CA v RWS

[2020] NSWSC 163

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

CA v RWS [2020] NSWSC 163

Hearing dates:

12 December 2019

Date of orders:

24 November 2020

Decision date:

03 March 2020

Jurisdiction:

Equity

Before:

Robb J

Decision:

See pars [210], [238], [242], [251] and [255]. Direct that the parties provide further submissions concerning the way forward.

Catchwords:

FAMILY LAW — Property — Exclusive occupation

FAMILY LAW — Property — Marriage — Maintenance

Legislation Cited:

Conveyancing Act 1919 (NSW)

Family Law Act 1975 (Cth)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

Cases Cited:

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

In the Marriage of Murkin (1980) 5 Fam LR 782

State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247

State of New South Wales v Koumdjiev [2006] HCATrans 7

State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320

Category:

Procedural rulings

Parties:

CA (plaintiff / applicant)
RWS (first defendant / first respondent)
NS (second defendant / second respondent)
PWS (third defendant)

Representation:

Counsel: BL Jones (plaintiff / applicant)
S O’Ryan QC (first defendant / first respondent)
IR Coleman SC (second defendant / second respondent)
P Dunn (third defendant)

Solicitors: Meyer Pigdon (plaintiff / applicant)
Broun Abrahams Burreket (first defendant / first respondent)
ALP Lawyers (second defendant / second respondent)
Dentons (third defendant)

File Number(s):

2019 / 138543

Judgment

1. These proceedings were commenced in the Family Court of Australia (the Family Court) on 7 May 2019 as proceedings 2854/2019 by the filing of an Initiating Application. The Initiating Application has been amended, and a Further Amended Initiating Application was filed on 7 June 2019. Applicant’s Points of Claim were filed on 12 July 2019.

Parties

2. The parties to the proceedings are CA, applicant, RWS, respondent, NS, second respondent, and PWS, third respondent.

3. The applicant and the respondent are married although separated, and the Court was told that the respondent has commenced proceedings in the Family Court for the dissolution of the marriage.

4. The second respondent and the third respondent are respectively the respondent’s brother and father.

5. In keeping with the apparent practice in the Family Court, as adopted by the parties in this Court, it will be convenient to refer to the applicant as the wife, and to the respondents respectively as the husband, the brother and the husband’s father.

Transfer of Family Court proceedings

6. By order of the Family Court made on 17 October 2019, the proceedings in that Court were transferred to the Supreme Court to be heard with proceedings 2019/138543 in this Court: Setna & Advani and Ors [2019] FamCA 736.

7. The transfer order was made under s 5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), and the effect of s 11(1)(c) of that Act is that the rules of evidence and procedure to be applied in dealing with the matter are to be such as this Court considers appropriate in the circumstances, being rules that are applied in a superior court in Australia.

Final relief claimed by wife

8. In summary, in the Further Amended Initiating Application, the wife sought the following principal orders, which I have substantially simplified for the sake of brevity:

1. Order that the husband and the wife be declared solely entitled to the matrimonial home at Vaucluse (the Vaucluse Property): par 2.

2. Declaration that the brother and the husband’s father are estopped from denying that the husband and the wife are the owners of the Vaucluse Property: par 2A.

3. Declaration that the brother holds his interest in the Vaucluse Property on trust for the husband and the wife: par 2B.

4. Order that the husband’s father withdraw the caveat he lodged against the title to the Vaucluse Property (in fact to protect a charge claimed by the husband’s father in respect of the payment by the husband’s father of the balance of the purchase price of the Vaucluse Property when it was acquired): par 2C.

5. Order that the husband pay all monies necessary to discharge the mortgage in favour of the National Australia Bank Ltd (NAB) over the Vaucluse Property (in fact to secure a loan made to enable the purchase of the Vaucluse Property): par 3.1.

6. Order that the husband and the brother transfer the Vaucluse Property to the wife as the sole owner (in fact necessary because, at the time of purchase, the husband and the brother became registered as the owners of that property): par 3.2.

7. Alternatively, if the brother is legally the co-owner of the Vaucluse Property with the husband, order that the husband transfer his interest in the Vaucluse Property to the wife: par 3A(a).

8. If the order sought in par 3A(a) is made, an order for the appointment of trustees for sale under s 66G of the Conveyancing Act 1919 (NSW), an order permitting the wife to purchase the brother’s interest, and an order requiring the husband to pay the price payable by the wife to the brother and also to discharge the NAB mortgage: par 3A(b) and (c).

9. Order that the husband’s father and the brother substitute the husband for the wife in relation to any debt owed by the wife to the husband’s father and the brother (apparently, sought, in part, because of the husband’s father’s claim that he had made substantial loans to the wife and/or the husband, particularly in respect of the purchase of the Vaucluse Property): par 4.

10. Order that the husband be solely liable for and indemnify the wife against any liability asserted to be owing to the husband’s father or the brother: par 5.

11. Order that the husband discharge the mortgage in favour of the NAB over an apartment at Ryde owned by the husband (the Ryde Property) and simultaneously transfer the Ryde Property to the wife: par 6.

12. Order that the husband rollover a nominated superannuation fund to a superannuation fund nominated by the wife: par 7.

13. Order that the husband do all things necessary to complete a contract for the purchase of a property that I will call the Waterfall apartment, in the wife’s name, such that the Waterfall apartment will be held in the wife’s sole name unencumbered: pars 8 and 9.

14. Order that the husband pay to the wife, by way of spousal maintenance, the sum of $13,000 per week or an amount equal to 50% of the husband’s net weekly taxable income (whichever is the greater): par 10.

Basis of claim over Vaucluse Property

9. The wife's Points of Claim, filed in the Family Court on 12 July 2019, contain a statement of the basis upon which the wife claims that she and the husband, or the husband alone, have a proprietary interest in the Vaucluse Property.

10. Although the wife alleged in pars 5, 8, 9 and 10 that the husband's father said that he would buy the Vaucluse property for the wife and the husband; and the husband, the brother and the husband's father spoke with the wife as if the Vaucluse Property was owned by the wife and the husband, it does not appear that the wife has alleged that, at the time of purchase, a gift of the Vaucluse Property was made to the wife and the husband.

11. If that is a correct understanding, it may reflect the fact that there was no writing vesting any interest in the Vaucluse Property in the wife and the husband in conformity with s 23C of the Conveyancing Act 1919 (NSW).

12. In pars 16 and 17, the wife alleged that the conduct of the husband, the brother and the husband's father gave rise to a convention between those parties that the Vaucluse Property was owned by the wife and the husband, on the basis of which convention she conducted her relationship with them.

13. The wife alleged in par 18 that the conduct by the other parties constituted a representation to the wife that the Vaucluse Property was the property of the wife and the husband.

14. On the basis of the alleged convention and her acting on the faith of representation, the wife alleged that the husband, the brother and the husband’s father are estopped from denying that the Vaucluse Property is owned jointly by the wife and the husband.

15. As to the mortgages in favour of the Commonwealth Bank of Australia (CBA) and the NAB, the wife acknowledged in the particulars to par 7 that such mortgages were registered on the title. But she appears to have reserved her position concerning the reality of the mortgages, as she had not been provided with copies.

16. The wife, in par 20, appears to have challenged the genuineness of the deed of loan that purports to record a $1.82 million loan to the husband and his brother for the purchase of the Vaucluse Property, which bears a date after the date when the payment for the purchase of the Vaucluse Property was initially made by the husband's father. In addition, for reasons stated in par 21, the wife alleged in par 22 that there are no monies repayable by the husband and the brother under the deed of loan.

17. In substance, in pars 24 and 27, the wife alleged that the brother has not paid anything for his interest in the Vaucluse Property, which was purchased with funds gifted to the wife and the husband by the husband's father, so that the brother holds his registered interest on a resulting trust for the wife and the husband.

18. The wife alleged in par 27 that the brother is acting as a puppet for the husband, and that the brother's registered interest in the Vaucluse Property is a sham and may be disregarded by the Court when determining the assets of the parties to the marriage for the purposes of making final orders under s 79 of the Family Law Act 1975 (Cth).

19. Finally, in par 28, the wife stated that, on the assumption that the brother has a valid interest in the Vaucluse Property, she makes her claims in respect of the balance of the Vaucluse Property owned by the husband.

Interim relief sought by wife

20. The Further Amended Initiating Application also sought interim orders. It is that relief, as varied by counsel for the wife at the beginning of the hearing of the claim for interim relief, that is relevant to these reasons for judgment. The Court was informed on behalf of the wife that the wife sought interim relief in accordance with pars 5 to 8 and pars 10 to 13 of the claim for interim relief.

21. It will be convenient to set out the interim orders as finally sought by the wife in the terms formulated in the written submissions of the wife, which were, in substance, as follows:

1. Order for interim spousal maintenance in the form of occupation of the Vaucluse Property.

2. Orders for the preservation of the Vaucluse Property, being injunctions to restrain the brother from disrupting the wife’s future occupation of the Vaucluse Property, to restrain the brother and the husband from further encumbering or dealing with their alleged interest in the Vaucluse Property or drawing down on the loan facility held with the NAB; and an order that the husband meet the repayments on the loan made by the NAB.

3. Order for interim spousal maintenance, being a weekly payment of $2117, the payment of rates and services for the Vaucluse Property and health insurance for the wife.

4. Orders for the preservation of the Ryde Property, being an injunction to restrain the husband from further encumbering or dealing with the Ryde Property; and an order that the husband meet the repayments on the loan made by the NAB.

22. The wife also initially sought a “dollar for dollar” interim costs order, which would have obliged the husband to pay the same amount to the wife for her legal costs as he had incurred in respect of his legal costs. The wife abandoned that claim for interim relief at the hearing.

Relief sought in husband’s notice of motion

23. On 20 November 2019, the husband filed a notice of motion by which he sought an order in the following terms:

That Order 3.2 made on May 2019 and Order 4(a) made on 22 May 2019 in the Family Court of Australia be discharged.

24. This order was sought in the following circumstances. On 9 May 2019, the Family Court adjourned the wife’s application for interlocutory relief until 22 May 2019, and made order 3.2 by consent restraining the husband from causing or permitting occupation or leasing of the Vaucluse Property. On 22 May 2019, the wife’s application was adjourned again and a further consent order 4(a) was made that permitted the husband to lease the Vaucluse Property for a period of no more than six months from the end of May 2019. On 27 June 2019, the husband and the brother entered into a residential tenancy agreement to lease the Vaucluse Property at a rent of $3910.71 per month for the period up to 27 October 2019.

25. On 26 November 2019, Kunc J, in this Court, made an order by consent varying order 4 to permit the tenant to remain in occupation on a month-to-month basis pending the hearing and determination of the wife’s application for interim relief. The tenant is presently holding over and has not given any notice of intention to terminate the holding over. The existing order as varied would prevent the husband from granting a new lease of the Vaucluse Property, even if a better rent could be obtained than the rent that is being paid by the existing tenant.

26. As I understand the dispute between the parties, if the Court were to make an interim order giving the wife exclusive possession of the Vaucluse Property, then the subsistence of that order would be inconsistent with the husband retaining any right in conjunction with the brother to lease the Vaucluse property to a new tenant, or to permit the continued holding over by the existing tenant. On the other hand, if that interim order is not made, there is no reason why the husband and the brother should not be free to lease the Vaucluse Property on appropriate terms. In that event, it would be appropriate for the Court to make the order sought in the notice of motion.

27. As I understand it, the following subsidiary issue also arises. The wife contends that the subsisting lease of the Vaucluse Property is for a rent that is substantially less than the market rent. The wife submits that, if the effect of this judgment is to deny her the right to sole possession of the Vaucluse Property, then any order made in respect of the husband's notice of motion should be made on terms that the Vaucluse Property is leased for market rent.

Existing proceedings in this Court

28. As mentioned above, the Family Court transferred these proceedings to this Court to be heard with proceedings 2019/138543. The plaintiff in those proceedings is a company controlled by the husband’s father, and the defendant is the wife’s father.

29. The relevance of these proceedings for present purposes is that the wife’s father claims that he made payments for the renovation of the Vaucluse Property, which appear to be the same payments as the subject of the claim made by the wife in these proceedings that she made those contributions.

30. Those proceedings were commenced by statement of claim filed on 3 May 2019. An amended statement of claim was filed on 20 September 2019. It is sufficient to note that the plaintiff (a company apparently controlled by the husband’s father) claims that it paid $900,000 to the wife’s father between 18 July 2017 and 24 January 2018, on the basis that the money would be held in Indonesia in accounts in that country in the name of the wife’s father in Indonesian rupiah, either on trust for the plaintiff or as a debt, and be disbursed in accordance with instructions given by the plaintiff. The plaintiff claims that an amount of $717,000 remains payable to it by the wife’s father.

31. The relevant part of the wife’s father’s defence, filed on 24 July 2019, for present purposes, is that, by pars 15 and 16, the wife’s father pleaded that he is entitled to set off against any amount that he may owe to the plaintiff, the sum of $386,386, as the cost of renovations to the Vaucluse Property paid for by the wife’s father. The claimed set off was based upon an agreement said to have been made on about 19 May 2018 by the husband’s father, on behalf of the plaintiff, with the wife’s father, that he could reimburse himself for the cost of the renovations out of the monies held in the wife’s father’s Indonesian accounts.

32. The wife’s father raised this claim more specifically in a cross claim filed on 25 July 2019. The cross defendants are the husband’s father, the plaintiff in the proceedings in this Court, the husband, the brother and six other companies apparently controlled by the husband’s father. Again, in so far as the allegations made are relevant to these proceedings, the wife’s father pleaded that, in early 2011, the husband’s father represented to him that the husband’s father had purchased the Vaucluse Property, and that the husband and the wife were co-owners, and that the purchase had been made in accordance with Chinese Indonesian tradition. The wife’s father alleged that he paid $336,380 “to [the wife]” for renovations between 13 May 2012 and 29 April 2018, plus an amount of not less than $50,000 for 12 crystal chandeliers: see particulars to par 32. It is sufficient to note that the wife’s father claims relief in respect of the contributions on a number of legal bases. The wife’s father pleaded that he had made the payments in reliance upon the representation he alleged was made by the husband’s father that the Vaucluse Property was owned by the husband and the wife.

33. It is to be noted that, at least in respect of the amount of $336,380, the allegation made by the wife’s father is that he contributed that money towards the renovation of the Vaucluse Property by making the payments to the wife for that purpose.

34. All of the cross defendants, other than the husband, filed a single defence to the cross claim on 11 September 2019. Relevantly, the husband’s father and brother denied making the alleged representation by the husband’s father that the Vaucluse Property was owned by the husband and the wife: par 15. They also denied that the wife’s father paid for the renovation as claimed, and the brother added that he denied that he requested the wife’s father to make the contributions to the renovation: pars 17 and 18.

35. The husband filed a defence to the cross claim on 12 September 2019. Relevantly, he claimed, in par 30, that the husband’s father paid $200,000 towards the cost of the renovations, and that he and the brother refinanced the mortgage over the Vaucluse Property in 2012 to increase the borrowing by $300,000 to pay for additional renovations.

36. The cross defendants to the wife's father's cross claim therefore all deny that the husband's father made the alleged representation concerning the ownership of the Vaucluse Property by the wife and the husband and deny that the wife's father paid for the renovations to that property as alleged by him. However, if the wife's father succeeds upon his cross claim, then that success will have the following significance for the purposes of the transferred Family Court proceedings. Part of the basis of the wife's claim for an order that the Vaucluse Property be transferred solely to her is that she paid for substantial renovations on the faith of representations made to her by the husband's father that the Vaucluse Property had been purchased as a gift for the husband and the wife. The wife accepts that the source of the payments was her father. In effect, the wife asserts that her father made her a gift of the money to enable her to fund the renovations.

37. That claim is, on its face, inconsistent with the wife's father's cross claim. At the least, the wife has not provided an explanation as to why the legal positions adopted by herself and her father are not inconsistent. If the wife succeeds on this aspect of her claim, then the payments made by the father would have to be treated as gifts to the wife and could not be treated as payments made personally by the wife's father that are capable of supporting the personal set off claimed by the father in his cross claim.

Unusual features of the wife's claim for interim relief

38. The wife's claim for interim relief raises particular difficulties that extend beyond the fact that it is necessary for the claim to be decided by this Court, and not by the Family Court, which is a specialist court in the application of family law principles.

39. As will be seen, the primary source of that difficulty arises from the fact that, according to the evidence at this stage of the proceedings, during the course of their cohabitation the husband and the wife enjoyed a living standard that went far beyond the financial capacity of the husband to afford from his own personal income. Those living standards were funded in many ways and to a considerable extent by the husband's father. It may also be that the wife's father contributed significantly to the funding of the lifestyle enjoyed by the wife, if not both the husband and the wife. The evidence of the wife at this stage of the proceedings would suggest that she was largely ignorant of the source of the funding of the couple's lifestyle, at least in so far as that was apparently provided by the husband.

40. The evidence would suggest that the fathers of each of the parties to the marriage enjoyed substantial wealth as a result of their business activities. As this is an interlocutory judgment, and as the evidence concerning the circumstances of the parties' fathers' wealth is rudimentary, it is desirable that the Court say no more than is necessary on that subject.

41. In my view, the most significant aspect of this interim application is that, even though the interim relief sought by the wife may not ultimately be shown to be out of keeping with the lifestyle that she enjoyed during the cohabitation of the couple, it is clear that the husband could not possibly fund that relief from his own financial resources. As it is, the evidence establishes that the husband's father continues to subsidise the husband's financial needs in a substantial way. If the Court were to make interim orders substantially as sought by the wife against the husband, he would largely be unable to comply with those orders from his own financial resources, and for him to do so would require the husband's father to continue or increase his current subsidies to his son.

42. The second particular feature of this case is that the Vaucluse Property, which the wife asserts is the primary asset of the marriage, was transferred into the names of the husband and the brother as joint tenants at the time of purchase. Part of the purchase price was paid for by a borrowing from a bank secured by a mortgage over the property, and the balance of the price plus stamp duty and transaction costs was paid for by the husband's father. The husband and the brother entered into a formal deed of loan with their father in respect of this payment. The deed provided for security in the form of a charge established by the lodgement of a caveat against the title to the Vaucluse Property. The father has lodged such a caveat.

43. Apart from the disputed claims made by the wife and her father concerning payments for renovations, none of the wife, the husband or the brother has ever made any payments in respect of the mortgage or the holding costs for the Vaucluse Property. All such costs have been paid by the husband's father, save for the recent period in which part of the mortgage repayments has been funded by the current lease.

44. There is a question as to whether a gift was made by the husband's father of the moneys that he advanced to fund the purchase of the Vaucluse Property at the time of its acquisition in favour of the husband and the wife. It is also not clear on the evidence what the value of the husband’s personal equity in the Vaucluse Property is, in the sense of his half share as a joint tenant at the current market value of the property, after allowance is made for repayment of the current mortgage and the whole amount claimed to be owed by the husband and the brother to their father under the deed of loan.

45. Consequently, the present interim application is far removed from the conventional case where the Court is required to determine how the existing assets and income of the parties to the marriage should be divided pending the final determination of the proceedings.

Relevant facts

46. The wife is now 31 years of age and the husband is 32 years of age.

47. The wife completed schooling to the end of Year 12, and then commenced a degree in architecture that she did not complete. The wife has never been employed in ordinary gainful employment, and, for the reasons that will be considered in more detail below, she claims that she is not capable of supporting herself at present through gaining employment. Apart from an indefinite suggestion made by the husband that the wife had skills that enabled her to assist her father in designing his various resort developments, the wife's claims concerning her capacity for employment were not directly challenged.

48. The husband is university educated and has what the wife loosely described as a degree in engineering and commerce. At all times since the commencement of cohabitation by the husband and the wife, the husband has been employed by a business of which the husband's father is one of the principals.

49. The husband's evidence was that, since July 2018, he has been studying part-time for a Masters of Property Development, and for that purpose has been studying two to three days and working three days on average per week.

50. There was disagreement between the husband and the wife as to when their relationship commenced. The wife said that it was late 2007 or early 2008, about the time of her 19th birthday. The husband contended that the relationship commenced somewhat later.

51. Initially, the husband and the wife resided in a home at Vaucluse that adjoins the Vaucluse Property. For convenience, I will call that property the Father's Property. The fact that the two properties are adjacent is significant to the resolution of the present dispute, as one of the grounds upon which the defendants resist any order that the wife be given exclusive interim possession of the Vaucluse Property is that the effect of that order would be that the wife would live in close proximity to the husband's father and his family. This is because the father, his wife, the brother, his partner and other members of the family live permanently in the Father's Property, and the husband will be a frequent visitor to that property.

52. Neither the husband nor the wife paid any rent or any other fee for their accommodation while they lived at the Father's Property. Although the Vaucluse Property was purchased on 7 October 2010, the couple continued to live in the Father's Property until late 2011 or early 2012, while the Vaucluse Property was being renovated.

53. The husband and the wife were married on 29 June 2009. There are no children of the marriage.

54. The relationship between the couple broke down finally on 5 July 2018, although the husband continued to occupy the Vaucluse Property separately from the wife until 1 October 2018.

Ejection of the wife from the Vaucluse Property

55. The wife gave detailed evidence of the circumstances in which she was ejected from the Vaucluse Property in the period commencing on 31 March 2019, culminating in her forceful ejection at the hands of the brother, aided by the husband's father and the brother's solicitor. The wife was thrown out of the property by the brother and was not permitted, in any civilised fashion, to save or take with her all of her personal property. The final ejection of the wife from the Vaucluse Property occurred one day before the commencement of the proceedings in the Family Court.

56. The ejection, which took place with the assistance of security guards, must have been a traumatic experience for the wife, as she was left to fend for herself. The defendants did not, in any significant way, challenge the wife's evidence concerning the circumstances of the ejection.

57. The evidence, as it stands at present, suggests that the ejection of the wife from the Vaucluse Property was instigated by the brother without any involvement or consent by the husband. However, it seems incredible, given the apparently close relationship between the brother and the husband that the brother would unilaterally have ejected the wife without the approval of the husband.

58. One matter of concern is that the evidence suggests that the wife was deprived of her possessions inappropriately for a significant period, and she may have not been able to recover all of her papers. It is, at least, possible that the wife has been prevented from formally proving the expenditure that she claims to have made on renovations of the Vaucluse Property by the best means that should have been available if she had retained all of her papers.

Legal effect of the ejection of the wife from the Vaucluse Property

59. It will be convenient, at this point, to refer to an argument put by the wife at the hearing that concerned the effect of her physical ejection from the Vaucluse Property by the brother. The argument was, in substance, that the wife occupied the Vaucluse Property under a subsisting implied licence by one of the joint tenants, being the husband. The argument was that the ejection was ineffective to terminate the licence because it had been made unilaterally by the other joint tenant, the brother, without the authority of the husband.

60. I will deal briefly with the wife's argument, although it is a distraction from the flow of the consideration of the circumstances that are relevant to the determination of this dispute. Although the wife made a detailed argument that the termination of the licence was not effective, I do not understand her to have put the submission that the Court ought to make an order that she be returned to exclusive possession of the Vaucluse Property by way of enforcement of the licence. In any event, it seems tolerably clear that, by the stance taken by the husband at the hearing, he has ratified the conduct of the brother in terminating the licence.

61. The wife pointed to the fact that there is no evidence that the husband consented to or authorised the termination by the brother of the licence given by the husband to the wife for the exclusive possession of the Vaucluse Property. That was so notwithstanding that the husband had ample opportunity in his evidence to prove that he had authorised the termination of the licence. The wife submitted that, in that case, the purported termination of the licence was unlawful and ineffective, relying on the decision of the Court of Appeal in State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 (Koumdjiev), primarily the judgment of Hodgson JA (with whom Beazley JA (as her Honour then was) and Hislop J agreed) at [31]-[40]. Special leave to appeal from this decision was refused by the High Court: State of New South Wales v Koumdjiev [2006] HCATrans 7. The decision of the Court of Appeal in State of New South Wales v Cuthbertson (2018) 99 NSWLR 120; [2018] NSWCA 320 that Koumdjiev was wrongly decided, did not reject the authority of that part of the reasoning in Koumdjiev upon which the wife relied in this case.

62. For present purposes, the principle stated by Hodgson JA is set out in the following part of his Honour’s reasons:

[40] … Although one tenant in common can transfer or lease its interest, I do not think one tenant in common can, without such a transfer or lease, grant a licence to another, irrevocable by other tenants in common, if that licence is of a kind that goes beyond what is reasonable and incidental to the grantor's possession and use and enjoyment of the property in common with the other tenants in common, and which interferes with the possession and use and enjoyment of the property by other tenants in common.

[41] For example, suppose there are two tenants in common of a small house, and one of them purports to grant a licence to twenty people to live in the house. If this amounted to excluding the other from possession, it would be a trespass; but if it fell short of excluding the other person, but was substantially detrimental to the other tenant in common's use and enjoyment of the property, in my opinion such a licence could be terminated by the other tenant in common, assuming that it went beyond what was reasonable and incidental to the grantor's possession and use and enjoyment of the property. That is, in my opinion, any licence in excess of what is reasonable and incidental to one tenant in common's possession and use and enjoyment of the property, and which prejudices the other tenant in common's possession and use and enjoyment of the property, is a licence terminable by the other tenant in common. Otherwise, in my opinion, there can be no reasonable reconciliation of the rights of both tenants in common to have possession and use and enjoyment of the property.

[42] On that basis, the result in Robson-Paul is correct. If there was a licence to use the premises to the exclusion of the plaintiff, that was clearly a licence that could not be granted; but if the licence fell short of that, but was a licence to continue for an indefinite period to exercise all the rights of one tenant in common, without a transfer or lease, it would be a licence going beyond what was reasonable and incidental to the grantor's possession and use and enjoyment of the property in common with the plaintiff, and so was terminable by the plaintiff.

63. I do not agree that the licence that the husband granted to the wife was not terminable by the brother in accordance with the principle in Koumdjiev. As I understand the nature of the licence as asserted by the wife, it was an exclusive licence to occupy the whole of the Vaucluse Property, including to the exclusion of the brother. Whatever the precise terms of the licence were, they made no provision for the brother to enjoy any occupation of the Vaucluse Property. As the licence excluded the brother entirely, he had a right to terminate it in accordance with the principle in Koumdjiev. This is so irrespective of whether the husband consented to or authorised the termination.

Further consideration of relevant facts

64. I will now return to a consideration of the circumstances relevant to the determination of this dispute.

65. Since the ejection of the wife from the Vaucluse Property she has been itinerant as to her accommodation while she has remained in Australia, living as she could with friends and relatives, sometimes sleeping on couches. The wife has spent some time overseas travelling.

66. The wife has had no formal accommodation of her own in this country, no personal income, and no support from the husband.

67. As I have mentioned above, a relatively unusual feature of this case is that, although the wife has not had any income earning capacity, and the husband's income has been relatively moderate, both of their fathers appear to have substantial wealth.

68. As to the wife's father, evidence was given by the husband's father, in the nature of bare assertions, that at one time the wife's father was one of the richest people in Indonesia, that he owned four substantial tourist resorts in Bali, and that he owned 89 properties in Indonesia.

69. There was also evidence that the wife's father owns a number of properties in Australia. The husband's father gave evidence that the wife's father owned a substantial residential property in Maroubra, apartments in Kensington and Bondi Junction, and a townhouse in Adelaide. The husband gave evidence that the wife's father owned an apartment in Kingsford rather than one in Kensington.

70. The wife's father gave evidence limited to the significance of his property holdings in Australia and loans that he had made to the wife to which I will come in due course.

71. The thrust of the wife’s father's evidence concerning his property holdings in Australia was that there has been no space for the accommodation of the wife at the residence in Maroubra because that residence is occupied by the wife's brother and his family, the wife's sister, and the father and the wife's mother during their stays in this country. There was also a suggestion that, by reason of the wife's mother's ill-health, it would not be appropriate for the wife to reside at the home in Maroubra, because this would bring to the mother's attention the circumstances of the collapse of the wife's marriage and the consequences to her of that collapse.

72. The wife's father also gave evidence that the other properties that he owned were not available for the wife's accommodation, because they were the subject of subsisting leases to tenants whose rent was utilised in reduction of the mortgage payments in respect of those properties.

73. For a short time leading up to the date of the interim hearing, the wife had been accommodated in a granny flat that is part of a substantial home occupied by the wife's aunt and uncle at Point Piper. There was evidence from the wife's aunt to the effect that the wife would have to vacate the granny flat shortly after the hearing because arrangements had been made to renovate the part of the property occupied by the wife.

74. The Court does not know what the present living circumstances of the wife are.

75. Although the evidence is far from complete at present, it seems to be clear that, while the wife is unable to provide any satisfactory accommodation for herself from her own resources, her father and perhaps other relatives could, if they so wished, arrange for suitable accommodation for the wife, if necessary by entering into a lease of that accommodation.

Medical evidence tendered by the wife

76. The wife's claim that she is not capable of supporting herself through her own employment, and her desire to be reinstated into exclusive possession of the Vaucluse Property, was supported by medical evidence in the form of reports by a psychologist, Mr Justin Hendricks, and a psychiatrist, Dr Selwyn Smith.

77. The evidence led at this stage of the case is capable of establishing that, partly in consequence of a domestic violence incident that I will consider below, the wife was admitted to St Vincent's Hospital on 5 March 2019, after she attempted to end her own life by ingesting sleeping tablets and other medication.

78. By report dated 22 May 2019, Mr Hendricks, who is a clinical psychologist, advised that the wife had attended him in 22 sessions from 2 August 2018, and that her primary diagnosis was major depressive disorder with anxiety. The wife demonstrated symptoms of post-traumatic stress disorder. Mr Hendricks listed the wife's current symptoms and opined that the wife was currently unfit for any work duties.

79. By further report dated 25 November 2019, Mr Hendricks advised that the wife had attended eight sessions with him since 22 May 2019 and that her mental state had improved since her return to treatment. The wife's reported strong feelings of despair and suicidal thoughts had improved as she had focused on maintaining a stable routine and living arrangements. The wife's improvement in mood was, in part, explained by her hopefulness of returning to the Vaucluse Property. Mr Hendricks said: "I believe that it would be beneficial for [the wife] to return to her home", as that would provide her with a stable base from which she could maintain her routine. Mr Hendricks said that "the most pressing concern for [the wife] is that she maintains a stable life structure", and another effect of the wife returning to the Vaucluse Property was "that it would somewhat remedy [the wife's] feelings of injustice and loss". However, Mr Hendricks also said: "I do not believe that not being able to return to her home at this stage is specifically traumatic or harmful". The more significant contributor to the wife's psychological harm was "that she was forcefully removed from her house".

80. Dr Smith said, in his 14 May 2019 report, that the wife had been in his care since 19 October 2018. He expressed the opinion that the wife had "emotionally decompensated" as a result of the physical and emotional maltreatment by the husband, and that her recent physical removal from the Vaucluse Property, involving security personnel, had had a significant impact on her. The wife displayed overt anxiety and depression. Dr Smith expressed the opinion that the wife "demonstrates diagnostic criteria for a Major Depressive Disorder in association with heightened levels of anxiety". In respect of the wife's forcible eviction from the former matrimonial home, and her desire to return there, Dr Smith said: "this should only occur pending final property settlement and under the strict condition that her former partner does not continue to abuse her”.

76. In his 22 November 2019 report, Dr Smith said of his re-examination of the wife on that date: "Whilst improved, she continues to experience heightened levels of anxiety particularly in relation to further harm befalling her". The opinions stated by Dr Smith included:

4. I am of the firm opinion that [the wife] must be allowed to reside ideally in the former matrimonial home pending resolution of the family law dispute.

5. I also reiterate my opinion that [the wife] should have no contact with her former husband or his family in the light of the untoward event she has previously experienced.

82. In my opinion, the medical evidence justifies the following conclusion on an interlocutory basis. I put aside issues of fault in relation to alleged domestic violence and the forcible ejection of the wife from the Vaucluse Property. These events make the wife unemployable for the medium-term future. The wife, in compliance with medical advice, will require continuing psychological and psychiatric care for the indefinite future.

Wife’s borrowing from her father

83. Although the wife does not have any independent earning capacity, she gave evidence of entering into loan agreements with her father. On 28 May 2018, the wife and her father entered into a loan agreement under which the father made a loan to the wife of $250,000. The loan carries interest at the rate of 3% per annum and is repayable on settlement of the family law matter.

84. On 20 May 2019, the wife and her father entered into a further loan agreement under which the father advanced a further $400,000 to the wife on the same terms as the first loan agreement.

85. The wife gave evidence that, as of 5 December 2019, she had expended $606,000 of the $650,000 advanced by her father. Her legal costs of the family law matter to 31 October 2019 were $293,506.94. Her other various legal costs totalled $65,731.57. The wife's medical expenses were estimated to be $135,000. In addition, the wife had spent an estimated $60,000 for the costs of travel including medical treatment in Japan.

86. I interpolate that the wife gave evidence that she had spent an estimated $12,000 in caring for her dog, Manolo. The wife gave evidence, which I accept, that she is strongly attached to her pet and that her relationship with Manolo is important for her psychological well-being.

Wife’s maintenance claim

87. Over the course of the proceedings the wife has revised her claim for interim maintenance downwards. As of the date of her 5 December 2019 affidavit, the amount sought by the wife was $2117 per week. The wife gave evidence that, before her separation from the husband, her weekly expenses were $7950.

88. The weekly amount as finally claimed was not challenged in detail on behalf of the husband. The individual items do not appear excessive, save that it should be noted that the wife claimed medical expenses of $887, transport expenses (Uber) of $300 and $180 as the expense of caring for Manolo per week.

89. The wife explained that the figure of $887 for medical expenses included $210 as the cost of attending sessions with Mr Hendricks, a weekly allowance of $77 for the fees of Dr Smith, $300 for kinesiology and $300 for alternative healing practitioners for spiritual healing.

90. The evidence does not permit the Court to make any positive finding about the wife's need for weekly kinesiology and alternative healing practitioners. I will return to a consideration of those expenses when I come to the decision in this dispute.

Rental cost of alternative accommodation

91. Although the wife maintains, as her interim claim, a claim to be given exclusive possession of the Vaucluse Property pending the determination of these proceedings, she gave evidence of her investigations of the cost of alternative accommodation. This evidence concerned rental properties, being one to two bedroom apartments in or around Vaucluse with an outdoor area and permission to have a pet. The average weekly rental for those properties was $1192.50, and the wife would incur additional costs of a total of $65 per week.

92. The evidence satisfies me that, in this case, it would be appropriate for the wife to have accommodation that permitted her to continue to live with Manolo.

Husband’s earning capacity

93. The husband gave evidence that, during the course of his cohabitation with the wife, he earned a salary within the range $150,000-$190,000 per annum, which left him with a personal after tax income of between $8000 and $10,000 per month. The husband said that he had no personal savings.

94. The husband's father gave evidence that the husband's salary was fixed by a human resources manager of his business from time to time, as the father was not the sole owner of the business.

95. The evidence established that, during the course of the relationship, the husband's father had subsidised the husband by regular payments of substantial amounts. The husband said that his father had initially provided him with $700 per week and then at a later time $900 per week. He said that his father was no longer making this payment.

96. The husband gave evidence that his father made payments for the mortgage and running costs of the Vaucluse and Ryde Properties and the husband's personal expenses that were, in total, an estimated $4190 per week. The evidence is not clear, but it appears that these payments were in addition to the $700 or $900 per week.

97. As I understand the evidence, the husband's father continues to pay the expenses in respect of the Vaucluse and Ryde Properties, although those expenses are defrayed to an extent as both properties now are rented.

98. Since the husband left the Vaucluse Property, he has resided in an apartment owned by his father in the same building as the Ryde Property, rent free.

99. I note for the sake of completeness that there is an unresolved dispute between the wife and the husband about their respective personal expenditures during the time of cohabitation. The evidence suggests that the couple enjoyed a lavish lifestyle, although it is not yet clear on the evidence whether the husband paid the amounts for restaurant meals as claimed by the wife, or whether the husband's claim that the wife spent substantial amounts on shopping for personal items is correct.

Husband’s borrowing from his father

100. As was the case for the wife, the husband has borrowed money from his father following the couple’s separation.

101. On 11 March 2019, the husband and his father entered into a loan agreement under which the husband borrowed $300,000. Clause 3 provided that the purpose of the loan was to enable the husband to pay his legal fees in relation to the matrimonial proceedings, to pay his share of the interest on the mortgage over the Vaucluse Property, and for other discretionary expenses. The interest rate was 7% per annum, and the loan was repayable 24 months after drawdown.

102. By an undated deed of variation of the loan agreement, the amount of the loan was increased to $600,000.

103. The husband gave evidence that his legal fees in respect of all of the matters in which he has been involved have been estimated to exceed $500,000 upon completion.

Domestic violence

104. There was considerable evidence concerning the commission of domestic violence by each of the wife and the husband towards the other.

105. A provisional apprehended domestic violence order was made against the husband on 20 May 2018 in respect of an assault committed by the husband on 19 May 2018.

106. Further, the husband pleaded guilty to common assault against the wife, and on 27 September 2018 a conditional release order was made against the husband without conviction.

107. There was also evidence of an incident involving an assault by the wife on the husband that led to the making of a provisional apprehended domestic violence order against her on 27 February 2019. That was continued on 27 March 2019, and made final, in the absence of the wife, on 7 July 2019.

108. The husband gave additional evidence of incidents of threatening conduct by the wife during the period of cohabitation. The truth of that evidence, if relevant, will be required to be dealt with at the final hearing.

109. Whatever the ultimate relevance, if any, of the evidence concerning mutual domestic violence may be, for the present interlocutory purpose it establishes that it would be highly undesirable for the wife's place of residence to be in close proximity with any place likely to be attended regularly by the husband.

110. Both the husband and the husband's father gave evidence that, in view of the animosity between the couple and between the wife and the husband's family, they strongly opposed the making of any order that would have the effect that the wife would have interim exclusive possession of the Vaucluse Property. The husband regularly visits his family at the Father's Property. The husband's father gave evidence that he and his family would find it highly intrusive for the wife to be able to overlook the Father's Property from the Vaucluse Property.

The Vaucluse Property

111. For the determination of the present application for interim relief, it is important to consider the likelihood that final orders will be made that the wife or her father has a proprietary interest in the Vaucluse Property, or that an order may be made altering the husband's interest in the Vaucluse Property to give the wife an interest in that property. The value of any equity that the husband may have in the Vaucluse Property may also influence the nature of any maintenance order that may ultimately be made by the Court in favour of the wife.

112. It will be convenient to start the consideration of the evidence concerning the Vaucluse Property by focusing on the significant objective evidence concerning that property.

113. The Vaucluse Property was, in fact, purchased on 7 October 2010 for a price of $3.3 million, and placed into the names of the husband and the brother as registered proprietors in a joint tenancy.

114. The Vaucluse Property was purchased with the aid of a loan of $1.8 million made by the CBA to the husband and the brother, secured by a registered first mortgage over the title.

115. In due course the husband and the brother refinanced the mortgage with the NAB and the amount of the loan was increased by $300,000 to fund, according to the husband's evidence, renovations to the master bedroom suite of the Vaucluse Property.

116. A sum of $1.82 million was paid by the husband's father to cover the balance of the purchase price plus stamp duty and other costs.

117. On 5 November 2010, the husband and the brother executed a deed of loan agreement with the husband's father as lender. The deed of loan agreement was prepared professionally by a firm of solicitors.

118. By clause 3, the borrowers agreed to give the lender "a mortgage equal to the Principal Sum plus interest (as set out below) over the Property secured by way of a registered Caveat."

119. By clause 4.1, the borrowers undertook that no further debt would be incurred until the loan had been discharged.

120. Clause 5 provided for the payment of interest in the following terms:

5. INTEREST

5.1   The Borrowers must pay to the Lender on the balance outstanding from time to time of the Principal Sum interest at the rate charged by the Commonwealth Bank of Australia from time to time on commercial overdrafts of $100,000.00 as set out in clause 5.2.

5.2   Interest on the Principal Sum will:

(a)   be payable for the period from and including the date on which the Principal Sum is drawn down by the Lender under this Deed up to but excluding the date of repayment of the Principal Sum and all monies owing under this Deed; and

(b)   be payable on demand at the Lender' discretion, provided that all stipulations in clauses 6, 7 and 8 apply.

121. Clause 6 had the effect that the borrowers were required to repay the Principal Sum plus any interest payable pursuant to clause 5 on demand by the lender on not less than six months’ prior written notice, or upon the sale of the Vaucluse Property.

122. Under clause 8.1, the liability of the borrowers was limited to the value of the Vaucluse Property.

123. On or about 14 April 2015, the husband's father caused a caveat to be lodged against the title to the Vaucluse Property to protect his claimed "Interest under the Deed of Loan Agreement".

124. To date, and subject to the net rent for the Vaucluse Property received in respect of the current lease, the husband's father has paid all of the mortgage payments and holding costs in respect of the Vaucluse Property, and the father did not require any repayments under the deed of loan until 11 March 2019.

125. On 11 March 2019, the husband's father served on the husband and the brother a notice of demand in the following terms: "The Lender now gives you 6 months' notice that it requires you to repay the Principal Sum plus any interest payable pursuant to clause 5 of the Deed of Loan”.

126. The husband claimed in his evidence that, as at 31 March 2019, the interest accrued under the deed of loan was $2,177,615, of which the husband's share, at 50%, was $1,088,807. The annexure containing the interest calculation appears to show that the interest has been calculated on a compound basis on monthly rests.

127. The husband did not otherwise substantiate the amount of the interest or justify the calculation. The wife did not address the issue. As the loan was effectively secured over residential security there may be an issue concerning the determination of the applicable interest rate, as there may be different rates for business overdrafts with residential security and other commercial overdraft rates. Furthermore, it does not seem that clause 5 of the deed of loan obliges the borrowers to pay compound interest. The amount of any outstanding interest will have increased since 31 March 2019.

128. In any event, there was no evidence that any steps had been taken by the husband's father after 11 September 2019 to enforce the demand served on the husband and the brother.

129. The parties' evidence did not focus on the present realisable value of the Vaucluse Property. That is surprising as, on any view, half of the difference between the market value of the property and the total of the amounts owed to the NAB and the husband's father will be property of the husband that the Court will be able to take into account for the purpose of making final orders in favour of the wife.

130. The only material before the Court was the disclosures respectively made by the wife and the husband concerning their assets and liabilities for the purposes of the proceedings in the Family Court. Counsel for the husband handed up in court a schedule that compared the estimates of assets and liabilities made by the parties.

131. The wife estimated the value of the Vaucluse Property at $6 million while the husband placed a value of $4.2 million on the property. Neither of these estimates was substantiated.

132. As a price of $3.3 million was paid for the Vaucluse Property on 7 October 2010, and as the parties seem to agree that an amount in the order of $500,000 was paid for its renovation (the parties disagreeing only as to who paid for the renovations), it seems to be unlikely that, in the Sydney property market, the Vaucluse Property would have increased in value over nine years by only about $400,000 above its purchase cost plus the cost of renovations.

133. The evidence of the parties was completely at odds concerning the circumstances in which the Vaucluse Property had been purchased.

134. The husband's case was that the true, intended outcome conformed with the objective legal documentation, and that it was intended that the Vaucluse Property would be owned jointly by the husband and the brother, and that this outcome resulted from the husband's father noticing that the Vaucluse Property was for sale and stating to the husband and the brother: "… We should buy it," and, "I will pay half the purchase price and the stamp duty which is around $1.8 million. The property will be in yours and [the brother’s] names as joint tenants. You will both have to sign a loan agreement and the loan will accrue interest. [The husband] and [the wife] can live there but it is a family investment for you and [the brother]”.

135. It appears, from the wife's evidence, that she was not privy to any of the actual circumstances in which the Vaucluse Property was purchased and placed in the joint names of the husband and the brother. The wife's evidence is principally contained in pars 54 to 71 of her affidavit made on 22 November 2019. The wife's evidence included, at par 56, a conversation between the wife, the husband and the husband's father in which the husband asked if the wife wanted to live in the Vaucluse Property and the father said: "Yes. You should live next door. I will get it for you". The wife said in par 57 that she "believed that [the husband’s father] had gifted the home to [the husband] and I", although she was not involved in any discussions regarding the purchase of the home. She said that the father said to her and the husband: "This is your home – it is yours". The wife also gave evidence in par 65 that, during the course of the renovations, the brother said to her: "… It’s your house…", and at par 68 that the brother said: "I looked at your house today and it is looking really good". Finally, at par 69, the wife gave evidence that, in about 2016, the husband's father said in her presence: "Well [the Vaucluse Property] is [the husband] and [the wife’s] home. So [the Father's Property] is for [the brother]."

136. The wife's evidence was that she conducted her life during the period of cohabitation in the belief that the Vaucluse Property was owned by herself and the husband, and that she maintained that belief until a time between July and October 2018 when the husband said to her: "[The brother] owns half of this house. You will get nothing".

137. The parties agreed that substantial renovations were undertaken in respect of the Vaucluse Property. The cost was in the order of $500,000, although at this stage, comprehensive evidence of the work and the associated cost has not been given.

138. The wife said, in par 63 of her affidavit referred to above, that she estimated the renovations cost approximately $500,000, which was paid by the wife's father at her request. She said that the father either paid invoices directly or gave her cash to make payments.

139. The evidence did not substantiate all of the payments. The wife explained this situation by saying that her records were left at the Vaucluse Property when she was ejected, and not all of those records have been returned to her. The wife tendered an invoice for $40,000 for chandeliers, and a schedule showing transfers of $336,386 said to be transfers of funds from her father to her in the period between 13 May 2012 and 29 April 2018.

140. The evidence at this stage does not directly substantiate that these transferred funds paid for renovations of the Vaucluse Property.

141. The evidence given on behalf of the husband accepted that an amount in the order of $500,000 had been paid for renovations, but asserted that about $200,000 had been paid by the husband's father, and $300,000 had been funded by the increase in the loan made to the husband and the brother by the NAB.

Current lease of Vaucluse Property

142. The rent payable under the current lease of the Vaucluse Property is about $900 per week, assuming that the monthly rent of $3,910.71 is paid per calendar month.

143. The wife tendered rental appraisals for the Vaucluse Property of $2000 per week in one case and $3000-$4000 for the property fully furnished in another case.

144. Apart from the fact that this evidence was not valuation evidence, but merely appraisals, the disparity between the two appraisals throws doubt on their reliability. Apart from the wide range of the second appraisal, it was specifically stated that it was "sight unseen".

145. The husband's evidence did not respond to the wife's evidence on this issue. At this interlocutory stage, there is a relatively substantial basis for the Court to conclude that the market rent for the Vaucluse Property is significantly greater than the current rent, with a significant probability that it is of the magnitude of $2000 per week or more.

142. It is a matter for speculation, but it may be that the current market rent was affected by the constrained circumstances in which the husband and the brother were able to lease the Vaucluse Property, because of the effect of the various orders of the courts, and the uncertainty about the duration of any lease that could be granted.

Certain other assets

147. In the schedule of the parties' assets and liabilities provided to the Court, both the wife and the husband estimated the value of the Ryde Property at $950,000. The wife estimated the amount of the outstanding mortgage on the property at $450,000, and the husband gave a figure of $442,876.

148. There was no evidence that the husband had entered into any loan agreement with his father in respect of the Ryde Property.

149. The husband therefore appears to have an equity in the Ryde Property with a value of $500,000.

150. The parties' schedule of assets and liabilities records an asset represented by the sum of $126,200 as the deposit under a contract for the purchase of the Waterfall apartment. The evidence does not otherwise disclose anything of significance concerning the completion of the contract.

151. The husband, in the parties' schedule of assets and liabilities, asserted that the wife had designer handbags, shoes, sunglasses, belts and jewellery with a value of $350,000 in total. The wife valued that property at $5000. Otherwise, there was little evidence to enable the Court to assess the real value of this property. Putting aside the jewellery, as this property was of a personal nature, it is doubtful that it would have a market value comparable to the aggregate purchase price.

Relevant legal principles

152. The wife submitted that the Court is empowered to make an interim order for possession of the Vaucluse Property, as the matrimonial home, pending final hearing, in exercise of the Court’s power to order injunctions under s 114(1)(f) of the Family Law Act, and in the case of the brother, aided by s 90AF of that Act. Alternatively, she submitted that the order sought could be supported as an order for interim spousal maintenance under ss 74 and 80(1)(h) of the Family Law Act.

153. The wife also relied upon ss 114 and 90AF of the Family Law Act to support the injunctions sought against the husband and the brother for the preservation of the Vaucluse Property, and against the husband for the preservation of the Ryde Property.

154. The wife’s application for interim maintenance payments relied upon the Court’s power in s 74 of the Family Law Act, which she submitted authorised the making of such an order until such time as the wife is able to support herself through the receipt of the benefit of a property order.

155. The wife relied upon the following aspects of the right to spousal maintenance created by s 72 of the Family Law Act:

1. Right of spouse to maintenance

2. 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:

…

(b)   by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)   for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

…

156. Section 74 of the Family Law Act empowers the Court to make an order for the provision of maintenance of a party to a marriage in the following terms:

1. Power of court in spousal maintenance proceedings

2. In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

…

157. The following matters are required to be taken into account by the Court for the purposes of her application for spousal maintenance:

1. Matters to be taken into consideration in relation to spousal maintenance

2. In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

3. The matters to be so taken into account are:

(a)   the age and state of health of each of the parties; and

(b)   the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

…

(d)   commitments of each of the parties that are necessary to enable the party to support:

(i)   himself or herself; and

1. a child or another person that the party has a duty to maintain; and

…

(g)   where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h)   the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

…

(j)   the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k)   the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

…

(o)   any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

…

158. In Hall v Hall (2016) 257 CLR 490; [2016] HCA 23, French CJ and Gageler, Keane and Nettle JJ held at [5] that: “ A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist”. Their Honours further held, at [6], that a court exercising the power to make an order pending the disposal of the proceedings is acting within the general power conferred by s 74(1). Their Honours then said the following, at [8], concerning the standard of proof that is required (footnotes omitted):

Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).

159. The wife submitted that "financial resources" in s 75(2)(b) of the Family Law Act refers to "a source of financial support which a party can reasonably expect which will be available to him or her to supply a financial need or deficiency", although the party need not "control the source of the financial support", relying on Hall v Hall at [53]-[55]. The wife submitted that, whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual enquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.

160. In Hall v Hall the plurality (French CJ, Gageler, Keane and Nettle JJ) said (footnotes omitted):

52 The wording of s 72(1), it has been noted, seems to imply that each party should attempt to support himself or herself where that is reasonable having regard to the matters referred to in s 75(2).

53 The matters referred to in s 75(2)(b) are matters which bear on the practical ability of one party to support the other, and of the other party to support himself or herself. Hence the concluding reference is to the matter of “the physical and mental capacity of each of them for appropriate gainful employment”. Hence also the opening reference to the matter of “the income, property and financial resources of each of the parties” cannot be confined to the present legal entitlements of the parties.

54 The reference to “financial resources” in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to “a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency”. The requirement that the financial resource be that “of” a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation.

55 Whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.

161. In that case, the appellant wife was a daughter of a testator who had left his considerable assets to the wife’s brothers, with a request that they make her an annual payment of $150,000 plus a lump sum payment of $16.5 million from a group of companies. The appellant could not require payment, but her brothers were well disposed towards her, and the Full Court of the Family Court had found as a fact that, if the appellant made an appropriate request, it would probably be acceded to by the brothers.

162. The wife also, however, also relied upon the following passage from the judgment of Nygh J in In the Marriage of Murkin (1980) 5 Fam LR 782 at 784-785, concerning the meaning of the expression “unable to support herself adequately” within the meaning of s 72 of the Family Law Act:

In my opinion the issue is not whether the wife is receiving sufficient funds, but whether she is able to support herself adequately ie whether she can generate funds from her own resources or earning capacity to supply her own needs. A woman who is dependent on payments of social security benefits, voluntary payments by a former husband or by friends and relatives is not able to support herself. She has to be supported by others: see Wong v Wong (1976) 2 Fam LR 11,159 at 11,164 per Carmichael J. The question then arises by whom she should be supported: by the former husband or by social security and to what extent. If that distinction is kept in mind, some of the confusion which has arisen, through arguments that because social security is or will be available, the wife is not “in need,” can be easily resolved. The threshold test in terms of s 72 is ability to support one's self, not need. A person whose needs are met by a voluntary payment or social security, is unable to support himself or herself. The criteria of need and ability to support one's self are not identical.

In this case I have no hesitation in finding that the wife, who is in receipt of social security, is unable to support herself. She has no income of her own and at the age of 62 her earning capacity is severely limited…

163. The parties did not, in their submissions, explore the relationship between these statements of principle in any detail. Accordingly, and given that the present application is for interim relief, this is not an appropriate occasion to consider, in a definitive way, how the observations made in these authorities operate conformably together. I will proceed on the basis that it is necessary for the Court to make a judgment on the evidence before it as to whether a particular source of funds that may be available to a party can properly be regarded as part of the party’s own resources, and in making that judgment, the Court may be required to distinguish between a case where the party may expect to benefit from the benevolence of some other party, and a case where a fund is available as to which the party may not personally control the right to receive that fund, but in fact has a reasonable expectation that the party in control of the fund will apply it for the party’s benefit, on the basis that it is appropriate to apply the fund in that way. The particular circumstances of the case may make it difficult for the Court to decide whether the fund should be treated as being part of the financial resources of the party.

164. Section 79 of the Family Law Act governs the orders that may be made for the alteration of property interests. Relevantly, it provides:

1. Alteration of property interests

2. In property settlement proceedings, the court may make such order as it considers appropriate:

(a)   in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or

…

1. The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

2. In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a)   the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b)   the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(c)   the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d)   the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e)   the matters referred to in subsection 75(2) so far as they are relevant; and

(f)   any other order made under this Act affecting a party to the marriage or a child of the marriage; and

…

1. The following are entitled to become a party to proceedings in which an application is made for an order under this section by a party to a marriage (the subject marriage):

…

(b)   any other person whose interests would be affected by the making of the order.

…

165. The defendants submitted that, when considering what, if any, interim orders should be made, the Court should have regard to what appears from the evidence to be the possible ambit of the orders that could be made on a final hearing, at least in respect of interim orders dealing with the “property of the parties to the marriage or either of them” for the purposes of s 79 of the Act. These submissions were directed primarily at the part of the wife’s interim claim that sought exclusive possession of the Vaucluse Property. The effect of the submissions was that, even though, in fact, the Vaucluse Property was the matrimonial home, the Court could not finally make an order in property settlement proceedings that operated on property of the brother or the husband’s father that was not property of the husband under applicable statutory and general law principles. I accept that the expression “with respect to the property of the parties to the marriage or either of them” in s 79(1)(a) of the Family Law Act has the effect submitted by the defendants.

166. The following general powers of the Court may be material, particularly that found in s 80(1)(h) of the Family Law Act, in so far as reference is made to the making of an order pending the disposal of proceedings:

1. General powers of court

2. The court, in exercising its powers under this Part, may do any or all of the following:

…

(b)   order payment of a weekly, monthly, yearly or other periodic sum;

(ba)   order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;

…

(h)   make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

…

…

167. The power of the Court to grant injunctions is contained in s 114 of the Family Law Act, which relevantly provides:

1. Injunctions

2. In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

…

(b)   an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

…

(e)   an injunction in relation to the property of a party to the marriage; or

(f)   an injunction relating to the use or occupancy of the matrimonial home.

…

168. Section 90AF of the Family Law Act extends the Court’s power to issue an injunction to permit the order to bind third parties, relevantly as follows:

90AF Court may make an order or injunction under section 114 binding a third party

…

1. In proceedings under section 114, the court may make any other order, or grant any other injunction that:

(a)   directs a third party to do a thing in relation to the property of a party to the marriage; or

(b)   alters the rights, liabilities or property interests of a third party in relation to the marriage.

1. The court may only make an order or grant an injunction under subsection (1) or (2) if:

(a)   the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

…

(d)   for an injunction or order under subsection 114(1)—the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

…

(f)   the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

1. The matters are as follows:

…

(f)   the economic, legal or other capacity of the third party to comply with the order or injunction;

(g)   if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters—those matters;

(h)   any other matter that the court considers relevant.

169. The defendants relied, in particular, upon the requirement in subs (3)(a) that any order that prevented the brother or the husband’s father from interfering with the wife’s exclusive possession of the Vaucluse Property would have to be reasonably necessary, or reasonably appropriate and adapted, “to effect a division of property between the parties to the marriage”, which requires the Court to identify that property by applying relevant statutory and general law principles. The Court must also decide that it is proper to order the injunction.

206. Without, at this stage of the proceedings, expressing any final view about the outcome of the dispute concerning the orders that may ultimately be made in respect of the Vaucluse Property, I accept the submissions of the defendants that the evidence tendered at this stage does not establish a likelihood that the wife will prove that either the wife, or the wife and the husband together, are entitled to the beneficial ownership of the Vaucluse Property to the exclusion of the apparent interests in that property of the other parties.

207. The wife was not able to give direct evidence of the circumstances of the purchase of the Vaucluse Property, and had to rely upon her evidence of statements made to her by the defendants concerning the property being the home of the wife and the husband.

208. The evidence going to the nature of any equitable interest that the wife, or the wife and the husband, may have in the Vaucluse Property is inconclusive at this stage. But as a matter of probability it is likely, on the basis of that evidence, that if a proprietary interest is established, it will be founded on some conventional or other estoppel or unconscionable conduct. Then, the extent of the interest will be measured by the value of the improvements made by the wife, or the increase in the value of the Vaucluse Property attributable to those improvements. Given the apparent limit on the amount paid for the renovations, which is in the order of $500,000, it seems to be improbable that the wife could establish a right to sole ownership of the Vaucluse Property, although that is not a matter now to be decided.

209. At this stage, the evidence of the parties as to who paid for the renovations is diametrically opposed, and is not such as to enable the Court to make any preliminary forecast as to the outcome. Apart, perhaps, from the purchase of the chandeliers, the wife was not able to tender direct evidence showing payment for all of the renovations that she contended were paid for by herself with the assistance of her father's money. I acknowledge that that may be because the wife was deprived of some of her records as a result of her ejection from the Vaucluse Property without being able to remove all of her possessions.

210. I note that the strength of the wife's case is also compromised, to an extent, by the existence of her father's inconsistent claim to be entitled to set off all of the payments that he claims he made for the renovation of the Vaucluse Property against his obligations to the husband's father's company's claim against him in the other proceedings that are pending in this Court. The existence of that inconsistency cannot be resolved at this stage of the proceedings, but it militates against the Court making an interim order in relation to possession of the Vaucluse Property that is absolutely inconsistent with the prima facie rights of the brother and the husband's father.

211. At this interlocutory stage of the proceedings, there was no positive evidence that could support a finding that the husband's father actually intended to make a gift of the $1.82 million that he paid for the purchase of the Vaucluse Property to the wife and the husband, or even as to one joint interest in that amount with the brother. Although there was a suggestion in the wife's points of claim that the deed of loan was a sham, there is no evidence tending to support a finding of that nature at this stage.

212. I am not satisfied by the evidence that the financial resources of the husband extend, for the purposes of s 75(2)(b) of the Family Law Act, to whatever money may need to be provided by the husband’s father to fund the shortfall in the capacity of the husband to pay for all of the consequences of the interim orders sought by the wife, whatever that shortfall may prove to be. I would distinguish this case from the circumstances in Hall v Hall, where a fund was available and the courts were able to find, as a matter of fact, that the persons who controlled the fund would probably apply it for the benefit of the wife in that case, because that accorded with the wishes of the creator of the fund. In this case, particularly in so far as the husband’s father would be required to make substantial subsidies of the husband for the direct benefit of the wife, and only to relieve the husband of the consequences of the Court’s orders, I consider that it would be more realistic to treat the possibility that the father would continue to subsidise the husband as being more akin to an expectation of benevolence than the provision by the father of a financial resource to the husband.

213. It is not warranted that the Court make an interim order that in practical terms would require the husband's father to make all mortgage payments and pay all holding costs in respect of the Vaucluse and Ryde Properties against his will, or find himself in the circumstance that he had stood by and caused his son, the husband, to breach the Court's interim orders.

214. I note the prima facie position that the brother is a joint owner of the Vaucluse Property, and that he owes obligations to the NAB under the mortgage and to his father under the deed of loan, which he is legally required to service. I do not therefore think that an order that had the effect of restraining the brother from disrupting the wife’s sole possession of the Vaucluse Property, and had the incidental effect of preventing the brother from joining with the husband in leasing the Vaucluse Property, would be reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between parties to a marriage within the meaning of s 90AF(3)(a) of the Family Law Act. Additionally, it would not be proper for the Court to make orders to that effect, as is required by s 90AF(3)(d).

215. Further, given the wife's claim for interim maintenance, it will be necessary for the Court to face the issue of how the husband might, in practical terms, be able to pay interim maintenance, given the limitations on his income. In that context, it would not be warranted for the Court to deny the brothers the opportunity to earn rent from the leasing of the Vaucluse Property, which is inconsistent with the interim order sought by the wife.

216. Although it is understandable why the wife wishes to return to live at the Vaucluse Property, and acknowledging that it would probably be greatly beneficial to her to be entitled to do so, I understand that the property is a four bedroom home which will be much larger than would be necessary to support her accommodation needs.

217. Finally, given the proximity of the Vaucluse Property to the Father's Property, it is not desirable that the wife have the benefit of an interim order that will enable her to live next to the husband's father's family. I place some weight on the father's understandable desire not to have his home overlooked from the home occupied by the wife, but I place most weight on the fact of the history of domestic violence between the wife and the husband, and the subsistence of the orders that have been made for their mutual protection. As the Court would not lightly make an order that would have the practical effect of preventing the husband from visiting his parents and family at will, it is inappropriate on balance for the Court to make an order that would permit the wife to make the Vaucluse Property her home pending the determination of these proceedings.

Should an alternative order for accommodating the wife be made?

224. As I have mentioned above at par 91, the wife gave evidence concerning the likely cost of her renting a one or two bedroom apartment in the Vaucluse area as an alternative to her being given exclusive occupation of the Vaucluse Property. The defendants did not respond to that evidence.

225. The explanation for that non-response may be the fact that both in her claim for final relief, as set out in par 8 above, and her interim claim, which is summarised in par 21 above, the wife has not expressly made an alternative claim that the husband pay for rental accommodation for her.

226. The wife's submissions on application for interim relief dated 9 December 2019 make no mention of the possibility that, as alternative interim relief, rental accommodation should be provided for the wife by the husband.

227. Consequently, the Court cannot, at this stage, consider whether an order should be made against the husband requiring him to provide appropriate rental accommodation to the wife on an interim basis, even though it may be that a substantial case could have been made in favour of the making of such an alternative order.

228. The uncertainty of the position concerning whether the wife makes an alternative claim for interim rental accommodation provided or subsidised by the husband is unsatisfactory. The wife needs accommodation, and I am satisfied on the basis of the medical evidence that stable accommodation is required for the wife's long-term psychological health.

229. Given that the wife has failed in her primary claim for an interim order giving her exclusive possession of the Vaucluse Property, the absence of an alternative claim leaves the wife homeless. Not only that, but the issue of whether an order should be made for her interim maintenance must be decided in circumstances where no provision is made for her accommodation.

230. That gives rise to the problem that the quantum of any interim maintenance must be decided without regard to the cost of the provision of accommodation for the wife. As the husband's personal financial resources are limited, it is at least necessary for the Court to have regard to the husband's financial resources in determining what amount should reasonably be made available for both the accommodation and the maintenance of the wife. It is unsound to consider one of these amounts while ignoring the other.

231. As the issue of providing accommodation for the wife cannot sensibly be ignored, I will invite the parties to provide submissions on this issue to the Court before final orders are made on the application.

Should orders for the interim preservation of the Vaucluse Property be made?

232. It is necessary to consider whether the Court should make any interim order for the preservation of the Vaucluse Property, as summarised in par 21(2) above.

233. I consider that there is a good case for restraining the brothers from selling the Vaucluse Property without giving the wife, say, 14 days' notice of their intention to enter into a contract to do so. The evidence does not justify an absolute bar on the brothers selling the property, as circumstances may arise that would justify them in doing so. After being given notice, the wife could move for an injunction if so advised. If appropriate, the Court may permit the sale but make some order for the preservation of the net proceeds of sale.

234. There is also a good case for the Court to require the brothers to lease the Vaucluse Property at a reasonable market rent, and to apply the net rent, after allowance for tax, against payments due on the mortgage to the NAB (and perhaps with any surplus paid to the father under the deed of loan). That course will minimise the extent to which the brothers' apparent equity in the Vaucluse Property may be reduced because the amount of the debt to the NAB has increased.

235. There is also a good case for an order restraining the brothers from borrowing any additional amount from the NAB on security over the Vaucluse Property, at least without giving the wife 14 days' prior notice.

236. I see a difficulty in making an order obliging the husband to make any payments, in addition to payments funded by the rent, whether to the NAB, other holding costs, or to the husband's father under the deed of loan. That is, that none of the payments has been quantified, and the Court has no basis for determining the likely effect of its own order, having regard to all of the husband's other financial obligations, including such as may flow from any interim maintenance order made by the Court.

237. The appropriateness of making an order that positively requires the husband to make payments in respect of the Vaucluse Property must be judged in the light of the evidence that suggests that all of the defendants positively intend to retain the Vaucluse Property, which is consistent with the conduct of the defendants since it was first acquired. Additionally, there is the point made on behalf of the brother that the existing restraint was made by consent of the wife, without the inclusion of the restraint now being sought.

238. In these circumstances, I conclude that it will not be appropriate for the Court to impose additional interim restraints on the husband.

Should interim orders for the preservation of the Ryde Property be made?

239. There has been relatively limited evidence concerning the situation of the Ryde Property. As mentioned above, the husband appears to have equity of $500,000 in the Ryde Property, and that is property that will be available at the final hearing to be made the subject of an order altering property interests under s 79 of the Family Law Act.

240. There is no evidence that the husband threatens to sell the Ryde Property, or that he proposes to further encumber it.

241. The problem with this aspect of the wife's interim application is that the Court cannot reliably calculate the effect of an order requiring the husband to pay the mortgage on the Ryde Property, over and above the amount that can now be paid from the lease of that property. Furthermore, when the Court comes to consider whether the husband should be ordered to pay interim maintenance to the wife, it will have to give consideration as to how the husband will be able to fund any such obligation. It is not a proper approach, as the wife's submissions appear to propose, for the Court simply to order that the husband make various periodical payments, on the assumption that the husband's father will necessarily pay whatever the shortfall happens to be.

242. There is a good case for the Court to order the husband to give 14 days’ notice of any intention to sell the Ryde Property, or to permit any increase in the encumbrance over the Ryde Property for any purpose other than arises out of the existing mortgage, by which I mean shortfalls in the husband's ability to make mortgage payments from the current rent, plus any need to fund any orders made by the Court on the wife's present application.

Should an order be made for interim maintenance for the wife?

243. I am satisfied that an order should be made that the husband pay interim maintenance to the wife pending the determination of the family law claim.

244. I make that finding having regard to the matters in s 75 (2) of the Family Law Act and, in essence, accept the wife's submission on that issue. As required by the decision in Hall v Hall, the available interlocutory evidence satisfies me as to the existence of factors justifying an order for interim maintenance on the balance of probabilities.

245. I do not accept that a marriage of almost 10 years, and the contribution of the wife to establishing the matrimonial home in the Vaucluse Property, is insufficient to justify an entitlement to maintenance in the wife under s 72 of the Family Law Act, as submitted by the husband.

246. In this regard, I accept that the wife is unable to support herself adequately by reason of mental incapacity for appropriate gainful employment. As the wife does not have any experience and has not undertaken any vocational training, it would be difficult for her to earn an adequate income in any case.

247. Just as I have found that the financial resources of the husband should not be considered to be all of the amounts that the husband's father can be taken to be able to afford to enable the husband to perform all of the orders sought by the wife, I do not consider that the wife's financial resources should be taken to include all of the money that the wife's father may be able to afford to maintain her.

248. Equally with the husband, I am prepared to infer as a fact that the wife's father will probably subsidise her to a degree, but I do not consider it to be proper on the evidence to find that either father will subsidise his child to the full amount that each party submits will occur.

249. I consider that the ability of each party to the marriage to borrow from her or his father should not be treated as increasing the party's financial resources where the loan is required to be repaid, and the evidence does not establish reasonably clearly that, as a result of the determination of the family law proceedings, the particular party will have assets sufficient both to repay any loan and also house and maintain themselves into the indefinite future.

250. As to quantum, the amount of $2117 per week claimed by the wife is excessive in so far as it includes $300 for both kinesiology and alternative healing practitioners for spiritual healing. I make no findings about the utility of these expenses in proportion to their cost, but note that they are not supported directly by the medical evidence. The amounts involved are excessive in proportion both to the amount claimed by the wife and the personal financial resources of the husband. I also consider that it would be appropriate for reductions of $100 each to be made in the $300 per week allowance for transport and the $180 allowance for the expense of caring for the wife's pet claimed by the wife.

251. Although the calculation is necessarily somewhat arbitrary, I would reduce the $2117 amount by a total of $817 per week, giving, say, $1300 per week. In principle, it is appropriate for the Court to make an order for the payment by the husband to the wife of interim maintenance of this amount.

252. As I have said, this calculation is unsatisfactory as it makes no allowance for the cost of accommodating the wife, and that cost really should be considered in relation to her total needs as well as the husband's financial resources.

253. I have not lost sight of the fact that the wife seeks an interim order that the husband pay for her health insurance as well as a weekly interim maintenance payment. My attention has not been drawn to evidence, if there is any, of the cost of providing for such insurance. That may be a reflection of the approach taken by the wife of asking for interim orders that will cost the husband in aggregate more than his personal financial resources can meet – on the assumption that the husband’s father will pay whatever the shortfall is.

254. Although I have rejected that proposition above, I would accept that the evidence establishes that the husband’s father will probably continue to meet some reasonable shortfall in the husband’s capacity to fund his expenses. However, the evidence does not permit the Court to make a judgment concerning the aggregate monetary effect of the interim orders that it may make in relation to the husband’s income earning capacity, his expenses, and the likely shortfall that would have to be funded from rent, from further borrowing, or by a continuing subsidy from the husband’s father.

What orders should be made on husband’s notice of motion?

255. It follows from these reasons that the Court should make an appropriate order that permits the husband and the brother to lease the Vaucluse Property until the final determination of these proceedings.

256. There remain questions concerning the terms of the Court’s orders that will require further submissions from the parties. I have expressed the provisional conclusion above that the available evidence appears to establish that the current lease of the Vaucluse Property is at a rent that is substantially below market. However, that is an issue that was not addressed by the parties in detail, and even if the current rent is below market, the evidence does not satisfactorily establish what the market rent is. The appropriate rent should probably be established by the market itself, with the assistance of an appropriately qualified rental agent. There is also the question raised by the brother concerning the notice period that may be required to terminate the current lease.

255. These are practical matters that would benefit from sensible discussions between the parties, rather than those matters becoming the subject of collateral issues for judicial determination.

Conclusion

258. It is plainly unfortunate that the Court has not been able to resolve all of the interim issues between the parties in these reasons. That result has been caused, in large part, by the parties not addressing possible intermediate outcomes between the relatively extreme positions for which they have advocated, or focusing in more precise terms on the aggregate monetary consequences of the interim orders that may be available to be made.

259. It will be necessary for the parties to consider these reasons and provide further submissions to the Court concerning the way forward to permit the Court to make complete and effective interim orders.

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Amendments

24 February 2021 - Republished as anonymised version

Decision last updated: 24 February 2021