Burns & Sellers (No. 2) - [2017] FamCA 914

FAMILY COURT OF AUSTRALIA

BURNS & SELLERS (NO. 2)

[2017] FamCA 914

FAMILY LAW – SPOUSE MAINTENACE – INTERIM – Where consideration of applicable principles – Where the wife is unable to adequately support herself – Whether the husband has capacity to pay spousal maintenance – Where it is determined the husband has capacity to pay to the wife interim spousal maintenance – Where order made pending further order.

FAMILY LAW – PROPERTY – INTERIM – Where an order for interim property settlement is sought by the wife – Whether it is appropriate to exercise court’s power on an interim basis – Where the husband contends it is inappropriate to make order – The whole of the current assets of the parties are in the husband’s control – Where contributions significantly favour the husband – Where it is found that it is appropriate and otherwise in the interests of justice to make interim property settlement in favour of wife.

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79, 80, 117

Bevan & Bevan (1995) FLC 92-600
Harris & Harris (1993) FLC 92-378
Oates and Crest (2008) FLC 93-365
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Burns

RESPONDENT:

Mr Sellers

FILE NUMBER:

PAC

5854

2016

DATE DELIVERED:

14 November 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

By way of written submissions last received on 31 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

McAuley Hawach Lawyers

Orders

Interim Spouse Maintenance

That the husband pay to a bank account, nominated by the wife in writing within two days from the date of these orders, the sum of $3,250.00 per week by way of interim spousal maintenance pending further order with the first payment within seven days from the date of these orders.

Interim property adjustment

That the husband pay to the wife the sum of $150,000.00 by way of interim property adjustment with payments as follows:
(a)As to the sum of $50,000.00 within 14 days from the date of these orders;
(b)As to the further sum of $100,000.00 within two months from the date of these orders;
(c)Such payments to be made to a bank account, nominated by the wife in writing within two days from the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Sellers (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5854 of 2016

Ms Burns

Applicant

And

Mr Sellers

Respondent

REASONS FOR JUDGMENT

In the context of ongoing parenting and property proceedings between the applicant husband and respondent wife, the wife on 12 May 2017 filed a Further Amended Response seeking interim financial orders.
On hearing of the wife’s interim application she sought, in summary, orders as follows:
a)that the husband pay by way of interim spousal maintenance to the wife the sum of $5,500.00 per week;
b)that the husband pay to the wife the sum of $200,000.00 by two instalments, the first instalment of $100,000.00 within 28 days of the date of orders and the second instalment within three calendar months of the date of orders.
The wife relied upon the following documents:
a)her affidavit filed 5 July 2017;
b)her further affidavit filed 18 July 2017;
c)her financial statement filed for July 2017;
d)the affidavit of Mr L filed for July 2017;
e)the affidavit of Ms M filed 4 July 2017.
The husband filed a Response to the wife’s Further Amended Response on 18 July 2017. He sought orders that the wife’s interim application be dismissed and that the wife pay his costs on an indemnity basis.
The husband relied upon the following documents:
a)his affidavit filed 18 July 2017,
b)his financial statement filed 18 July 2017,
c)the affidavit of Mr N filed 18 July 2017.
The interim hearing was on 19 July 2017 with written submissions thereafter. Final submissions were received on 18 August 2017 and judgment was then reserved.

Context

The context of the present proceedings were the subject of an earlier interim determination in Burns & Sellers [2017] FamCA 242. Orders were made on 21 April 2017 relevantly as follows:
ORDERS BY CONSENT AND PENDING FURTHER ORDER
(1)That the husband pay to the Managing Agent of the property known as B Street, Suburb C NSW (“the property”) all rental payments (including arrears) as and when they fall due and payable in respect of the residential lease between the parties and the proprietor and/or his Agent of the property until 17 September 2017.
(2)That the wife shall provide to the husband copies of all bills in respect of utilities, including consumption and supply charges for the property, together with household bills, including gas, electricity, water, internet, phone and Foxtel services and within 7 days of receipt of such bills from the wife, the husband shall pay to the wife or as she directs a sum equal to the amounts due and payable on any such bill.
(3)That the husband pay all registration, third party and private insurance and loan repayments in respect of the Japanese motor vehicle registration no. … registered in the name of the husband and currently in the possession of the wife, and the husband be and is hereby restrained by injunction from removing, causing or permitting such vehicle from being in the possession and sole use of the wife.
(4)That the husband pay all instalments at the current level to the private health fund of which the wife is presently a member or such other fund as the wife directs in writing.
(5)…
ORDER
(6)Pursuant to s 77 of the Family Law Act 1975 (Cth), the husband pay or cause to be paid to the wife or as the wife may from time to time direct in writing by way of spousal maintenance, the sum of $10,000.00 to be paid within 7 days from the date of this Order.
(7)That in the event the husband fails to pay any part of the sums due to the wife pursuant to these Orders, the husband shall pay interest to the wife on such part as remains due to be paid at the rate prescribed by the Family Law Rules, calculated on a daily basis and computed from the day after the date due for payment pursuant to these Orders until payment of the sum due in full.
(8)The wife’s application for payment to her by the husband of $100,000.00 and injunctions for personal protection and preservation of property are dismissed.
The background was set out as follows:
5.The husband who is 45 and the wife who is 35 began living together in late 2009 or early 2010. At that stage the wife had no significant assets but was a highly paid professional. The husband was the sole director and shareholder of a company named E Pty Ltd (“EPL”) which is the trustee for an investment trust through which the husband apparently conducts a business. The nature of the business in which the husband has been engaged at all relevant times is unclear.
6.The wife contends that when the parties began living together the husband also had shares in a number of other companies which operated various businesses. The husband has given no evidence of his financial circumstances at the time the parties began living together.
7.The parties’ first child F was born in 2010 and around the time of and following the child’s birth the wife took maternity leave from work. She returned to work after about 18 months leave two days per week in 2011.
8.The parties married in 2013 and later in 2013 their second son D was born. Once again the wife took maternity leave and recommenced working in about August 2015. She was then employed as a consultant for about 2 to 3 days per week.
9.There is a significant dispute between the parties about the extent of non-financial contribution made by each of them especially in their roles as home maker and parent. This dispute clearly cannot be resolved in these proceedings.
10.In March 2014 the husband sold a property owned solely by him for $965,000.00.
11.In November 2015 the husband’s mother died. The husband is the executor of his late mother’s estate. The husband lists a $2,000,000.00 interest in his mother’s estate as a financial resource in his Financial Statement.
12.The parties separated in the early months of 2016 but remained living in the same home until the husband moved out in October 2016.
13.In June, July and August 2016, the husband transferred $20,000.00 each month to the wife to pay outgoings and living expenses for her and the children. The husband also paid the rent on the family home.
14.Following physical separation, the wife and children remained in the rented family home.
15.Shortly before the husband left the family home, the wife fractured her hip and ceased working. Thereafter the husband paid some of the household bills and made some cash payments and payments towards credit cards.
16.Following separation the parties unsuccessfully attempted to resolve matters through family dispute resolution and then each engaged legal representatives.
17.In December 2016 each of the parties filed an application with the Child Support Agency.
18.On 12 December 2016 the husband filed an Initiating Application seeking final orders for property settlement.
19.From November 2016 to the date of the interim hearing on 6 February 2017, the parties provided certain information concerning their financial circumstances to one another through their legal representatives though each contend that the other has not provided full financial disclosure.
20.On 19 December 2016 child support to be paid by the husband was assessed for both children as $379.72 per week. The husband has since then paid child support as required.
21.It appears there had been an expectation that the husband would continue to pay the rent on the premises in which the wife and children live until the lease on those premises expires in September 2017. However, the rent at times has fallen into arrears.

The interim parenting arrangements

On the 21 June 2017 interim orders as to parenting were made following a defended hearing. Those orders are as follows:
(1)That the mother and father have equal shared parental responsibility for the children [F] born … 2010 and [D] born … 2013.
(2)That the said children live with the mother.
(3)That the said children spend time with the father as agreed between the mother and father in writing, such writing to include SMS or email communication, and in default of agreement as follows:
(a)that the children spend time with the father during school terms in a two-week cycle being in the first week from after school/preschool Friday to before school/preschool Monday or 9.00 am Monday if not a school/preschool day and in the second week from after school/preschool Thursday to before school/preschool Friday or 9.00 am Friday if not a school/preschool day.
(b)that the children spend time with the father during forthcoming school holiday periods as follows:
(i)9.00 am 1 July 2017 to 6.00 pm 8 July 2017;
(ii)9.00 am 23 September 2017 to 6.00 pm 30 September 2017;
(iii)9.00 am 16 December 2017 to 6.00 pm 23 December 2017;
(iv)1.00 pm 25 December 2017 to 6.00 pm 26 December 2017;
(v)9.00 am 2 January 2018 to 6.00 pm 8 January 2018;
(vi)9.00 am 16 January 2018 to 6.00 pm 22 January 2018.
(c)that the children thereafter during midyear school term holidays in 2018 spend time with the father in the first half of the term 1, 2 and 3 school holiday periods with such time to commence at 9.00 am on the first Saturday of the school holiday period and to conclude at 5.00 pm on the following Saturday.
(d)from 9.00 am to 7.00 pm on Father’s Day.
(e)from 9.00 am to 7.00 pm on the father’s birthday where it falls on a weekend or during school holidays or otherwise from 3.00 pm to 6.00 pm where it falls on a school day.
(4)That notwithstanding the above orders and subject to the parties’ agreement in writing otherwise the parties’ time with the children shall be suspended so that the children spend time with the parties as follows:
(a)for not less than three hours on each child’s birthday at a time to be agreed or in default of agreement from 3.00 pm to 6.00 pm with the parent who does not already have the children in their care on that day;
(b)from 9.00 am to 7.00 pm with the mother on Mother’s Day;
(c)from 9.00 am to 7.00 pm on the mother’s birthday where it falls on a weekend or during school holidays or otherwise from 3.00 pm to 6.00 pm where it falls on a school day.
(5)That changeovers be facilitated as agreed between the parties in writing such writing to include SMS or email communication and in default of agreement and where changeovers are not to take place at school or preschool such changeovers will be effected outside the mother’s home.
(6)That the father be permitted to travel with the children to [the South Pacific] on one occasion during the 2017 or 2017/2018 school holidays during the time the children are to spend with him provided that not less than seven days before the date on which the father proposes to travel with the children the father shall furnish to the mother in writing:
(a)the details of a qualified nanny to travel with and remain with the children throughout the trip;
(b)an accurate itinerary to include the departure date and return date and flight details;
(c)details of the address or addresses at which the children would be staying at all times and telephone contact numbers on which the children may be contacted during such times by the mother for the purposes of telephone contact as ordered;
(d)copies of the paid return airfares bookings in the children’s names.
(7)It is specifically noted that Orders 8, 9, 10, 11 and 12 made on 6 January 2017 remain in force and effect.

The wife’s evidence

The child F attends O School where he is in year one. The child D attends preschool to three days per week.
Prior to the birth of the first child the wife worked full-time in a professional position. Following the birth of the child the wife returned to part-time work after 18 months.
Thereafter following the birth of the second child in December 2013 the wife did not return to work until August 2015, working as a part-time consultant for P Pte Ltd initially working three days per week for a consultancy fee of $12,500.00 per month plus expenses and then two days per week. To facilitate her part-time work, the parties employed a live-in au pair to care for the children when the wife was at work.
In September 2016 the wife suffered a stress fracture in her hip and was unable to work until late October 2016 at which time she returned to work one day per week for a few weeks. However, she ceased work in late November 2016 when her part-time work was no longer available to her. Her au pair ceased working for her in February 2017, several months after final separation.
The wife’s taxable income for the 2014 financial year was $31,635.00, for the 2015 financial year $11,335.00, and for the 2016 financial year $51,934.00. In the period from 1 July 2016 to 30 September 2016 her income was about $18,000.00. At present she is owed about $46,000.00 for unpaid consultancy work but that sum remains outstanding to her from P Pte Ltd due to that company’s asserted poor financial circumstances.
In December 2016 the wife deposed as to an intention to return to work after the Christmas school holidays subject to there being consultancy work available to her. She asserts that at present there is no consultancy work available to her. There is no evidence that her consultancy agreement with P Pte Ltd dated 1 September 2015 has been terminated.
She now asserts that she would have difficulty in obtaining alternate work particularly at her previous level of seniority by reason of the period that has elapsed since she worked full-time, her limited experience in consulting on a part-time basis and her need to work part time and to have flexible work arrangements due to her obligations as primary carer for the children.
Yet the wife adduces no evidence of any attempt whatsoever to obtain employment either full-time or part-time in this capacity. Her prospects of employment are simply not known and it is not her evidence that her obligation as primary carer for the children precludes her from any form of employment.
The wife asserts that since separation the husband has restricted her access to bank and credit card accounts to meet expenses for her and the children. In November 2016 she says the husband stopped providing any significant financial support.
She has otherwise been required to borrow funds to meet living expenses for her and the children. Those borrowings from her family as at early July 2017 totalled about $180,000.00. The borrowings have been applied in part in payment of some legal fees but mostly to meet household and living expenses for the wife and children.
At present the husband’s child support is provided by way of payments of $1,400.00 per month by way of assessed child-support liability in addition to other non-agency payments provided for in previous interim orders.
The wife complains that the husband notwithstanding previous orders had consistently been late in paying rent on her residence and other expenses. His obligation to pay rent ceased under the previous interim orders on 17 September 2017.
Otherwise, the wife has outstanding legal costs of about $140,000.00 as at July 2017.
The wife’s expenses are set out in her financial statement filed 4 July 2017. They comprise:
Fixed Expenses:
Rent  $ 2,256.00
Car insurance   $       33.00
Health Insurance   $     140.00
Car registration   $       22.00
Visa payments  $       23.00
Weekly expenses:
Food  $     242.00
Household supplies                 $       30.00
House repairs  $       30.00
Gas  $       21.00
Electricity   $       21.00
Telephone/Internet                   $       43.00
Petrol   $       25.00
Car maintenance   $       13.00
Fares/car parking  $       64.00
Clothing/shoes  $     100.00
Childminding  $     100.00
Medical/dental and optical      $     150.00
Entertainment/hobbies            $     208.00
Holidays  $     263.00
Chemist/pharmaceutical          $         7.00
Gardening/lawnmowing           $       25.00
Cleaning  $     100.00
Repairs  $       11.00
Dry cleaning  $       28.00
Books and magazines               $       16.00
Hairdressing/toiletries            $       94.00
Icebergs fee  $       13.00
Nanny agency fees                   $       25.00
Professional fees  $       16.00
Drop box the/postage              $       50.00
Fees/interest  $       23.00
Gym membership  $       34.00
Yoga classes  $       40.00
The total of her fixed and weekly expenses is $4,266.00.
The wife seeks a maintenance order that would permit her to meet payments of her expenses and outgoings without having to rely upon the husband to make those payments in circumstances where he has been consistently late in payments and in default of his obligations pursuant to interim orders.

The wife’s assets comprise of minimal bank balances, accumulated super of about $46,000.00 and furniture and household effects.
Otherwise, the wife is one of the discretionary beneficiaries in a family trust established on 29 June 2007 by her sister Ms Q and known as the Burns Trust. The wife has never received any distributions from the trust nor received any benefits from the trust as a beneficiary, employee or contractor. She asserts that she has disclaimed any interest in the trust.
The wife asserts that at cohabitation the husband had property that comprised:
a)the property at R Street, Suburb S;
b)shares in various corporate entities;
c)interests in various trusts relating to his own assets and the assets of his father.
The wife has no significant assets at cohabitation.
Over the period of cohabitation the husband represented to the wife at various times significant benefits received by way of dividend and/or realisation of his corporate interests.
In March 2014 the husband sold the Suburb S property for $965,000.00. The application of those funds is not known to the wife.
The wife has been the primary carer for the children during cohabitation and remains so by reason of the present interim orders. She asserts a contribution by way of project management to renovations undertaken to the Suburb S property. Her income otherwise had been applied to the needs of the family.
The wife complains of the husband’s financial control over the relationship and particularly post separation. For a period from mid-2015 until mid-2016 she was able to have access to the husband’s Internet banking for the purposes of meeting family and household expenses.
Subsequent to final physical separation in October 2016 the husband provided funds to the wife by way of cash payments and payments into the Commonwealth Bank credit card to which the wife had access, otherwise the husband paid some family bills directly.
During cohabitation the wife asserts that they lived a handsome lifestyle dining out at restaurants, with significant personal expenditure, holidays and residing in expensive rented accommodation.
The husband’s taxable income for the 2014 financial year was $451,159.00, for the 2015 financial year $129,849.00, and for the 2016 financial year $121,810.00. It is noted that rental payments alone in the 2015 and 2016 financial years would probably not have been able to be met from his after tax income alone. Yet in the 2016 financial year the wife asserts total expenditure by the family to be about $443,000.00.
Deposits to the husband’s Westpac accounts in the 2017 financial year until January 2017 totalled $1.35 million. One deposit of $1.154 million the wife believes to be the proceeds of sale of the husband’s business Company G.
The wife complains as to the husband’s lack of financial disclosure.

The husband’s late mother’s estate

The husband’s mother died on 28 November 2015. It appears that the estate substantially comprised a real estate property at Suburb T having a value asserted by the husband of $2.5 million and monies at bank of about $158,000.00.
The husband is the sole executor and beneficiary of his late mother’s estate and somewhat inexplicably a Grant of Probate has not as yet been made in relation to his late mother’s will dated 7 September 2011.
The husband’s mother it is asserted resided in a de facto relationship with one Mr U for many years up until her date of death. The will makes no provision for Mr U save for circumstances where the husband may have predeceased his mother and save for the testator’s wish that Mr U be afforded at least 12 months after her death in which to vacate her Suburb T home.
Subsequent to the commencement of these proceedings and on 9 May 2017 the husband and Mr U entered into a Deed of Agreement, notwithstanding that the husband had not yet obtained a Grant of Probate in relation to his mother’s estate, that in summary provided for Mr U to reside in the property for a period of 10 years with an option of a further 10 years at a rental of $1.00 per annum subject to Mr U’s obligation to pay property outgoings and to maintain the property. Mr U’s occupation would terminate should he die, cease to reside in the property for a period of more than four months or fail to comply with his obligations in relation to the property. Otherwise, the agreement provided for the husband to pay to Mr U a sum of $130,000.00, presumably from his late mother’s bank accounts, within four months from the date of a Grant of Probate.
The Deed of Agreement is an agreement that otherwise determines any claim that Mr U may have as against the husband’s late mother’s estate for a family provision order. This notwithstanding that the wife asserts that Mr U had represented to her with the husband present that he sought to make no claim against the estate as he had his own property at Suburb S and had made provision for his superannuation to go to his own children on his death.
Mr U has been joined in these proceedings with the wife seeking to set aside the Agreement dated 9 May 2017.

The wife’s legal costs

The wife has outstanding legal fees to her previous solicitors of about $140,000.00. Having changed solicitors she asserts that she has been unable to obtain her file from her previous solicitors by reason of her unpaid costs.
She has a costs agreement with her present solicitors that provides that if accounts are not paid or not paid in advanced as requested those solicitors may cease to act on her behalf. The wife has been informed by her solicitors that they would not agree to act for her on the basis that they would be paid from her property settlement in due course.
The wife has retained senior counsel with his costs agreement providing for prompt payment of fees.
Otherwise, the wife complains that the husband’s solicitors have caused an unreasonable level of communication including email communication that has unduly escalated her fees.

The husband’s evidence

The husband asserts that at the commencement of cohabitation he had the following assets:
a)his property at Suburb S having a value of about $800,000.00 and subject to mortgage of about $400,000.00;
b)a motor vehicle;
c)superannuation of about $50,000.00;
d)furniture and contents;
e)various shareholdings having nominal value;
f)his interest in his Sellers Investment Trust.
He otherwise asserts that the wife had no assets of any significant value, some superannuation and HECS and credit card debts totalling about $100,000.00.
He says that the current matrimonial assets and liabilities comprise in summary the following:
Assets:
a)two Japanese motor vehicles totalling about $70,000.00;
b)his interest in various business/entities including the Sellers Investment Trust that have not been valued;
c)his monies at bank of about $1,000.00;
d)the wife’s monies at bank including a child’s trust account totalling about $9,000.00;
e)joint household contents with value not known;
f)his pushbikes with a value of about $6,000.00.
Liabilities:
a)the wife’s various debts to her family about $180,000.00;
b)the wife’s visa card debt about $3,000.00;
c)the husband’s debt to Company V of $120,000.00;
d)the husband’s debt to Westpac $48,160.00;
e)the husband’s debt to Commonwealth Bank about $22,000.00;
f)the husband’s outstanding legal fees $200,000.00;
g)the wife’s outstanding legal fees to her former solicitors $140,000.00.
Otherwise, both parties have superannuation entitlements of about $46,000.00 each and other financial resources comprising:
a)monies owed to the husband by the Sellers Investment Trust $300,000.00;
b)outstanding contract fees owed to the wife by P Pte Ltd $46,000.00;
c)his entitlement as sole beneficiary in his late mother’s un-administered estate (see above).
The husband, like the wife, complains about inadequate disclosure as to financial matters by the other party. He asserts that she has not disclosed that she is a director of W Ltd since October 2016; he does not assert that the wife has any shareholding or other beneficial interest in the company.
The husband asserts that he is not in a financial position to continue paying the wife’s rent of $2,256.00 per week for her Suburb C property indefinitely. Yet he asserts that he is up-to-date with his financial obligations made under the previous interim orders
He asserts that there are three-bedroom homes in the same area that can be rented for about $1,300.00 per week and three-bedroom home units for about $1,120.00 rent per week. He otherwise suggests that the wife’s sister’s four-bedroom home at Suburb T would be available for the wife and children to reside in.
However the husband at present does not seek to discharge any orders as to his financial obligations made previously but simply seeks to have the wife’s application for periodic spouse maintenance and lump sum provision be dismissed.
The husband rejects the wife’s assertions as to their “high standard of living” and “lavish lifestyle” during their relationship and asserts that they lived a relatively modest lifestyle.
He asserts that the wife’s sister has always been a source of financial support for the wife and he believes that she continues to provide such support.

The wife’s expenses

The husband takes issue with some weekly expenses as claimed by the wife.
As to food and household supplies, the husband himself alone asserts expenditure of $400.00 per week. The wife asserts expenditure of $272.00 which in such circumstances appears to be reasonable.
The wife had incurred expenses totalling about $1,350.00 for security once the husband finally left the home on separation. Otherwise, she estimates ongoing house repair expenses to be about $30.00 per week. She resides in a rental property and has an obligation to maintain. As best can be determined her claimed expenses are reasonable.
The wife claims $100.00 per week for clothing and shoes being about $5,200.00 per annum. The husband simply believes that such sum is excessive and discretionary. Where he asserts expenditure of about $3,120 per annum for the same in such circumstance the wife’s claim appears reasonable.
The husband rejects the wife’s claim for $125.00 per week for childminding and nanny fees. The wife’s evidence is that she no longer has a nanny. The husband says that the wife’s mother stays at the wife’s residence from time to time to help with the children. The wife provides no evidence as to what circumstances would give rise to the payment of babysitting fees. These expenses will be excluded.
The wife claims $150.00 a week for medical, dental and optical expenses for herself. She says that following the stress fracture to her hip she continues to see a physiotherapist and masseur and attends related medical appointments. She gives no evidence as to what rebates are otherwise available to her by way of her medical insurance. In the circumstances where the husband claims $100.00 per week for himself the same figure will be allowed for the wife.
As to the wife’s claim for provision for holidays of $263.00 per week the husband asserts such is an extravagant figure. Where he claims $150.00 per week for his expense the same figure will be allowed for the wife.
The wife claims a total of $125.00 for gardening/lawnmowing and cleaning fees. The basis of her claim for cleaning fees where she is not employed is not clear. She asserts otherwise that she has an obligation to maintain the gardens and grounds of the rented property under the terms of her lease. The husband asserts that he would be happy to do the gardening for her. This notwithstanding the Court’s previous determinations as to the nature of the parties’ interrelationship. A sum of $25.00 only will be allowed for gardening/lawnmowing.
The husband complains that the wife has not particularised repairs – furnishings and appliances as to $11.00 per week. The wife has demonstrated no basis for this sum and it will be disregarded noting that she has otherwise been afforded $30.00 per week for house maintenance and repairs above.
The wife claims $28.00 a week for dry cleaning. The husband complains that the amount is not particularised. In the circumstances, it is considered that $15.00 per week would be appropriate.
Otherwise, the wife claims $94.00 per week for hairdressing and toiletries. He concedes expenses during the relationship for hairdressing are of about $1,800.00 per annum being about $35.00 per week. The wife provides no particulars and in the circumstances $50.00 per week is allowed.
The husband complains as to the wife’s claim for weekly expenses for books and magazines, gym membership, yoga classes and Icebergs fee. The wife provides no particulars. These fees total $93.00 per week. The husband claims they are discretionary. Doing the best on the available evidence sum of $50.00 per week will be allowed.
Otherwise the husband takes no issue with the wife’s other expenses.
The result in an adjustment to the wife’s expenses as discussed above leave the wife with reasonable weekly expenses of $3,904.00, subject to the husband’s assertion as to the wife perhaps obtaining more modest accommodation saving about $800.00 or $900.00 per week in rent.
In circumstances where the wife was working in a professional occupation on what the husband asserts to be part-time work with high flexibility, he expresses concern that the wife adduces no evidence as to any attempts to resume or otherwise obtain part-time employment. Otherwise, the wife provides no objective evidence other than her bald assertion that would support any incapacity or disability from seeking appropriate employment.

The wife’s legal fees

The wife’s ongoing legal fees with her current solicitors are being paid when due by remittances from the wife’s sister Ms Q Burns. Since January 2017 legal fees have been paid on the wife’s behalf totalling about $150,000.00.

The husband’s income

In 2002 the husband founded and invested in the business Company G. In 2004 he founded and invested in X Ltd and Y Pty Ltd.
He says that he scaled back his board and consulting position with Company G in 2016 and Z Ltd in 2014. He says that his only source of income for the 2017 financial year had been from consultancy fees from X Ltd and Y Pty Ltd paid to his trust, the Sellers Investment Trust. He estimates that as at 30 June 2017 his income from the trust will be $110,000.00 ($2,115.00 per week).
Yet the husband asserts that his current income as at mid July 2017 is $2,500.00 per week gross.
He asserts that the various corporate entities have paid no dividends to his Trust by reason of its shareholding. Yet in the 2015 and 2016 financial years dividends were received by the Trust totalling about $221,000.00.
On 1 February 2017 the Trust paid $50,000.00 to the husband’s solicitors on his behalf. On 1 June 2017 the husband entered into a Loan Agreement with Company V for the principal sum of $120,000.00 to cover his legal fees and associated expenses. Any relationship between the husband and Company V is not known. No payments are due under the agreement until 1 July 2018 with interest to accrue at 7.5 per cent per annum.
The husband has provided a copy of the purported loan agreement signed only by him in the presence of his solicitor and not signed on behalf of the lending entity.

The Trust

The husband’s primary financial vehicle is his Sellers Investment Trust.
The financial statements for the Trust for the year ended 30 June 2016 are exhibited to his affidavit. Substantially the assets of the Trust comprise shareholdings in various private corporate entities. The financial statements reveal the trust has total assets of $3.242 million.
The Trust had current liabilities of $790,863.00 of which $747,244.00 represented monies owing to the husband as at 30 June 2016. In the financial year to 30 June 2016 the funds owing to the husband reduced by about $108,000.00. The inference is that those funds were paid to the husband in addition to any income otherwise distributed to him through the trust as disclosed in his 2016 personal tax return. Otherwise, the husband’s loan account balances at various times have been as follows and indicate about $500,000.00 paid out to the husband or for his benefit over the period of about 12 months and about $333,000.00 credited to his loan account:
30 June 2016  $ 471,658.00
12 December 2016             $ 650,143.00
2 February 2017                  $ 147,143.00
9 July 2017  $ 300,000.00
The husband asserts that the debit loan account movements are primarily as a result of funds of $563,395.00 advanced to his Trust by AA Pty Ltd with such funds applied to meet the husband’s personal taxation debts. The husband directed that the Trust assume liability for the AA Pty Ltd advance from his loan account funds owed to him by the Trust thus reducing his loan account balance to $147,143.00 as at 2 February 2017. A debt was thus created in the Trust in favour of AA Pty Ltd for the sum advanced.
Notwithstanding this somewhat convoluted transaction the husband offers no evidence as to how the taxation liability accrued. His total taxable income for the years 2014, 2015 and 2016 was about $701,000.00. How the tax liability accumulated to $563,395.00 was not made clear and no objective documents were sought to be tendered to substantiate such assertions.
The trust had non-current liabilities totalling $2.959 million. The most significant of those liabilities is a debt asserted to be owed to the husband’s father of $1.669 million. The debt to the husband’s father as at 30 June 2016 had increased by $403,000.00 over the debt outstanding as at 30 June 2015.
Otherwise, the debts comprise various Division 7A loans owing to a corporate entity AA Pty Ltd in respect of the financial years 2011, 2012, 2013 and 2014. As at 30 June 2016 those Division 7A loans totalled about $1.288 million. However, as at 30 June 2015 those Division 7A loans outstanding totalled about $1.606 million, a reduction in that liability of $378,000.00. AA Pty Ltd is a corporate entity associated with the affairs of the husband’s father.
There is a suggestion that the husband’s father’s debt has accrued over a period of years in servicing the husband’s Division 7A loan debts to AA Pty Ltd where in default of the debts being serviced the loans would, it is expected, be regarded as deemed dividends to the husband and result in a significant tax debt owed by him.
It is asserted that loans advanced to the trust by the husband’s father have facilitated the trust meeting its Division 7A obligations in repayments of funds owing to AA Pty Ltd. This assertion appears consistent with the increase in the debt owing to the husband’s father and the reduction in the overall liability of the trust to AA Pty Ltd.
Subsequent to 30 June 2016 AA Pty Ltd has advanced further funds totalling about $334,000.00 to the Trust. It is asserted that these funds have been applied to the acquisition of shares in unlisted companies, payment of GST obligations, tax agents’ fees and repayment to the husband of part of the loan account debt owed by the Trust to him.
It is asserted that the balance of the husband’s loan account owing to him by the Trust is now about $300,000.00.

The Trust and Company G

On 16 December 2016, four days after the husband commenced proceedings in this Court, he caused the Trust to sell its various Company G shares to BB Ltd for $1.212 million without notice to the wife.
The trust subsequently applied funds in summary as follows:
a)$1.040 million in the purchase of shares in X Limited;
b)$171,960.00 for payments made on behalf of the husband including legal expenses, rent and credit card payments. These payments the husband asserts will be in reduction of the loan account owed by the trust to him as at 30 June 2016.

The effect of the transactions was to move significant cash funds into shares in an entity where the husband contends that such funds cannot now easily be realised.

The Suburb S property

The property at R Street, Suburb S was purchased by the husband in November 2008. The property was sold in April 2014 for $965,000.00. The husband asserts that the proceeds of sale were applied as follows:
a)in repayment of an unspecified business loan;
b)in repayment of a “renovation loan”;
c)the balance of approximately $100,000.00 deposited to the husband’s AMP account that he asserts was subsequently used to acquire motor vehicles and for living expenses.
The husband provides no details as to the repayments other than a generic description.

His mother’s estate

The husband contends that in conversations with his late mother after the signing of her will in September 2011 she asked the husband to ensure that he took care of Mr U.
Subsequent to his mother’s death the husband asserts a conversation with Mr U where the said to Mr U “Mum, made me promise her that I would take care of you. You can stay there (Suburb T property) for the rest of your life if you like.” Mr U accepted that arrangement and the husband now asserts that the arrangement is embodied in the Deed of Agreement referred to above.
The husband has previously sworn as to the terms of his mother’s will in asserting that it provided a long term tenancy to Mr U. It was he that concluded the Deed of Agreement that encumbered his interest in the property and provided for a cash payment from his interest in his mother’s estate of $130,000.00.
It is puzzling that a Grant of Probate has not been made. Upon the Grant being obtained the husband would have the property, having a value asserted at $2.5 million, in his name and it would be available to him as security for a modest borrowing to meet the wife’s capital claim.

The husband’s resources and expenses

The husband asserts that his income, liabilities and financial resources comprise his income from the Trust, repayments to him of his loan account in the Trust, his Company V loan, funds of about $70,000.00 debited to his credit cards.
The husband asserts that the “realisation of the investments (of the Trust) would need to be a considered approach to avoid any loss or impact on the value of the shares in the private unlisted companies”. The accountant Mr N baldly asserts that “these assets are non-liquid as there is no active market for their disposal”. There is no basis put forward for such an assertion nor are the financial statements for the entities in which the husband has a shareholding in evidence.
It is further asserted that “it is unlikely that the Trust could advance any further loans, or make repayments of any loans to (the husband) without the cooperation of creditors, and other shareholders of the shares held by the Trust.”
The husband asserts reasonable weekly expenses (leaving aside his obligations under present orders) as follows:
Rent  $ 1,600.00
Rates and unit levies                $     150.00
Company V loan  $     180.00
Credit card payments               $ 1,450.00
Child support  $     325.00
Food  $     300.00
Household supplies                 $     100.00
Petrol  $     200.00
Car maintenance  $       50.00
Fares/carparking  $       50.00
Clothing/Shoes  $       60.00
Medical Dental Optical           $     100.00
Entertainment/Hobbies           $     100.00
Holidays  $     150.00
Chemist  $       10.00
Repairs  $       10.00
Books Magazines  $       20.00
Gifts  $       20.00
Hairdresser toiletries              $       10.00
The husband’s weekly expenses total $4,885.00.

The wife’s submissions

Counsel for the wife contends that the husband has been in arrears of payments pursuant to his obligations under the previous orders and hence she seeks orders that she is provided with funds to meet the periodic obligations including rent (where the previous interim order expired on 17 September 2017).
The wife, it is asserted, has no capacity to meet expenses for her support (and those of the children) and to meet the cost of funding of her litigation. She is not in employment and has no source of income with her ability to work circumscribed by her primary parenting obligation.
The wife has been supported by her family but that resource she asserts is at an end.
The wife it is contended has clearly demonstrated a financial need. She has no assets that she can realise to meet her living expenses and remains reliant upon the husband to do so.
It is correctly contended that the barometer of the reasonableness of the wife’s expenses is evidenced by that which the husband contends that he expends as discussed above.
As discussed above, the wife’s reasonable expenses are estimated at $3,904.00 per week subject to the wife making alternative more modest arrangements for rented accommodation which could reduce those expenses to about $3,200,00 per week.
It is contended that the Court would be comfortably satisfied that the wife cannot adequately support herself in circumstances where she otherwise meets the costs of the children with modest child support from the husband.
It is contended that the husband has failed to make proper and adequate disclosure and left the Court with an obscure view of his finances and resources.
The husband’s expenditure has variously been asserted by him to be averaging about $9,500.00 per week and appears to continue unabated. He has met some of his expenses by drawing against his loan in the Trust as discussed above. He has provided no documents post 17 January 2017.
It is difficult, it is submitted, to ascertain the husband’s employment. His loan accounts and movements in the Trust it is submitted disclose funds paid out to the husband in the period December 2016 to February 2017 of about $500,000.00. How those funds were applied is not explained with any clarity or particularity save for the round robin of transactions referred to above relating to an unsubstantiated tax debt of over $500,000.00.
It is thus contended on behalf of the wife that the husband has the capacity to meet the wife’s reasonable claim for spouse maintenance.
As to the issue of a payment to the wife of the capital sum as sought of $200,000.00 on terms, it is submitted that the husband has the capacity to meet such an order under ss 79 and 80 Family Law Act 1975 (Cth) (“the Act”), or as spouse maintenance under s 74 or costs under s 117 of the Act.
The husband controls all of the matrimonial property and it is contended that there is no level playing field. Significant sums, it is submitted, have passed through his hands and his level of expenditure continues unabated.
The wife, it is submitted, has a compelling case for provision of funds.
In final submissions the husband’s counsel conceded that the husband would continue to meet his obligations under orders made 21 April 2017 provided that the issue of the interim capital sum was stood over to final hearing. Such would continue to frustrate the wife’s ability to maintain the litigation absent continuing provision of funds by her family.

The husband’s submissions

The husband contends that the wife has a capacity for employment. As to what that capacity is not made clear but it is conceded that she has in the past demonstrated capacity to undertake flexible employment.
It is contended that the wife’s sister through her Trust is a significant financial resource to the wife. There is some circumspection as to whether such a resource has indeed ended as contended by the wife.
Ultimately it was contended that the wife has not demonstrated that the husband had the capacity to meet the orders sought by the wife. Yet the final submission by counsel for the husband conditionally sought to obligate him to pay $500.00 per week spouse maintenance, rent of $2,256.00 and various other expenses pending further order.
It was contended that the “heart of the matter” is the Trust which is currently being valued. Such contention ignores the substantial equity represented by the property in the un-administered estate of his late mother. The availability of that equity is a matter for the husband to attend to the timely administration of the estate so that the property is available as security if required.

Discussion

There are many issues in dispute between the parties. In the context of an interim hearing such as this Court must do the best it can on the available evidence of both parties that indeed remains untested.

Spouse maintenance

Section 72 of the Act sets out the relevant provisions in relation to the right to spouse maintenance. The Court can make such order as it considers proper (s 74).
Section 72 provides that a party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b)by reason of age or a physical or mental incapacity for appropriate gainful employment; or
c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2) of the Act.
In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said:
As Nygh J. said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order. Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.
There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle (see Bevan & Bevan (1995) FLC 92-600).
The relevant matters in s 75(2) need to be considered.
Both parties are in good health.
The income, property and resources of the parties especially the husband has been considered above. The husband, notwithstanding his protestations otherwise, has available to him significant financial resources.
The wife has the primary care of the children.
The reasonable commitments of the parties are considered above. The parties enjoyed a reasonable standard of living. The marriage was for a period of about seven years. The wife was in professional employment at the start but continuity of same was interrupted by reason of the births and need to care for two young children. As such her capacity to work is now much more circumscribed.
The wife wishes to maintain her role as primary parent. Such obligation to her children means that she is unable to support herself adequately.
Neither party is cohabiting with another person.
The husband pays modest child support and has the ability to manipulate his taxable income through his Trust.
The wife’s needs are assessed above at about $3,904.00 per week. It is considered that she has some limited unexercised capacity for employment and could reside in more modest accommodation. On that basis, her needs are assessed at $3,250.00 per week.
The husband’s finances are detailed above. His capacity to mostly meet such an obligation to the wife is not in doubt otherwise by reason of his counsel’s submissions at the close of hearing.
Any proposed interim property order must be taken into account when interim spousal maintenance is considered (Bevan and Bevan (1995) FLC 92-600; Oates and Crest (2008) FLC 93-365). The wife proposes to use such interim funds mostly for her legal and associated expenses.
It is proper that there be an order for spouse maintenance in the sum of $3,250.00 per week with the wife to meet her expenses from that payment. This will obviate the issues that have arisen by reason of the husband previously being required to make third party payments on behalf of the wife.

Interim Capital provision: s 79

The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.
In Strahan (supra), the Full Court said:
132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.
Secondly, the Court is to have regard to relevant matters in s 79 of the Act. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.
A detailed inquiry is not required, but there must be some assessment of s 79 factors.
In Strahan the Full Court went on to say:
137. Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
138. The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final hearing.
139. We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
140. As to the other matters being a position of relative financial strength on the part of the respondent to an application and the capacity of the respondent to meet his or her own litigation costs, there is no doubt that the financial circumstances of both parties are relevant at the substantive stage and may also be relevant at the procedural stage. Senior counsel for the Wife submitted that all of the matters discussed by the Full Court in Zschokke are self-evident and we accept that this is so in relation to at least two of the matters being the need for funds and the financial circumstances of both parties.
141. As to the various matters discussed by Brereton J in Paris King Investments which we have discussed above, we do not propose to deal with all of what his Honour said, however we make the following observations about some of the matters. Obviously the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. Further, in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s “likely costs of the litigation” given that the need for funds to defray litigation costs and expenses is the circumstance propounded as to why it is appropriate that an order be made. We also accept that “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.
It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said:
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.
In Strahan (supra), the Full Court said at [132]:
… regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order. Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered. Yet in this matter both parties seek final adjustive orders as to property.
The property interests and financial resources (including the husband’s inherited property) of the parties are considered above. The parties cohabited for some seven years with two young children in the primary care of the wife.
The wife’s contributions have been through her income and her parenting and homemaker contributions. In this shorter relationship contributions must significantly favour the husband especially by reason of his inherited property.
There is significant financial disparity between the parties and the wife’s income earning capacity is circumscribed by her ongoing care of the children. As such it would be expected that there would be an adjustment under s 75(2) in favour of the wife.

However the wife needs to be mindful of the reality of her contributions and the imbalance of such that favours the husband.
The wife does not have the financial resources that the husband has available to him, particularly in relation to funding his legal costs. The question is whether or not, in adopting a conservative approach, it is safe to make an interim property order in the wife’s favour.
Overall, it is considered that a sum of $150,000.00 is well within any ambit of what would be considered just and equitable. The sum indeed reflects only a modest percentage of the husband’s inherited property without regard to the ultimate value of his Trust and other interests, if any, in due course.
There will be an order for an interim property payment of $150,000.00.
Orders will be made accordingly.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 November 2017.

Associate:

Date: 14 November 2017