Brown & Brown

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT No. SYF 9777 of 1992

IN THE MATTER OF:	BROWN	Applicant Wife
AND	BROWN	Respondent Husband

REASONS FOR JUDGMENT

CORAM:	O’Ryan J
DATE OF HEARING:	30 November, 1, 2, 3 and 10 December 2004
DATE OF JUDGMENT:	5 December 2005

APPEARANCES:

Mr Richardson

Mr Campton

Of Senior Counsel and

Of Counsel (instructed by The Argyle Partnership, Solicitors, DX 876 Sydney) appeared on behalf of the Applicant Wife.

Mr Brereton

Mr Livingstone

Of Senior Counsel and

Of Counsel (instructed by Adrian Twigg & Co, Solicitors, DX 267 Sydney) appeared on behalf of the Respondent Husband.

Introduction

This is an exceptional case about spouse maintenance, child support and arrears of adult child maintenance. Ms Brown is seeking lump sum or periodic spouse maintenance, child support and adult child maintenance. Mr Brown opposes the relief sought by the wife. The proceedings were commenced by application filed on 9 April 2002. The facts of this case are unusual. They are also extensive.
The wife seeks that the husband pay $4,000,000 lump sum spouse maintenance. In the alternative the wife seeks that the husband pay periodic maintenance of $20,000 per calendar month as and from 1 May 2002 to be paid as to amounts accrued to date totalling $620,000 within 14 days and as to future periodic amounts the first payment within 7 days. The wife also seeks that the periodic spouse maintenance be varied in each year in accordance with the Consumer Price Index.
The husband contends that if an order for spouse maintenance is made then it should be for payment of a periodic amount of $1,000 per week.
In relation to child maintenance the wife sought pursuant to s 98(1) of the Child Support (Assessment) Act1989 (Cth) that a child support agreement entered into between the parties dated 8 December 1992 be varied so that the husband pay direct to the wife child support for the child of the marriage in the sum of $5,837 per month the first payment to be made as and from 15 April 2002 and monthly thereafter until the child attained the age of 18 years. During final submissions Senior Counsel for the wife filed a minute of orders in which was sought pursuant to s 115(c) and s 117(2) of the Assessment Act that there be a departure from administrative child support issued by the Child Support Agency for the periods 1 December 2001 until 28 February 2003 and 1 March 2003 until 1 June 2003 and in the alternative an order pursuant to s 66G Family Law Act 1975 (Cth) for the period 15 April 2002 until 2 June 2003.
The wife seeks that the husband pay arrears of adult child maintenance for the period from 3 June 2003 until July 2004 in the sum of $37,102.02.
By way of enforcement of the orders for maintenance the wife seeks that the husband’s present wife Ms B Brown be joined as a party and restrained by injunction from dealing with her interest in a property at Suburb C. Further, the wife seeks pursuant to s 106B Family Law Act that Ms B Brown transfer her interest in the property at Suburb C to the husband. The wife then seeks that the Suburb C 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.
Finally the wife seeks an order that the husband pay her costs of the proceedings on an indemnity basis.
There is pending an application by the wife pursuant to s 79A of the Family Law Act for variation of a property order. An order for property settlement was made on 28 January 1993.
The wife was born in Country B in 1951 and the husband was born in Country D in 1956. The parties commenced cohabitation in early 1982 and were married in 1984. They first separated in May 1992.
The wife contended that after May 1992 the parties reconciled and by January 1993 were living together as husband and wife. Then in May 1993 they separated for about 3 months. They reconciled in August 1993 and finally separated in August/September 1995.
A decree nisi dissolving the marriage was pronounced in late 1995 which became absolute a month after in. The date of separation identified in the application for divorce was May 1992.
The husband remarried in 1996. His current wife was born in Country B in 1957.
There is one child of the marriage Mr F born in 1985. The husband also has a child Mr G from a prior relationship.
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 that 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 that the cost 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 million.
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. As pointed out in the final submissions of Senior Counsel for the husband this had a number of consequences. 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. However, it was submitted that gaps in the wife’s case cannot be filled.
The proceedings have been on foot since April 2002 and there has been an extraordinary amount of litigation since that time. At no time has the husband ever attended at court. On 18 October 2004 I heard an application by the wife seeking a dismissal of all responses of the husband and that the applications of the wife be heard on an undefended basis. On 17 November 2004 I delivered judgment and dismissed the application. However, I did say:
82     In summary, there clearly is an issue about the financial circumstances of the husband and whether he has fulfilled his obligation of providing a comprehensive understanding of his financial position. The husband’s Senior Counsel conceded that there are difficulties in understanding the husband’s financial position from this statement. One example is in relation to the expenses that he claims are paid by H Pty Ltd. He contends that he and his present wife own 65% of this company and yet he does not know the amount that is paid by that company on his behalf.
…
158     In this case there has been a significant number of defaults by the husband dating back to 2002. The following are some examples. He did not comply with orders made on 30 July 2002. He did not comply with O 17 r 4 of the 1984 Rules. He did not comply with the notices to produce issued on 14 August 2002 and 4 November 2002. He did not comply with orders made on 18 November 2002. He did not comply with orders made on 14 February 2003. The wife had sought that the responses of the husband be dismissed but no order was made. There are other complaints made by the wife. Then the wife complains that the husband did not comply with orders I made on 4 June 2004 and 30 June 2004. I accept that the wife was entitled to bring the application that I am now dealing with. I am satisfied that the husband has failed to comply with obligations prescribed by the Rules and several court orders relating to discovery which has hampered the preparation of the wife’s case. This alone would justify granting relief to the wife.
159 However, this is a difficult case. The issues in this case, in my opinion, currently include whether the husband has sufficiently complied with orders made from time to time and his obligations pursuant to O 17 of the 1984 Rules and r 13.01 and in particular r 13.04 of the 2004 Rules. One of the significant issues in the maintenance proceedings and also the s 79A proceedings will be whether or not the husband has made a full and frank disclosure of his financial circumstances. That is an issue which at this stage I cannot resolve. However, it will be dealt with at the trial of the maintenance application in December 2004. As well, the wife will have the opportunity to cross-examine the husband in relation to the various issues which were addressed in correspondence between the parties’ lawyers that I have referred to in this judgment and which may be relevant to both the maintenance application and also the s 79A application.
160    I am of the view that in the circumstances of this case caution must be exercised in dealing with the wife’s application because the husband has raised excuses in relation to why during 2004 he had difficulties providing relevant information and documents to the wife and these excuses will be “tested” at the hearing of the maintenance application.
161    When attempting to comply with the orders the husband had J Company prepare the relevant financial statements however they said:
“We believe that K Company have defrauded our client, including a number of entities discussed in this document, of in excess of $2,000,000. Further, the media has reported that one of the principals of K Company, Mr L, has been charged in relation to a serious criminal offence. We therefore expect to continue to encounter significant difficulties in obtaining the required information from K Company to prepare the Financial Statements.”
162    The actions of the husband’s former accountant and the difficulties that has caused in gaining access to the relevant data and preparing financial statements lead me to the conclusion that I should not at this stage grant the relief sought by the wife. As well, there will shortly be a hearing at which a number of the relevant issues will be dealt with. This does not necessarily mean that the accountant’s fraud was the only reason for the husband’s non-compliance, or that the husband would otherwise have been fully co-operative with his discovery obligations, but in my view it is sufficient, at this stage, for the husband to avoid a dismissal of his responses.
163    I am of the view that the hearing of the maintenance application should proceed at which, as I have said, the wife can raise the relevant matters I have identified in the context of her contention that the husband has failed to make a full and frank disclosure of his financial circumstances.

Background Facts

In 1972 the wife obtained a Bachelor Degree with a major in finance from M College. In 1974, she completed an Associate Degree in Country B. In 1998, she undertook a course and attained a certificate .
Between 1978 until 1980 the wife worked as finance officer. Apart from this short period, she did not work in the finance field, save and except during the period the parties owned a business called N Business. During the 1980s and until end of December 1992, the wife worked with the husband in various businesses. The wife provided a curriculum vitae (Exhibit V).
After the parties were married they purchased a property at 1 P Street, Suburb Q. In or about 1985 they undertook renovations to the home at a cost of approximately $20,000. They lived in this property.
Shortly after the marriage the parties also purchased land at 2 P Street, Suburb Q. They ultimately sold this land in about 1991. The parties also acquired 3 P Street, Suburb Q and they removed the fences dividing the three properties. Each property was approximately a quarter acre. The husband’s parents and his sister and her husband lived at 3 P Street, while 2 P Street was a vacant land.
In addition the parties purchased six acres of land at Suburb R. They had architects draw plans for a home to be erected on the land, however, ultimately the husband changed his mind and they sold the land a few years later. They spent between $10,000 to $20,000 on the architectural plans.
The child was born in 1985. Throughout the marriage the wife was the primary carer of the child. After work the wife attended to the child’s needs. The wife gave detailed evidence of what she did.
During the marriage the husband left home for work between 6.00 a.m. to 6.30 a.m. He returned home from work between 7.00 p.m. to 11.00 p.m. On average once per month he returned home about midnight. The husband worked hard, and this gave him little time to participate in the child’s care. This continued until the parties separated in 1995.
On most weekends during the marriage the husband worked from home. He conducted meetings at home with his business executives. The wife arranged breakfast, lunch or dinner on those weekends as well as cared for the child. For a period of approximately four to six weeks, one of the business executives, Mr T, stayed at the parties’ home. During that period, the wife also made breakfast and dinner for Mr T. Mr T gave evidence on behalf of the wife and he was cross-examined. I have no doubt that during the relationship the wife was primarily responsible for the care of the child and all domestic tasks. As well she provided significant other forms of support to the husband.
Mr T met the husband in 1985 when he was employed by N Business as a Director. The husband was a franchisee of N Business. Shortly thereafter Mr T met the wife. The husband and Mr T became close friends and developed social relationships with their respective families. When the husband remarried in 1996 he invited Mr T to be the best man at the wedding in Country B.
There is evidence of the wife in relation to assets acquired during the marriage including real property and motor vehicles, boats and other personalty. It is not necessary to deal with all assets. However, in an application for finance dated 18 June 1999 (Exhibit L) to S Bank made on behalf of V Pty Ltd it was stated that the husband has been active in the information technology industry for the last 18 years. In the late 1970s he grew and developed a business called N Business eventually becoming a 50% owner. He later sold his equity to the American parent company at a substantial profit. Following the expiry of his non-compete clause he formed his information technology company and marketing company called V Pty Ltd which he continued to operate servicing selected larger corporate accounts with a particular focus information technology needs of industry. It was also stated that in the meantime he had built up an increasingly significant portfolio of well positioned properties located principally in the Suburb W area which are leased to major tenants on long leases. It was said that with tenants like X Company and Y Company his property holdings are targeted at the special needs of communications and technology orientated companies which tend to be strong international operators, invest heavily in building structure and commit to long leases.
Documents were produced by Z Ltd in relation to a mortgage secured on the title of AA Street, Suburb C (Exhibit AB). There is included in the documents a submission dated 16 December 2003. In this submission it was stated that the husband has been active in the information technology industry or 22 years and that in the late 1970’s he grew the N Business in Australia before selling it an American company for a handsome profit. Later he serviced large corporate clients with his information technology company called V Pty Ltd. It was also said that since then he built up a significant portfolio of well positioned properties located primarily in Suburb W with all major tenants on long leases. More recently the husband placed more emphasis on H Pty Ltd which it was said has a massive asset basis of media information technology. There is a corporate structure which indicates that the husband is a beneficial owner of all the issued capital of V Pty Ltd. Further, that he has 99.99 percent of the issued capital of Brown Holdings Pty Ltd as trustee for the Brown Family Trust. The Brown Family Trust in turn has an interest in Brown Investments Pty Ltd which owns a building at 1 BB Street, Suburb W. As well, the Brown Family Trust has 99.9 percent of the issued capital of CC Pty Ltd which has a building at 2 BB Street, Suburb W. It also indicates that the husband has an interest in H Pty Ltd which had broadcasting interests. It was also said that the guarantors have a net asset position in excess of $150,000,000.
The wife’s work at N Business was to do with sales, operations, some bookkeeping and managing the store. That was what the wife was doing when she met the husband. From the time the parties commenced their relationship until the wife ceased work in late 1992, she worked in the business which became a chain of N Business stores which were ultimately sold.
The parties also used various entities to hold assets and conduct business activities. On 29 June 1987 a discretionary trust called the DD Trust was established. The trustee was Brown Investments Pty Ltd. The husband and the wife were named as beneficiaries and the husband held the power of appointment of the trustee. The husband signed a statutory declaration on 20 December 1996 in which he said that as the sole director and shareholder of Brown Holdings Pty Ltd, the trustee of the DD Trust, that there have been no amendments to the trust deed. He attached a copy of the deed of settlement.
On 17 August 1984 the wife was appointed a director and secretary of Brown Holdings Pty Ltd. On 18 September 1986 the wife was appointed a director and secretary of Brown Investments Pty Ltd. On 30 June 1987 the wife was appointed a director of EE Pty Ltd. She ceased to be a director on 9 March 1990. On 1 April 1990 the wife was appointed a director of FF Pty Ltd. She ceased to be a director on 18 August 1991. On 3 July 1987 the wife was appointed a director and secretary of GG Pty Ltd (later called CC Pty Ltd). On 15 June 1990 the wife was appointed a director and secretary of HH Pty Ltd. On 14 February 1991 the wife was appointed a director and secretary of JJ Pty Ltd. She ceased to be a director on 8 February 1993 and ceased to be the secretary on 11 March 1991.
In or about 1990 the parties exchanged contracts to purchase a property at KK Street, Suburb LL. They paid a deposit of about $100,000 to $120,000 however, the husband said: I do not want to go through with the purchase because the architect said I cannot build the house I want on that block. Accordingly, the parties lost the deposit.
In about 1991 the parties purchased a property at MM Street, Suburb C for approximately $900,000. The home erected on the property was half complete, however, instead of completing it the husband said: - I do not want to complete building the house. I spoke to some architects. They said ‘it’s cheaper to demolish and start fresh’. I instructed the architect to demolish the house and draw plans for a new house. They spent approximately $80,000 on architect and demolition costs. Thereafter, the husband decided against building on the land as by that stage he had seen a house for sale at AA Street, Suburb C which he liked. The parties eventually sold MM Street, Suburb C.
In early 1992 the husband commenced a relationship with Ms NN who was a finance professional. Ms NN was born in Country B. The husband and Ms NN first met in 1992 and in March of that year travelled together to North America. They were absent from Australia from 22 March 1992 to 16 April 1992. Ms NN gave evidence on behalf of the husband and she was cross-examined. Ms NN said they commenced an intimate relationship very quickly and the husband wanted to marry her. Ms NN contends that the relationship ceased in January 1996. It was my impression that Ms NN thought that the husband’s relationship with the wife had ceased.

In early 1992 the parties purchased AA Street, Suburb C for $1.75 million. The property was purchased in the name of GG Pty Ltd (later called CC Pty Ltd). Before the parties moved in they painted the property and did landscaping. Shortly after they moved-in the husband arranged for the installation of a sophisticated back to base alarm system and video surveillance cameras. The property is a two storey building on approximately two hectares of land. Situated on it is a substantial residence, a tennis court, in-ground pool, cabana, a large dam, and fully maintained landscaped gardens. After the parties purchased the property, they installed at least two satellite dishes. The residence is separated from the street by a high security brick fence with the gates being of wrought iron and electric. In the application for finance dated 18 June 1999 (Exhibit L) it was stated that it is a large residential property at Suburb C which is arguably one of the finest residences in that area. Elsewhere in the document it was described as the land mark property in Suburb C due to its elevated position, the size and grandiose style of the improvements together with its attractively landscaped gardens and grounds. It was stated that the improvements total some 930 square metres plus balconies and cellar or 1000 square metres all inclusive. Documents were produced by Z Ltd in relation to a mortgage secured on the title of the property (Exhibit AB). The amount of the loan was $3,000,000. In the loan application signed by Ms B Brown on 17 December 2003 the value she placed on the property was $6,500,000. Included in the documents is a valuation of the property dated 18 December 2003 and it was valued at $5,250,000. There are photographs attached to the valuation which provide some indication of the nature and the extent of the property and the residence.
The parties separated in May 1992. At the time the parties were living together in the home at AA Street, Suburb C. They remained living together in this home until June 1993.
The wife continued to care for the child. The wife observed from about 1992/1993 the husband was not in a position to assist her in meeting the child’s needs such as taking him to sporting activities on the weekend, driving him to tuition and the like. The wife undertook these activities. As a result of this the wife was not able to find or seek any employment.
From about 1992/1993 the wife accepted that the husband was very busy in furthering the business and was understanding of the fact that it was often difficult for him to make time available for the child. The wife took the view that she should simply be flexible and make herself available to care for the child at the times when the child would otherwise have been with the husband but because of the husband’s unavailability was not. This often took the form of the husband not being available at all for scheduled access periods or, being available for considerably shorter periods; for example, on some occasions a few hours rather than a weekend. In summary the wife’s contributions continued after separation.
On 8 December 1992 the parties entered into a child support agreement. The agreement provided for the husband to pay to the wife $2,000 per month with annual adjustments.
On 8 December 1992 the wife filed an application seeking an order for property settlement.
On 22 January 1993 the husband filed an affidavit answering a requisition made by the Court. The wife was not aware of the affidavit or it’s contents until 1997.
On 28 January 1993 the following consent orders were made as to property settlement, custody and access:-
1.      That within 28 days of being requested so to do by the wife and at her election:
(a)the husband shall procure a discharge of the mortgage to PP Ltd and shall execute and deliver to the wife a transfer to the wife in registrable form of the P Street property; or
(b)pay to the wife the sum of $500,000.
2.      That within 90 days from the date of these orders the wife shall resign all directorships and all positions and all offices in the companies.
3.      That prior to the wife's resignation the husband and the wife as directors of Brown Holdings Pty Ltd will pass such resolutions as are necessary and execute such documents as are necessary to cause CC Pty Ltd to cause the QQ Street Unit to be transferred to the wife. The benefit resulting to the wife is to be a capital distribution from the DD Trust, and the husband is thereafter to cause appropriate entries to be made in the accounts of the trust and of CC Pty Ltd as he may be advised to record that distribution.
4.      At the husband’s option and upon his request prior to the wife’s said resignation, the husband and the wife as directors of Brown Holdings Pty Ltd, will pass such resolutions as are necessary to cause CC Pty Ltd to cause the home to be transferred to the husband. The benefit resulting to the husband is to be a capital distribution to him from the DD Trust and the husband is thereafter to cause appropriate entries to be made in the accounts of the trust and of CC Pty Ltd as he may be advised to record that distribution.
5.      The respondent CC Pty Ltd is ordered to execute the transfers referred to in order 3 and 4 hereof.
6.      That within 90 days from the date of these orders the husband prepare and the wife execute a transfer of the whole of the wife's right, title and interest in her shareholding in each of the companies, in favour of the husband or his nominee subject only to any existing encumbrances.
7.      That the husband pay as and when the same fall due the lease payments on the wife's motor vehicle for the duration of the lease and that the husband pay the registration and insurance in respect of the wife's motor vehicle so long as there is any lease liability continuing.
8.      That the husband pay at the expiration of the lease of the wife's motor vehicle the residual amount payable under the said lease.
9.      That the wife vacate the home upon expiration of the time to be fixed in a notice to be given by the husband to the wife in writing, such time being not earlier than 90 days from the date of the giving of such notice.
10.    That the husband within 90 days from the date of these orders obtain at his expense and deliver to the wife duly authorised releases from any creditor to whom the wife has provided a guarantee whether individually or otherwise for or on behalf of the husband and each and any of the companies provided that if within the said time the husband has used reasonable commercial endeavours to obtain any such releases and notwithstanding such endeavours has been unable to obtain such releases then if the husband shall not be able to obtain such releases within a further period of 90 days then the husband shall not be obliged to obtain such releases.
11.    That the husband indemnify and keep indemnified the wife in respect of all liability whatsoever which the wife may have whether now or in the future and whether alone, jointly and/or severally with the husband and/or any other person and/or company to any creditor of any of the companies and/or pursuant to any guarantee and/or arising from her having been a director and/or in any other manner howsoever arising and without limiting the generality of the foregoing pursuant to any guarantee given by the wife whether alone, jointly and/or severally to any person and/or company in respect of any lease from any such person and/or company of any property to any of the companies.
12.    That the husband within 28 days from the date of these orders prepare at his expense and deliver to the wife a deed signed, sealed and delivered by the husband and each of the companies releasing the wife from any liability that she may have to any of the companies or in respect of the affairs of the companies and indemnifying the wife in respect of any liability which she may now have or which may arise in the future in respect of or concerning the affairs of the companies.
13.     That the husband and the wife do all things and give all consents and execute all documents in writing if necessary to give effect to the orders made herein.
14.    That in the event that either party refuses or neglects to execute any document or instrument the Registrar of the Court be appointed pursuant to section 84 to execute such deed or instrument in the name of such parties and do all acts and things necessary to give validity to the operation of the deed or instrument.
15.     That each of the husband and the wife is to remain a guardian of the child of the marriage, Mr F, born in 1985.
16.     That the wife is granted custody of the child of the marriage.
17.   That the husband is granted reasonable access of the child of the marriage.
In the Short Minutes it was noted that the parties separated in May 1992. The following notation also appears:
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.
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 DD 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 DD Trust were required 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 to the P Street property, the matrimonial home and the QQ Street Unit.
4.      It is declared that the DD Trust is controlled by the husband and the wife through their directorships and shareholding in Brown Holdings Pty Ltd, and thereby they also control CC Pty Ltd.
In the notations in relation to the DD 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.
In broad terms the property orders provided that the wife was to receive 1 P Street, Suburb Q which had a value of $350,000 or be paid $500,000. The wife was also to receive a property at QQ Street, Suburb RR. 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 contended that the husband presently has a surplus of assets over liabilities of in excess of $250,000,000.
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.
In relation to the QQ 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.
The QQ Street unit was owned by the DD Trust and the home referred to in order 4 is the home at AA Street, Suburb C. CC Pty Ltd was the registered proprietor of this home although it was beneficially owned by the DD Trust. In summary, by consent, the parties distributed assets which belonged to the DD Trust.
The wife did not resign all directorships in relevant companies within 90 days. In the current proceedings a request to answer specific questions was served on the husband on 2 December 2002 and he provided answers in a verified response of 4 March 2003. He was asked specific questions in relation to the affidavit he swore on 21 January 1993 which was filed on 23 January 1993. He was asked about various companies referred to in notation 1 of the consent orders and the interests of the husband and the wife in those companies. He said that he understands that he held shares in CC Pty Ltd, Brown Investments Pty Ltd, Brown Holdings Pty Ltd, SS Pty Ltd, JJ Pty Ltd, TT Holdings Pty Ltd, UU Pty Ltd and CW Pty Ltd. So far as the wife is concerned he said that he understands that she had shares in CC Pty Ltd, Brown Investments Pty Ltd, Brown Holdings Pty Ltd, SS Pty Ltd, JJ Pty Ltd, TT Holdings Pty Ltd, UU Pty Ltd and CW Pty Ltd.
The parties separated and had a property settlement at a time when after in excess of 10 years of marriage their assets were relatively modest when compared with what the husband now has. However, I accept the submission on behalf of the wife that the seed for growth was sown. The child was than aged only 7, and thereafter, until he was an adult, remained living with the wife. The wife was primarily responsible for the non-financial support and care of the child. She gave extensive evidence of what she did.
The wife contended that by January 1993 the parties had reconciled. Thereafter they slept in the same bed every night, unless the husband was away on business. Until about the end of May 1993 the parties continued to live together as husband and wife at the matrimonial home at AA Street, Suburb C. They continued to go out socially.
The parties are in dispute as to the nature and extent, if any, of a reconciliation at the time of the property settlement. The wife said that it happened immediately before the orders were made. 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.
I also accept that the husband was leading a number of lives representing his position differently among others. He was having an affair with Ms NN in 1992 and thereafter but it was no more an end to his marriage to the wife than the continuation of the affair in 1998 was an end to the marriage to his present wife. The affidavits the husband filed in the divorce proceedings were not consistent with the case put to the wife (Exhibit AE) and his declarations to the Department of Immigration in 1996 were contrary to the proposition that he was living with Ms NN (Exhibit B).
On 8 February 1993 the wife ceased to be a director of JJ Pty Ltd.
In May 1993 the parties separated for a period of approximately three months.
In May 1993 the husband purchased for the wife a home at VV Street, Suburb WW for $490,000. In order to pay the cost the wife obtained a mortgage for $300,000 secured upon the title of the property. The husband paid the balance required to complete the purchase. 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 at P Street, Suburb Q by a certain date, the husband decided to buy her a home. The parties inspected a number of homes before they purchased the Suburb WW property. Sometime after the mortgage was obtained, the husband paid out the mortgage and shortly thereafter said to the wife: I need to borrow money from the bank. I need Suburb WW as security. Is it ok? and the wife agreed. The wife then signed papers for a new mortgage for about $300,000. The husband retained the funds obtained. The husband met the mortgage repayments due on the property until approximately 1995 when he paid out the mortgage.
In August 1993 the parties resumed cohabitation and lived together at VV Street, Suburb WW until they finally separated in about August/September 1995. As will be seen shortly, the husband said that the parties lived in the same residence from March 1994 until August 1995.
The wife continued to care for the child, who by this time was 10 years old. The husband, whose financial fortunes were rising rapidly was generous in his financial provision to the wife providing significantly in excess of what he was obliged to pay for the child by the terms of the Child Support Agreement. The wife was dependent on this support.
Between 1993 and September 1998 the wife did not work and her support was provided by the husband. During 1995 and 1996 she was provided with about $260,000 per annum. It was submitted, which I accept, that this is hardly surprising as by this time the husband was probably well on the way to wealth in excess of $100M.
In or about August 1993 the parties engaged an architect to draw up plans for renovations to the Suburb C property. The architect drew the plans and the parties met with the architect a number of times and discussed the plans. In the latter part of 1994 the husband said to the wife: While we are waiting to sell Suburb WW, why don’t we start the renovations of Suburb C. They ultimately did not carry out the renovations after the plans were prepared.
In December 1993 the husband gave gifts to his business associates and the gifts had the words From Mr Brown and Ms Brown.
The child commenced to attend XX School in January 1994. At that time he was nine years old and had just started Year 4. Prior to attending XX School the child attended YY School. The wife gave detailed evidence of her care and education of the child after he commenced school and her involvement with school activities.
Following the Consent Orders of January 1993, and notwithstanding that the parties reconciled by the time the Orders were made, the wife did not undertake paid employment and devoted her time to looking after the child and providing support to the husband. Throughout his schooling at XX School until Year 12 the child played a number of sport activities. The wife always took him to activities on the weekends. In the early years, the wife also travelled with the child to competitions interstate, especially during the cricket season. The wife also went with the child on excursions.
In addition to attending to the child’s needs the wife also cooked meals for the child and herself, attended to the household needs including shopping, cooking, cleaning, dusting, vacuuming, washing and ironing clothes.
On 18 January 1994 the wife was appointed a director and secretary of SS Pty Ltd. The registered address of this company was AA Street, Suburb C. The wife held one share in the company. This was at a time when the husband contended the parties were separated.
In his application for a divorce the husband contended that the parties lived in the same residence from March 1994 to August 1995. He contended that from 1994 until August 1995 on average three to four times per week the husband used to arrive home from work at approximately 7.00 p.m., have his dinner, change his clothes and then drive to Suburb C. He returned home from the Suburb C property between 10.00 p.m. and 12.00 midnight. On 2-3 occasions in 1994 the parties stayed at Suburb C the whole weekend. Between 1993 and 1995 the husband went overseas frequently, on average once every three months for three to four days each trip. I have no doubt that on many of the occasions when the husband was absent from the home he was also pursuing a relationship with Ms NN and perhaps his present wife.

In about April 1994 the parties decided to move back to Suburb C. The husband suggested the wife sell the Suburb WW home. Between April 1994 and August 1994 the wife engaged the services of CT Realtors and CV Real Estate to market the Suburb WW property for sale. The wife annexed to her affidavit copies of Sales Inspection Report and Selling Agency Agreements from the two agents. There were few enquiries made. The wife recalls one of the offers was for approximately $400,000. The parties discussed the offer and the husband said: $400,000 is too low. Reject the offer. The parties then decided not to sell the Suburb WW property.
In August 1994 the parties attended the birthday party of the wife’s godson, Mr CQ. Mr CQ’s father is Mr CR who at the time was a partner with Mr CS who is the husband’s commercial lawyer. Mr CS and his wife also attended the party.
It is relevant at this point to introduce the BW Group. The evidence appears in a Witness Statement of the husband dated 23 February 2001 filed in the Supreme Court of New South Wales, Commercial Division in proceedings between Mr BX as plaintiff and the husband, his present wife and H Pty Ltd as defendants. By about late 1994 the BW Group was operating media facilities n premises at the CC Pty Ltd in Suburb W to transmit Y Company and CM Company. By 1995 BW Group was occupying and using a media centre in the CC Pty Ltd run its commercial business. The media centre comprised purpose built information technology. The BW Group leased those premises from CC Pty Ltd. CC Pty Ltd constructed the media centre and project managed the building and the installation of equipment in BW Workplace in the CC Pty Ltd including the media centre. In his witness statement the husband said that he and Brown Holdings Pty Ltd owned CC Pty Ltd. He described Brown Holdings Pty Ltd as a family company and that he was involved in the management of its business including its dealings with BW Group. He also said that CP Pty Ltd, ..., supplied information technology to BW Group and other commercial entities he was involved in the management of the business of CP Pty Ltd including its dealings with BW Group.
In 1995 the husband caused the mortgage secured on the title of the Suburb WW home to be discharged.
In 1995, the parties attended the launch of CM Company which was a tenant at BB Street, Suburb W property. Mr CN corroborated the evidence of the wife that both the husband and the wife attended the function.
On 30 June 1995 the wife as a share holder and director of Brown Investments Pty Ltd and CC Pty Ltd executed a mortgage in favour of CK Trustees Ltd and CL Ltd. The security was for a value in excess of $35,000,000.
On 10 August 1995 H Pty Ltd was incorporated. In the Witness Statement the husband said that in 1995 he and his present wife acquired this company as a shelf company. He also said that he and his wife have been the shareholders and directors and he has been the chairman. I have no doubt that both the wife and Ms NN were unaware of the husband’s relationship at this time with his present wife.
In the Witness Statement the husband said that in about August 1995 he considered that H Pty Ltd should seek to secure the rights to broadcast two services. A narrowcast service is one directed to a special interest group audience or some other limited group. . At the time H Pty Ltd expected it would obtain agreement from CJ Ltd, the holding company of the BW Group to provide these programme services. The husband also said that by 20 June 1996 terms of transmission of the company’s proposed subscription narrow cast services had been agreed with BW Group.
On 29 September 1995 Brown Investments Pty Ltd granted a mortgage to CH Bank securing a principle sum of $3,600,000. The wife signed the mortgage document as the secretary/director of Brown Investments Pty Ltd, Brown Holdings Pty Ltd and CC Pty Ltd.
The wife contended that the parties finally separated in August/September 1995 when the husband resumed living in the home at Suburb C. This was disputed by the husband. He contended that cohabitation ceased in May 1992 and thereafter the parties did not resume cohabitation. The wife gave extensive evidence about the relationship of the parties between late 1992 and early 1996.
Up until August 1995, the arrangement was that the wife utilised her bank cards and charge cards and withdrew money to meet the household living expenses as well as her and the child’s expenses. Each month the husband would take the charge or credit card statements and pay them. After August 1995 the wife used to send the statements or bills to the husband and he would deposit the money into her bank account or pay the relevant bill. This continued until April 1997. The wife was able to gain access to cash and credit by means of two credit cards with a credit limit of $12,500; a Westpac Bank Visa card with a credit limit of $15,000; a Westpac Bank Bankcard with a credit limit of $2,000; a Store Credit Card, DT Credit Card; and a cheque book from Brown Investments Pty Ltd. In summary, between August 1995 and April 1997 the husband paid $1,112 per week for child support and $3,209 per week or $166,868 per annum for the wife.
During the period from about December 1992 until August/September 1995 (with the exception of the period May to August 1993) the wife attended to all the homemaker duties including cooking meals for the family including the husband, washing and ironing the husband’s clothes, cleaning the home and attending to the general day to day needs of the family and the home. In addition, the parties attended business functions as well as personal and family functions with the husband’s family and his children.
The wife gave further evidence about other aspects of the relationship of the parties between December 1992 and August/September 1995 that she contended, and I accept, demonstrates that the parties resumed cohabitation after May 1992. I will refer to some examples.
During the period December 1992 and August/September 1995 the husband and the wife invited the child Mr F’s school teacher, Mr CG and his family being his wife and his two sons for lunch. The parties and the children were at the Suburb WW home at the time. The wife cooked lunch for the family and the guests. Following lunch, they all drove to Suburb C where the husband showed them the Suburb C property and informed them of the plans to renovate the home. The wife heard the husband say: We will be renovating the kitchen, extend the house, extend the bedrooms, renovate the lounge and the cabana. He showed them each part of the home which they planned to renovate. After viewing the Suburb C property they then all drove back to Suburb WW.
During the period December 1992 and August/September 1995 the husband’s nephew and niece together with their grandfather came from Country CX on a visit to Australia. They stayed at the husband’s grandparents’ home at Suburb CF. The husband and the wife visited them at the grandparents’ home and they took family photographs with approximately 75 members of the husband’s family.
During the period December 1992 and August/September 1995 the husband, the child and the wife went out to dinner with Mr CZ, his wife and children.
During the period December 1992 and August/September 1995, Mr BZ (from CB Company, the husband’s mortgage broker) and his wife, invited the parties to CD Restaurant in Sydney.
During the period December 1992 and August/September 1995 the husband invited his business partner at the time, Mr BX and his family to dinner at the Suburb WW home.
During the period December 1992 and August/September 1995, after the husband returned from work, the parties discussed matters pertaining to his work. He discussed with the wife the tenants, the BW Group and their business. On one occasion he said to the wife I want to invite 30 people on a boat. Could you please organise it. The wife then attended to the organisation of the catering, the invitations and ensured that the husband’s guests were comfortable throughout the function. The wife arranged the dinner through BW Business. The wife annexed to her affidavit a copy of a letter and documents from BW Business dated 13 June 1995. The function was held on or about 16 June 1995.
During the period December 1992 and August/September 1995 the husband also said to the wife I have arranged lunch with Mr BX (executive from BW Group) and his wife. The lunch date is on…I want you to come with me. Prior to the lunch, the wife went to the husband’s office in Suburb W. When she arrived the husband introduced her to members of the BW Group including Mr BX and his wife. The husband said: This is Ms Brown, my wife.
During the period December 1992 and August/September 1995 the parties continued to sleep in the same bedroom and maintained a sexual relationship.
During the period December 1992 and August/September 1995 the child, the wife and the husband’s child from a previous relationship, Mr G, went away on weekends and holidays. For instance, in or about April/May 1994 the wife took both children to Country BJ on a holiday. The plan was that the husband, the wife and the children were due to travel together, however, the husband was held up on business and he could not travel with the wife. He joined them approximately one or two days later. They stayed in Country BJ together for approximately three to four days at the BT Company in BV City. The children shared the same room. The parties shared the bedroom next door. The parties slept in the same bedroom and had a sexual relationship during this holiday. Evidence was given on behalf of the husband about this holiday by his son Mr G.
During the period December 1992 and August/September 1995 on one or two weekends a month in summer the children, the husband’s family, the wife’s family and some of their friends would go out on Sydney Harbour on a cruiser. They also did this on New Years Eve each year.
Between 1986 and 1990 Mr T saw the husband everyday as he worked for and with the husband and the wife. In late 1993 the husband and Mr T became business partners in Commercial media and they established V Pty Ltd. They also became involved in real estate investments through V Pty Ltd. They established BR Pty Ltd which acquired shares in BW Group. As well they established other commercial media interests. Mr T said the husband had a number of companies including JJ Company of which he was a non director until about 1992. Mr T said that JJ Company was an information technology company conducted from 1 BB Street, Suburb W. There were approximately ten people employed. It had sole distribution rights to BL Company which is a United States company and sold equipment for BM Company and BN Company. It also had a service department to equipment. He said that from his observations as of late 1992 and early 1993 the warehouse at Suburb W had computer stock worth between $2,000,000 and $3,000,000.
I do not propose to repeat all of what Mr T said. However he gave evidence of his observation of the relationship between the wife and the husband between August 1993 and late 1995. In my opinion, his evidence corroborates what the wife contended about the continuation of the relationship of the parties. Mr T confirmed that the husband was living at the Suburb WW home. In mid to late 1995 the husband told Mr T that his relationship with the wife was over. Mr T contended that based on his observations the parties separated shortly after mid 1995. I accept the evidence of Mr T.
As well on behalf of the wife evidence was given by Ms BK and she was cross examined. She first met the parties in about 1986. Her former husband was Mr CR. The wife is the godmother of Ms BK’s son. Ms BK gave evidence that from 1986 until approximately 1995 she estimates that she and her late husband or she alone visited the home of the parties on average once a month. Initially they visited the parties at the Suburb C home and from about mid 1993 visited the parties at the Suburb WW home. She gave extensive evidence of the association and friendship between her and the parties. Her evidence also corroborates what the wife said about when the relationship of the husband and the wife finally ended. I accept the evidence of Ms BK.
In a sponsorship for migration to Australia form dated 12 March 1996 in that part of the document where the husband had to identify where he and or his spouse lived in the last ten years he identified the property at Suburb WW.
On behalf of the husband evidence was given by his sister, Ms NN and his son Mr G. I do not accept their evidence in relation to the issue of the separation of the parties.
There was tendered in evidence on behalf of the husband a document from the Director of Sales – BD Commercial Properties (Exhibit AR) and in this document it was stated that BD Commercial Properties neither managed nor owned a commercial accommodation (BF Business, BG Business or BH Business) anywhere in Country BJ between January 1993 and December 1994. I accept that the wife may have been mistaken about the name of the hotel.
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.
From 1995 the wife was the sole carer of the child in that she attended to all of his needs throughout the week. From 1995 to 1997, the child had contact with his father each weekend and half of the school holidays. Over the next two or three years, the child’s contact with his father was reduced as the husband became more involved in his business. The husband had contact with the child every second weekend, however, the child only attended for contact with his father from Saturday to Sunday or on Saturday or Sunday.
After the parties finally separated in August/September 1995, the husband regularly visited the wife and the child at the Suburb WW home. Sometimes he stayed for dinner. On one occasion they had a conversation to the following effect:
Husband:I would like to file for divorce.
Wife:What do you mean?
Husband:We no longer live as husband and wife.
Wife:How could you say that?
Husband:Well you know we don’t live together like before.
Wife:Marriage is not always a bed of roses. What do you mean you’d like to get divorced? I’m just getting back on my feet after your last indiscretion.
Husband:But I would like to be free.
On another occasion after September 1995 the husband saw the wife at the Suburb WW home and they had a conversation to the following effect:
Husband:I’m going to file the divorce papers. I don’t want you to contest it. Anyway it should be good for you financially.
Wife:I don’t know about that?
Husband:I will take my chances. If you contest it I will just leave the country
Wife:Good riddance ?
Husband:I will get someone to serve you the orders.
Wife:I need time to think about it. I will talk to you as soon as we get back from BC City?
On 15 September 1995 the husband filed an application for dissolution of marriage. The husband’s solicitor was Mr CS. In the application the husband contended that the parties separated in May 1992. However, he conceded that since separation the parties lived under the same roof from May 1992 to June 1993 and from March 1994 to August 1995.
The wife sought advice from a solicitor as to inaccuracies in the application. She contended that the parties had not been separated for a period of 12 months prior to the date of filing the application for dissolution of marriage. The wife contended that she took no action to oppose the application as a result of advice. In cross-examination the wife said that she sent a copy of the application to her solicitor and had no further conversation with the solicitor. The wife contended that because the solicitor did not contact her she inferred that there was nothing she could do.
A decree nisi dissolving the marriage was pronounced in 1995 and it became absolute in late 1995. The wife was not present at the hearing in 1995 and nor did she have legal representation. in 1995 an affidavit was sworn by the husband and filed in support of the application for dissolution. The wife was not served with this affidavit. The evidence is important. The husband contended that between June 1993 and March 1994 his father was pressuring him to see more of his son and told the husband that he would be distressed if he did not attempt reconciliation with the wife for the sake of the child. The husband said for a period thereafter, I maintained an outward appearance of compliance with my father’s request, however in reality no reconciliation occurred. He said that between March 1994 and August 1995 he continued to maintain a separate residence at Suburb C where he spent three of four days each week, however he spent the balance of his time at the wife’s home at Suburb WW. He said he ceased staying over night at Suburb WW in August 1995. He admitted that sometimes he would sleep in the same room as the wife and that during this period they had sexual intercourse on about four occasions. He said nothing in the affidavit about his relationship with Ms NN. In my view, this evidence corroborates what the wife said about the reconciliation of the parties.
As well, in 1995 there was filed on behalf of the husband an affidavit sworn on the same date by Mr DB who gave his occupation as a public servant and described himself as a close friend of the husband since 1986. This affidavit was not served on the wife. A great deal of this affidavit is inadmissible. However, Mr DB said that from March 1994 when the husband commenced to make visits to the wife’s home at Suburb WW he observed the husband in the company of the wife and the atmosphere was formal and lacked the warmth that I had known at Suburb Q. I have no ideas what this means. However, it also corroborates the evidence of the wife.
The wife was served with the application for divorce and chose not to contest the application. Her reasons for making this decision are not entirely satisfactory given that notwithstanding what she said in her affidavit it is clear from her evidence in cross-examination that she did not in fact receive advice. Thus it was submitted that as the wife knew what date of separation was alleged by the husband and what finding as to irretrievable breakdown of marriage would be made she is now estopped from contending to the contrary. Senior Counsel for the husband cited a number of authorities during his final submissions.
I had some difficulty understanding why this issue is relevant given that the wife has been granted leave to commence proceedings for spousal maintenance and the date of separation could only be relevant to some matter in s 75(2) of the Family Law Act. In any event, for the purposes of these proceedings I accept the evidence of the wife as to the cohabitation of the parties after May 1992.
I have no doubt that there are circumstances where parties are served with an application which asserts a date of separation and the party receiving it does not agree that the date of separation is correct. However, the application is not contested because at the time the application is served the marriage had irretrievably broken down and there is no possibility of reconciliation. The party may be advised that if the application is contested then it may be some time before it is heard and by that time 12 months will have elapsed. The wife did not suggest that she received such advice in this case. However, I can understand why the wife did not contest the application given that by this time she knew that the relationship of the parties had broken down albeit 12 months had not elapsed.
There is no evidence explaining why, notwithstanding the husband contended that the relationship of the parties was ended, the wife allowed the husband to stay overnight at her home three or four nights each week. The wife was not cross-examined about this. There are other matters, amongst other things, why the husband continued to provide support to the wife and why the wife was involved in the corporate interests of the husband

In 1996 the wife applied for and commenced to receive the parenting allowance.
In January 1996 the husband told Ms NN that their relationship was over and that he was getting married. Ms NN said that this was a great shock to her as she believed that her intimate relationship with the husband was continuing. The husband had obviously kept secret from both the wife and Ms NN his relationship with his present wife. I am also satisfied that he kept secret from the wife his relationship with Ms NN. I am also satisfied that he kept secret from Ms NN the extent of his continuing relationship with the wife.
In 1996 the husband married his present wife. Mr T was the best man at the wedding.
On 1 February 1996, the husband telephoned the wife and said: I am sending Mr AY 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 CC 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.
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 CC Pty Ltd to the husband.
By transfer dated 14 October 1996 the husband transferred the property at Suburb C from his sole name into the joint names of himself and his present wife for a consideration of $1.
On 29 October 1996 the wife ceased to be a director and shareholder of Brown Investments Pty Ltd, Brown Holdings Pty Ltd and CC Pty Ltd.
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.
From December 1996 the husband permitted the wife to draw up to $15,000 per month by way of credit card purchases and he also paid other expenses such as holidays, school expenses and motor vehicle expenses. This arrangement continued until the end of April 1997.
Between December 1996 and 30 March 1997 the wife and the child holidayed for 3 weeks in Country BJ and USA. They flew first class and stayed at expensive hotels. The husband paid for the Country BJ-USA tickets, while he used frequent flyer points to pay for 2 tickets (business class) Sydney/Country BJ return sectors. The wife spent about $10,000 which was reimbursed/paid by the husband. The husband continued to pay all costs and expenses towards the running and maintenance of the wife’s motor vehicle, house insurance and medical benefits insurance. The wife continued to draw up to an average $15,000 per month. These arrangements ceased at the end of April 1997 and from 9 May 1997 onwards the husband deposited to her cheque account the sum of $6,000 per month.
During 1996 the husband provided the wife with approximately $260,000.
On 11 February 1997 the wife ceased to be a director and shareholder of HH Pty Ltd.
In March 1997 the parties had a conversation and the husband told the wife that he was only prepared to give her $6,000 every month which he would deposit into her bank account. He previously agreed to pay her $10,000 per month. During March 1997 the parties had several telephone conversations in or to the following effect. The husband said: I am sending someone to collect my stuff. The wife said: While you’re at it, could you also send my stuff across. The husband said: I don’t have anything of yours. The wife said: I don’t have anything of yours either. The husband said: Stop sending me your credit card accounts because I am not going to pay them. I am only prepared to give you $6,000 every month which I will deposit into your bank account. The wife said: Fine, I’ll see you in Court.
On 1 April 1997 the wife retained a firm of solicitors called DC 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.
During April 1997 the parties had another telephone conversation and the husband said: When are you going to send me my stuff? The wife said: When are you going to send me mine? The husband said: I am not going to give you anything. Stop being greedy. The wife said: Excuse me! You made a commitment that you are going to look after me. I am no longer your wife, but look who’s funding your expenses. You seem to forget that if not for me you would not be where you are now. The husband said: I am only prepared to give you $6,000 a month which I am going to deposit into your bank account and stop sending me your bills. The wife said: I can’t live on $6,000. Your son alone costs me about $2,000 to $3,000 and what about the car expenses? The husband said: Don’t use my son as an excuse. I am prepared to pay for his expenses. If you can’t live on $6,000 go find yourself a job. Your car is getting a bit old. I suggest you get a cheaper one. The wife said: It is more easier said than done. And who’s going to take your son to and from school? The husband said: He can take the bus.
In about April 1997 the husband rang the wife and said: Don’t send me your credit card statements anymore. From next month I’m giving you $6,000 a month, which I will deposit into your bank account. The wife then said: That money is not sufficient to meet my and Mr F’s expenses. Your son alone costs over $2,000 to which he said: Don’t use our son as an excuse. I’ll pay for all of his expenses and I’ll give you the $6,000 for yourself.
On 9 May 1997 the husband deposited $6,000 into the wife’s cheque account with the DF Bank at Suburb WW and on 9 July 1997 he deposited $6,000. In summary, between May 1997 and April 2002 the husband paid $6,000 per month without apportionment between support for the child and maintenance for the wife. As well, he made other payments.
On 14 May 1997 the wife terminated the retainer with DC Solicitors and retained DG Lawyers to act on her behalf.
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.
In about 1997, the husband purchased DH Street, Suburb C which gave him access to an extensive land area. The husband said to the wife: I just bought the property at DH Street, Suburb C. Mum and dad will live there.
As at August 1997 the amount of child support was $2,245 per month including the CPI adjustment. The wife exhibited to her affidavit DJ Bank statements for the period from 30 April 1997 until 24 July 1997 which reveal credit payments made into the account from CC Pty Ltd and V Pty Ltd in the sum of $6,000. She also exhibited DJ Bank statements for the period from 28 July 1997 until 24 December 1997 which reveal credit deposits from V Pty Ltd and CC Pty Ltd where payments were made in the sum of $2,245.80.
By memorandum dated 23 September 1997 the husband as a Director of Brown Investments Pty Ltd fixed the vesting day of the DD Trust as being the first to occur of three dates which included the date which is six months after the date of death of the husband. Further, in the memorandum it was said that upon the vesting day the capital of the Trust is to be divided amongst such of the beneficiaries of the Trust and in such shares as are set out in the last will of the husband. If however on the vesting day the husband is alive then the capital of the Trust shall be dealt with as provided in clause 6 of the Deed. One of the dates is 29 June 2067.
In 26 September 1997 the wife’s application was adjourned to 31 October 1997 and on 31 October 1997 it was again adjourned.
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, Adrian Twigg & Co, 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 Adrian Twigg & Co 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.
On 3 November 1997 the parties had mediation at the office of Mr CS. The wife’s solicitor was present. Mr Twigg was not at the meeting. After the conference, and in accordance with the understanding that was reached at the conference, the wife instructed her solicitors to prepare Terms of Settlement. The wife exhibited to her affidavit copies of the documents forwarded to Mr Twigg on about 6 November 1997.
On 18 December 1997 the wife spoke with the husband on approximately three occasions and said to him: When are you going to sign the documents that my solicitor sent to you? to which he said: Ring your lawyer. Tell him to discontinue the proceedings. I have to go to the US to raise funds for BW Group. I’ll settle with you when I get back. The wife then said: When will that be?” to which he said: “In six months time. The wife then said: How do you expect me to live between now and then? to which he said: I need to concentrate on BW Group. Please drop the Court action and we’ll sort it out. I will look after you as I have done so in the past. He then said: I’ll pay you $6,000 per month in spousal and child support. The wife said: That’s not good enough to which he said: That’s all I can afford for now. I will call you from the US.
The wife then spoke to her solicitor and on the advice of the solicitor she prepared a letter, a copy of which was exhibited to her affidavit, which she sent to the husband on about 22 December 1997. On 22 December 1997 the wife spoke with the husband and said to him: I want to fax you a letter indicating our agreement for settlement so that there is no dispute. I want you to read it and make sure that you agree to the settlement terms that DG Lawyers drafted stating that you will give me $1 million within the next 12 months and $1 million each year thereafter up to a maximum of $4 million and monthly payments of $10,000. Let me know if you have any amendments to be made. If I don’t hear from you that means that you accept the terms and I will instruct my lawyers to file the discontinuance in the Family Court. Can you give me your fax number? He then said: My fax number is … .” The wife said: I will ring you as soon as I reach the post office so you can stand by the fax machine when the document is sent to which he said: That’s okay”. The wife then drove to the post office and as the document was about to be faxed to the husband she contacted him and said: I’m just sending you the fax now. Can you go and stand by the fax machine? to which he said: Yes. A copy of the wife’s mobile phone account in respect of the telephone call she made on her mobile phone from the post office is exhibited to her affidavit.
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.
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 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.
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.
On 9 January 1998 the wife filed a Notice of Discontinuance of the proceedings commenced on 11 August 1997.
From January 1998 to May 1998, the husband went overseas to raise funds for BW Group. The child did not have the weekend contact with his father. During this period, the child saw his father for two weeks when he travelled to the United States at Easter.
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.
Even during the periods when the child had weekend contact with his father between 1998 and 2000 the husband was busy with his business and during weekend contact, the wife used to collect the child from Suburb C, drive him to his sporting activities on Saturday and then drive him back to Suburb C. On other occasions, the child would take a taxi from the husband’s home to the wife’s home and she would then drive him to his sporting activities and then drive him back to Suburb C.
In September 1998 the wife commenced part-time employment with FG Company. She worked for about three months.
In the Witness Statement the husband gave evidence that between June and December 1998 H Pty Ltd and CC Pty Ltd acquired some of the Commercial media of BW Group. By November 1998 and after acquisition from the receivers of the licenses and equipment, H Pty Ltd was in the position to actively operate. On 25 June 1998 H Pty Ltd acquired from the receiver of BW Group the programming rights to three channels that BW Group had been broadcasting to its subscribers. The company also set about acquiring the rights to new channels. After mid 2000 the company used upgraded technology as the transmission platform. In effect it rented upgraded technology space for the transmission of its signals and in that way operated its commercial media services without the need for the specific licenses.
The husband said that at about this time he also began to consider as another possibility the idea that H Pty Ltd might itself become a commercial broadcaster using whatever transmission platforms might become available to transmit its programmes. He then began to develop the idea that the company might compliment the programmes that it had acquired from BW Group with other programmes. By late August 1998 the distribution agreement with FD Company and FF Company had ceased to operate and it had become clear that H Pty Ltd would not readily secure access to the cable network and so the husband began to concentrate on looking at other transmission platforms. He also gave extensive evidence about the purchase by H Pty Ltd of the licenses and related assets from the receivers of BW Group between September and December 1998.
On 30 November 1998 the husband deposited $12,688.99 to the credit of the wife’s bank account. During 1998 the husband paid $84,688.99 to or on behalf of the wife.
In February 1999 the wife commenced employment with FC Company in acquisitions. She was promoted to a managerial position.
On 6 March 1999 the wife ceased to be a director of SS Pty Ltd.
In September 1999 the wife spoke with the husband and said to him: I’m thinking of taking Mr F to the USA. Can you please arrange for airline tickets for him? to which he said: Okay, I will ring Qantas. After the trip in September 1999 the wife contacted the husband in October 1999 and said: The trip was good but your son sent me broke. Do you think you can pay for his shopping expenses? to which he said: “Send me the receipts. The wife then said: Okay, I will fax you copies of the receipts. They will come to approximately $15,000. Shortly thereafter the wife faxed the receipts to the husband and on 5 November 1999 he arranged for $14,763.35 to be deposited into the wife’s bank account. Exhibited to the wife’s affidavit is a copy of a DJ State Bank statement for the period from 1 November 1999 to 15 November 1999.
During 1999 the husband paid $86,763.35 to or on behalf of the wife.
In 1999/2000 the wife borrowed $75,000 secured against the QQ Street apartment and she used that money to pay off some of her credit cards, meet other day to day expenses and invest $5,000 with FB Company.
In April 2000 the broadcasting authority approved the conversion of the licences held by H Pty Ltd.. The conversion was completed at a cost of $25 million and the license came into force and effect on 25 July 2000.
In August 2000 the wife took the child to FF City and the husband paid approximately $9,000 for their air tickets.
In late 2000 a significant event occurred. It appears that in October 2000 H Pty Ltd affected a sale of its rights over too ZZ Ltd for $140 million. Form this point on I accept that there are a number of issues about the husband’s financial affairs. I will refer to some of what happened.
In November 2000 the wife spoke to the husband and said to him: I need a new car. to which he replied: You won’t like the new model because they do not have the power your car has. The wife said: But it will cost me about $5,000 to repair and I have other expenses that I need to pay but do not have the money. Can you give me $15,000.00 to which he said: Just fix your car and I will send you $15,000 for the car and the other expenses. On 5 December 2000 the husband deposited $15,000 into the wife’s bank account and the wife used this money to pay for the repairs to the car of approximately $5,000 and the balance on meeting other expenses. The wife exhibited to her affidavit a copy of DJ Bank Statement for the period from 1 December 2000 to 15 December 2000 (entry on 5 December 2000).
On 20 November 2000 H Pty Ltd received a cash consideration of $110 million for the sale to ZZ Ltd.
On 5 December 2000 H Pty Ltd paid $2,750,000 to DZ Pty Ltd for assistance in the sale of the licence.
On 5 December 2000 an agreement was entered into by H Pty Ltd with a third party for assistance in the sale of the licences. The wife contended that the sale triggered a success fee payable to the third party of $87,062,218 and the amount was paid. The husband contended that no success fee was payable and that the amount represented repayment of a loan and interest. The wife contended that the amount was wrongly recorded in the accounts.

The husband has the capacity and opportunity to continue to earn a substantial income and presumably accumulate significant wealth.
In her Financial Statement of 7 May 2004 the wife disclosed an estimated total weekly income of $1,532 which comprised a salary of $798, investment income of an estimated $550 and board from her brother of $184. She pays tax of $404 per week. Thus her net income was $1,128.
In her Financial Statement the wife disclosed assets of a gross value of $886,392 which comprised the unit at QQ Street, Suburb RR, a motor vehicle, household contents, jewellery and antiques, shares in AB Pty Ltd, bank accounts and investments. She also has a small amount of superannuation of a value of $18,405. The unit which is occupied by the wife’s parents was acquired for this purpose. The wife disclosed liabilities of $184,056.
The wife has spent a significant amount of money in respect of the costs of litigation in this court.
The wife is currently residing in rented accommodation and paying rent of $630 per week.
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.
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.
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.
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 Suburb C and then she owned her home at Suburb WW.
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.
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.
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.
In my view, prima facie, the husband has attempted to obstruct the wife in her endeavours to gain relevant information and documents about a number of matters including his financial circumstances. As well, he absented himself from the jurisdiction in circumstances where he knew that the wife and those advising her were anxious, for good reason, to examine him in relation to his financial circumstances.
I have no doubt that there is an important issue about the disbursement of the proceeds of sale from the sale of the distibution licence to ZZ Ltd. I am also of the view that there are issues about the efforts of the husband and his present wife to establish a company which will continue to operate a business similar to that of H Pty Ltd which was sold. It is complex but prima facie I am of the view that the husband appears to have tried to hide the true situation and there remain a number of important unanswered questions.
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.
The wife no longer has the responsibility for the care and control of the child of the marriage. In any event the child is now 20 years of age.
I have already dealt with the commitments of the wife that are necessary to enable her to support herself.
The wife does have the responsibility to provide support for her parents in that they occupy her unit. Otherwise the wife does not have the responsibility to support any other person. There is no evidence that the husband has the responsibility to support any other person.
There is no suggestion that either party is eligible for a relevant pension, allowance or benefit.
On behalf of the wife it was submitted that I am required to take into account a standard of living that in all the circumstances is reasonable. Whilst authority may support the proposition that a spouse has no entitlement to maintain a standard of living equivalent to that enjoyed during marriage there is no authority for the often implied corollary, namely, a spouse is not entitled to expect, in any case, no matter the facts, to be maintained to a standard equating to that enjoyed during marriage. I accept this submission.
As to a standard of living that in all the circumstances is reasonable the wife gave extensive evidence about the standard of living the parties enjoyed during their relationship. She gave evidence about expenditure for clothing, shoes, entertainment, holidays (both overseas and in Australia), cosmetic treatment, cosmetics, gifts, wine, jewellery, motor vehicles and other matters. I am not going to repeat all of her evidence. I accept that during the relationship, and after separation, the parties enjoyed what I would describe as a very high standard of living. It may not be appropriate that the wife enjoy an ostentatious or lavish lifestyle however in the circumstances a very high standard of living is appropriate.
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.
In this case the wife contended that s 75(2)(j) is relevant. It was submitted that it is relevant to take into account the extent to which the wife contributed to the income, earning capacity, property and financial resources of the husband.
It was submitted that s 74 opens the door to recognise contributions occurring substantially after a property settlement may have been effected. It was submitted that this is because the applicant party has a need and has indirectly contributed in a valuable way to the financial superiority of the other party. It gives due recognition to a continuing parenting contribution which often allows the other party to pursue economic opportunities.
Section 75(2)(j) is similar to s 79(4)(a) and (b). In Vautin the Full Court referred to what Windeyer J. said in Saunders v Saunders (1967) 116 CLR 366 when he pointed out that the power to adjust property and the power to order maintenance overlap. On behalf of the husband it was submitted that s 75(2)(j) is only relevant to applications for maintenance and has no relevance to applications under s 79 because of s 79(4)(a) and (b). It was submitted that for s 75(2)(j) to be relevant in an application under s 79 would result in double counting of the contributions.
On behalf of the husband it was submitted that s 75(2)(j), does not authorise a claim for maintenance in the absence of proven need: see Rowan and Rowan (1977) FLC 90–310 at 76,651; Stacy and Stacy (1977) FLC 90–324 and Mitchell v Mitchell (supra). It was submitted that there is a clear distinction between a maintenance order and a property order. An applicant for maintenance must establish some kind of need for maintenance and s 75(2)(j) is simply one factor to be taken into account in deciding what are the applicant’s reasonable needs. I accept that the fact that one party made contributions to the financial circumstances of the other party cannot override the obligation of the applicant to establish an inability to support himself or herself adequately. However, s 75(2)(j) is relevant to both dealing with the conditions in s 72 and if satisfied considering pursuant to s 74 what is a proper order, if any, to make.
On behalf of the wife it was submitted that in an appropriate case, s 74 opens the door to recognise contributions occurring substantially after a property settlement may have been effected. This is not because the other party has more and thus invoking some idiosyncratic notion of social justice, but because the other party has a need and has indirectly contributed in a valuable way to the financial superiority that the other enjoys. It gives due recognition to the fact that a parenting contribution is continuing and that it often has direct consequences on freeing the other party to participate in actively pursuing their economic opportunities. A continued parenting contribution, particularly one that has a substantial consequence of economic benefit for the other party, which continues after a property settlement, is not a contribution that is necessarily rewarded or consumed in the court determining a just and equitable order pursuant to s 79 at the time of the property settlement.
On behalf of the wife it was submitted that it is the foregoing facts which bring into unique focus the application of the spouse maintenance provisions of the Act in respect of the discretion to order a lump sum payment and in doing so take into account factors such as those arising under s 75(2)(j). In an appropriate case once the power in s 74 is invoked the remedy, within the bounds of s 80 is at large. It could involve the payment of a lump sum (and not merely as a capitalization of a periodic amount), the transfer of property or periodic payments. Such a contention does not offend, in a case such as present, s 81. The fact of the property orders and their context stands to be recognized pursuant to s 75(2)(n).
In my view, it does not follow that in circumstances such as exist in this case where there was a property settlement made some years before and at a time when the parties circumstances were vastly different to what they are now that s 75(2)(j) is of no relevance. Section 75(2)(j) covers situations where the applicant has made a contribution to the respondents’ financial position. It would be unjust if a party who makes such a contribution could not then later claim support for himself or herself.
Anthony Dickey (supra) suggests at p 486 that:
…The principle behind this paragraph is probably that a party to a marriage who has contributed towards the assets and economic advantages of the other party has some moral claim to future maintenance from this party in appropriate circumstances.
The principle section of the Family Law Act which takes into account the contributions made by one party to a marriage to the acquisition, conservation and improvement of property belonging to the other party is s 79. This empowers a court to make an alteration of property interests upon the basis of such contributions. Section 79, however, also requires a court to take into account the general future economic position of the parties, and to this end s 79(4)(e) directs the court to consider all matters referred to in s 75(2), which are now being examined. Paragraph (j) may be seen as performing the converse function by requiring a court in maintenance proceedings to take into account the past contributions of the party to the property and also to the income, earning capacity and financial resources of the other party.
In Mitchell the Full Court said at 81,998:
Returning to the case in hand, it is important to recognize and give realistic effect to the circumstance that the acquisition and development by the husband of his professional skills (and thus his present high earning capacity) occurred during the marriage whilst at the same time the wife sacrificed her professional skills to care for the family. These are matters to which paras (j) and (k) of s 75(2) are directed.
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.
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.
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 contributions 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 has been able to achieve a position with AC Company which was paying approximately $41,500 per annum. The husband has an income of an estimated $1M per annum and vast assets. The wife’s earning potential has been significantly affected by the duration of the marriage.
The child is now adult and thus s 75(2)(l) in the circumstances of this matter is not relevant.
There is no suggestion that the wife is cohabiting with another person. The husband however, has remarried. Although I do not have detailed evidence about the financial circumstances of the husband’s present wife what evidence I do have satisfies me that she probably has a substantial income and substantial assets.
I am required to consider the terms of any order made under s 79 in relation to the property of the parties. As seen, there was a property settlement order made some years ago and in my view, in the circumstances of this case, this matter is not relevant.
Given the age and circumstances of the child any child support under the Child Support (Assessment) Act 1989 is irrelevant.
Section 75(2)(o) is a provision that requires me to consider facts or circumstances of a broadly financial nature which the justice of the case require be taken into account. Subject to this economic limitation however, although the discretion imposed by the section must be exercised judicially it is not otherwise restricted. In Beck and Beck (No. 2) (1983) FLC 91-318 at 78,167 the Full Court said:
With respect to s 75(2)(o) the test is, does the "justice of the case" require that a particular financial matter be taken into account.
On behalf of the wife it was submitted that this consideration clearly provides scope to take into account the agreements reached between the parties in the past, the wife’s reliance upon them to her detriment in not commencing proceedings and the very substantial growth in wealth the husband has achieved in that time.

Conclusion

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.
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.
On behalf of the husband a number of submissions were made. It was submitted that the wife had not established incapacity and was not entitled to an order for maintenance for the following reasons. The wife does not have care or control of any child under 18 years of age. The wife does not lack age or physical or mental capacity for appropriate gainful employment. There is no other adequate reason for the wife to be unable to support herself adequately. Relevant factors include she is in full-time employment; she is well-equipped by qualification and training for employment and during the marriage, she says she worked hard and long hours in the business and thus, her capacity was not adversely affected by being taken out of the workforce during the marriage. Further, 12 years have elapsed since separation, and 9 since the divorce. During that time she has been supported generously and indeed handsomely (emphasis mine) and during that time she has had ample opportunity to develop opportunities to improve her earning capacity. Next, the parties have had a property settlement intended to finalise their relationship save for child support. It was submitted that this is relevant under s 75(2)(n), and its relevance accentuated by s 81. It was submitted that it must be assumed that the settlement properly took into account s 75(2)(j). Next, having regard to those matters, the wife’s expenditure exceeds her reasonable needs in all the circumstances. Finally, the wife has not shown that she does not have the capacity to earn enough to support herself.
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.
On behalf of the wife it was also submitted, and I accept, that the issue of what is adequate is a question that always must be determined on the facts of the individual case and involves some issues of relativity of the circumstances of each party. The husband has deprived the court from any full understanding of his circumstances. However, inferences therefore resorted to must be unfavourable to him. The pictures and description of the property at Suburb C (Ex. AB) are compelling.

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.
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.
I then have to consider what order is proper for the provision of maintenance of the wife and it is in this context that I have to consider the powers in s 80 including the power to make an order for lump sum maintenance.
I agree with the submission on behalf of the wife that once the power in s 74 is enlivened then s 80 provides the various avenues by which the court might exercise that power. The broad power to make both periodic and lump sum orders is there clearly prescribed as is the power to order a transfer or settlement of property by way of maintenance.
On one approach an order could be made that the husband pay to the wife an amount of $3,154 per week and he has the capacity to pay this amount. However, this may not be a proper order. In this case the wife contended that a proper order is one that provides for payment of lump sum maintenance.
On behalf of the husband it was also submitted that, in the circumstances of this case, grave injustice could be worked by a lump sum representing years of periodic maintenance. The following questions were posed namely what if the wife remarries or, consequent upon receivership, and tax investigations, the husband’s position deteriorates or collapses. It was submitted that in any event, in the case of a wife who is in employment, why should she be supported indefinitely?
On behalf of the husband it was submitted that insufficient reason was shown for doubting that the husband will comply with an order for maintenance. Not only has he never defaulted in payment under an order for spouse maintenance; but for many years he paid vastly more (emphasis mine) than he was legally obliged to pay. In respect of child support, he ceased to pay only after the present application was filed. In fact he had no liability to pay.
Further on behalf of the husband it was submitted that there was an implicit if not explicit suggestion that the husband should be in effect punished for his attitude to the proceedings by suffering a lump sum order. That would of course be an abuse. He was entitled to oppose the s 44(3) application, in circumstances where a decade has passed and a previous similar application had been withdrawn. Though that opposition was unsuccessful and his appeals unsuccessful, the circumstances were extraordinary and opposition not unreasonable. At the outset he conceded capacity to pay. It was submitted that given that concession, the fervent pursuit of financial investigation – in the context of this maintenance case, as distinct from the s 79A case – has been unnecessary, or at least over-zealous. It must be remembered that he was overseas – and had been for some months – when these proceedings were commenced. He had provided generous levels of support until then, for many years after separation and divorce.
It was submitted on behalf of the husband that if there were concerns at the husband’s compliance there is going to be a further (s 79A) hearing, and that will provide an opportunity to review the position if there were default. Alternatively the wife could be granted liberty to apply for capitalisation in the event of default; or a self-executing provision could be included to the effect that, if the husband falls into arrears for say 3 months, then the next 9 months also falls immediately due; or the periodic payments could be in respect of longer periods – quarterly, six-monthly or even annual.
I do not accept the submissions made on behalf of the husband in relation to whether a lump sum order is proper. I reject the contention that the wife’s pursuit of financial investigation has been unnecessary and that any lump sum amount would be a form of punishment.
On behalf of the wife it was submitted that the wife’s claim is for substantial sums by the standards of most of the community. However, like so much of the jurisdiction this court now exercises in financial proceedings, categorization of a claim in this way necessarily involves a question of relativity. The facts must be measured in relativity to the entirety of the circumstances in considering needs, capacity to support oneself, capacity to support a former spouse and adequacy or reasonableness of needs. Every day under the Act orders are made for a few thousand dollars a year against husbands for whom that would impose a greater relative burden than would the orders sought in the present case against the husband.
One claim that has been determined is the s 66L claim for adult maintenance in relation to the child Mr F. The parties agreed upon the quantum of the order, the only issue remaining to be determined was whether the payment should be to the wife, as she sought, or directly to the child, as the husband sought. The husband was unsuccessful; appealed unsuccessfully and to this day has never paid an amount to the wife arising from this order with the exception of the $1,897.98 paid in the face of an enforcement summons. For the closed period for which the order operated arrears are now outstanding of $37,102.02. In the meantime the wife was borrowing funds to support herself and the child and to meet legal costs. She eventually was faced with selling her home.
The child is now an adult. The wife has made contributions described earlier, for present relevant purposes, since the child was 7 years of age. The wife has net wealth of about $720,000; the husband in excess of $150M, and perhaps significantly more. Overwhelmingly that wealth appears to emerge subsequent to the consent s 79 order, but from a basis that existed and was developed during the marriage.
I have reached the conclusion that, in the circumstances of this case, it is proper to make an order for lump sum maintenance.
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.
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).
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.
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.
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.

Child Support

The proceedings in relation to child support are a mess. The last payment of child support was in April 2002. The child completed his schooling at the end of 2002. An order for adult child maintenance was made on 18 March 2003 to commence on 2 June 2003. The child attained the age of 18 years in June 2003. The child was overseas between 20 December 2003 and February 2004. In July 2004 the child ceased residing with the wife.
The wife seeks a variation of the terms of the Child Support Agreement providing for an increase in the amount of child support payable for the periods 1 December 2001 until 28 February 2003 and 1 March 2003 until 1 June 2003. In the alternative she seeks pursuant to s 66G of the Family Law Act child maintenance of $5,837 per month for the period 15 April 2002 until 2 June 2003.
The wife sought a departure pursuant to s 115(c) and s 117(2) of the Assessment Act. Section 115(c) allows an application for a departure order to be attached to a pending application in the court. In this case the pending application is the application for spouse maintenance. Section 115(c) enables an application for departure to be made directly to the court so as to avoid the application having to be first made to a Child Support Review Officer.
In this case a number of submissions were made on behalf of the husband in relation to the application. They included whether or not I have jurisdiction given the absence of evidence that the Child Support Agreement was ever accepted by the Child Support Agency; whether the husband’s liability to pay child support ended when he ceased to be a resident of Australia and whether the Overseas Regulations apply. Presumably because of these submissions the wife sought in the alternative an order pursuant to s 66G.
Under Part 6 of the Assessment Act parties may enter into a Child Support Agreement without obtaining an administrative assessment of child support. Division 3 of Part 6 sets out the general requirements for applications for acceptance by the Child Support Registrar of a child support agreement. If the agreement is accepted for registration then the agreement gains its enforceability and its variability from acceptance under the Assessment Act: Bertuch and Lynch, (1998) FLC 92-796. Acceptance of the child support agreement has the same effect as the acceptance by the Child Support Registrar of an application for administrative assessment of child support for the child: s 93 of the Assessment Act.
Once the Child Support Agreement is registered it can be varied by court order. However, the court must be satisfied that there has been a change in circumstances which gives rise to a ground for departure under s 117(2) of the Assessment Act.
It was submitted on behalf of the husband that in the present case liability has not arisen. There was no evidence that the agreement was ever accepted. Further, any liability for child support ended upon the husband ceasing to a resident of Australia, not later than 30 June 2002. That was a child support terminating event under s 12(3)(b), of the Assessment Act which brought to an end his liability to pay child support under the Child Support Agreement, before the period commencing in 2002 in which the arrears, the subject of the enforcement summons accrued. It was submitted that the Overseas Regulations do not apply, because the present application does not invoke international arrangements.
What then happened is that on 8 December 2004 the wife filed a Third Amended Application to which she attached copies of assessments from the Child Support Agency. Then during final submissions a minute of orders was filed on behalf of the wife seeking a departure pursuant to the Assessment Act and in the alternative an order pursuant to s 66G for child maintenance of $5,837 per month for the period 15 April 2002 until 2 June 2003
Senior Counsel for the husband submitted that no notice had been given of the amended applications and that there would be prejudice to the husband as he had no opportunity to investigate various matters and no opportunity to contest the issues. For example in cross-examination no attempt was made to deal with the costs of supporting the child.
Senior Counsel for the wife countered that the husband should have raised the issue of registration of the Child Support Agreement at an earlier time, given amongst other things, another Senior Counsel for the husband on an earlier occasion had acknowledged that there were pending child support departure applications. Further, there would be prejudice to the wife if the issue was not dealt with because she had depleted her resources.
I am going to resolve the child support departure/child maintenance proceedings. I accept the submissions made on behalf of the husband. There is no evidence that the Child Support Agreement has been registered. I therefore do not propose to consider the application by the wife for child support departure.
There is then the Application pursuant to s 66G for child maintenance. This application was made because of the effect of s 66E which prevents the court from making an order under Pt VII where the Assessment Act applies. In this case I have found that it does not apply.
This application was opposed by the husband. An order for adult child maintenance was made on 12 March 2003 requiring the husband to pay $3,000 per month as and from 2 June 2003. The husband made no payments of child support in the period 8 April 2002 and 2 June 2003.
I have set out at some length the background history and the evidence as to the circumstances of the parties. I am not going repeat that evidence. I am also not going to deal seriatim with all relevant statutory considerations. The wife obviously had to meet expenses for the support of the child and I have no doubt that such expenses far exceeded the amount of child support paid pursuant to the child support agreement. I also know that an order for adult child maintenance was made providing for payment of $3,000 per month.
In her Financial Statement of May 2004 the wife gave evidence that her estimate of the financial needs for the child calculated as at 2002/2003 and until he turned 18 years were $1,522-1,722 per week. I have no doubt that comparing the financial circumstances of the parties to meet such needs the husband should have paid the majority, if not all, of such expenses.
Taking into account relevant matters I am of the opinion that an order should be made for the period 8 April 2002 and 2 June 2003. I am satisfied that a proper order for child maintenance is that the husband pay the sum of $4,000 per calendar month or $1,000 per week.
The husband chose not to appear at the hearing in circumstances where he knew that the wife was pursuing an increase in the amount of periodic support for the child. In my opinion, there was no prejudice to the husband notwithstanding the late notice of the application pursuant to s 66G.
The husband will have to pay a total of $61,000.

Adult Child Maintenance enforcement

The application by the wife for the payment of the arrears due under the order for adult child maintenance can be shortly dealt with.
On behalf of the husband it was submitted that in the circumstances that the child has been living with his father and not with the wife from 20 December 2003 until to 28 February 2004, and since July 2004, as a matter of discretion, the order should not be enforced. I reject this submission.
I am going to order that the husband pay to the wife an amount of $37,102.02 which represents the arrears for the period 3 June 2003 until July 2004. The child finally ceased living with the wife in July 2004. I see no reason why the husband’s obligation should in effect be stayed during the holiday period the child had with his father. The husband has provided no explanation for why he did not meet his obligation pursuant to the order.

Orders

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.
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 Mr F born in 1985 the sum of $61,000 being $1,000 per week for the period 5 April 2002 to 2 June 2003.
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.
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.
The application by the wife for a Child Support Departure be dismissed.

[2005] FamCA 1165

5 December 2005