Brown & Brown

[2007] FamCA 151

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT SYDNEY  Appeal No. EA146 of 2005
  (Appeal No. EA38 of 2006)
  (Appeal No. EA128 of 2006)

File No. SYF9777 of 1992

IN THE MATTER OF: BROWN

Appellant Husband

AND: BROWN

Respondent Wife

CORAM: KAY, WARNICK AND BOLAND JJ

DATE OF HEARING: 28-29 JUNE 2006 and 27 FEBRUARY 2007

DATE OF FINAL SUBMISSIONS
AS TO FURTHER EVIDENCE: 7 AUGUST 2006

DATE OF JUDGMENT: 5 MARCH 2007

JUDGMENT OF THE FULL COURT

Appearances: Mr Hammerschlag of Senior Counsel, with Mr Livingstone of Counsel instructed by Barkus Edwards Doolan, Lawyers, Level 9, 370 Pitt Street, Sydney, NSW, 2000 appeared on behalf of the appellant husband

Mr Richardson of Senior Counsel, with Mr Campton of Counsel, instructed by The Argyle Partnership, Lawyers, Level 19, 44 Market Street, Sydney, NSW, 2000 appeared on behalf of the respondent wife

Name of Appeal	Brown & Brown
Appeal Number	EA146 of 2005 and EA38 of 2006
Dates of Appeal Hearing	28-29 June 2006
Date of Final Submissions as to Further Evidence	7 August 2006
Date of Judgment	5 March 2007
Coram	Kay, Warnick & Boland JJ

Catchwords: APPEAL – FROM DECISION OF FAMILY COURT JUDGE – SPOUSAL MAINTENANCE – WHETHER TO AWARD LUMP SUM OR PERIODIC MAINTENANCE – The parties married in 1984 and separated finally in 1995 – However, an order for property settlement was made in 1993 – The wife filed an application for leave to institute proceedings for spousal maintenance in 2002, for which leave was granted – The wife sought $4,000,000 in lump sum spousal maintenance or, in the alternative, $20,000 per month in periodic monthly maintenance. The husband argued that, if maintenance was granted, then periodic maintenance of $1,000 per week should be awarded – The trial Judge ordered the husband to pay the wife $3,750,000 as lump sum spousal maintenance – At trial no issue was made of the husband’s financial capacity to meet any order for maintenance – The husband argued that the trial Judge did not give adequate reasons as to the decision to award a lump sum rather than periodic maintenance – The trial Judge concluded that a lump sum was the appropriate form of order not only because of the husband’s repeated refusal to comply with orders, but also because the trial Judge was obliged to make an order which was ‘proper’, for which sufficient reasons were given – The trial Judge clearly had a discretion to choose the form of maintenance
SPOUSAL MAINTENANCE – ASSESSMENT OF LUMP SUM MAINTENANCE – The husband also argued that the trial Judge did not give adequate reasons for assessing lump sum maintenance at $3,750,000 – It was unclear in the trial Judge’s reasons whether any part of the lump sum awarded included a sum arrived at by a capitalisation process – In the absence of such an exercise, it is impossible to know for how long the trial Judge thought it appropriate for the husband to maintain the wife, albeit by one lump sum payment – While it may be argued that the discretion granted by s 74 of the Family Law Act 1975 as to what is ‘proper’ is broad, the failure to disclose the weight given to relevant facts in a quantitative manner by the attribution of a monetary amount made it difficult to identify whether the necessary nexus between the award and the concept of ‘proper’ maintenance had been maintained

SPOUSAL MAINTENANCE – MORAL OBLIGATION TO FAMILY MEMBERS – The husband further argued that the trial Judge’s assessment of maintenance, which took into account the wife’s responsibilities in looking after her parents, went outside the factors the trial Judge had to consider as the husband had no obligation in relation to the wife’s parents – The authorities suggest that the relevance of a moral obligation to maintain ‘any other person’ is generally a question of balancing different factors and according proper weight to each of them – The findings of the trial Judge were well open to him
INJUNCTIONS – RESTRAINT ON INTERNATIONAL MOVEMENT – APPLICATION FOR EXTENSION OF TIME TO APPEAL – APPLICATION FOR LEAVE TO APPEAL SUBSEQUENT STAY ORDER – A fortnight after making the orders for lump sum spousal maintenance, the trial Judge ordered that the husband be restrained from leaving Australia and from making an application for a passport from Australia or any other country – The husband sought leave to appeal out of time the injunction on the basis that the trial Judge had no power to issue such an injunction – The power to issue an injunction in s 114(3) of the Act provides that the Court may grant an injunction only where it is ancillary to substantive proceedings before the Court – While some question might have arisen as to whether enforcement proceedings existed at that time, the order for the injunction was overtaken by subsequent events when the restraint became a condition of a stay order – No substantial injustice in respect of the stay order and insufficient reasons to grant an extension of time to seek to appeal the initial grant of injunction

Allesch v Maunz (2000) FLC 93-033

Anstis and Anstis & Anor (No 1) (2000) FLC 93-013

Aroney and Aroney (1979) FLC 90-709

Axtell and Axtell (1982) FLC 91-208

B v B (injunction: restraint on leaving jurisdiction) [1997] 3 All ER 258

Bennett and Bennett (1991) FLC 92-191

B & B [2003] FamCA 36

CDJ v VAJ (1998) FLC 92-828

Coombs and More (1990) FLC 92-175

Ejje and Ejje (2003) FLC 93-129

Gallo and Dawson (1990) 93 ALR 479

House v The King (1936) 55 CLR 499

Joshua and Joshua (1997) FLC 92-767

Khademollah and Khademollah (2000) FLC 93-050

Lutzke and Lutzke (1979) FLC 92-743

M & M [2004] FamCA 634

Robinson and Willis (1982) FLC 91-215

Soblusky and Soblusky (1976) FLC 90-124

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Tormsen and Tormsen (1993) FLC 92-392

Vakil v Vakil (1997) FLC 92-743

Vautin v Vautin (1998) FLC 92-827

Wilson and Wilson (1989) FLC 92-033

That the appeal against Order 1 be allowed. That Order 1 be varied, by the deletion of the sum of “$3,750,000” and the insertion of the sum of “2,250,000”. That the appeal against Order 2 be dismissed. Directions made for submissions as to costs.

Introduction

On 5 December 2005, O’Ryan J made an order that the husband pay the wife $3,750,000 as lump sum spousal maintenance. His Honour’s reasons for that and other orders commenced with the sentence:
“This is an exceptional case about spouse maintenance, child support and arrears of adult child maintenance.”
The parties’ divorce had become absolute almost 10 years before, but the wife’s application for leave to institute the spousal maintenance proceedings determined by O’Ryan J was not filed until April 2002. She obtained leave on 18 March 2003. In the application she then filed, as amended, she sought:
“…$4,000,000.00 by way of lump sum spouse maintenance…”
or in the alternative, $20,000 per calendar month from 1 May 2002, amounts accrued to date of order to be paid by lump sum.
At the trial before O’Ryan J, which took place over 5 days, the last of which was 10 December 2004, the husband was not personally present and he was not permitted to rely upon affidavits by him. However, Mr Brereton SC represented him.
The husband’s case was that if an order for spousal maintenance was made it should be for periodic payment of $1,000 per week. At the trial, Mr Brereton SC made a number of important concessions, recorded by his Honour in his reasons, as follows:
“15. …First that inferences adverse to the husband available from the evidence may be more readily drawn because being in a position to contradict them he has not done so. Second, it may be inferred that his evidence would not have assisted his case. Third I am entitled to proceed on the basis that there is nothing in the husband’s financial position which is a reason for not making an order to which the wife otherwise makes out an entitlement. In fact at the commencement of the trial I was told that there is no issue about the capacity of the husband to meet any proper order I may make …” (emphasis added)
In this appeal by the husband against the spousal maintenance order and against one of the orders relating to child maintenance, there is a further concession, namely:
“1. The Appellant does not seek to disturb the finding that the wife’s weekly expenses are as found by the court at paragraph 348 of the judgment (AB 1/71). For the purposes of this appeal it adopts them.” (supplement to summary of argument on behalf of the appellant husband).
Indeed, the essential thrust of the appeal was described in that same document in the paragraph which followed:
“2. The gravamen of the complaint is the absence of any discernible relationship between this [the wife’s expenses] and any other findings and the lump sum ultimately ordered.”
Apart from the order for spousal maintenance, his Honour also made an order for child maintenance as follows:
“2. Pursuant to section 66G Family Law Act 1975 (Cth) by 4.00pm on 31 January 2006 the husband pay to the wife by way of child maintenance in relation to the child [B] born [in 1985] the sum of $1,000 being $1,000 per week for the period 5 April 2002 to […] June 2003.”
The significance of June 2003 is that in that month the child “B” turned 18.
The wife had already obtained an order for adult child maintenance, on 18 March 2003. By Order 3 of his orders of 5 December 2005, O’Ryan J ordered the husband to pay to the wife the sum of $37,102.02, being arrears of adult child maintenance for the period 3 June 2003 until July 2004. Though the Notice of Appeal filed on behalf of the husband said that all orders were appealed, in fact there was no challenge to Order 3.
In his Further Amended Notice of Appeal, the husband sought that the wife’s applications be dismissed. That stance seems to necessarily involve a re-exercise of discretion. Senior counsel for the husband indicated a wish, if we did proceed to re-exercise, to put further evidence before us but none if it was then available. We granted time to apply for leave to adduce further evidence, limited to specific topics. An application was made and is later addressed.
While our decision on the appeals stood reserved, the husband filed a further application, seeking to place before us evidence of his financial circumstances.
The listing of that application and the delivery of our judgment in respect of the appeals was then held over at the parties’ request, they advising that the parties had settled all matters. Subsequently, the parties advised the collapse of that settlement.
We heard argument on the latest application on 27 February 2007. We refused the application and our reasons for that also appear later.
An application for a stay of the substantive order for lump sum maintenance, pending our decision in the appeals, was not pursued upon our indication that these reasons would be delivered this week.
Also before us are an application for an extension of time within which to file applications for leave to appeal orders of O’Ryan J made in the months following the delivery of his primary judgment and an application for leave (filed within time) to appeal another such order of O’Ryan J.
A description of these ancillary orders, discussion of the reasons for them and of the applications in respect of them, will be given later, after determining the appeal against the substantive orders for maintenance. However, in short, not long after making the substantive orders, O’Ryan J ordered that the husband be restrained from leaving Australia. A subsequent application by the husband for a stay of the substantive orders was dismissed. Later, a further application by the husband for a stay was granted, albeit on conditions. Then on 17 March 2006 yet another application by the husband for discharge of the orders restraining his freedom of movement, and for a stay of the substantive orders, upon terms that the husband proposed, was dismissed by O’Ryan J.
Although a number of issues are raised by the husband in respect of these various orders, the essential challenge is that the restraints on the husband’s freedom of movement were beyond power.
O’Ryan J’s reasons of 5 December 2005 are lengthy; some 68 pages comprising 392 paragraphs. As the critical argument in the appeal is to the adequacy of reasons, much of their content is necessarily set out when considering that argument. However, we think some further background and summary of the trial Judge’s reasons of 5 December 2005 at this point is useful.

Further background, including summary of the reasons of the trial Judge of 5 December 2005

The following history is taken from the reasons for judgment.
The wife was born in February 1951 (so is now 56 years of age); the husband was born in December 1956 (so is now 50 years). The parties commenced cohabitation in early 1982 and married in mid 1984. They first separated in mid 1992.
On 8 December 1992 the parties entered into a child support agreement which provided for the husband to pay the wife $2,000 per month with annual adjustments. Also, on that day, the wife instituted proceedings for property settlement. An order for property settlement was made by consent on 28 January 1993.
By the orders made that day, the wife was also granted “custody” of the child “B” and the husband “reasonable access”.
In the “minutes” founding this consent order, it was noted that the parties had separated in mid 1992. O’Ryan J recorded various aspects of the terms of the orders and notations in the minutes of order, including the following notation in the minutes:
“42. Pursuant to section 81 of the Family Law Act 1975 (as amended) the husband and the wife intend that these orders shall finally determine the financial relationship between them and avoid further proceedings between them subject to the matters referred to herein.”
O’Ryan J continued:
“43. It is also relevant to note that the Minute contains the following declarations:
1.It is declared under section 85A of the Family Law Act that the [G Trust] is a post nuptial settlement made in relation to the marriage of the husband and the wife.
2.It is declared that the assets of the [G Trust] were required (sic) from contributions made only by the husband and the wife.
3.It is declared that the matrimonial property of the husband and the wife includes but is not Ltd (sic) to the [J Road] property, the matrimonial home and the [T Street] Unit.
4.It is declared that the [G Trust] is controlled by the husband and the wife through their directorships and shareholding in [B Holdings] Pty Ltd, and thereby they also control [C Pty Ltd].
44. In the notations in relation to the [G Trust] it was noted that:
…the beneficiaries of which include as discretionary objects, the husband and the wife and members of the husband’s family, but no beneficiary other than the husband, the wife and their child have ever received any benefits from the trust.
45. In broad terms the property orders provided that the wife was to receive [the J Road property] which had a value of $350,000 or be paid $500,000. The wife was also to receive a property at [T Street] […]. This property was subject to a mortgage and it is unclear from the consent orders whether the property was to be transferred to the wife free of the mortgage or not. Within 90 days of the orders the wife was to resign all directorships in various companies and transfer her shares to the husband. The husband was to pay the lease payments and running expenses on the wife's car until the lease expired and then transfer the vehicle to her. The wife contended that the effect of the Order was that the husband retained the benefit of property the net value of which was greater than $30,000,000.…”
The wife asserted that subsequent episodes of reconciliation and further separation occurred before the final separation in August/September 1995. The trial Judge was later to say of the issues about resumptions of cohabitation:
“52. … I accept that the wife’s evidence does not paint a picture of a traditional family unit between January 1993 and August 1995. However, I also accept that the parties reconciled.”
Later still, and after reviewing further evidence, O’Ryan J said:
“96. In conclusion, I accept the wife’s evidence as to the nature and extent of the relationship of the parties after May 1992. The evidence clearly establishes that the parties finally separated in August-September 1995.”
In May 1993, the husband purchased for the wife a home at “CH” for $490,000. The wife obtained a mortgage for $300,000 secured upon the property. The husband paid the balance. Of this O’Ryan J said:
“56. …Whilst the Order of 28 January 1993 provided for the husband to pay the wife the sum of $500,000 or transfer to her a property … the husband decided to buy her a home…”
Sometime later, the husband paid out the mortgage, but shortly thereafter asked the wife if he could use the “CH” property as security. The wife agreed. The husband met the mortgage payments in respect of that borrowing until 1995 when he paid out that mortgage.
The decree dissolving the marriage became absolute in late 1995. The husband remarried in 1996.
Under the heading “Background Facts” (paragraphs 17-274) O’Ryan J recorded the qualifications of the wife, her work before and during the period of cohabitation and something of the acquisition of property during that time. He said something about contributions of each party, such as might be considered in a property settlement application, including detail of the extensive business activities of the husband through various entities. He noted contributions by the wife in relation to some of those activities, including as office holder in many entities.
The trial Judge continued with a chronology of the parties’ financial activities – in the husband’s case, so far as the evidence revealed them – through to the time of hearing.
In support of and by way of identifying reasons for the trial Judge’s conclusions to, firstly, award a lump sum, and secondly, assess the amount thereof at $3.75 million, Senior counsel for the wife, points to numerous paragraphs from this section of O’Ryan J’s reasons. He argues that some of these findings, largely about the monies provided by the husband to the wife, but also as to the husband’s wealth, go to the assessment of a standard of living reasonable in the circumstances. Others, particularly as to the post-1992 contributions of the wife to the financial circumstances of the husband, are relevant, he argues, to the “proper” amount of maintenance. Still other findings, largely about the history of unfulfilled promises of the husband to make provision for the wife and about “defaults” of the husband of varying kinds, are said to support the choice of a lump sum over periodic payment.
For the most part, as earlier indicated, the relevant parts of the reasons will be set out later, the paragraphs here set out being for the purpose of an overview.
O’Ryan J said:
“77. …In summary, between August 1995 and April 1997 the husband paid $1,112.00 per week for child support and $3,209.00 per week, or $166,868.00 per annum for the wife.”
As to events after the parties’ divorce, the trial Judge recorded:
“111. On 1 February 1996, the husband telephoned the wife and said: I am sending [Mr C] to deliver some papers for you to sign. The wife said: What papers? and he replied: I want you to sign over your shares of [C Pty Ltd] to me and resign as a director. The wife said, What will I get in return for doing this? He said: I will give you the one million dollars I promised you. You know I will always look after you.
112. In February 1996, the husband took the wife to lunch and he said to her: I will pay you spousal maintenance of $6,000 a month for the next three months and $10,000 thereafter. Within three years I will give you one million dollars lump sum payment and monthly maintenance payment of $10,000. The wife said to him: Yes, ok. During the lunch, the husband wrote the details of his offer on the back of an envelope. Exhibited to the wife’s affidavit is a copy of the envelope. In consideration of this the wife agreed that she would transfer her shareholding in [C Pty Ltd] to the husband.
113. By transfer dated 14 October 1996 the husband transferred the property at [D] [the former matrimonial home of the parties] from his sole name into the joint names of himself and his present wife for a consideration of $1.
…
115. Prior to and as at the date when the Decree Nisi became absolute and during the period 14 December 1995 until 14 December 1996, being the last day the wife had to file an application for spouse maintenance, she was not in receipt of any income. She was not working. She did not receive and was not in receipt of any government tested pension. The husband paid all her day to day expenses and she relied on the money he paid on her behalf or gave to her to meet the totality of her expenses.
…
121. On 1 April 1997 the wife retained a firm of solicitors […] to advise her in relation to her entitlement for spouse maintenance and to have the property order made on 28 January 1993 set aside.
…
126. On 11 August 1997 the wife filed an application seeking leave to institute proceedings for spouse maintenance and also set aside the order for property settlement made on 28 January 1993. The Application had a return date of 26 September 1997.
…
131. Between 26 September 1997 and December 1997 the parties had negotiations through their respective solicitors and themselves with a view to resolving the proceedings. The husband’s solicitors […] prepared Terms of Settlement and a Child Support Agreement. The wife exhibited to her affidavit copies of the documents as well as a letter from [the husband’s solicitors] dated 22 October 1997 to her solicitors. The Child Support Agreement provided for payment of $6,000 per month. The terms of settlement provided for a payment to the wife of $1 million.
…
135. In summary, in 1997 the parties fell into dispute and the husband unilaterally imposed very substantial reductions upon the support previously provided reducing to $6,000 per month. This followed an earlier promise in February 1996 that he would pay a lump sum of $1M and $10,000 per month. It was submitted, and I accept, that there was no challenge to the fact that the promises were made. In 1997 the wife commenced proceedings in the Family Court.
136. The wife contended that the dispute culminated with a promise in December 1997 that she would be paid that which was agreed upon the husband’s return from the (sic) overseas provided she discontinued the proceedings in the Family Court. The husband’s case suggested this was not so and that the wife discontinued the proceedings for some other un-stated reason unconnected with any representation of the husband and indeed her conduct in doing so is now a matter that should militate against her.
137. However, on behalf of the wife it was submitted that there is one glaring fact, for which the husband’s case provides no explanation, which is entirely contrary to this position. It is clear that on 22 October 1997 the husband offered the wife $1M and child support of $6,000 per month. The husband’s position, without motive or otherwise suggested to the wife, invited me to infer that within weeks of being faced with this offer the wife decided to simply discontinue the proceedings without resolution. I do not accept that this is the explanation. I reject the contentions of the husband.
138. On 9 January 1998 the wife filed a Notice of Discontinuance of the proceedings commenced on 11 August 1997.
…”

The trial Judge traversed the course of events after the wife discontinued the proceedings, setting out detail of monies paid by the husband for the wife’s support and that of the child, and approaches by the wife to the husband for a monetary settlement as well as for lump sums to meet particular needs from time to time. His Honour concluded his review of this period by saying:
“171. It was submitted, which I accept, that in summary during 2001 the wife was pursuing the husband and he was asking her forbearance pending the outcome of the proceedings with [Mr G]. The promises were unfulfilled.”
That brought his Honour to the commencement of the wife’s proceedings which ultimately came before him. As to that he said:
“178. On 9 April 2002 the wife filed an application in which she sought that the property order be set aside and leave to apply for spouse maintenance.…”
O’Ryan J had also earlier recorded:
“6. By way of enforcement of the orders for maintenance the wife seeks that the husband’s [new] wife […] be joined as a party and restrained by injunction from dealing with her interest in a property at [D]. Further, the wife seeks pursuant to s 106B Family Law Act that [the husband’s new wife] transfer her interest in the property at [D] to the husband. The wife then seeks that the [D] property be sold and from the proceeds of sale the amounts due to her in accordance with the orders for spouse maintenance and child support/maintenance be paid.”
As to events subsequent to the commencement of the proceedings under discussion, O’Ryan J said:
“181. On behalf of the wife it was submitted, and I accept, that when the wife commenced proceedings in April 2002 this drew the response of severance of all financial support including child support payments pursuant to the child support agreement. The husband did not pay any child or spousal support after 8 April 2002 with the exception of an amount of $1,897.98 paid shortly after an enforcement summons was filed.
182. On 29 May 2002 a Commonwealth warrant issued for the arrest of the husband citing 10 charges of fraud all emerging from events in 1993.…
183. On 28 June 2002 the husband sold his remaining half share (having already sold half for $1.00 in 1996) in the [D] Mansion to [the husband’s new wife] for $1.00. The title was then unencumbered.
…
202. The wife’s application for leave to institute proceedings for spouse maintenance and also for adult child maintenance was heard on 10, 11 and 12 March 2003 by Le Poer Trench J. and on 18 March 2003 his Honour delivered judgment and made the following orders:
1.That the wife be granted leave to commence proceedings for spouse maintenance out of time and pursuant to section 44 (3) of the Act.
2.That pursuant to section 66L of the Family Law Act, as and when the child [B] […] turns 18 years old, the husband pay to the wife or as she may direct in writing by way of adult child maintenance the sum of $3,000.00 per month with the first payment to be made within 7 days from the date when the child turns 18 years and thereafter until the child completes an accredited degree or university course or turns 25 years old whichever event occurs first.
3.…
4.That the husband shall be responsible for and pay as and when same falls due all of the adult child’s educational expenses associated with the child’s education.
…
205. On 28 March 2003 an application was filed by the wife in which she sought lump sum spouse maintenance and in the alternative periodic spousal maintenance.
206. On 28 March 2003 a second amended application was filed on behalf of the wife in which she sought pursuant to s 98(1) of the Child Support (Assessment) Act a variation of the child support agreement so that the husband pay to the wife child support of $5,837 per month and also all educational expenses including private school fees, HECS liabilities, text books, excursions and holidays. The wife also sought payment of any arrears of child support.”
In March 2004, the wife sold the “CH” property for $972,100. She said that she did so because she did not have sufficient monies to meet her day to day needs. She had significant credit card debts and loans that she was unable to service or repay. As well, she had and would continue to have legal fees. Her employment was not secure.
The wife has since rented premises, for which she pays $630 per week.
As to the conduct of the proceedings culminating in the orders of 5 December 2005, including some interlocutory proceedings, the trial Judge said:
“14. The wife contended that the husband failed to make a full and frank disclosure of his financial circumstances and has made every effort to frustrate/obstruct the wife in the preparation of her case. The wife contended that the husband is extremely wealthy and he has used “the system to grind down”…the wife who has significantly less wealth knowing that, as in the past, he will regard compliance with orders as optional and ensure the costs of pursuing him is prohibitive. There is no doubt that the husband is extremely wealthy and may have assets of a net value in excess of $150,000,000.00.
15. The husband was absent from Australia after November 2001 and, for reasons I will give, I did not receive any of his affidavits into evidence.…”
The trial Judge then recorded that there had been an extraordinary amount of litigation since the institution of the proceedings by the wife in April 2002 and that at no time had the husband ever attended Court. He further recorded that in October 2004 he had heard an application by the wife seeking the dismissal of all responses of the husband and that the applications of the wife be heard on an undefended basis. His Honour had dismissed the wife’s application but in doing so had commented at some length on the defaults by the husband since the institution of proceedings. In his reasons of 5 December 2005, he set out some of the pertinent passages from his earlier judgment.
Between paragraphs 225 and 270, O’Ryan J discussed (among other things) attempts by the wife to obtain financial information from the husband, including steps taken pursuant to orders made by his Honour from time to time. He discussed the import of such material as had been obtained.
He said:
“270. The hearing commenced on 29 November 2004 and on that day an application was made by the wife seeking a dismissal of the responses of the husband to all applications and that her applications proceed on an undefended basis. This application was made because the husband did not attend. I dismissed the application as it related to the applications I am now dealing with and adjourned until 21 December 2004 the application in relation to all other proceedings including the s 79A application.
271. I dismissed the application in relation to the present applications because I was of the opinion that the hearing could proceed in the absence of the husband and that he was entitled to put the wife to proof of her claims. However, I was not prepared to allow the affidavits of the husband to be read (r 15.14(3)(a) Family Law Rules 2004) because he was not available for cross-examination. The husband had every opportunity to appear and I had made it clear on earlier occasions that he should appear. The trial dates were chosen to suit his convenience. I received written submissions on behalf of the wife in relation to this issue. I am not going to repeat what is in those submissions however I accept what is submitted. I also did not allow an affidavit of the child of the marriage to be read in the husband’s case because he was also not available for cross-examination at least on a face to face basis.
272. It was submitted on behalf of the wife that the husband, with the benefit of advice, elected not to be available for cross-examination. He had many months to make arrangements for being here. This is not a matter where he has been deprived of the opportunity to give evidence on the matters central to the dispute between the parties. He was at all times aware of the general tenor of the issues to be canvassed in the course of such evidence. His contentions as to why he elected not to attend are of little probative value. I agree with this submission.”
The notice that the husband would not attend the trial was given only days before the trial was to commence.
His Honour then turned to consider the “Relevant law and principles”, “Relevant considerations” and his “Conclusion” as to spousal maintenance. He then addressed “Child Support” and “Adult Child Maintenance enforcement” before making the five orders which (though Order 2 was earlier set out) are as follows:
“1. The husband pay direct to the wife by 4.00 pm on 31 January 2006 as lump sum spouse maintenance the sum of $3,750,000 and in the event that the husband fails, neglects or refuses to pay any part of that sum within the time stated then interest shall accrue on such part as may from time to time be outstanding until paid in full, calculated at the rate prescribed from time to time pursuant to Rule 17.03 of the Family Law Rules 2004.
2. Pursuant to section 66G Family Law Act 1975 (Cth) by 4.00 pm on 31 January 2006 the husband pay to the wife by way of child maintenance in relation to the child [B] […] the sum of $61,000 being $1,000 per week for the period 5 April 2002 to 2 June 2003.
3.     The husband pay direct to the wife by 4.00 pm on 19 December 2005 the sum of $37,102.02 being arrears of adult child maintenance for the period 3 June 2003 until July 2004.
4.     Upon payment by the husband to the wife of the amount in Order 3 hereof then Order 2 made on 18 March 2003 be discharged.
5.     The application by the wife for a Child Support Departure be dismissed.”

The appeal against the lump sum spousal maintenance order

The first 11 grounds of the Amended Notice of Appeal filed 26 April 2006 related to the spousal maintenance order. However, senior counsel for the husband told us that only those grounds referred to in his Summary of Argument were pressed. Moreover, as earlier quoted:
“2. The gravamen of the complaint is the absence of any discernible relationship between this [the findings about the wife’s expenses] and any other findings and the lump sum ultimately ordered.”
Accordingly, we will deal with this argument first and return to the then remaining grounds.
The essential complaint being about adequacy of reasons, we return to the judgment of O’Ryan J. When his Honour turned to “Relevant law and principles”, among other things, he said:
“281. The liability of one spouse to maintain the other, and thus the corresponding right of a spouse to be maintained by his or her partner depends upon two conditions being satisfied. The first is that one spouse is unable to support himself or herself adequately for one of the stated reasons having regard to any relevant matters in s 75(2) of the Act. The second is that the other spouse be reasonably able to maintain the former spouse. Unless both of these conditions are satisfied there is no maintenance liability between spouses.
…
283. Section 72 provides that the applicant for maintenance must establish that he or she is unable to support him or herself adequately. The word adequately is not to be determined according to any fixed or absolute standard, but by reference to the matters referred to in s 75(2), and especially paragraphs (a), (b), (g), (j), (k) and (n) of s 75(2): Mitchell at 81,995.
284. The meaning of adequately in s 72 has been considered in many cases. In Nutting v Nutting (1978) FLC 90-410 Lindenmayer J. said adequately imports a standard of living which is reasonable in the circumstances. The idea that it means a subsistence level has been firmly rejected: Evans v Evans (1978) FLC 90-435; Bevan v Bevan (1995) FLC 92-600 and Mitchell and Mitchell (supra).
285. The question then arises as to what is a standard of living which is reasonable. The answer obviously depends on the circumstances of each case. However, some general matters are well established. Where possible both spouses should continue to live after separation at the level which they had previously enjoyed if this is reasonable: Patterson and Patterson (1979) FLC 90-705 at 78,759. However, this may be unreasonable. It may be that the term adequately requires a lower standard of living than that enjoyed during cohabitation because after separation the financial resources are not sufficient to enable the parties to each maintain the same standard of living they enjoyed when they lived together: Nutting and Nutting (supra). In such a situation it is not reasonable that one party should enjoy a higher standard of living than the other. On the other hand there may be circumstances where the term adequately imports that it is reasonable that the parties live at a higher standard of living than previously enjoyed: Groutsch and Groutsch (1978) FLC 90-461 at 77,360. However, there is no general rule that the pre-separation standard of living should be maintained simply because the other spouse can afford to do so: Bevan and Bevan (supra).
286. An applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy: In the Marriage of McMahon (1977) 3 Fam LN 12; Gardiner v Gardiner (1925) 25 SR (NSW) 274, 289; Evans v Evans (supra); Brady and Brady (1978) FLC 90–513 and Malcolm and Malcolm (1977) FLC 90–220.
287. It is also important to remember as the Full Court said in Mitchell at 81,995:
The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”. Where the line is to be drawn will depend upon the circumstances of individual cases.
288. The second condition is that the other party is liable to maintain the party who is unable to support him or herself adequately only if the other party is reasonably able to do so. This requires consideration of the financial circumstances of the other party.
289. In determining the first condition of s 72 the court is to have regard to any relevant matter in s 75(2). The phrase having regard to any relevant matter referred to in sub-section 75(2) governs all that precedes it.
290. Once the threshold is satisfied the jurisdiction of the court to make a maintenance order is enlivened. The broad discretion conferred by s 74 is invoked. Again the considerations in s 75(2) are to be taken into account when this power is exercised. The terms of s 75(1) are mandatory and the considerations in s 75(2) are exclusive. The court has a very wide discretion as to both whether to make a maintenance order, and if so, what order to make.
291. However, consistently with s 74, an order for maintenance should be proper. The word proper is defined in the Macquarie Dictionary 2nd Edition to mean appropriate to the…circumstances and this definition was adopted in Wilson and Wilson (1989) FLC 92-033. The maintenance should be at a level sufficient to enable the applicant to support him or herself adequately, since an order below that level would not remove the need for maintenance, as defined in s 72.”
O’Ryan J then turned to the provisions of the Family Law Act 1975 (Cth) (“the Act”) and authorities relating to maintenance by way of lump sum, before addressing “Relevant considerations”. Under that heading he said:
“307. At the time of the hearing the wife was employed by [R] and I assume that she still is. The wife gave evidence of her qualifications and experience for paid employment (see also Exhibit AD) and I accept her evidence. In my opinion, unless the wife was able to establish and operate a business she is unlikely to be able to earn from paid employment an income greater than what she currently receives. The wife attempted to establish a business with [T Pty Ltd] and it failed. Given her age and qualifications her opportunities are limited.
308. The husband has the capacity and opportunity to continue to earn a substantial income and presumably accumulate significant wealth.
…
313. The wife contended that she has reasonable needs of a total of $4,773.60 per week or $248,227.20 per annum excluding tax. How this amount is calculated appears in a schedule that was prepared on the basis of the wife’s affidavit of 7 May 2004 and her Financial Statement of the same date. Not all the amounts were what the wife in fact currently spends. However she contended that the amounts reflect what she used to spend and what she reasonably needs.
314. The wife was cross-examined at some length by Senior Counsel for the husband about her commitments and a number of submissions were made. For example, she contended that she had a need for an amount of $1,250 per week or $65,000 per annum for holidays. She conceded that a reasonable estimate for holidays would be about $25,000. The wife’s claims for $850 per week for clothes and shoes, $500 per week for entertainment and $350 per week for gifts may be excessive. All of her other claimed expenses appear to be reasonable.
315. On behalf of the husband it was submitted that when a number of adjustments are made for some of the claimed expenses the wife has reasonable needs of about $756 per week. Some of the expenses which it was submitted no allowance should be made for included house repairs and pool maintenance because the wife is living in rented accommodation. Further, the wife has no need to spend money on hobbies. I reject these submissions. In assessing the wife’s reasonable needs I am not simply considering what she actually spends.
316. In the past the wife had the benefit of funds sufficient to defray expenses in the order of $250,000 per annum because the husband caused to be paid to her amounts of this quantum. However, at the time the wife also had to pay expenses for the care of the child although she did not have to pay rent as the parties lived at [D] and then she owned her home at [CH].
317. I am not going to deal with all of the expenses the wife contended for. If an adjustment is made for $480 for holidays; say one half or $425 for clothes and shoes; an amount of $250 for entertainment and $175 for gifts then the weekly amount is $3,154 or $164,008 per annum.
318. Overall, I accept the wife’s evidence as to her reasonable needs. In my view, having regard to the wife’s previous standard of living, she has reasonable needs in the order of $3,154 per week or $164,008 per annum. If the wife had unencumbered accommodation then her commitments would be $2,524 per week or $131,248 per annum.
319. As to the financial circumstances of the husband I am satisfied that, prima facie, he failed to make a full and frank disclosure of his financial circumstances. I refer to what I said in my reasons for judgment delivered on 17 November 2004 in relation to the conduct of the proceedings and the efforts of the wife to gain relevant documents and information.
…
322. What I do know is that the husband probably has assets of a net value in excess of $150,000,000 and an income of at least $1,000,000 per annum excluding the income of his present wife. I know that the husband has the capacity to meet any order I find it is proper to make.
…
329. It may be relevant to take into account the extent to which the payment of maintenance would increase the wife’s earning capacity by enabling her to establish a business. Given her age and experience it is difficult to envisage a course of education or training. The payment of maintenance to the wife may increase her earning capacity by enabling her to establish herself in a business or otherwise to obtain an adequate income. However, there are some qualifications as I have already said. In any event it would probably have to be a lump sum which the wife could use to establish the business or invest.
…
339. In this case the wife has a very strong moral claim for maintenance. Further, if the threshold question is resolved in her favour her significant contributions should be recognised when deciding what is a proper order to make.
340. I am required to consider the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
…
348. The wife contended that her reasonable needs are in the order of $4,773.60 per week or $248,227 per annum. I have found that having regard to the wife’s previous standard of living she has commitments in the order of $3,154 per week or $164,008 per annum. If the wife had unencumbered accommodation then her commitments would be $2,525 or $131,248 per annum. In all the circumstances of this case having regard to the standard of living previously enjoyed I am of the view that an adequate level of support for the wife is in the order of $3,154 per week.”

As earlier quoted, the husband adopted these findings for the purposes of the appeal.
O’Ryan J continued:
“349. The wife has a total gross income from all sources of $1,532. She pays tax of $404 per week and has a net income of $1,128. Thus she has a shortfall between her net income and reasonable needs of $2,026 per week or $105,352 per annum. I accept that the wife has a very limited income and has reasonable needs which well exceed her income and other financial resources including her capacity to earn income.
…
351. I reject the submissions on behalf of the husband. In my view the wife clearly satisfies the threshold. She has been without paid employment for a significant part of the period since the parties first separated. The wife has limited resources and otherwise has depleted those resources substantially as a consequence of the present proceedings. The wife has a need for accommodation. She has substantial liabilities and clearly is unable to otherwise adequately support herself. She presently has limited employment and has a substantial shortfall in terms of her capacity to meet her expenses. On behalf of the wife it was submitted, and I accept, that those expenses and claimed needs were not significantly or meaningfully challenged by the cross examination. Further, I accept that the payments made by the husband in the past stand as a testament to acknowledgment on his behalf that she required his assistance.
…
353. I am satisfied that the wife is presently unable to support herself adequately and that she has overcome the first condition of the threshold question. The wife does not have the capacity to meet from her own resources including her capacity for appropriate gainful employment what I consider to be her reasonable needs.
354. I am also satisfied that the husband has the capacity to pay what the wife is seeking namely $3,154 per week or the amount of $4,000,000.”
Shortly after, in the following final paragraphs, which were those upon which argument focussed, his Honour considered whether a lump sum ought be ordered and, if so, its amount:
“367. The reasons why it is proper to make an award of a lump sum include the husband’s demonstrated refusal to comply with orders; his absence from the country after November 2001 and failure to return despite claims to the contrary; his disposal after commencement of these proceedings of the only known assets in this country directly in his name and his willingness to litigate the financial imbalance between himself and the wife. There are other and perhaps more important reasons.
368. If the amount of $3,154 was capitalised over a period of 12 months then the annual amount is $164,008 and over a period of 10 years is $1,640,080. There are obvious issues with this exercise and I simply do it to demonstrate that the amount has to be significant. There are issues such as investment income, costs of living increases, incidence of tax and so on. However, there is a more fundamental issue namely the amount which I propose to award is not simply the capitalisation of a periodic sum. I am not endeavouring to capitalise a future income stream. I am going to make an order that I think is proper having regard to the matters in s 75(2).
369. The wife should receive an amount that will enable her to support herself without any reliance whatsoever on the husband; that does not rely on compliance by the husband, that is not dependent on the future vicissitudes of either party, that will enable the wife to acquire unencumbered accommodation, that will enable her to meet her living expenses; that will enable her to make capital expenditure from time to time such as acquiring a motor vehicle; that will provide her with security for her future and that gives appropriate recognition to all relevant statutory considerations including and importantly the matters in s 75(2)(j). For example, the wife sold her home in 2004 for $972,000 and she will probably have to spend perhaps $1m to acquire suitable accommodation excluding costs. The order I propose to make will provide for payment of a discretionary amount which in my view is proper.
370. I am going to make an order that the husband pay to the wife an amount of $3,750,000 as lump sum spouse maintenance.
371. It is apposite to consider that the trial Judge said in Vautin (quoted by the Full Court at paragraph 18 on p 85,420):
……..It would be reasonable for the mother of Mr. Vautin’s children, the former wife of Mr. Vautin, to live at a standard of living that is somehow reflective of the vast wealth that has come to Mr. Vautin’s hands since the marriage broke down but during a time when the ongoing effects of the marriage, that is, having to raise the children, were continuing to take their toll on the wife’s capacity to economically re-establish herself.”
The alleged inadequacy of reasons was in respect of both the explanation for the decision to award a lump sum rather than periodic maintenance, and in respect of the assessment of $3,750,000.

as to the form of payment, namely a lump sum

The challenge to the adequacy of the reasons for the decision to award a lump sum focuses on paragraph 367 above. While for the husband it is acknowledged that, in the first sentence of the paragraph a number of reasons for payment as a lump sum are referred to, it is argued that the last sentence of the paragraph tells us that they are not the important reasons, but that there are “other and perhaps more important reasons” (emphasis added). Senior counsel then argued that, given that there are only a few more paragraphs in the judgment, which relate to spousal maintenance, we are not there told, and therefore not told at all, what those more important reasons are.
This is simply an issue of interpretation.
In our view, on the reading of paragraphs 367 to 369 inclusive, it is clear that his Honour concluded that a lump sum was the appropriate form of order not only for the reasons referred to in paragraph 367 but also because he considered that he was obliged to make an order which was “proper”. The content of paragraph 369 goes particularly to the question of what would be a “proper” order. We regard the factors listed in paragraph 369 as going both to the form of order and its quantum.
Moreover, we accept the submission of senior counsel for the wife that paragraphs 367 to 369 are by way of summary of what had gone before in O’Ryan J’s reasons.
As senior counsel for the wife submitted, particular findings in previous paragraphs underpinned the comprehensive terms used in these final paragraphs. He provided us with a “Schedule of references relevant to lump sum order”. About half of the passages nominated have already been set out in this judgment. These and the remaining passages relate to:
•the conduct of the husband constituting non-compliance with consent orders;
•uncooperative behaviour in respect of the proceedings;
•failures to make full and frank disclosure;
•transactions such as the transfer of his interest in the “[D] mansion” to his present wife for nominal consideration;
•unfulfilled promises made from time to time by the husband to provide for the wife in particular ways (including lump sum payments);
•the husband’s wealth;
•the wife’s contributions to the husband’s financial circumstances (which grew substantially subsequent to the property settlement orders, but from a basis that was developed during cohabitation); and
•the generous levels of support provided by the husband after separation and divorce, followed by the severance of support upon the wife’s institution of proceedings.
O’Ryan J had a discretion to choose the form of maintenance, as was recognised in Vautin v Vautin (1998) FLC 92-827 at 85,423-85,424 by Fogarty and Burton JJ:
“42. Maintenance is a term of wide meaning directed to various forms of provision for the support of a spouse or child.…In making the order which is appropriate in that context, the Court may make a periodic order or lump sum order or a combination of both and/or make any other orders of the kind referred to in s 80(1).
43. … in the exercise of the power to order lump sum maintenance…. …It may be ordered, amongst other reasons, to meet non-periodic expenditure for the maintenance of that person where there is an established need and a capacity to pay. It is not confined to cases of the capitalisation of periodic maintenance and/or where periodic maintenance is unlikely to be paid because of concerns about the capacity or willingness of the liable parent to pay (as passages in the judgment in Clauson and Clauson (1995) FLC ¶ 92-595 at pp. 81,907 and 81,908 may suggest) or to cases where the need for or the capacity to pay periodic maintenance is demonstrated.”
In Bennett and Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397, the Full Court (Nicholson CJ, Simpson and Finn JJ) reviewed the authorities relating to the adequacy of reasons for judgment and described as ‘‘particularly useful” a test propounded by Gray J of the Supreme Court of Victoria in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18, where the learned Judge said:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.”
In our view, O’Ryan J’s reasons for adopting a lump sum are clear. In essence, they were as summarised in paragraph 367 together with, as O’Ryan J perceived it, the “proper” purpose of awarding the wife a sum not only sufficient in amount to “enable her to support herself without any reliance whatsoever on the husband…” (paragraph 369), but more importantly, in a form to achieve that purpose, namely a lump sum.

as to the assessment of $3,750,000

In the opening sentence of paragraph 368, where O’Ryan J performed a rudimentary capitalisation exercise, his Honour referred to the wife’s needs at a sum of $3,154 per week or $164,008 per annum. We note that, by comparison with previous paragraphs of his Honour’s reasons, the weekly sum chosen was a figure at the very upper end of the wife’s “net” needs as assessed by the trial Judge (paragraph 317). Firstly, as noted in paragraph 318, if the wife had unencumbered accommodation, her commitments would reduce to $131,248 per annum. Moreover, as his Honour assessed in paragraphs 348 and 349, the wife, after her own income was taken into account, had needs of $105,352 per annum.
As to that last mentioned figure, during his submissions, senior counsel for the wife argued that the evidence before the trial Judge indicated that by trial the wife had reduced income from capital invested and that accordingly her ability to meet her own expenses from her own income was reduced and that the figure of $105,352 should be about $115,000.
Whether or not that adjustment is made, in light of the much higher figures to which O’Ryan J referred (which included a rental component), we are quite uncertain about what his Honour’s reference in paragraph 368 to the example of capitalisation was meant to convey, particularly in light of his statement in paragraph 369 that he considered the wife should have a sum that enabled her to acquire unencumbered accommodation. Further, his Honour himself noted that there were issues with the bare capitalisation exercise that he had done. Even further, he said that in any event, he was not simply endeavouring to capitalise a future income stream. Yet putting the wife in a position where she could meet her living expenses was one of the objects stated in paragraph 369. Ultimately, it is unclear whether any part of the sum awarded includes a sum arrived at by a capitalisation process.
A capitalisation of the wife’s net annual needs for a term of years (selected with regard to joint life expectancy and the exigencies of life) is a relatively straightforward exercise. In the absence of that exercise, we do not know, nor does the husband know, or for that matter the wife, for how long the learned trial Judge thought it appropriate the husband maintain the wife, albeit by one lump sum payment.
Particularity of the lump sum in other respects is provided to some extent, in that O’Ryan J indicated that a proper need of the wife was ownership of a home at approximately $1,000,000, although his Honour couches that indication only in terms of an example, rather than a finding. In this regard, senior counsel for the husband submitted that, in providing a sum (albeit not as a specific finding) for a home, O’Ryan J was effectively compensating the wife for expenditure on legal fees, which as earlier noted was one of the factors which the wife said had forced her to sell the home. In so far as costs issues remain outstanding and those issues relate to legal costs to which the wife referred, there is validity in this point.
While O’Ryan J estimated a cost for housing for the wife, there are no other assessments even indicated for the other factors referred to by O’Ryan J in paragraph 369.
Senior counsel for the husband also submitted that when the trial Judge concluded that the wife should receive an amount that was not dependent on the future vicissitudes of either party, he effectively buffered the wife against adverse vicissitudes, whether for herself or for the husband, but unfairly took no account in the husband’s favour of vicissitudes disadvantageous to him.
We accept that when a trial Judge assesses capitalisation of a periodic sum it is common and generally proper to take account of vicissitudes that might “cut” either way. That course is simply a reflection of what Fogarty and Burton JJ observed in Vautin:
“…that in the exercise of the power to order lump sum maintenance caution is usually appropriate because of the apparent finality of lump sum orders and the difficulties in making predictions into the future.…”
However, given that the husband already had the capacity to pay the lump sum, probably the only vicissitude which might have affected the assessment would be the prospect of a massive loss of fortune for the husband. That might have been thought of as so unlikely to occur, at least to the degree where the contemplated award to the wife would be inappropriate, as to be effectively ignored. Nonetheless, while we think that the range of vicissitude in this case is certainly less than in many other cases where a capitalisation exercise is carried out, we conclude that the failure of O’Ryan J to disclose in his assessment process any consideration of prospective disadvantage to the husband constitutes at least a failure of reasons.
Senior counsel for the husband further argued that no discount had been given for interest likely to be received on the lump sum. In so far as some component of the lump sum must provide for the future day to day living expenses of the wife, and therefore is payment in advance, the point again has some validity.
Against these arguments, senior counsel for the wife contrasted this exceptional case with the vast majority of spousal maintenance cases, in which, whether periodic maintenance or a capitalisation of a periodic amount was sought, there was a mathematical assessment of the needs of the applicant and, where, as it usually is, capacity to pay was in issue, there was calculation of that capacity with a similar mathematical approach.
He argues that here, because not only was there admitted capacity to pay but also enormous wealth, two matters in particular, both not readily capable of mathematical precision, took on special significance. They were the standard of living which the wife might expect and her contributions to the present financial position of the husband.
Moreover, he argued that the focus of the trial Judge in this case was not so much on meeting adequate needs, even if assessed generously, but on a “proper” award, to achieve the purposes he set out in paragraph 369. Though senior counsel for the wife did not put it this way, we took him to be saying, in short, that an award based on the broad concept of what was “proper” required only a broad explanation.
As earlier stated, we acknowledge that the adequacy or inadequacy of reasons is very much related to the nature of the judicial exercise to be explained.
Moreover, in the same vein as were his earlier submissions relating to the choice of a lump sum over periodic support, senior counsel for the wife submitted that the general calculations and identification of factors in paragraphs 368 and 369 in O’Ryan J’s reasons were underpinned by earlier paragraphs of greater particularity.
Again, a number of these paragraphs have already been set out or summarised earlier in these reasons. However, senior counsel for the wife referred to further aspects of O’Ryan J’s findings. We summarise his references (both as already set out and as further nominated) as highlighting:
•the level of support which the husband provided for the wife right up until the institution of proceedings in 2002;
•the wife’s post-separation contributions, which included the wife making the home, purchased for her after the property settlement orders, available as security for a borrowing by the husband;
•that the wife was secretary of one of the husband’s companies and a director and shareholder;
•that she executed a mortgage as a shareholder and director of other companies, “B Investments” Pty Ltd and “C Pty Ltd”, on two occasions;
•that she attended to home-maker duties, including cooking meals for the family including the husband, washing and ironing his clothes and attending business functions as well as personal and family functions with the husband’s family and his children; and
•the vicissitudes of the wife’s employment.
As to the weight that the trial Judge put on some of these factors, senior counsel also referred us to the following passages (part of which has been earlier quoted):
“339. …if the threshold question is resolved in her favour her significant contributions should be recognised when deciding what is a proper order to make.
…
341. The wife devoted herself to the interests of the parties and the child during their relationship and this continued after the parties finally separated in 1995. In fact the efforts of the wife continued until the child ceased to live with the wife. The opportunities for the wife have undoubtedly been affected by the role she played and the contribution she made while the husband was free to build up enormous wealth which he may not have had the opportunity or time to achieve were it not for what the wife was doing.…The wife’s earning potential has been significantly affected by the duration of the marriage.”
Further, senior counsel for the wife referred us to O’Ryan J’s quote of part of the reasons of the trial Judge in Vautin (also set out earlier) as follows:
“It would be reasonable for the mother of Mr Vautin’s children, the former wife of Mr Vautin, to live at a standard of living that is somehow reflective of the vast wealth that has come to Mr Vautin’s hands since the marriage broke down but during a time when the ongoing effects of the marriage, that is, having to raise the children, were continuing to take their toll on the wife’s capacity to economically re-establish herself.”
We make the following comments about these submissions by senior counsel for the wife:

While the wife’s contributions relevant to s 75(2)(j) are listed in O’Ryan J’s reasons, it is difficult to know to what extent they contributed to the husband’s wealth.
In so far as home-maker contributions following the parties’ property settlement are concerned, to the extent that such contributions included contributions as a parent, such contributions are normally taken into account when reaching settlement pursuant to s 79, albeit they are then prospective.

While no doubt all of the findings referred to were matters of which O’Ryan J could properly take account in reaching a decision, none assist to explain why the award was $3,750,000, rather than any other significant sum.

Nonetheless, the argument may remain that the discretion under s 74 as to what is “proper” is so broad that no greater particularity than that provided by O’Ryan J was necessary.
The word “proper” in s 74 has been considered in a number of cases.
In Wilson and Wilson (1989) FLC 92-033 Kay J said (at 77,448):
“In my view in the context in which ‘proper’ is used within the meaning of sec. 74, the appropriate meaning of the word as outlined by the Shorter Oxford English Dictionary is ‘fit, apt, suitable; fitting, befitting; appropriate to the circumstances; right’ or as defined in the The Macquarie Dictionary: ‘adapted or appropriate to the purpose or circumstances; fit; suitable’.
“The question thus becomes whether the order made by the learned trial Judge in the exercise of his generous discretion was ‘appropriate to the circumstances’.” (emphasis added)
While Nygh J, in a separate judgment, agreed in part with Kay J’s comments, his Honour gave a slightly different interpretation of “proper”:
“Section 74 empowers the court to ‘make such order as it considers proper’. I agree with Kay J. that ‘proper’ in this context means ‘appropriate to the circumstances’, but I cannot accept his proposition that the question is whether the trial Judge made an order which was ‘appropriate to the circumstances’. This ignores the words ‘as it considers proper’ which indicates that it is primarily a matter for the trial Judge to determine what is appropriate to the circumstances. It is not to be measured against an ideal objective standard.” (at 77,454)
We think the debate there was more illusory than real, both Kay J and Nygh J agreeing that “proper” meant “appropriate to the circumstances” and both acknowledging that the trial Judge has a “generous” discretion, (“primarily a matter for the trial Judge”, as expressed by Nygh J). However, Nygh J apparently inferred that the question of a departure from the parameters of discretion was regarded by Kay J as one to be measured “against an ideal objective standard”. Whether or not that was truly the debate there, we do not regard it as the question here. Rather, the question is whether, in determining what is “proper”, the Court’s consideration is directed or circumscribed in any way.
In this regard, we find the discussion of the term “just cause” used in respect of applications for discharge of a maintenance order in cases such as Lutzke and Lutzke (1979) FLC 90-714 and Vakil v Vakil (1997) FLC 92-743 of assistance.
Lindenmayer J said in Lutzke:
“…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 sec. 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)
After a lengthy review of authority, the Court in Vakil (see p 84,021) approved what Lindenmayer J said in Lutzke.
Similarly, we think that what is meant by “proper” in s 74 is circumscribed by the provisions of the Act relating to maintenance.
Adequacy is the key concept in determining whether the threshold set by s 72 has been crossed. But that concept is not left behind once the step into the s 74 enquiry as to what is “proper” is taken. Though application of the factors set out in s 75(2) may, in a given case, lead to a generous interpretation of needs that are “adequate” and of what is “proper”, the nexus between “adequate” and “proper” must remain. As Asche J said in Robinson and Willis (1982) FLC 91-215:
“An order which is either insufficient or excessive in the circumstances is not “proper”.”
Returning to the issue of the sufficiency of O’Ryan J’s reasons and, in particular, the demonstration of a connection between the award and the annual needs of the wife as assessed, we contrast the extent of reasons necessary to explain the choice of a lump sum over periodic payments on the one hand and the assessment of the lump sum award on the other.
The choice of the form of maintenance here involved the identification and “weighting” of factors militating against or favouring one form or the other. Weight could only be expressed in qualitative terms, such as “important” or “serious”.
In contrast, in the calculation of a specific sum, the opportunity was available to disclose the weight given to relevant factors in a quantative manner by the attribution of a monetary amount. A failure to do so is likely to make demonstration of the nexus between the award and “adequacy” or “appropriate in the circumstances” more difficult to identify.
As a starting point for calculations, this was a case in which the wife had received a property settlement and as the trial Judge assessed in paragraph 310 of his judgment, based on her statement of financial circumstances, retained net assets of around $700,000. However, we have in mind the copy of the exhibit “AK”, handed up by senior counsel for the wife at trial, showing a reduction in cash deposits since the wife filed her statement of about $320,000. This would have reduced her assets to about $380,000.
Nevertheless, the factors identified by the trial Judge support a substantial award to the wife. But the parties, especially the payee, ought know why a particular sum was chosen. Moreover, the range is not “at large” but is to be arrived at having regard to the terms of s 72, 74 and 75.
In the end we consider that we are unable to ascertain why his Honour arrived at $3,750,000, rather than a wide range of other significant figures and accordingly we consider that the reasons are inadequate.
Senior counsel for the husband made further submissions with regard to the adequacy of O’Ryan J’s reasons, directed to the relevance of certain findings. In his written submissions, he argued:
“The consequence from the apparent absence of any role played by the findings as to the wife’s weekly requirements is that it is not clear what effect, if any a range of other findings made by his Honour had on the ultimate outcome, in particular there are a number of findings which it is submitted were not relevant to the exercise required to be carried out by the court having regard to the provisions of sections 72 and 74 of the Act, all which it is submitted were incorrect either in fact or principle. To the extent any such finding played any part in his Honour’s conclusion, each contributed to the miscarriage of his Honour’s discretion. We deal with the particular matters seriatim:
(a)     the finding at Judgment para 105 (AB1/30) as to cohabitation of the parties after May 1992. The court found against the husband on the facts of this issue, but the role which that finding played is opaque. This is not one of the reasons referred to in para 367 of the Judgment (AB1/74) for the lump sum award. There are also no reasons for the rejection of the evidence of the husband’s sister, [Mrs BR] or his son [BE] on the issue (Judgement para 94 AB1/27);
(b)     the findings concerning the husband’s lack of disclosure about his respective relationships with [Mrs BR] and his present wife (Judgment para 33 AB1/16; para 53 AB1/21; para 66 AB1/23; para 73 AB1/24; para 102 AB29; para 109 AB1/30;). This is also not one of the reasons for the award referred to in para 367 of the Judgment;
(c)     the various findings critical of the husband’s failure to provide relevant financial information when it was conceded from the outset that there was no issue about the capacity of the husband to meet any proper order the Court may make (Judgment para 15 AB1/11; para 252 AB1/54; para 257 AB1`/55; para 320 AB1/66; para 322 AB1/67); this failure is not one of the reasons referred to in paragraph 367 of the Judgment (AB1/74) why his Honour found it proper to make an award of a lump sum.
(d)     the finding concerning the husband’s failure to attend court (Judgment para 16 AB1/11). As a fact, the husband attended Court in December 2004 and evidence will be sought to be adduced of this fact at the hearing;
(e)     the finding that the wife has a responsibility to provide support for her parents in that they occupy her unit (Judgment para 325 AB1/67);
(f)      the finding that the husband’s present wife probably has a substantial income and substantial assets (Judgment para 343 AB1/70);
(g)     the finding that the wife has a very strong moral claims for maintenance (Judgment para 339);
(h)     that there were agreements reached between the parties in the past.”
We think some of these criticisms tend to be “pernickety”. The significance of cohabitation of the parties after May 1992 was made obvious in the discussion of the contributions that the wife made after that time to the husband’s success. The failure of the husband to provide relevant financial information as required was a failure of a similar nature to that specifically referred to by O’Ryan J as a reason for making an order by way of lump sum, namely “the husband’s demonstrated refusal to comply with orders” (paragraph 367 of the judgment).
We will discuss the complaint that his Honour did not record an attendance by the husband on 21 December 2004 (that is, after the last day of hearing of the issues under appeal, but long before delivery of his Honour’s reasons of 5 December 2005) when addressing grounds 9(b) and 10(c) but in short, we see no merit in it.
However, other findings by O’Ryan J do seem unconnected with relevant factors. We refer to such findings as the husband’s lack of disclosure about relationships with a [Mrs BR] and the husband’s present wife and the opinion that the wife has a very strong moral claim for maintenance. However, while the presence of such findings detracts from the clarity of the path that the trial Judge took to the ultimate conclusion, save as discussed shortly in relation to remaining grounds, we do not think that any of the points raised in the passages quoted from senior counsel for the husband’s submissions really adds to his arguments about the adequacy of reasons.
We think that the preceding discussion deals with grounds 4, 6 and 8(d), which were as follows:
“4.    His Honour erred in failing sufficiently to disclose the court’s reasoning behind the calculation and determination of the figure of $3,750,000.
…
6.     His Honour erred in failing to:-
a)apply a capitalisation rate;
b)determine a rate of maintenance which made appropriate allowance for the likely changes in the needs and capacity of the wife and the capacity of the husband to pay over time;
c)determine a period of time over which the husband was reasonably liable to maintain the wife;
d)apply a discount rate for immediate payment.
in determining the figure of $3,750,000.
…
8.       His Honour erred in not placing sufficient weight or in placing insufficient weight upon the following fact:-
…
d)that the wife had the capacity for employment and was in fact employed.”

Remaining grounds

Ground 5
“5. His Honour fell into error in directing the husband to pay to the wife lump sum spouse maintenance in the sum of $3,750,000 in that the sum so ordered was unreasonable and his Honour’s discretion accordingly miscarried.”

A consequence of the inadequate explanation for the award is that we are not able, from the reasons given, to determine whether the award was manifestly unreasonable or not.
However, in our re-exercise of the discretion we have reached such a different figure to that determined by the trial Judge that we conclude the award of the trial Judge was manifestly unreasonable.
This is one of the circumstances in which an appeal against a discretionary judgment may succeed, as recognised by the High Court in House v The King (1936) 55 CLR 499 at 504-505, where Dixon, Evatt and McTiernan JJ said:
“…It may not appear how the primary judge has reached the result embodied in his orders, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Grounds 1 and 7

Ground 1 was:
“1. His Honour erred in ordering lump sum spouse maintenance in that:-
a)the proceedings pursuant to which the order was made (“the proceedings”) were not proceedings under Section 79 or 79A of the Family Law Act 1975;
b)a decree nisi dissolving the marriage between the parties had become absolute more than 12 months before the proceedings were commenced;
c)the proceedings were instituted without leave of the court pursuant to Section 44(3) of the Act, (such leave as had been granted to the wife pursuant to s 44(3) of the Act having been given with respect to spouse maintenance);
d)the order was in the premises impermissible.”
Ground 7 was:
“7. His Honour failed to give sufficient weight to the application of Section 81 of the Family Law Act where the parties’ property had been the subject of a consent order made on the 28^th January 1993.”
Senior counsel for the husband submitted that the award effectively was one that could only be made pursuant to s 79 of the Act. Taken literally, ground 7, and senior counsel for the husband’s submissions, are without merit given that the orders made in January 1993 were for property settlement only, and leave to proceed with a spousal maintenance claim had been granted, that decision based on the wife meeting the requirements in s 44(3). Moreover, as has been recognised many times, there is some overlap between the factors relevant to an exercise of the “property” powers and those pertinent to the use of the “maintenance” powers.
In Vautin (supra) the trial Judge had to deal with a similar situation and as the Full Court said of that:
“55. …This is not a property claim. It is a claim for additional maintenance in the form of a lump sum and is to be determined within the framework of ss 72, 74, 75(2) and 80, essentially need and capacity, but against the background of the 1990 orders.…”
However, senior counsel for the husband cast his arguments less literally, and more directed to the tenor of O’Ryan J’s reasons for the award, of which the following paragraphs are an example:
“46. It was submitted on behalf of the wife, which I accept, that the husband had a financial resource in the form of his earning capacity, contacts, opportunity and experience obtained in the media industry and the property investment market. (See background provided in Exhibits such as L, Q and X). It was submitted that this asset, undivided by the property settlement, was perhaps the most valuable commodity produced at that time.
…
140. I accept the submission on behalf of the wife that throughout this time the husband obviously had to meet a demanding professional schedule in both Australia and overseas and he did that with energy, discipline and enthusiasm. In doing so he apparently, in a short period of time, accumulated an exceptional fortune. I also accept that he did so at a time when he had a joint legal and moral responsibility to care, nurture and supervise a child who passed through his adolescent and teenage years. It was submitted, and I accept, that the husband’s opportunity to pursue his success and fortune was enhanced or contributed to by the wife in her fulfilling the major day to day caring responsibility for the child and thus relieving him of that obligation.”
The findings of the trial Judge in these paragraphs are of the type that one is used to seeing in reasons for orders altering property interests. Earning capacity is normally taken into account in proceedings for property settlement. So is the prospect of ongoing child care. We are unable to discern whether or not, in giving weight to the wife’s contributions post 1993, the trial Judge had regard to the extent to which the prior property settlement had addressed those factors, albeit then prospective in nature. These arguments validly support those already discussed, that more directly went to the inadequacy of reasons.
However, another related argument was that a lump sum should not have been ordered, given that s 79A proceedings were afoot. However, we see no reason why that should be so. Any proper award for maintenance now can be taken into account in any re-exercise of discretion under s 79 in s 79A proceedings.

ground 2(b)(ii)

This ground was:
“2. …
b)…
ii. the orders had the effect of meeting the wife’s costs and partially maintaining the wife’s parents for whose maintenance the husband had and has no obligation.”
We have already acknowledged validity in the point that, in so far as the award provided a replacement home for the wife, her former home having been sold in part to provide for legal costs, the award in effect inappropriately met those costs.
As to the award in effect providing partial maintenance of the wife’s parents, the pertinent findings of O’Ryan J were:
“45. In broad terms the property orders provided that the wife was to receive [the J Road property] which had a value of $350,000 or be paid $500,000. The wife was also to receive a property at [T Street].
…
47. In relation to the [T Street] unit the parties bought this apartment on the understanding that the wife’s parents would reside there. Prior to the parties’ separation the wife’s parents moved into the apartment and have continued to reside there. The wife’s parents do not pay any rent for occupation of the apartment as this was the position prior to the parties’ separation. The wife’s parents, however, have always paid the rates and strata levies. The wife was not cross-examined about what she said.
…
325. The wife does have the responsibility to provide support for her parents in that they occupy her unit.…”
The question of whether, in a spousal maintenance claim, account can be taken of a “responsibility” which falls short of a legal duty, has been authoritatively answered.
The relevant paragraph of the Act is s 75(2)(e), which provides that one of the matters to be taken into account is:
“(e) the responsibilities of either party to support any other person.”
The use of the word “responsibility” contrasts with the use of the words “duty to maintain”, as a matter for regard, in the preceding paragraph.
In Soblusky and Soblusky (1976) FLC 90-124 the Full Court said:
“Section 75(2)(e) requires the Court in exercising its powers in respect of maintenance to have regard to ‘the responsibilities of either party to support any other person’. This provision is couched in wide terms and ought to be given a broad interpretation…A Court is required under para. (e) to consider in a realistic way the fact that a party has assumed a responsibility to support another person, and the weight to be given to that fact depends upon the circumstances of each individual case…” (at 75-588 – 75-589) (emphasis added)
In Aroney and Aroney (1979) FLC 90-709 Nygh J said:
“But the evidence showed that the unit had been acquired with substantial financial help on the part of the mother and that, legal obligation apart, there was at least a strong moral obligation to provide the mother with rent free accommodation during the remainder of her life of which the Court can take account under sec. 75(2)(e).” (at 78,784) (emphasis added)

Therefore, it is not clear to us whether the injunctions granted on 22 and continued on 23 December 2005 were made while the Court was exercising jurisdiction in the enforcement proceedings to which O’Ryan J referred, though senior counsel for the husband submitted they were not.
Even if senior counsel for the husband is correct, as is apparent, the husband did not appeal the orders of 22 and 23 December 2005. Then the impact of the restraints was effectively altered by the orders of 14 February 2006, because those orders provided that the restraints would be discharged once the husband met the terms of the stay of the orders of 5 December 2005 by, among other things, providing security for the payment of the lump sum spousal maintenance.
Senior counsel for the husband did not suggest that a requirement for security could not be made as a condition of a stay.
As to the temporal effects of the restraints, senior counsel for the wife argued that, as a result of the husband’s concession at trial that he could meet any spousal maintenance order made, it was difficult for the husband to argue that the restraints imposed need be other than short-term. This argument has much force.
Of course, we are not dealing with these arguments on appeal. The aforegoing observations are as to the merits of the arguments on the proposed appeal, in the context of the principles applicable to applications for leave to appeal. Of these principles, the Full Court in M & M [2004] FamCA 634 (Kay, Holden and Warnick JJ) said:
“50. It is often said in reliance on decisions of the Full Court of this Court in cases such as Rutherford & Rutherford (1991) FLC 92-255 and Emamy & Marino (1994) FLC 92-487 and upon the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc. (1991) 148 CLR 170, particularly at 177, that applicants for leave to appeal must demonstrate that there had been an error of principle and/or a substantial injustice.
51.    Commonly, such discussion as there is about this statement of principle revolves around whether the two factors referred to must both exist or whether the existence of only one is required for a successful application.
52.    In our view however, it is important not to overlook that when discussing the applicable principles their Honour’s Gibbs CJ, Aickin, Wilson and Brennan JJ said in the Philip Morris case (at 177):
“…For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of difference cases are infinitely various.”
53.    In Rutherford & Rutherford, after discussing whether the two factors referred to above were to be taken conjunctively or disjunctively, the Court also said:
“In the view we have taken it is not necessary to resolve that particular issue. Like their Honour’s in the High Court we ‘believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria.”
54.    On another aspect, in Emamy & Marino (supra) and more recent cases such as Hendy v. Deputy Child Support Registrar (2001) 27 FamLR 641 there has been discussion about the distinction between applications for leave to appeal orders dealing with matters of practice and procedure and those in which the orders concerned dealt with matters of greater substance and the difference that this distinction made to the principles applicable.”
In the instant case, we regard the restraints on the husband’s freedom of movement as of a substantive nature. Nonetheless, that does not mean that, even if an error in principle has been made, leave to appeal should be granted. In any event, we are not convinced that any error of principle was made in respect of the orders of 22 and 23 December 2005 and 14 February 2006.
Moreover, the position for the husband is made doubly difficult, for we are considering the prospects of the proposed appeal in the context of a request for extension of time, a context as to which senior counsel for the wife referred us to what was said by the Full Court in Coombs and More (1990) FLC 92-175 at 78,189:
“The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not succeed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.”
Other authorities including the decision of the High Court in Gallo and Dawson (1990) 93 ALR 479 and those of the Full Court of this Court in Tormsen (1993) FLC 92-392 and Joshua (1997) FLC 92-767 have couched the question about appeal prospects posed for the court considering an extension of time as:
“…the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal, If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise; and the desirability, in the public interest, that there be finality to litigation…”
In further opposition to the application for extension of time, senior counsel for the wife argued that the husband had not put on evidence or made submissions to ground any favourable exercise of the discretion to extend time.
We accept the force of senior counsel for the wife’s submissions in these regards and reject the applications for extensions of time within which applications for leave to appeal the orders of 22 and 23 December 2005 and 14 February 2006 may be brought.
As to the application for leave to appeal the orders of 17 March 2006, in the application of the husband that led to those orders, he sought that Orders 1, 2 and 3 of the orders made 22 December 2005 and confirmed on 23 December 2005, be discharged upon terms. The first of these was that he provide security, pending the hearing of the appeal against the orders made 5 December 2005, by way of a mortgage to secure the wife’s entitlements under the orders. There was also a proposal for further security if the Court saw fit to require it. He also sought that the orders of 5 December 2005 be stayed, again on proposals that the husband pay $1,000 per week to the wife as maintenance and upon the offer of security earlier outlined. Finally, he proposed that the orders made 22 December 2005 be continued only upon a broadened undertaking by the wife.
In his reasons for the dismissal of the husband’s application, O’Ryan J:
• identified the husband’s application to be brought “because he contends that he has to travel to Europe on business and has a meeting on 20 March 2006”;
• said that “[t]he only evidence relied upon by the husband since 14 February 2006 is his evidence of the need to travel to Cyprus and Greece and some evidence about his current financial circumstances”;
• found that the husband “…made it very clear what his attitude is towards the wife and that she should receive nothing. He admitted that he only recently met his obligations under an order he was in breach of because he knew that if he did not comply with the order then he may not be able to travel overseas…”;
• identified doubts about the feasibility of the husband’s proposal to provide security by way of mortgage; and
• concluded as follows:
“67. I have already found that the Husband should provide security for the payment of the amount of $3,750,000 in the event that his appeal does not succeed. I remain of this opinion and in fact, as I have said, the further evidence of the Husband only corroborates the need for security. Part of the security is that the Husband be restrained from leaving Australia. Once the Husband provides the security then he can leave Australia.
68. I am also not satisfied that he is unable to provide the security and therefore see no reason for a variation of the orders already made.”
We regard as highly relevant to whether leave to appeal the orders of 17 March 2006 should be granted that:
• the husband’s application essentially was to vary previous orders, which he had not sought to appeal;
• his application was brought for a specific purpose, now overtaken by the passage of time; and
• no error beyond that asserted also in respect of the earlier orders, is asserted in relation to the 17 March 2006 order.
However, in his written submissions, senior counsel for the husband argued:
PRESENT APPEAL:
(a)It is submitted that the position in the instant case is capable of being reduced to the following proposition…
(a)     the Appellant has not provided the security and, as such, does not have the benefit of a stay;
(b)     the nature of the business activities in which the Appellant is involved and to which the Respondent must ultimately look to satisfy any Order require extensive overseas travel by the Appellant;
(c)      there is no evidence capable of establishing the Appellant will absent himself from the jurisdiction to avoid the consequences of any Orders ultimately made;
(d)     the continued restraint of the Appellant affords the Respondent no more security than she has by virtue of the Order already made;
(b)all of the entities and property that might be the subject of enforcement are located within Australia subject only to what O’Ryan recorded in his judgment of 14 February 2006 as “the Wife contended that the Husband may have a direct or indirect interest in or control of a third party that received the success fee and that such party or entity is likely to be resident outside the jurisdiction of the Commonwealth of Australia”.…
…
19.     The only matter to which His Honour made specific reference is to be found at paragraph 129 when His Honour recorded his acceptance of the Respondent’s concern “whether the Husband would participate in proceedings before this Court, given amongst other things his overseas interests and comply with its order.”
20.     Restriction on the Appellant’s travel does not assure participation in proceedings nor does it compel, compliance with Orders for the payment of a monetary sum. It is to be contrasted with an Order restraining the movement of property or the like.
21.     In His Honour’s subsequent judgment of 20 March 2006 he re-stated his finding that he did not accept that the Appellant could not provide the security.
22.     His Honour further concluded in that judgment that The [G Trust] was the ultimate beneficial owner of all of the relevant companies.
23.     His Honour did not deal with the evidence which was before him regarding the encumbrances restricting the ability of any of the entities to provide the security.
24.     The basis of His Honour’s judgment therefore remained the same excepting to the extent that he observed in paragraph 67 that the further evidence of the Appellant corroborated the need for security.
25.     His Honour did not identify what evidence he referred to. Other than for evincing an intention to resist the Respondent’s claim, a fair reading of that evidence does not support his Honour’s conclusion. An intention to vigorously resist the claims being made does not establish a need for the provision of security.
26.     The Order complained of is in substance a restriction on the liberty of the Appellant.”
At the hearing before us senior counsel for the husband added to these arguments:
•that as the injunction ultimately became a condition of a stay it could not be said to have been granted in aid of enforcement;
•there being no other enforcement procedure, the restraints offended principle; and
•that the lack of utility of the restraints was demonstrated by the fact that the lump sum had not been paid.
We have already addressed some of these contentions. As to those that remain, for the husband to fail to comply with an order which he admitted he had the capacity to pay and then to point to that failure as demonstrative of the lack of utility of an order in the nature of enforcement, carries little weight.
We see no difficulty with a condition which is in the nature of enforcement of a court order being placed upon a stay.
The other elements of complaint about this order are in the nature of arguments that insufficient weight was given to some factor or too much to others, or that some contentions for the husband were not addressed. Such complaints are not of themselves compelling matters on an application for leave to appeal.
In his written outline, senior counsel for the wife submitted:
“1.10The timing of, process whereby, and the terms of the indulgence obtained by the husband as to the stay of the substantive orders all rested with the husband. The application to vary such terms was made on his direction. Substantial unfairness is occasioned upon the wife in now permitting the husband to be granted leave to attempt to change/ re write the conditions of the contest. Such challenge only now occurs because the husband was unsuccessful when participating under the original conditions. Simply, the husband elected to abide by the determination of O’Ryan J of the 14^th February 2006.….”
…
2.3    His Honour in reaching a conclusion properly identifies the matters relevant to the exercise of discretion in ordering a stay on conditions, including:
iThe husband’s belated compliance with a Cost Order concerning the leave proceedings made on 12^th May 2005 requiring payment by 6^th September 2005 (and in fact paid on 10^th February 2006).
ii.The failure to pay maintenance ordered in the substantive judgment by 19^th December 2005.
iiiThe grounds of the husband’s substantive appeal.
ivThe bona fides of the husband.
vThe likely hearing date of the appeal.
viWhether a successful appeal would be rendered nugatory.
viiThe provision of security which “the husband cannot complain about such conditions, given that he is not being asked to pay the amount to the wife, but simply to secure the payment.
viiiThe husband’s failure to comply with numerous Orders of the Court and the manner in which he has conducted the litigation, causing considerable cost and expense to the wife. This is including the husband stating he would do certain things on his return to Australia but failing to undertake those things that he said he would do.
ixThe failure of the husband to provide any satisfactory evidence of his updated financial circumstances. This caused further disquiet with O’Ryan J and corroboration for a submission that the husband failed to make a full and frank disclosure of his financial circumstances and his continuing failure to do so.
x.The husband’s contentions as to his travel to and from Australia subsequent to the substantive hearing concluded in early December 2004 and until the substantive judgment in 2005, his bail conditions in relation to the criminal proceedings, the nature of his “overseas interest” and his compliance with prior Orders.
His Honour quite properly discharged his discretion in making Orders that “preserved the rights of both parties even handedly until the appeal has been heard”.”
2.4    …
2.5    …
2.6    The application of the husband determined on 14^th February 2005 specifically identified a requirement for the husband to travel to Greece and Cyprus “next week” and potentially, to Fiji (AB2/230-231). The application of the husband determined on 20^th March 2006 related to a requirement to travel on an urgent basis to Cyprus and Croatia. (AB1/102-103).
2.7    …
2.8    It is submitted that the present applications for leave to appeal are inappropriate. That is if leave were granted, the appeals would be focussed upon a future exercise of discretion by a trial judge by reference to issues which are no longer “live”. The enquiry is at best, hypothetical. It is contended that the husband may attempt to pre-empt any further exercise of discretion by reference to any determination made in this appeal. It is both undesirable and unnecessary to give decisions in relation to matters, which, at the time the decision is made, determines moot issues. Such “advisory opinions” are notoriously unsafe and should be avoided.
2.9    At the present time, any requisite injustice, substantial or otherwise, has therefore passed.”
It will be apparent from what we have said that we accept the force of these submissions.
In our view, having regard also to what we earlier said of the principles applicable to applications for leave to appeal, the application of the husband ought be refused.

Resulting orders

The first application to adduce further evidence is refused. The appeal against the lump sum maintenance order will be allowed, and the relevant order amended as a result of the re-exercise of our discretion. The appeal against the child maintenance order will be dismissed.
Both parties agreed that, if in the re-exercise of discretion we arrived at a lesser lump sum for spousal maintenance, we could substitute that sum in the 14 February 2006 orders, if the challenge to that order was rejected.
The applications for extensions of time to seek leave to appeal the orders of 22 and 23 December 2005 and 14 February 2006 will be refused as will the application for leave to appeal the orders of 17 March 2006.
On 13 November 2006 O’Ryan J made costs orders in respect of various of the proceedings referred to in these reasons (including the balance of costs of the wife’s application for leave pursuant to s 44(3) of the Act). The husband has appealed those orders (EA128 of 2006). The parties have agreed that we make directions for the hearing of that appeal by way of written submissions.

ORDERS

That the application to adduce further evidence filed 20 July 2006 be refused.
That the appeal against Order 1 of the orders of O’Ryan J made 5 December 2005 be allowed.
That Order 1 of the orders of 5 December 2005 be varied, by the deletion of the sum of “$3,750,000” and the insertion of the sum of “$2,250,000”.
That the appeal against Order 2 of the orders of 5 December 2005 be dismissed.
That, by consent, Order 1.4 of the orders of 14 February 2006 be varied, by the deletion of the sum $3,750,000 and the insertion of the sum $2,250,000.
That the application of the husband filed 26 April 2006 for an extension of time within which to file applications for leave to appeal the orders of O’Ryan J made 22 and 23 December 2005 and 14 February 2006, and the application filed 13 April 2006 for leave to appeal the order of O’Ryan J made 17 March 2006, be dismissed.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal and the applications referred to in order 6 by filing such submissions at the Sydney Registry of the Family Court and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Sydney Registry of the Family Court and serving them on the other party.
That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Sydney Registry of the Family Court and serving it on the other party within a further 7 days.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.
That within 21 days of the date hereof the husband file and serve written submissions in respect of appeal EA128 of 2006.
That the wife have a further 14 days from service in which to file and serve written submissions in answer.
That the husband have a further 7 days from service of the answer in which to file and serve submissions in reply.
That each party endorse on the cover sheet the date on which a copy of that submission was served on the other party.

I certify that the preceding 224
paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:

Associate

[2007] FamCA 151

5 March 2007