Orders 2, 3 and 4 of the orders made on 23 June 2011, relating to sole instructions by the wife to the court expert (see order 1 of those orders) is vacated.
The wife, within 14 days of the date of these orders, make file and serve an affidavit deposing, in respect of each of the matters in order 14(a)-(e) of the orders made on 5 November 2010:
a.      whether she has made the required disclosure as to the documents and information, and if so, when and how.
b.      if any of the required disclosure as to documents and information has not been made, making it;
c.      in respect of any and all documents referred to in or relevant to order 14(a)‑(e) which the wife is unable to disclose:
i.whether any such document ever was in her possession or under her control
ii.if any such document ever was in her possession or under her control and has ceased to be in her possession or under her control, when and how such occurred
iii.what steps if any she has taken to obtain copies of such documents in order to disclose them.
Orders 6 and 7 of the orders made on 23 June 2011 are vacated.

AND IT IS FURTHER ORDERED

Order 3 of these orders is to operate with effect from 29 November 2011.
If since 29 November 2011 the wife has not received the net rental moneys with respect to the shop such be calculated from 29 November 2011 until the date of these orders and the husband within 30 days either pay the sum so calculated to the wife or make arrangement with the wife to pay the sum so calculated by instalments.
In default of such payment, or arrangement, and subject to any earlier enforcement proceedings brought by the wife against the husband, the sum so calculated to the extent unpaid if any be brought to account in the parties’ s 79 property proceedings as a debt due by the husband to the wife.

AND IT IS FURTHER ORDERED

The husband’s application for the sale of … B Street, Gold Coast Suburb P and the distribution of the net sale proceeds in the manner sought by him is dismissed.
The husband’s application for the discharge of orders 17 and 18 in the annexure to the orders made on 27 May 2010 (spousal maintenance) is allowed, the discharge to take effect from the date of hearing 29 November 2011.
The husband’s application for the discharge of all arrears payable by him to the wife pursuant to orders 17 and 18 of the annexure to the orders made 27 May 2010 is dismissed, with effect that the husband is liable to pay to the wife the amounts of $14,350 and $9,325 referred to in ex 2, amounting to $23,675.
The husband within 30 days either pay to the wife those arrears or make arrangement with the wife to pay those arrears by instalments.
In default of such payment, or arrangement, and subject to any earlier enforcement proceedings brought by the wife against the husband, the arrears to the extent unpaid if any be brought to account in the parties’ s 79 property proceedings as a debt due by the husband to the wife.

AND IT IS FURTHER ORDERED

The wife’s application in a case filed 1 September 2011 and the husband’s amended application in a case filed 28 October 2011 otherwise are dismissed.
The parties, by their solicitors, arrange a mediation in this matter by an experienced family law solicitor or barrister to be convened no later than mid July 2012.
The matter be listed for a compliance mention before the docket Registrar at 3.00pm on Monday 30 July 2012.
The costs of and incidental to the wife’s application in a case filed 1 September 2011 and the husband’s amended application in a case filed 28 October 2011 are reserved to the trial judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradford & Bradford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

Annexure A

That the wife shall do all necessary acts and things and sign all necessary documents to effect the sale of the [Type A] Boat Year: […]; Model: […]; Registration Number […] (‘The [Type A] Boat’) and for that purpose the following shall apply:
a)The [Type A] Boat shall be listed for sale by private treaty within 7 days from the date of these Orders with the agent to be nominated by the Wife.
b)The Husband will comply with all requests of the Wife’s agent necessary to assist in the sale of the [Type A] Boat.
c)Should the Husband be in possession of any documents or things relating to the [Type A] Boat title, service history or records then the Husband shall provide those documents to the Wife within seven (7) days of the date of these Orders.
d)The list price of the [Type A] Boat shall be such amount as is agreed between the parties in writing and failing agreement within 7 days of the date of these Orders the list price will be as per the valuation prepared by [C Valuers] dated 9 December 2010, being $55,700.00.
e)The sale price of the [Type A] Boat shall be such amount as is agreed between the parties in writing and failing agreement the Wife be at liberty to accept any offer to buy the boat that is not less than 80% of the [C Valuers] valuation, being $44,560.00.
Despite order 1, the Wife shall be at liberty to do all acts and sign all documents as are necessary to sell the boat by auction and the following shall apply:
a)      The boat shall be listed for sale by auction. The Wife shall appoint the auctioneer/boat broker.
b)     The parties shall execute all documents requested by the auctioneer for sale of the boat by auction.
c)      The reserve price of the boat shall be such amount as is agreed between the parties and failing agreement being reached between the parties seven (7) days prior to the auction, then the reserve price shall be $44,560.00, being 80% of the Valuation price.
d)     The Husband and Wife shall co-operate in every way with the auctioneer in relation to the sale by auction.
e)      That the Wife have liberty to attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.
f)      The sale price of the [Type A] Boat shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the boat shall be such amount as is agreed between the parties in writing and failing agreement, the Wife shall be at liberty to accept any offer received after the auction to buy the boat at a price that is not less than 64% of the reserve price, being $35,648.00 or above.
g)      In the event that the Wife and/or her solicitors are unable to negotiate the cost of mooring of the [Type A] as part of the costs of sale of the boat broker, the Husband pay the mooring costs in the first instance.
The proceeds of sale of the [Type A] Boat shall be paid in the following manner and priority:
(i)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale.
(ii)Payment of the costs and outlays relating to the sale including reimbursement to the Husband of any amount paid by him pursuant to order 2(g).
(iii)Balance to the Wife, such payment to be characterised at trial.
The Wife by her solicitors provide to the Husband by his solicitors all written communications to and from the listing agent referred to in order 1 and the boat broker referred to in order 2 as soon as practicable after sending or receipt.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9699 of 2009

Ms Bradford

Applicant

And

Mr Bradford

Respondent

REASONS FOR JUDGMENT

Principal applications

By initiating application filed 28 April 2010 Ms Bradford (the wife) seeks pursuant to s 79 of the Family Law Act 1975 (Cth) (the Act) an order that the property and assets of the parties or either of them be divided 70% to her and 30% to the husband.
By response filed 16 June 2010 Mr Bradford (the husband) seeks that the property and assets of the parties and either of them be divided 60% to the wife and 40% to him.

Development of the proceedings to date

There have been several procedural orders made, as well as several interim and interlocutory orders.

Relevant background facts

The husband is 52 years and the wife 44 years.
They married in 1994.
They have 2 children, T 16 years and Y 13 years.
The husband and the wife separated in April 2005, after the period of relationship and marriage of about 10½ years.
The husband and the wife divorced in February 2010.
The husband works in a building improvement business owned jointly by the husband and the wife. The corporate structure under which the business is conducted is complex, as described in a forensic report by Mr H Chartered Accountant of V Chartered Accountants, the report being dated 30 May 2011. The corporate structure, it appears, may involve third parties including in the past a Mr F, then a Ms D and a Mr E and now Ms D and a Mr G.
The wife presently does not work. The two children live with her. Previously the wife has worked in the healthcare industry. There is some evidence to support that she is capable of working as a self employed sport instructor, however has not done so for some time, such not being remunerative, and the wife contending also that her care of the children has effect that such, or any other present meaningful employment, is impracticable to pursue.
The husband prepared a document setting out the parties’ assets and liabilities as at 28 November 2011, which he contends is accurate (ex 1). I did not understand the wife specifically to adopt the husband’s document, and as yet there has been no trial. I will regard the document thus as indicative only for the purpose of the present applications.
Exhibit 1 provides:
HUSBAND’S STATEMENT OF ASSETS & LIABILITIES AS AT 28.11.11
Assets

[… R Street, Gold Coast Suburb M] (as per valuation)

625,000

[… I Street, Gold Coast Suburb Q] (as per valuation)

510,000

Shop at [… B Street, Gold Coast Suburb P] (valuation)

380,000

AMP Limited Shares x 250 @ $4.07 on 28.11.11

1,017

[Type A Boat] (as per valuation)

55,700

[…] Ford […] Motor Vehicle (agreed value)

5,000

Wife’s superannuation holdings (estimated)

22,500

Company & business interests as per [V Chartered Accountants] Valuation of 30 May 2011

767,649

2,366,866

Liabilities

ANZ Equity Account BSB […] Acc. No. […68] as at 03.03.11

197,076

ANZ Loan Account no. […26]

70,000

ANZ Loan Account no. […93]

585,180

Loan to [Bradford] Family Trust from beneficiaries

447,460

Allowance Arrears on Loans

20,000

[W Accountants] fees for forensic investigation

15,345

[V Chartered Accountants] for forensic accounting

21,062

[Z Accountants]

23,925

Wife’s estimated tax liability

150,000

1,530,048

Net asset pool

$863,818

In ex 1, the husband has included the value of the parties’ business interests according to Mr H’s valuation at $767,649. However, as I understand the matter, there is a dispute between the husband and the wife as to whether the apparent interest of Ms D and Mr G is in fact beneficially owned by the husband. This matter must await determination at trial.

Present application - wife

The wife by application in a case filed 1 September 2011 sought an order that the husband cause to paid to her solicitors trust account $41,650 and to her former solicitors trust account $19,872.77 each on account of her legal fees to date. In the alternative, she sought a Hogan order that the husband cause to be paid to the wife’s solicitors an amount equal to legal fees paid by or on behalf of the husband since the commencement of the proceedings to date; and that prospectively there be a “dollar for dollar” order such that whenever the husband provides money to his lawyers for legal fees, within 7 days, he cause an equal amount to be paid to the wife’s solicitors, and that any amount paid by the husband to his lawyers for legal fees not be applied for such but be held on trust until such time as an equal amount has been paid to the wife’s solicitors.
This part of the wife’s application was resolved by consent orders made on 29 November 2011. Essentially, the consent orders provide for the sale of a Type A boat with the net sale proceeds to be paid to the wife such payment to be characterised at the trial.
The second part of the wife’s application sought that the husband pay to her certain amounts which she characterised as “arrears” namely:
(a)spousal maintenance $9,100
(b)credit cards $6,000
(c)school fees $878
(d)mortgage $12,279.
At the hearing, the wife did not press (c) and (d).
The arrears in (a) and (b) arise from consent orders made on 27 May 2010, orders 17 and 18 in an annexure to those orders, as follows:
SPOUSAL MAINTENANCE
17. That the Husband pay the Wife as and by way of spousal maintenance the sum of $350.00 per week, such payments to date from the 21 May 2010 with the first payment due on or before 28 May 2010 and thereafter weekly with such payment to be made to Bank of Queensland BSB […] Account No. […69] or such account as may be nominated by the Wife in writing to the Husband from time to time.
18.That the Husband pay the sum of $1000.00 to the Wife’s ANZ Visa Credit Card on the first day of each calendar month commencing 18 June 2010 and thereafter on the 1st day of each subsequent month.
A schedule provided by the parties on 30 November 2011 (ex 2) shows that pursuant to order 17, $14,350, and pursuant to order 18, $9,325 respectively were the arrears as at 29 November 2011.
Essentially, ex 2 shows that the husband made payments pursuant to order 17 until 3 December 2010 and payments pursuant to order 18 until 1 November 2010, but no payments since other than 3 discrete amounts of $1692 and $3659 in relation to order 18, and $3500 in relation to order 17, pursuant to Court orders made respectively on 5 November 2010 and 14 February 2011. (These amounts have been taken into account in relation to the arrears $14,350 and $9,325 already mentioned).
The husband resists the payment of the arrears, and seeks an order for the discharge of all arrears.

Present application - husband

By amended application in a case filed 28 October 2011 (original filed 3 June 2011) the husband sought several orders by way of variation of previous orders, including those made on 27 May 2010, 5 November 2010, 14 February 2011 and 23 June 2011, the relief sought extending to some 15 separate orders.
Ultimately however only 2 matters were pressed, namely that orders 17 and 18 (referred to above) be discharged both prospectively, and retrospectively in relation to the unpaid arrears; and that a property registered solely in the wife’s name, B Street Gold Coast Suburb P (the shop), be sold and the proceeds be used for discharge of mortgages on it (there being 2 such mortgages), costs of sale, an amount to be held for estimated capital gains tax and the payment of certain outstanding professional accounts (single expert, and accounting fees) with the balance distributed 60% to the wife and 40% to the husband by way of partial distribution of the parties’ property and assets.
The husband does not claim that the payments he made to the wife pursuant to orders 17 and 18 until 3 December 2010 and 1 November 2010 respectively be disgorged by the wife, despite, as will be seen, his reliance on a “just cause” to found the discharge of orders 17 and 18: see s 83(1)(a) and (c) of the Act. Part of his case for a “just cause” is that there had “never been in relation to the original order a real contest concerning it nor a consideration of the means and earning capacities of the parties and other matters involved in reaching a result in relation to that order”; Mr Hackett citing Hansor & Hansor (1969) 13 FLR 439; In the Marriage of Dixon (1985) FLC 91-652 and In the Marriage of P & MP Vakil (1997) 21 FamLR 508, to which authorities I will turn in due course.

Consent orders

In addition to the consent order for sale of the Type A boat, many of the orders sought by the husband became the subject of oral agreement for orders, the substance of which I have formulated as consent orders appearing at the commencement of these reasons, whereas several other orders initially sought by the husband were not pressed. The husband’s Counsel however made clear that whilst not pressed for the purposes of the husband’s amended application in a case filed on 28 October 2011, the matters not presently pressed should not be regarded as abandoned, with express reservation to re-enliven in the future those matters if advised.

Wife’s application that husband’s amended application in a case not be heard on the basis that allegedly he has contravened several court orders

Mr Waterman of Counsel, for the wife, in lengthy written submissions, pp 6‑29, submitted that the husband has breached the several court orders there set out, in the manner there alleged, and submitted that as a matter of discretion I ought not entertain the husband’s amended application in a case, citing Sparkes & Eberle (unreported) No BR2362 of 1988, Warnick J, 10 July 2000 at [6]-[11], including reference to the Full Court decision in Fahmi & Fahmi (1995) FLC 92-637.

During argument I adverted to the circumstance that in order to apply that principle I would need to make at least some assessment of the alleged contraventions although, as I understand the matter, there have been no contravention proceedings and thus no findings in that regard.
In Sparkes & Eberle, at [7], Warnick J said that it appeared to him to be at least implicit from the reasons for judgment of the Full Court in Fahmi & Fahmi that the Court has a discretion as to whether to allow a party in contravention to be heard “and that this is so notwithstanding that the party may not have been formally dealt with”, although “a person against whom contempt was alleged would be heard in support of the submission that, having regard to the true meaning and intent of the order which he is said to have disobeyed, his actions did not constitute a breach of it; or that, having regard to all the circumstances, he ought not be treated as being in contempt”, citing older authority.
Thus, in recognition no doubt that the parties’ competing applications were set down on 29 November 2011 as a short cause had effect that in practical terms there was not scope in the course of the day to deal with the alleged contraventions, and any defences to them which the husband might wish to raise, Counsel stated the common ground position by way of approach that I should hear the husband’s amended application in a case, and in the course of considering its merits I “take into account” the relevant principle, such that if I should decide it “applies”, I would consider exercise of the discretion to dismiss the husband’s application in a case on that basis.
Although stated as the “common ground” position, however, the suggested approach is somewhat circuitous in that realistically I would not be able to “take into account” the alleged contraventions, or the relevant principle, without hearing evidence about the alleged contraventions including from the husband in defence, and accordingly make findings, before properly I could proceed to application of the principle, as otherwise there would be no factual findings upon which to exercise the discretion.
Thus, I put this matter to one side as, realistically, not a matter capable of being determined in the manner suggested by Counsel, and indeed, there not being time available on the hearing day properly to apply the approach suggested.

The matters for determination

I turn then to the matters for determination.

The shop

In relation to B Street Gold Coast Suburb P, order 3 of the annexure to the orders made on 27 May 2010, being a consent order, provides:
3.That the Husband pay or cause to be paid all mortgage payments, rates, insurances in respect of any real estate of the parties or either of them with the Husband to indemnify the Wife and keep the Wife indemnified against any such liability.
The shop premises is commercially rented, for the net rental, it would appear, $325 per week.
By orders made 14 February 2011, order 8 provides:
8.That all net rental monies with respect to [B Street Gold Coast Suburb P] property, after deductions, as received by the wife from the letting agent shall be deposited by the wife into the ANZ Account Number […26] and the wife shall provide the husband’s solicitors on a monthly basis evidence of any such payments. (emphasis added)
Initially, the husband’s Counsel alleged that the wife had not banked the net rental proceeds of the shop in accordance with this order.
I have mentioned earlier that the shop premises property is registered in the wife’s sole name. Apparently, the account number referred to in order 8 is a mortgage account in relation to the shop property. The husband said in his affidavit evidence that the wife had not banked the net rental proceeds from the shop into that mortgage account. The wife, in her affidavit evidence, referred to an error which had occurred, such that the net rental payments had not been paid by the agent, as directed, but subsequently had been paid into the relevant account. This appeared to be common ground.
One of the matters agreed by the parties on 29 November 2011, as an order to be made by consent, is that order 8 of the orders made on 14 February 2011 be varied by substituting the following:
8.All net rental moneys with respect to [B Street Gold Coast Suburb P] (the shop) be received and retained by the wife and characterised as 100% spousal maintenance, the wife to keep and maintain a record of all such moneys so received and retained, and by her solicitors to provide a copy of such record to the husband’s solicitors within 7 days of any written request. (emphasis added)
This relief had comprised part of the husband’s amended application in a case.
Thus, although pursuant to order 3 of the annexure to the orders made on 27 May 2010 the husband on the ongoing interim basis will be responsible to pay or cause to be paid the mortgage payments, rates and insurances in relation to the shop property, by the consent order there will no longer be the advantage to the husband of the net shop rental being contributed to that mortgage or those other costs.
The husband’s case, as presented by Mr Hackett of Counsel, is simply that the husband can no longer afford to comply with order 3 of the annexure to the orders made on 27 May 2010 in relation to the shop property (the mortgage already being in arrears), so that it should be sold and the net proceeds be utilised in the manner he seeks, which already I have set out.
The husband’s position thus is that the shop property must be sold, either by Court order, or by the bank as mortgagee in possession, which he believes will occur if there not be a Court order for the sale of the shop property.
His position thus is that he would prefer the shop property to be sold in an orderly way by Court order, rather than by the bank as mortgagee in possession, and that an ordered sale would be better for the parties rather than a mortgagee sale, in particular to preserve the parties’ credit rating, but that if the husband’s application should fail, such that the bank enters into possession to sell as mortgagee, “so be it”.
Mr Hackett pointed to the circumstance that, by way of real property, in addition to the shop the parties own R Street Gold Coast Suburb M, in which the husband resides, and I Street Gold Coast Suburb Q, in which the wife resides, so that it is better to lose the shop rather than either of their residences.
Mr Hackett pointed to the circumstance also that by order 3 of the annexure to the orders made on 27 May 2010 the husband is required to meet not only the shop mortgage but also other mortgage payments, and that by order 11 of the annexure he was required to pay and did pay to the wife $75,000 within 30 days of the date of those orders, such payment to be “characterised as partial settlement of property, costs and/or spousal maintenance” as may be determined by [the trial judge].
Mr Hackett set out the following in his written submissions, par 18, as a summary of the evidence by and on behalf of the husband to demonstrate that he can no longer afford to pay the mortgage on the shop:
18.The husband receives $75,000 per annum income by way of management fees. The husband draws from these earnings $250/week for his own living expenses. Accordingly, he has a monthly shortfall of $6,749 calculated as follows:
Income:
Monthly income (Management fees of $75,000 pa)           $6250.00
Less husband’s living expenses  $1,083.00
Net income  $5,167.00
Outgoings:
ANZ Loan Acc No. […26]   $3356.00
ANZ Loan Acc No. [..93]       $3300.00
ANZ Equity Acc. No. […68]  $1,450.00
Spousal Maintenance  $1,517.00
Wife’s credit card  $1000.00
Private school fees for two children  $1293.00
$11,916.00
Shortfall each month  ($6749.00)
As is plain, if there is an order for sale of the shop, the husband will be relieved of paying $3356 per month for the mortgage loan account relating to it. Plainly however if this were to occur he would still have a monthly shortfall of $3393, on the figures on which Mr Hackett relies, but indeed, it must be noted, if the husband were to be relieved also of spousal maintenance and the wife’s credit card prospectively then in aggregate the shortfall would reduce to $876.00 per month.
Mr Waterman of Counsel, for the wife, urged strongly that there not be an order for sale of the shop on the basis that in the parties’ s 79 proceedings the wife seeks to have this property so that she can have the income it produces as a continued investment property in her name for her future.
The wife, in her affidavit evidence, said also that at the time the consent orders were made on 27 May 2010 the husband had agreed that if he defaulted in the payment of any of the mortgages he would sell R Street Gold Coast Suburb M. This however is not incorporated in the consent orders in relation to the mortgages, but only (by order 12 in relation to order 11), the husband’s obligation to pay her or cause to be paid to her $75,000 within 30 days from the date of those orders.
Nonetheless, the wife’s position is that if any of the 3 properties needs to be sold, the R Street property in which the husband resides should be sold and not the shop. However, the wife made no application in that regard.
The facts in evidence are that the value of the shop is about $380,000, but that there are 2 mortgages on it, about $197,000 and $70,000 respectively, in aggregate about $267,000, so that the equity in the shop is about $113,000 (on these figures). One of the mortgages it appears may be a collateral mortgage in relation to other borrowings.
It is plain however that if the husband does not pay the monthly mortgage amount of $3356 in relation to the shop, which he says he cannot pay, then the equity in the shop, with interest on default payments is likely quickly to be eroded.
Moreover, as will be seen when I deal with the husband’s application for discharge of the spousal maintenance orders, the wife disputes that the husband is limited to $75,000 income per annum. It is not possible on an interim application to make final findings in relation to such a disputed matter. Be that as it may, I incorporate by reference here the wife’s evidence concerning her contention as to the husband’s income dealt with in the section concerning spousal maintenance.
The husband, by way of annexure 8 to his affidavit filed 3 June 2011, annexed a final notice from the ANZ bank dated 30 May 2011 in relation to home loan account …93, agreed during argument to be the residence at I Street Gold Coast Suburb Q in which the wife resides, and deposed that he was forced to borrow funds from the parties’ ANZ equity account, seemingly Account No …68 “in order to avert legal action being taken and the bank selling the house by way of mortgagee in possession”: pars 13 and 14 of that affidavit.
The list of “outgoings” per month set out by Mr Hackett in par 18 of his written submissions extracted above, seems to refer to mortgage loan accounts in relation to the shop, the premises at Gold Coast Suburb Q where the wife lives and the equity account, which would tend to suggest that the property in which the husband resides at R Street may be unencumbered (except perhaps by way of a collateral mortgage).
Presently, there is a restraint against the husband from dealing with or further encumbering that property: order 9 of the annexure to the orders made on 27 May 2010.
If indeed the R Street property is unencumbered (other than by way of collateral mortgage) and indeed, as the husband contends in ex 1, that property has a valuation of $625,000, it is difficult to see why the husband ought not seek a variation to the restraint order (with or without the wife’s consent) to ensure that the monthly mortgage payments in relation to the shop property are met, so as to preserve that asset until trial, in particular because the wife seeks to have it as part of her property settlement as a continued investment property in her name for her future. Indeed, the final notice from the ANZ bank dated 30 May 2011, annexure 8 to the husband’s affidavit filed 3 June 2011 referred to, although in relation to the property at Gold Coast Suburb Q in which the wife resides, expressly recognises that financial circumstances can change for various reasons and that the bank is “willing to discuss any reasonable proposal or postponement of repayments, loan term extensions or reduced payments” in relation to that loan, and invites contact by telephone to discuss the matter. There is no reason to think that the bank would afford such relief in relation to the property at Gold Coast Suburb Q, but not the shop property.
Further, as I explained during argument, whilst often the Court will make a consent order the sale of real property before a property trial, most usually this is done by consent, and not otherwise, for the reason that there can be nothing more final than the sale and settlement of sale of a real property, such being irrevocable.
In this particular case, as I have mentioned, the wife seeks to have the shop property as her own in the final s 79 property order. It is not possible presently to assess whether her ambition in this regard is realistic or unrealistic. However, in my view it would be inappropriate at this stage by court order to foreclose her of that opportunity.
If the husband, the wife, or the husband and the wife, are unable to make other arrangements with ANZ bank, and the husband defaults in the payments he is ordered to make in relation to the parties’ mortgages such that the bank enters into possession of the shop property as mortgagee and sells that property then, as the husband contended, “so be it”. If that does not occur, and between now and a trial the equity in the shop property is eroded by non-payment of the mortgage, but the bank does not enter into possession and sell, then that is a matter which can be taken up at the trial, if the husband should make default in the ordered payments either by reason of inability to do so, on the one hand, or by failing to so arrange his affairs in order to make the payments, on the other hand.
Accordingly, having regard to these matters, in the exercise of my discretion I will dismiss the husband’s application for the sale of the shop property. Indeed, I can see no reason for the sale of this property, at this stage, in preference to sale of either or both of the two residences.

Spousal maintenance

During argument, it was suggested that it is appropriate to deal discretely with the matter of the arrears, the husband contending for discharge, and the wife seeking their payment, and the executory component of orders 17 and 18.
However, given that the husband’s case for a “just cause” is as I have earlier mentioned, namely that there has “never been in relation to the original orders a real contest concerning them nor a consideration of the means and earning capacities of the parties and other matters involved in reaching a result in relation to those orders”, and that the husband contends that he lacks and lacked the capacity to make the payments ordered, as and from the date when the orders were made, 27 May 2010, it is not entirely possible to separate the arrears and executory component of the orders although, as will be seen, in at least one respect they are amenable to different treatment.
The husband’s case, in a nutshell, is that at the time he consented to the orders on 27 May 2010 he believed he would be able to meet all of the commitments to which he agreed, including the mortgages, the payment of $75,000 to the wife, spousal maintenance of $350 per week and $1000 per month to the wife’s credit card and in addition continue to pay the children’s private school fees, but that since that time his financial situation has undergone significant change.
Before however turning to the detail of the husband’s contention, it is convenient to set out relevant parts of the Act.

The legislation, authorities and observation

Section 83 of the Act relevantly provides:
83 MODIFICATION OF SPOUSAL MAINTENANCE ORDERS
83(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is any just cause for so doing;
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
…
83(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
…
83(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
83(8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
I would refer also to s 83(2), which deals with an order increasing or decreasing an amount of spousal maintenance ordered to be paid. In this particular case, the husband is not seeking decrease but discharge, and the wife is not seeking increase, but continuation of the existing order. Strictly, thus, it is not necessary to have regard to the matters in s 83(2), but to identify whether there is a “just cause” for discharge of the orders, having regard to the provisions of s 72 and s 75.
However, as at least technically discharge is “decreasing” to zero, the matters in s 83(2) potentially might need also to be considered, provided that in a given case such amounts to “just cause”. I will therefore also set out s 83(2), particularly because of the husband’s contention that since the order was made his financial situation has undergone significant change:
83(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a)that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(ii) in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent – that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false. (emphasis added)
Section 72 provides:
72 RIGHT OF SPOUSE TO MAINTENANCE
72(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).

Section 75 provides:
75 MATTERS TO BE TAKEN INTO CONSIDERATION IN RELATION TO SPOUSAL MAINTENANCE
75(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
75(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
75(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
75(4) In this section:
"party" means a party to the marriage concerned.

Just cause

The spousal maintenance orders made on 27 May 2010 were consent orders.
The husband does not allege any flaw in the judicial process which lead to the making of the consent orders.
The husband, at the time of the making of the orders, was represented by Bridge Brideaux Solicitors.
As mentioned, the essence of the husband’s case is twofold: first that there was no “real contest” before the orders were made, and in effect no consideration of the parties’ respective financial positions and other relevant matters; and secondly that whilst at the time of consenting to the orders the husband believed he would be able to meet all of the commitments contained in them (being not just the spousal maintenance orders but also the other monetary orders to which I have referred), since that time his financial situation has undergone significant change so that lacks and lacked the capacity to pay the ordered spousal maintenance, and has no capacity to pay the arrears of $23,675 as at 29 November 2011.
As previously mentioned, Mr Hackett relied upon Hansor & Hansor (above), In the Marriage of Dixon (above) and In the Marriage of P & MP Vakil (above) to support the proposition that “just cause” can include cases “where there had never been in relation to the original order a real contest concerning it nor a consideration of the means and earning capacities of the parties and the other matters involved in reaching a result in relation to that order”: see Hansor, in which also the initial order also had been made by consent for the payment of periodic maintenance to a wife: and see Vakil at [5.22.1]-[5.22.2].
This point may be dealt with shortly. In Vakil, Fogarty, Lindenmayer and Moore JJ at [5.4]-[5.23] considered several authorities, including those relied upon by Mr Hackett, and at [5.7] referred to the meaning of “just cause” in s 83(1)(c) as determined by Lindenmayer J in In the Marriage of Lutzke (1979) 5 FamLR 533; FLC 90-714:
5.7In relation to the meaning of “just cause” in s 83(1)(c), counsel for the husband relied upon dicta of Lindenmayer J in In the Marriage of Lutzke (1979) 5 FamLR 553; FLC 90-714. The particular dicta from that judgment upon which reliance was placed is the following passage, appearing at FamLR 559-6; FLC 78,832 of the report:
…the act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged. If there were any room for doubt that this is the correct approach, in my opinion that doubt is removed by s 83(7) which provides:
(7)For the purposes of this section, the court shall have regard to the provisions of sections 72, 73, 75 and 76. (emphasis added)
Since that decision, s 83(7) was amended to require that the Court have regard to the provisions of ss 72 and 75.
In Vakil, after several paragraphs of considering past case authority as at that date, their Honours concluded at [5.23]:
5.23Having regard to all of that authority we think that the above-quoted dicta of Lindenmayer J in Lutzke (1979) 5 FamLR 553; FLC 90-714 which appear to have received no judicial criticism over the last eighteen years, probably define the concept with as much precision as it is possible to give it in this context. Thus we conclude that, having regard to the current wording of s 83(7) (above), the question whether there is “just cause” for discharging an order… is to be determined as an exercise of judicial discretion by reference to notions of what would be regarded as “right” and “proper” … having regard (inter alia) to the provisions of ss 72 and 75 of the Act. …
In an earlier paragraph, [5.20], their Honours said that care should be taken in applying, too readily or literally, dicta from cases which were decided in the early days after the commencement of the Act; and at [5.36] emphasised that even if “just cause” be established, it does not follow that a spousal maintenance order must be discharged, because even if such be shown, there must still be exercise of the discretion to discharge an order, or not discharge it.
Thus, whilst the dicta in Hansor & Hansor has not been criticised, for itself, their Honours in Vakil cautioned applying too readily or literally dicta from early cases, and emphasised their approval of the dicta of Lindenmayer J in Lutzke such that “a just cause” will be shown only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it is “right” or “proper” that the order should be discharged.
Indeed, the mandate in s 83(7) is that, for the purposes of s 83, the Court have regard to the provisions of ss 72 and 75.
Thus, Mr Hackett’s argument based upon Hansor & Hansor was I think perhaps an unnecessary argument because, in any event, on the application for discharge the Court must have regard to the provisions of ss 72 and 75, that is, whether or not they ever have been considered or in contest previously, upon the making of the spousal maintenance order under consideration. Indeed, Mr Hackett agreed in submissions that this is so. Be that as it may, in considering the matters that follow, I take into account that the spousal maintenance orders made on 27 May 2010 were made by consent, and without “contest”, such that there has not previously been judicial consideration of the matter.
More pertinently however, although Lindenmayer J in Lutzke cautioned that the words “just cause” are not to be used “in any broad general sense” it is plain that a “just cause” is capable of being shown by reference to circumstances as they existed at the date the order was made, what has ensued since the order was made, and the parties’ circumstances at the date of the hearing, to ensure full consideration of what is “right” or “proper”.
By way of final observation, s 72(1) (set out above) broadly has been interpreted as requiring two core considerations (as stated in that provision): first, the need of the claimant party for spousal maintenance, and secondly the capacity of the respondent party to pay spousal maintenance, that is, whether and if so to what extent that party reasonably is able to pay spousal maintenance, these matters to be assessed against the background of the Court taking into account the matters in s 72(1)(a)(b) and (c) and having regard to any relevant matter referred to in s 75(2).

The evidence

The husband, in his affidavit filed 3 June 2011, said:
9.At the time that I agreed to those Orders, I genuinely believed that I would be able to meet all of these commitments. However since that time my financial situation has undergone significant change. I was incarcerated on 8 November 2010 for four months, and did not earn any income during that period. Consequent upon the global financial crisis, the business has suffered a significant downturn. A further problem in this industry is the prolonged wet weather. Further I am not in good health, I have been diagnosed as suffering from diabetes and I am not able to work the way that I used to. I am unable to [climb] and this is a big disadvantage in this business.
10.I have constantly defaulted in payment of these commitments, not because I have wanted to default but simply because the business is not generating enough income to cover all of these commitments. This situation is not likely to improve in the near future and I believe it will take some time before the business recovers financially. I personally live on $250.00 a week in an effort to reduce the overheads. We have always previously had savings which we have been able to fall back on if necessary. However, the substantial lump sums paid out to the wife as outlined in clause 8 hereof, together with the payment to the Wife of the last of our savings, pursuant to Orders of 14 February 2011, in payment of arrears of various payments to her, has left us with no capital or savings.
11.The current financial position as at 31^st May 2011 is set out in the attached “Financial Position Summary”. As at 31 May 2011 there were arrears of $13,597.14 owing on the [I Street] property loan. …
The husband then annexed as annexure AWB04 the Financial Position Summary, and as annexure AWB05 financial documents supporting the summary, annexure AWB04 showing some minor accounts in a small degree of credit; an “Equity Manager Account” $183,653 in debit; the home loan account in relation to the I Street property $575,000 in debit; plus arrears on that account $13,597; a loan described as “[B Street] Loan” being, I understand, the loan account in relation to the shop property as amount “unknown”; and “Bills to Pay” showing X School $3878 as at 6 May 2011.
The husband’s reference to “clause 8 hereof”, in par 10 of his affidavit, is a reference to par 8 of his same affidavit, deposing that the wife received $75,000 pursuant to the orders made 27 May 2010; that on 10 December 2009 the wife withdrew $40,000 from an ANZ account; and that on 10 March 2008 the wife withdrew $50,000 from an ANZ equity account.
In later evidence (husband’s affidavit filed 28 October 2011, par 24), the husband deposed to the wife having received after tax drawings from the business including 2008 $107,336; 2009 $159,621; and 2010 $180,766 (totalling $447,723).
In relation to the drawing of $40,000 from the parties’ ANZ account on 10 December 2009, the wife agrees that she made the withdrawal, but said that it was “on notice” to the husband and that he did not demur, the husband having withdrawn $19,906 earlier from this account. In relation to the $50,000 drawing on 10 March 2008, the wife said that such was on the husband’s instructions, to purchase shares in “ABC”: wife’s affidavit filed 16 November 2011, par 62 (xxv) (p 18). The wife admits receiving the $75,000 pursuant to the orders made on 27 May 2010. In relation to the husband’s allegation of the wife’s after tax drawings from the business, totalling $447,723, the wife disputes having received such amount, and in her evidence challenged the husband to disclose documents showing such.
Mr Waterman of Counsel, for the wife, drew persuasive attention to several matters concerning the receipt of and use of moneys by the husband between the date of the orders 27 May 2010, and the date of the hearing, 29 November 2011.
On 31 October 2011, when this matter was before me in the Duty List, I ordered, by consent:
1.The husband disclose all documents evidencing the account and/or accounts into which were paid:
a.the sum of $60,000 paid to the husband on 12 May 2011 and
b.the sum of $40,068 paid to the husband on 19 July 2011
together with all documents evidencing the disbursement of those funds by 4.00pm on Monday 7 November 2011.
2.The wife disclose the account or accounts if any into which the earnings from Business S and any other earnings were paid by 4.00pm on Monday 7 November 2011.
In relation to order 2 of those orders, the wife said in her affidavit filed 16 November 2011, par 62 (xlv) (p 22) that “recently” she had been able to get some part time work as a retail assistant and commenced casual work at Business S in September 2011 because a permanent staff member was on leave, that she had provided the husband with pay slips for the duration of the short period of her employment, which concluded on 7 November 2011, that her part time hours would reduce to 1 evening per week, namely a Thursday, for 3½ hours at the rate of $21.70 per hour gross, and that she may also be able to get some stand by work to fill in if other staff at Business S are unavailable.
In relation to order 1 of those orders, I will deal below with the husband’s receipt of and disbursement of the moneys referred to.
I turn now more fully to the parties’ competing evidence as to the wife’s need for spousal maintenance, and the husband’s capacity to pay such.

Wife’s need for spousal maintenance

During argument, Mr Waterman of Counsel, for the wife, submitted that the wife has the need of $1,000 per week for her proper maintenance. However, Mr Waterman made clear that the wife does not seek any variation to the amount of spousal maintenance pursuant to the existing court orders such that, I infer, if her need is $1000 per week, the wife is prepared to accommodate her own maintenance needs to the extent of $650 per week.
The wife’s financial statement filed 1 September 2011, at Part N sets out maintenance needs for herself of only $247 per week. However, the wife’s schedule at Part N includes only food, household supplies, house repairs, telephone, chemist/pharmaceutical, gardening/lawn-mowing, cleaning (house/pool) repairs/furnishings and appliances.
In this context it must be recalled that pursuant to existing orders the husband is responsible for paying the mortgage and outgoings in relation to the property she occupies at I Street, and also in relation to the shop property from which, pursuant to the consent order, the wife will be entitled to retain as and by way of spousal maintenance the net rental from the shop property. In my view, that order should date from the date of the hearing, 29 November 2011, that being the date of parties’ agreement for a consent order in those terms, and, as I understand the matter, part of the husband’s case for discharge of the interim spousal maintenance order from that date.
The wife’s financial statement filed 1 September 2011, leaving aside Part N, to which I have just referred, shows average weekly income of $325, specified as rent from the shop property (item 11), and personal expenditure (item 33) of $1,598, comprising the ANZ mortgage payment seemingly of the shop rental $325 (item 21) for which the husband is responsible, rates/unit levies in two amounts $45 and $4, motor vehicle insurance $13, health insurance $38, credit card minimum payment $300 (but actual payment $75) and an amount of “Total of all other expenditure” (item 32) of $1,098.
It appears however, by reference back to Part N, that the item 32 figure $1,098, is the aggregate of costs for herself, $247 weekly, and the children $851 weekly, the “Total” column in Part N showing the same figure as item 32, $1,098.
It is fundamental that spousal maintenance and child support are discrete matters. Thus, for the wife’s item 33 total $1,598, according to the way in which the wife has presented her case, needs to be deducted the $851 weekly costs for the children, so that item 33, for herself, would reduce to $747 weekly.
I appreciate that the wife said in her evidence that the husband is not paying child support (apart from the children’s private school fees, which are in arrears). However, she cannot “roll up” her spousal maintenance needs and her child support needs. They are discrete.
Then, because the wife is not responsible for paying the shop mortgage, item 21 must also be deducted, so that, necessarily, the $747 reduces by $325 to $422 weekly, as her evidence for her own spousal maintenance needs, bearing in mind also that the husband is responsible for paying the mortgage on I Street, where she lives.
Next, however, whilst her financial statement discloses at Part N the need for $247 per week for herself for the matters listed there, I note that she has inserted “nil” in many respects for herself, eg electricity, telephone, petrol, vehicle maintenance, fares, parking, clothes, medical and many other items, for which clearly she would have expenses. Some of these are taken up in her affidavit filed 1 September 2011, pars 8-14, which show quarterly expenses not taken up in Part N, for herself, but only in relation to the children. Plainly, there should be some apportionment, as between herself and the children, for many of these items (electricity, telephone etc as per above). Conceivably, for herself, these might be, say, one third of what she has included in Part N for the children (there being herself and the 2 children). Looking cursorily at Part N, at the parts I have highlighted in yellow in the original in the children’s column, this would appear to amount to about another $150 weekly need for the wife for herself.

Thus, doing the best I can, and it being regrettable that the wife’s solicitors have not caused her to set out a sworn table of her spousal maintenance needs, as opposed to her needs combined with the children’s, I would estimate on the evidence that the wife needs, for herself, for her own maintenance, about $572 ($422 plus $150).
In Part I of the financial statement the wife sets out her understanding of the parties’ assets and liabilities, however, in many respects these differ from the husband’s ex 1. The wife’s credit card debt (Part K, item 51) is estimated at $15,000, this presumably being the debt to which pursuant to order 18 the husband was to pay $1000 per month but has not done so since November 2010.
The wife’s case is that because she can earn only little income, she charges her (and seemingly the children’s) groceries and other needs to her credit card.
Mr Hackett, in his written submissions (par 10) said that the wife does not work, that there is evidence of her ability to work as a self-employed sport instructor and that she is able to do this work in effect during school hours so as not to impact upon her care of the two children. Mr Hackett referred to the circumstance that the wife previously has worked in the healthcare industry and, in effect, has failed to disclose the need for spousal maintenance from the husband.
Mr Hackett however does not suggest how much per week, either gross or net, the wife could earn in any of these capacities.
The husband in his material maintained that the wife has a significant income earning capacity, in particular as a sport instructor. Mr Hackett in this regard referred to the husband’s affidavit filed 3 June 2011, pars 20 and 21:
20.The Wife has specifically denied earning any other than negligible income from her [Sport] activities. She has sworn that she does not have time to work although she gives no explanation for this alleged lack of time. Both of the children are of High School age. The subpoena records obtained from [the sport governing body] reveal that the Wife has instructed 159 [sport] students to date.
He then referred to annexure AWB12, being a bundle of documents relating to the wife’s qualifications as a sport instructor, past employment in this regard and a list of student names, comprising some 30 pages.
Then at par 21 the husband said:
21.I also note from subpoena records obtained from the Wife’s general practitioner, [Dr J], that she makes frequent references to her [sport] employment. There are also a number of entries relating to her obtaining Botox injections.
He then referred to annexure AWB13, again comprising many pages.
Annexure AWB12, relating to the wife’s sort tuition, however largely relates to the period 2005-2009, whereas Annexure AWB13, concerning Dr J’s records, whilst seemingly covering the period 2006-2011, and whilst there may be references to her sport employment, there are many references also to what appears to be a significant degree of stress and ill health.
The wife said in her affidavit filed 16 November 2011, par 62 (xlv)-(xlix) (p 22) that she has provided full disclosure of her earnings to the husband throughout the proceedings. She said (xlix) that she is not employed as a sport instructor and that the husband has caused the issue of 11 subpoenae, including to sport training businesses throughout far-northeastern NSW and the Gold Coast areas. She said that the only sport activities from which she earned “a small amount of income” was from Business K “some years ago”, disclosed from the outset of the proceedings. She said (xlv) that recently she has been able to obtain part time work as a retail assistant at Business S on September 2011, being a “fill in” position for a permanent staff member who was on leave and due to return on 7 November 2011. She said she has provided pay slips for the duration of that period to the husband and that also he has caused a subpoena to issue to Business S seeking copies of her pay slips. As mentioned earlier she said that the full time staff member has now returned and that she has part time hours at Business S reduced to 1 evening per week, namely Thursday evening for 3½ hours at the rate of $21.70 per hour gross and that she is also able to get some stand by work to fill in if other staff are unavailable.
Further, the husband referred to the amount of $75,000 which he paid to the wife pursuant to a previous Court order (27 May 2010, order 11 of the annexure) and to an amount of $40,000 which the wife drew from a bank account. I have dealt with these matters earlier, specifically that the wife said however as to this withdrawal that the husband previously had withdrawn an amount from the same bank account, and that her withdrawal was on notice to him.
Mr Hackett’s written submissions (par 16) asserted that the wife’s after tax drawings from the parties’ business have been $107,336 in 2008; $159,621 in 2009 and $180,766 in 2010, amounting to $447,723 over those 3 tax years. The wife denies that she has drawn such amounts. Mr Waterman of Counsel, for the wife, submitted that the husband has not disclosed any documents that evidence the wife having received these amounts (written submissions, par 13.5, p 30). Mr Waterman continued that it is noteworthy that the husband has not complied with his obligation to make full and frank disclosure, a recurrent theme in his written submissions, occupying many pages.
Mr Hackett referred also to the wife’s affidavit filed 16 November 2011, annexure MJB22, as exemplifying a level of income that she is capable of earning, being Business S employment records showing net $1074.70 11 September 2011-7 October 2011, net $730.60 8 October 2011-21 October 2011 and net $1108.00 22 October 2011-4 November 2011. Mr Hackett referred also to the affidavit of Shelley Lynn Johnson, solicitor with Bridge Brideaux Solicitors, the husband’s solicitors, pars 26-32, referring to matters already largely covered in relation to the wife’s sport income and asserting that “significant sums of money” have been banked to the wife’s account “for which no explanation has been offered”. In particular however in relation to the wife’s sport activities, Ms Johnson referred to the wife’s affidavit filed 23 April 2010 in which she swore that “on occasion” she could teach sport when it fitted in with the children’s schedule, namely about 4 hours per week but that she did not earn much money from such activity, estimated at about $20 on the basis that the cost of the sport instruction session to the customer is $540 but the expenses are $517.
Ms Johnson concluded at this part (par 32), by way of assertion, that as a consequence of the wife’s “failure to disclose vital information in relation to her financial position” she seeks leave to serve interrogatories on her. Such however is not part of the application argued on 29 November 2011.
Looking at the matters in s 75(2), which I am required to take into account insofar as may be relevant, I have mentioned the wife’s age as 44 years. Her health matters as are dealt with in Dr J’s report. Until there are finalised s 79 proceedings, it will not be known what property and financial resources may be available to her. The wife has the care and control of the 2 children of the marriage, T 16 years and Y 13 years. There is no mention in the material of the eligibility of the wife for a pension, allowance or benefit under any law. It appears that the parties had a reasonable standard of living before their separation. There is no present suggestion of any course of education or training which the wife presently could undertake to establish herself in a business, or obtain further income than she was earning on the casual basis at Business S between September and November 2011. The marriage, which I have mentioned already, subsisted for about 10½ years. The wife wishes to continue her role as the primary parent to the 2 children. It does not appear in the evidence that the wife has repartnered. In relation to child support, the husband is paying the children’s private school fees. However, the wife said that the husband does not otherwise pay child support: affidavit wife filed 1 September 2011, par 7.
As to “any other fact or circumstance” which in the opinion of the Court the justice of the case requires to be taken into account, I will refer to the arrears of spousal maintenance $23,675 as at 29 November 2011, when dealing with the husband’s capacity to pay the ordered spousal maintenance between November/December 2010 and 29 November 2011, and the circumstance of his receipt of 3 tax refund cheques which he deposited to his solicitors trust account, which he used largely for his own purposes between May and July 2011.
I accept the wife’s case, and her evidence, that as the primary carer of the parties’ 2 children, realistically, she cannot engage in full time employment, and in any event wishes to continue to have a significant parenting role for the children and as such is restricted to casual employment. Further, I accept that presently it is unrealistic to think that she could obtain reasonable income from sport instruction, on the basis of her evidence about this, which I accept, including as referred to in her affidavit filed 23 April 2010 referred to by Ms Johnson. Plainly, there is little profit from such, seemingly about $20 per sport instruction session. Also, annexures AWB12 and AWB13, relied upon heavily by Mr Hackett, show that the wife’s period of sport instruction seemed to end in about 2008 or 2009, possibly related to her health difficulties set out in AWB13.
I am satisfied, on the most recent evidence as to the wife’s income earning capacity, namely the Business S income documents annexure MJB22 to the wife’s affidavit filed 16 November 2011, that the wife is capable of earning about $1000 net per month, possibly $1400 net per month at Business S, that is, about $250-$350 net per week, if such employment be available to her there, but if not at Business S, then by way of some other casual employment.
The wife disclosed a considerable credit card debt in her financial statement, about $15,000. In this regard, I take into account the wife’s evidence that she uses her credit card for groceries and other needs because she does not have income to pay for such otherwise.
The wife, by way of the consent component of the orders, will have the net shop rental. The evidence is unclear whether $325 is the gross or net weekly shop rental, however, as I have said, such appears to be net rental. Certainly, Counsel treated $325 as the net rental: transcript of submissions 29 November 2011 at T10/27; T10/38; T19/5; T24/35-40. Also, there is evidence that the net rental is paid out by the agent, which would tend to suggest that fees, charges, commission and the like already are deducted.
However, if the $325 is gross rental, nothing turns on this because, as will be seen, I will determine that the husband does not reasonably have the capacity to pay ongoing maintenance for the wife, of either $350 per week, or any lesser amount, nor the $1,000 per month towards her credit card debt.
The difficulty for the wife however is that presuming that the shop rental is net $325 weekly, her receipt of that basically will offset the amount of the interim spousal maintenance order she seeks to hold, with the consequence that the husband now will be liable to pay the shop mortgage in that additional amount rather than the net shop rental amount being applied to the mortgage.
Further, having assessed the wife’s need for herself at about $572 weekly (doing the best I can on the evidence she presented), and having assessed that she is capable of earning, on the casual or part time basis between $250-$350 net weekly, or taking the mean, $300 weekly, combined with her receipt of the net shop rental $325 weekly, will have the effect that her need for $572 weekly for herself is fully met, at about $625 weekly for herself.
I am aware that the wife will have the net sale proceeds of the Type A boat, the net balance received by the wife expressly “to be characterised at the trial”. That part of the consent order however was agreed in lieu of the wife continuing her application for a Hogan order. Initially, I considered that there may be some prospect of part of the net sale proceeds being characterised at the trial as spousal maintenance. However, a cursory glance at the figures shows this to be a remote possibility. First, annexure A to the consent orders I will make shows that the list price for the boat is likely to be $55,700, with liberty to the wife to accept $44,560. Secondly, the wife’s affidavit filed 1 September 2011, pars 100-134, show that her unpaid legal fees incurred to date include $19,872, $35,000 and $6,633, the total of $61,505. Plainly thus all of the net sale proceeds of the boat will be utilised by the wife in meeting her legal fees, which will be an “add back” against her at the trial, but there will be nil amount to regard as spousal maintenance.
Thus, doing the best I can, I am unable to conclude that, once the wife commences to receive the net shop rental for herself, she then would have the need for spousal maintenance to be paid by the husband.
As will be seen however I have come to a different conclusion as to the arrears, and will order their payment. In particular, in the arrears period, until 29 November 2011, the wife did not have the benefit of the now consent order for her receipt of the net weekly shop rental.
Further, the wife’s income from Business S was earned very late in the arrears period, there being no evidence that earlier in the arrears period she could have been similarly employed.
Thus, in relation to the arrears period, I have no difficultly in concluding that the wife had the need for the spousal maintenance ordered both in relation to the $350 per week amount and the $1,000 per month amount towards her credit card debt. Moreover the wife in my view as the primary carer of the 2 children was entitled to devote herself to that role during the arrears period. However, the children now are 2 years older, both in high school, and the wife recently has demonstrated ability to work outside the home, eg at Busness S, and still look after the children.

Husband’s capacity to pay

Mr Waterman relied upon the report by Mr H the single expert appointed in the proceedings to value the parties’ corporate entities and trusts, 12 in number set out in par 2 of Mr H’s report, the principal entity appearing to be Bradford Investments Pty Ltd, which at section 2 Mr H valued at $767,649. There is a trust entity, the Bradford Family Trust, which Mr H valued at negative $400,252, largely relating to loans owing from beneficiaries $447,460. At the same part there is reference to N Pty Ltd with the minor value of $2049, being a loan owing to shareholders. Thus, according to Mr H’s opinion, the “Total Interests” as at the valuation date, 28 February 2011, amounted to $396,446.
The wife’s evidence is to the effect that although she is an equal shareholder in the primary entities, the husband has the “practical” day to day control of them, and of the major trust, the Bradford Family Trust.
Mr Waterman pointed to Mr H’s valuation of Bradford Investments Pty Ltd at $767,649, so that, according to his submission, the wife has equity in Bradford Investments Pty Ltd of about $380,000. It appears earlier in Mr H’s report (p 3) that another company acts as trustee for the Bradford Family Trust, so that, in effect, the net assets of Bradford Investments Pty Ltd are not affected by the negative value of the Bradford Family Trust. However, that is to disregard I think the reality of loans owing from beneficiaries of the trust. The corporate structure of the Bradford Group is shown in annexure 12 to Mr H’s report. However, it is not clear who are the beneficiaries indebted to the Bradford Family Trust.
Mr Waterman submitted however that since the date of Mr H’s report, 30 May 2011, the husband has received 3 Australian Taxation Office cheques in aggregate of $169,928, of moneys belonging to Bradford Investments Pty Ltd; and that whilst plainly this amount belongs to Bradford Investments Pty Ltd, the husband has “spent” this money on himself. Mr Hackett conceded this: see the husband’s affidavit filed 28 October 2011, annexure 16, and the husband’s affidavit filed 25 November 2011, par 4. Annexure 16 shows receipt into the husband’s solicitors trust account of $55,278.67 on 4 April 2011, $58,357.97 on 4 May 2011 and $56,292 received on 17 June 2011, all on account of Bradford Investments Pty Ltd, amounting in aggregate to $169,928.
Presumably, as this aggregate amount belonged to Bradford Investments Pty Ltd, there will be a loan account recording this as a debt by the husband to Bradford Investments Pty Ltd, or for such part of it as the husband spent for himself, and not for the purposes of Bradford Investments Pty Ltd.
I have referred earlier to the order I made on 31 October 2011 that the husband disclose all documents evidencing the account or accounts into which were paid $60,000 paid to the husband from the solicitors trust account on 12 May 2011 and of $40,068 paid to the husband from the solicitors trust account on 19 July 2011, also shown on annexure 16, and presumably being moneys sourced in the 3 ATO refund amounts, the aggregate he received being $100,068.
The husband in his affidavit filed 25 November 2011, par 4, repeated in a table in Mr Hackett’s submissions in reply, show that of the $60,000 amount, $22,336.60 was used to pay Z Accountants, a joint debt of the parties; and $1842.50 reimbursement to a Ms D for payment to O Valuers, seemingly also a joint debt of the parties; so that all other amounts, in aggregate $35,992, were used by the husband to pay his own creditors or retained for his own use. Indeed, during the hearing, Mr Hackett identified that only the two amounts referred to above were joint, and all other expenses in the table were sole liabilities of the husband. Further, in relation to the withdrawal of $40,068, the husband’s affidavit filed 25 November 2011 and Mr Hackett’s submissions in reply, in particular by reference to annexure AWB2 to the husband’s affidavit filed 25 November 2011 (see par 10(d) of Mr Hackett’s written submissions), show that this whole amount was paid by the husband to the Australian Taxation Office in discharge of his own taxation liability.
In contrast, the wife said in her affidavit filed 16 November 2011, par 62 (xxxi) (p 19) that her own Australian Taxation Office liability is in the order of $150,000, “and getting worse”.
However, putting that aside for present purposes, it is plain that in the period between November/December 2010 and 29 November 2011, the husband accessed for his own purposes, from moneys belonging to Bradford Investments Pty Ltd, the amount of $76,060 ($35,992 plus $40,068), as I said, presumably now the subject of a loan account. The salient point however is that the amounts were received by the husband on 12 May 2011 and 19 July 2011, each after the consent orders made on 27 May 2010, but the husband saw fit to utilise $76,060 for his own creditors and his own purposes, whereas first he had the absolute duty and obligation, if he felt able to use those moneys for his own purposes, to obey the Court orders made on 27 May 2010, orders 17 and 18 of the annexure, but chose instead to defy the Court order.
I am conscious that the husband, on 6 February 2011, soon after he ceased to pay the ordered spousal maintenance in November/December 2010, filed an application to vary the consent orders made on 27 May 2010, and that on 14 February 2011 that application was dismissed by Howard FM. It appears however that the husband “took the law into his own hands”, subsequently, to defy the Court’s authority over him.
I am confident thus in finding that between November/December 2010 and 29 November 2011 the husband had the capacity to pay the ordered interim spousal maintenance, which he did not pay, the arrears being $23,675.

I take into account that the husband did not receive the moneys referred to until 12 May 2011 and 19 July 2011, whereas the arrears commenced in November/December 2010. The husband however as at both dates on which he received the moneys had the capacity to discharge the arrears then accrued and to put aside sufficient to continue to pay the interim spousal maintenance ordered.
In the circumstances outlined, having found already that the wife had the need for the ordered spousal maintenance of $350 per week and $1000 per month towards her credit card debt, and being satisfied, as explained, that the husband had the capacity to make those payments, I would determine in the exercise of my judicial discretion that the husband has failed to show any “just cause” for the discharge of the arrears, in the sense described in the authorities to which I have referred, that is, that such is “right” or “proper”, having regard to ss 72 and 75. In so saying, I rely on all of my observations in relation to ss 72 and 75, both above, in relation to the wife, and below, in relation to the husband.
In so determining I take into account also the husband’s affidavit filed 3 June 2011, pars 7-15, and Mr Hackett’s “Hansor” submission as earlier set out.
Accordingly, I will order that the husband is liable to pay the arrears, $23,675.
I turn now to the husband’s present financial circumstances concerning his capacity to pay present and ongoing spousal maintenance from 29 November 2011, the hearing date, concerning his application for its prospective discharge.
I have referred earlier to Mr Hackett’s written submissions, par 18, that the husband receives only $75,000 per annum income by way of management fees, from which he draws only $250 per week for his own living expenses. I have previously set out par 18 of Mr Hackett’s submissions, to which I would again refer, showing a claimed monthly shortfall by the husband of $6,749 expenses over and above his claimed monthly $75,000 per annum income and living expenses.
The wife disputes that the husband receives only $75,000 per annum from the business by way of management fees, and refers indeed to the husband’s Notices of Assessment for the years ended 30 June 2009 and 30 June 2010, taxable income $79,666 and $43,727 respectively (part of annexure AWB2 to the husband’s affidavit filed 25 November 2011), contending that because the husband is in control of Bradford Investments Pty Ltd, and all of the businesses, entities and trusts referred to in Mr H’s report (12 in number, to which I have earlier referred) the husband is well able to draw more income than he asserts; and further that the 2009 and 2010 assessments show taxable income, but not what expenses or deductions the husband may have claimed in respect of his contended (or assessed) taxable income.
The husband’s financial statement filed 24 November 2011 claims an average weekly income of $1480, and personal expenditure per week of $3523. The claimed weekly income roughly equates with the table in par 18 of Mr Hackett’s written submissions, previously set out and referred to. Included in his expenses, at item 31, are the spousal maintenance ordered of $350 per week, and child maintenance of $531 per week “including school fees”. I have referred earlier to the wife’s contention that the husband does not pay child support. It seems to be common ground however that he pays the children’s school fees (in arrears as at the date of the schedule earlier referred to).
The husband referred to and relied upon the circumstance that Mr F, it appears, set up a competing building improvement business when he left Bradford Investments in February 2008, and that combined with the other matters in pars 9 and 10 of his affidavit filed 3 June 2011, earlier set out, he no longer reasonably can pay the interim spousal maintenance ordered of $350 per week or $1000 per month towards the wife’s credit cards .
Mr Hackett, in his written submissions, par 15, referred to evidence as to the profit and loss statements for the business showing in the financial year 2008, $210,734 profit, 2009 $20,949 loss and 2010 $65,907 loss. The reference to the business losses however veil that nonetheless the husband received in those years income, represented in his taxable income in those years, as already set out.
Mr Hackett’s submission continued that in December 2008 the husband suffered necrotic pancreatitis and was hospitalised between December 2008 and April 2009, which was followed by 2 years of rehabilitation and that he is no longer able to “[climb]” due to his “myopathy”.
Mr Hackett submitted that the husband used “all capital reserves” from the business to pay the wife “the amounts prescribed by the orders made 27 May 2010”.
However, this submission belies that the husband defaulted in those payments between November/December 2010 and the date of hearing 29 November 2011, and, as I have mentioned previously, used the Australian Taxation Office refund amounts during that period in the manner already described.
Mr Hackett’s submission continued that in July and August 2011 the husband was re-admitted to hospital for further surgery, concluding (written submissions, par 22) that the husband’s present financial situation is not of his making but because of “the circumstances in which the jointly owned business finds itself”.
Mr Hackett submitted (par 23) that unless an order is made discharging the orders made by consent on 27 May 2010 “the arrears will continue to accrue”, submitting further that the wife and her legal advisers “do not, and cannot” identify any source from which the payments can be made on an ongoing basis.
In short, Mr Hackett relied upon “cash flow” difficulties for the husband, evidenced by the table already set out, which Mr Hackett submitted is supported by the husband’s affidavit filed 28 October 2011, in particular pars 23-24 (par 24 being denied by the wife), and pars 25-32 (the matters in par 25 having been addressed already), and the annexures referred to in those paragraphs, in particular annexures AWB11 and AWB11A, being an assessment by Mr L as potential damage to the husband’s credit rating, and by Mr Z of Z Accountants, in letters dated 25 May 2011 and 11 October 2011 referring to the “serious” cash flow situation of the parties’ business, noting it to be “critical” and including that “There are no reserves of cash necessary for the running of the business”.
Mr Hackett relied also upon the husband’s last 3 tax returns for 2008, 2009 and 2010, annexed to his affidavit filed 25 November 2011 and to Mr H’s report (p 54) to assert that he simply does not have the capacity to pay, prospectively, the amounts in orders 17 and 18.
Further, in oral submissions, Mr Hackett emphasised several parts of the evidence updating the husband’s financial circumstances.
Looking at the s 75(2) matters in relation to the husband, insofar as may be relevant, the husband is 52 years. He has the health difficulties described in his affidavit to which I have referred. Until there are finalised s 79 proceedings, it will not be known what property and financial resources may be available to him. He does not have the primary care of the 2 children of the marriage. Plainly, he has a commitment to support himself. As mentioned in relation to the wife, the parties had a reasonable standard of living before their separation. There is no evidence that the husband, presently, could retrain for other employment. The marriage, as earlier observed, subsisted for about 10½ years. There is no evidence that the husband cohabits with another person. The husband pays the children’s private school fees, however, it appears, does not otherwise pay child support.
As to “any other fact or circumstance”, plainly the business, operated by the husband, has suffered a severe downturn and presently has the “serious” or “critical” cash flow difficulties described by Mr Z.
In all of the circumstances, having regard to the evidence presented, and bearing in mind that I am unable to make final findings, and need to rely upon my impression of the husband’s evidence and that of Mr Z (hearsay, but admissible on this hearing), I am satisfied by reference to the s 75(2) factors relating to the husband, to which I have referred, that reasonably he does not have the financial capacity prospectively from 29 November 2011 to pay the spousal maintenance the subject of the interim orders made on 27 May 2010 by consent, having regard to the significant change in his financial circumstances since that date referred to, in respect of which I rely on his affidavit filed 3 June 2011, pars 9 and 10, earlier set out which I accept and Mr Z’s opinion referred to which also I accept.
Further, the wife’s affidavit filed 1 September 2011, pars 40 a and h, 57 and 58, show default by the husband in meeting the mortgage payments for the shop and I Street, with arrears outstanding of $5,429 and $6,848 respectively as at August 2011 (see also annexures MJB10 and MJB11). This would tend to indicate that the husband does not have the capacity to meet even those ordered obligations. I would infer that if the husband had the capacity to meet those ordered obligations, he would do so, so as not to diminish the value of the pool and the assets in it available for division between the husband and the wife.
Further, as to what is “right” or “proper”, I have referred already to the circumstance that the wife, on and from 29 November 2011, will have the benefit of the net weekly shop rental, and that I am not persuaded having regard to matters earlier mentioned that she has the need for ongoing spousal maintenance after 29 November 2011, as earlier explained.
For the reasons explained, I am satisfied thus that the husband has shown just cause for the discharge of the orders from the date of hearing, 29 November 2011 being “right” and “proper” in all the circumstances of the case.
Accordingly, I will discharge the interim spousal maintenance order from 29 November 2011.

Conclusion

So that there be no misunderstanding, as to a “dividing line” between pre and post 29 November 2011, I would reiterate that my determination in relation to the arrears is based upon the circumstance that prior to 29 November 2011 there was no order that the wife receive the net shop rental, and, by reference to the husband’s use of Bradford Investment Pty Ltd’s ATO refunds, as discussed, the husband could have applied such moneys as he used for himself to meet his interim spousal maintenance obligations.
However, as at 29 November 2011, the hearing date, the wife will have the benefit of the shop rental.
Accordingly, the orders will be, in relation to spousal maintenance, that the arrears not be discharged, but that orders 17 and 18 be discharged prospectively from 29 November 2011.
I will include in the orders that all other extant interim or interlocutory applications/responses be dismissed.
I will reserve the costs of both parties to the trial judge.

Other matters

In all of what has gone before, I have not found it necessary to refer to mutual allegations by the wife and the husband as to non-disclosure, and mutual allegations as to the receipt of other moneys not disclosed, which matters respectively are disputed, and in relation to which no final findings can be made on the interim or interlocutory basis.
I also have not found it necessary to set out in further detail the written and oral submissions of Mr Hackett and Mr Waterman. However, I have read and carefully taken into account all of the written and oral submissions.
I am aware, at the date of this judgment, that the husband presently has an urgent application before the Honourable Justice Bell tomorrow, 29 May 2012, for sale of the shop. I do not know the basis of that application, which will solely be a matter for his Honour’s discretion.
If his Honour should order the sale of the shop, then the wife’s spousal maintenance application necessarily will need to be revisited, hopefully, upon more precise evidence as to her needs, to be set out in a table and sworn.

I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 28 May 2012.

Associate:

Date: 28 May 2012

[2012] FamCA 393

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Statutory Construction

Remedies

[… R Street, Gold Coast Suburb M] (as per valuation)	625,000
[… I Street, Gold Coast Suburb Q] (as per valuation)	510,000
Shop at [… B Street, Gold Coast Suburb P] (valuation)	380,000
AMP Limited Shares x 250 @ $4.07 on 28.11.11	1,017
[Type A Boat] (as per valuation)	55,700
[…] Ford […] Motor Vehicle (agreed value)	5,000
Wife’s superannuation holdings (estimated)	22,500
Company & business interests as per [V Chartered Accountants] Valuation of 30 May 2011	767,649
2,366,866
*Liabilities*
ANZ Equity Account BSB […] Acc. No. […68] as at 03.03.11	197,076
ANZ Loan Account no. […26]	70,000
ANZ Loan Account no. […93]	585,180
Loan to [Bradford] Family Trust from beneficiaries	447,460
Allowance Arrears on Loans	20,000
[W Accountants] fees for forensic investigation	15,345
[V Chartered Accountants] for forensic accounting	21,062
[Z Accountants]	23,925
Wife’s estimated tax liability	150,000
1,530,048
Net asset pool	$863,818