Capello & Capello
[2025] FedCFamC1F 110
•25 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Capello & Capello [2025] FedCFamC1F 110
File number(s): ADC 2763 of 2021 Judgment of: HARTNETT J Date of judgment: 25 February 2025 Catchwords: FAMILY LAW – PROPERTY – Interlocutory application – Where the husband seeks the removal of a caveat as lodged by the wife on the former matrimonial home – Where the wife seeks partial property settlement – Where the wife seeks interim spousal maintenance – Where the wife seeks the appointment of single experts for various valuations – Where the wife seeks orders that the husband provide updated financial disclosure – Where the wife has an incapacity to work – Where the wife’s circumstances meet the threshold articulated in s 72 of the Family Law Act 1975 (Cth) – Husband’s application dismissed – Wife to receive partial property settlement – Wife to receive interim spousal maintenance. Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 80, 114 Cases cited: Bing & Bing [2007] FamCA 418
Kensit & Kensit [2022] FedCFamC1F 633
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 7 February 2025 Place: Melbourne, via videolink Counsel for the Applicant: Mr Glezakos Solicitor for the Applicant: Tolis & Co Lawyers Solicitor for the Respondent: Litigant in person ORDERS
ADC 2763 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CAPELLO
Applicant
AND: MR CAPELLO
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
25 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Respondent Husband (“the Respondent”) on 6 November 2024 is dismissed.
2.By way of partial property settlement, and pursuant to sections 80(1) and 79 of the Family Law Act 1975 (Cth) (“the Act”) and within thirty (30) days of this order, the Respondent do pay or cause to be paid to the trust account of Tolis & Co Lawyers, for and on behalf of the Applicant Wife (“the Applicant”) a lump sum of $100,000.
3.Pursuant to section 74 of the Act, the Respondent do pay, or cause to be paid, to the Applicant the sum of SIX THOUSAND DOLLARS ($6,000) per month by way of interim spousal maintenance with such payments to be made directly to the Applicant’s nominated bank account commencing on the first Monday following the date of these Orders and on the first Monday of each month thereafter.
4.Within 21 days of this order, and in the event the Respondent and Applicant cannot agree on a value for the below items, the Respondent do all such acts and things necessary to appoint and instruct Mr B of C Valuers to value the following property of the Respondent:
(a)his hobby equipment;
(b)his other hobby equipment;
(c)his music equipment and instruments;
(d)his recreational vehicle; and
(e)his media collection.
5.Within 14 days of this order the Respondent provide to the Applicant all 2024 and 2025 council rate notices and land tax assessment notices in respect of the following real properties:
(a)D Street, Suburb E;
(b)F Street, Suburb G;
(c)H Street, Suburb J;
(d)K Street, Suburb L;
(e)1 M Street, Suburb N;
(f)O Street, Suburb P;
(g)2 M Street, Suburb N; and
(h)Q Street, Suburb R.
6.Within 21 days of this order the Respondent provide to the Applicant his updated financial disclosure including but not limited to:
(a)Bank statements for:
(i)his ANZ account ending #...45 for the period 14 March 2024 to 13 September 2024 and from 13 December 2024 to date;
(ii)his ANZ account ending #...31 for the period from 27 August 2024 to date;
(iii)his ANZ account ending #...21 for the period from 6 September 2024 to date;
(iv)his ANZ account ending #...75 for the period from 11 November 2023 to 10 May 2024 and from 8 November 2024 to date;
(v)his ANZ Home Loan account ending #...05 for the period from 2 August 2024 to date; and
(vi)his ANZ credit card account ending #...00 for the period from 8 April 2024 to 6 December 2024 and from 5 January 2025 to date.
(b)Bank statements for the account number …95 for the period of 18 months prior to May 2021 to date;
(c)Bank statements for the account number …49 for the period of 18 months prior to May 2021 to date;
(d)His personal Income Tax Return and Notice of Assessment for the financial year ended 30 June 2024;
(e)Bank statements, Financial Statements and Income Tax Returns for the following entities for the financial year ended 30 June 2024:
(i)S International Pty Ltd;
(ii)S Investments Pty Ltd;
(iii)S Nominees Pty Ltd;
(iv)S Properties Pty Ltd;
(v)S2 Pty Ltd;
(vi)S Holdings Pty Ltd;
(vii)Capello Unit Trust;
(viii)Capello Unit Trust No 2; and
(ix)T Family Trust; and Capello Family Trust;
(f)His most recent statements evidencing dividends paid for any shares he holds in any publicly listed company, including but not limited to:
(i)U Pty Ltd; and
(ii)V Company;
(g)Statements for his W Investments portfolio number …78 for the period 18 months prior to May 2021 to date.
7.The Respondent do inform the Applicant, via her solicitors, of:
(a)any further claim made in relation to, or against, his late father’s Estate pursuant to the Inheritance (Family Provision) Act 1972 (SA) (“the IFP Act”), or any repealed Act in that regard, within 48 hours of receipt of notice of such claim AND do provide a copy of the same to the Applicant’s solicitors forthwith upon receipt thereof; and
(b)the progress of any claim/s made in relation to, or against, his late father’s Estate pursuant to the IFP Act, or any repealed Act AND will provide such update/s to the Applicant’s solicitors monthly unless any significant developments occur in anticipation of such time.
8.Pursuant to section 114(1)(e) of the Act, the Respondent be hereby restrained and an injunction be granted restraining him from, without providing 30 days’ notice in writing to the Applicant’s solicitors AND the Applicant expressly consenting to the same:
(a)drawing, transferring or otherwise withdrawing funds from his ANZ Home Loan Account number ending #...05;
(b)selling, transferring, encumbering or otherwise dealing with the former matrimonial home;
(c)dealing with, diminishing, drawing on, and/or depleting, his interest in the Estate of his late father pending final agreement with the Applicant in relation to settlement of property pursuant to section 79 of the Act, save and except to such extent that the same may be required to meet expenses that arise in the ordinary course of business;
(d)signing any document or instrument or doing any act or thing, including but not limited to entering into or signing a Deed of Family Arrangement, that has the effect of compromising or resolving any claim or claims made in relation to, or against, his late father’s Estate pursuant to the IFP Act, or any repealed Act in that regard without providing 30 days’ prior notice to the wife and/or
(e)otherwise disposing of or diminishing the value of any matrimonial property.
9.The costs of the wife be reserved.
10.Otherwise, all extant applications be adjourned to a mention at 10.00am on 5 May 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Capello & Capello has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
Before the Court was an Application in a Proceeding filed by the respondent husband (“the husband”) on 4 November 2024, and a Response to an Application in a Proceeding filed by the applicant wife (“the wife”) on 3 December 2024, as later amended by her on 18 December 2024.
The husband sought, in essence, removal of a caveat as lodged by the wife and registered on the Certificate of Title to the real property known as and situate at Q Street, Suburb R in the State of South Australia, being the former matrimonial home (“the FMH”). The wife and the parties’ child continue to reside in that property. The husband seeks to use the property as security to borrow monies for his litigation funding. The husband, as an alternative, would consent to the FMH being sold, with the net profits from the sale being divided in unstated proportion between the husband and the wife.
The wife sought, in summary, that the husband’s Application in a Proceeding be dismissed; the husband pay the wife $100,000 by way of partial property settlement; the husband pay the wife $10,000 per month by way of interim spousal maintenance; the parties instruct single experts to undertake valuations of various entities, real properties and property of the husband’s, with the husband to pay the cost of valuations at first instance; the husband to provide updated financial disclosure; the husband to inform the wife via her solicitors of any further claim made in relation to the husband’s late father’s estate; the husband to be restrained by injunction from drawing funds from the ANZ Home Loan Account number ending #...05 or selling, transferring or further encumbering the FMH; and an order for costs in the wife’s favour.
The parties’ interim applications are made where there are substantive proceedings on foot in which the parties seek final parenting and property orders including that, on the wife’s case and pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), the parties’ property interests be altered such that the wife receive 60 per cent of the net matrimonial assets and the husband 40 per cent. Importantly, the wife seeks retention of the FMH. The husband seeks an alteration of property interests as considered just and equitable by the Court but does not particularise precisely what orders he seeks. The husband seeks to exclude from the net matrimonial assets various assets, both personal and of entities related to the husband, as included by the wife.
The respondent husband relied upon:
(1)Application in a Proceeding filed 4 November 2024;
(2)his affidavits filed 4 November 2024 and 29 January 2025;
(3)the wife’s affidavit filed 3 December 2024; and
(4)Case Summary Document filed 4 February 2025.
The applicant wife relied upon:
(1)Amended Response to a Case Application filed 18 December 2024;
(2)her affidavits filed 25 August 2023 and 3 December 2024;
(3)her Financial Statement filed 3 December 2024;
(4)the husband’s affidavits filed 17 November 2023 and 30 January 2025;
(5)Case Summary Document filed 31 January 2025;
(6)her Tender Bundle filed 6 February 2025; and
(7)her Minute of Order emailed to chambers on 7 February 2025.
SOME RELEVANT FACTS
In 1976, the husband was born. He is 49 years of age. The husband is in good health and works full-time in his family’s business as conducted by ‘S International Pty Ltd’ (“the company”). He is a director and shareholder of the company, as is his brother Mr Y.
In 1980, the wife was born. She is 44 years of age. She is engaged in full time home duties which include the primary care of the parties’ young son. Her health is compromised.
In 2009, the parties married. It would appear that the wife moved into the husband’s home at this time.
In 2017, X was born. He is aged seven years. He is the only child of the parties’ marriage.
In April 2020, the parties separated under the one roof on the husband’s evidence. On 16 May 2021, on the wife’s evidence, the parties separated, and the husband left the FMH. They had cohabitated for approximately 11 or 12 years.
The wife and X continue to reside in the FMH which is registered in the husband’s sole name. In the period since separation, the husband has paid the mortgage instalments as they have fallen due, and the rates and other outgoings in respect of the property. Such liabilities are in his sole name. The husband has also however, on the wife’s account, redrawn monies against the mortgage since separation. On her evidence, the mortgage was in the sum of $1,084.89 at separation. Thereafter, the husband redrew a total sum of $60,000 for his sole benefit.
The husband deposed to such liabilities as now exist in respect of the mortgage and rates and taxes on the FMH as representing a cost to him of approximately $10,000 a year.
Each of the parties claim that they do not reside with another person and neither asserts of the other that he or she has re-partnered.
The wife deposed to having some bank savings of approximately $53,000.[1] The husband deposed in his financial statement of November 2023 to having bank savings of more than $54,238 together with shares of $11,168. He claimed thereafter in affidavit material to have no significant assets save the FMH and outstanding legal costs and family borrowings.
[1] Wife’s Financial Statement filed 3 December 2024.
The husband claimed to have an income of $78,520 with his phone and health insurance paid on his behalf. On the wife’s evidence, the husband retained shares with a value of $13,413.19 as at April 2024, earnt interest on bank accounts not disclosed, and is provided with a fully maintained company vehicle.
The wife had no income but deposed to being in receipt of the following government benefits:
(1)Family Tax Benefit A in the amount of $213.36 per fortnight;
(2)Family Tax Benefit B in the amount of $126.56 per fortnight;
(3)Single Parenting Payment in the amount of $940.87 per fortnight; and
(4)Other supplements in the cumulative amount of $47.10 per fortnight.
The wife’s deposed Centrelink payments total an amount of $1,327.89 per fortnight, or $663.95 per week. In early 2025, the wife was exempted from job seeking obligations for a further six months on the ground of disability arising from her poor mental health.
The husband is assessed (from October 2024) to pay child support payments (not previously paid) in the sum of approximately $487 a month. The husband also meets, as claimed by him, the payment of schooling and associated fees for the parties child in the sum of approximately $8000 per annum.
The wife deposed to the parties’ net non-superannuation asset pool being in the amount of $1,187,979, and the asset pool inclusive of superannuation being $1,620,379.[2] The husband provided an unsworn, estimated value of the FMH in the sum of between $1.15 and $1.25 million in 2023.
[2] Annexure “[MSC]-1” to the wife’s affidavit filed 3 December 2024.
On 29 November 2024, the husband and his brother, Mr Y, obtained a grant of probate as executors and trustees in the estate of their late father, Mr Z (“the Estate”). The asset pool as deposed to in the wife’s material, and described above, does not include a capitalised value for the husband’s interest in the Estate. The husband’s current entitlement as claimed by the wife is to a 50 per cent interest in the residue of the Estate which, as further claimed by the wife, includes:
(1)The company. The wife deposed to the 2023 financial year statements for the company disclosing cash assets of $6,355,806;[3]
(2)‘S Investments Pty Ltd’ (“Investments”). The wife deposed to the 2023 financial year statements for Investments disclosing cash assets of $2,097,038; shares valued at $555,470; and real property with an estimated value of $2,258,972;[4] and
(3)‘S Nominees Pty Ltd’ (as trustee for the Capello Family Trust). The Estate's statement of assets recorded this entity as having a value of $2,400,000 on 12 January 2021.[5]
[3] Wife’s affidavit filed 3 December 2024, paragraph 20.
[4] Wife’s affidavit filed 3 December 2024, paragraph 20.
[5] Annexure “[MSC]2” to the wife’s affidavit filed 3 December 2024.
The wife contended that the husband’s interest in the Estate is probably worth more than $3,500,000. The estate is now subject to a claim.
LEGAL PRINCIPLES
Section 79(1) of the Act provides that the Court may make such orders as it considers appropriate altering the interests of the parties in property. Section 79(2) of the Act provides as follows:
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.
If the Court is so satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made, including when making interim property orders. Section 79(4) of the Act provides as follows:
(4)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
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The Court has general powers to make various orders, including interim property orders. Section 80 of the Act provides as follows:
General powers of court
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(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;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
…
The Full Court, in Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 at [132], said that:
…when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Consideration and application of section 79(4) of the Act including, by reference to section 79(4)(e), necessarily the matters in section 75(2) of the Act, so far as they are relevant, may be brief and, if it is established that the applicant will be likely to receive by way of property settlement a sum sufficient to cover the cost of the advance, it would seem to be sufficient to enable the order to be made as sought.[6]
[6] Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 at [137].
In Bing & Bing [2007] FamCA 418 at [27], as to the issue of whether a party is unable to raise the capital sum so ordered by the Court, the Full Court said:
This is a matter which may become relevant if and when the [party] defaults in the order and an enforcement application is brought. However, the question of enforcement of the order remains a separate question from the propriety of granting the order in the first place.
Section 72 of the Act is relevantly, as follows:
Right of spouse to maintenance
(1)A party to a marriage is liable to maintain the other party, to the extent that the first - mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
…
Section 75 of the Act is relevantly, as follows:
Matters to be taken into consideration in relation to spousal maintenance
(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
…
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
…
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
…
…
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
…
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
Section 74 of the Act is as follows:
Power of court in spousal maintenance proceedings
(1) 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.
…
Justice Brasch said, in Kensit & Kensit [2022] FedCFamC1F 633, of the right to maintenance the following:
Of course, the right to maintenance arises if and only if the other party is unable to support herself or himself adequately. I highlight the adverb “adequately”. The interpretation of that word imports a standard of living that is reasonable in the circumstances.
Determination of the question whether an applicant for spouse maintenance can support herself or himself adequately is not to be determined by some fixed or absolute standard, but by reference to the matters in section 75(2).
The Full Court of the Family Court summarised the principles with respect to “adequately” at paragraph 161 as follows:
It is not to be determined according to any fixed or absolute standard.
The idea that “adequate” means a subsistence level has been firmly rejected.
Where possible, both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
In some circumstances, it may be reasonable for the parties to live at a higher standard than previously enjoyed.
It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he or she is unable to support him or herself adequately.
However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
(Citations omitted)
CONSIDERATION
I will deal firstly with the application of the husband. The husband sought that the wife be required to remove the caveat lodged by her over the FMH in circumstances where he had made an application for an extension of the home loan secured by the mortgage against the FMH. The wife opposed such an order. The FMH is property legally owned by the husband solely, and by the wife on her claim, beneficially. The outcome of acceding to the husband’s application would be to reduce the equity in the property that is available to the parties in circumstances where that is not presently necessary, and where the wife proposes remaining residing in the FMH with the parties’ child.
The husband provided no evidence as to any other efforts made by him to obtain funding for his legal expenses. The husband has many assets and/or financial resources available to him and/or in his control which hold a significant value. He has not provided sufficient discovery to the present time, nor valuations sufficient to enable a quantification of the value of the entities in which he has an interest.
Accordingly, and further considering the reasoning below, the husband’s application shall be dismissed.
Counsel for the wife submitted that the wife is unable to support herself adequately and that the interim property distribution she sought was one of necessity to enable her to meet her legal costs. It was further asserted that the quantum of interim property distribution that the wife sought was considerably less than that which the wife will receive by way of an alteration of the parties’ property interests. That is so, even if the Court looked only to the asset pool of the parties personally as quantified by the wife. It is clear that on each of the parties’ assessment of the value of their personal property there can be no prejudice to the ultimate proper, just and equitable adjustment of property interests as between the parties in an advance of $100,000 to the wife by way of partial property settlement at this interim stage of the proceeding.
It was further submitted by the wife that it is not for the wife to produce evidence of the husband’s inability to obtain funds from the entities in which he has an interest, as claimed by the husband, but rather for the husband to support that which he asserts in circumstances where the husband has considerable financial resources available to him by virtue of his control over, and interest in, including legal or beneficial, his various entities.
The husband claims that he does not have a capacity to meet such a payment to the wife. The Court has a wide discretion. It is proper that the wife be paid the partial property advance as claimed by the husband who has income, property and financial resources available to him to enable the meeting of this payment. I shall so order.
The wife gave evidence that her income is entirely derived from Centrelink payments and is in the sum of $663.95 per week. This sum shall be disregarded by me.
The husband last filed a Financial Statement in November 2023. At that time, he deposed to having $831 of weekly expenses, with a shortfall of income over expenses. His salary was a very modest approximate $78,520 gross. The husband did not include any information in respect of his interest in the Capello Group (as defined in the wife’s affidavit material to include those entities set out in paragraph 21 above), nor whether it provided him with further income and/or financial resources.
The wife has a diagnosis of anxiety, depression and PTSD, as provided by her treating psychiatrist. Due to her poor mental health, the wife has been described as having an incapacity to work. She is exempted from job seeking obligations until mid-2025. It is the wife’s claim that she has been a victim of family violence as perpetrated upon her by the husband.
The wife is the primary carer of the child, X, who lives with the wife for nine nights in a fortnight and with the husband for five. The parties share holiday and special occasion periods.
The husband claims to be paying rent – which the wife alleges is to his mother and sister and/or a family trust having taken up occupation in a property owned by the trust. The wife further alleges that the husband is conducting renovation works to the property.
The evidence is that the wife is unable to support herself adequately, and to a standard of living that is reasonable in the circumstances. The FMH has needed basic repairs, insurances have been cancelled by the husband as set out in the wife’s material and required payment by the wife, and her expenses are required to be met by the husband to the extent that he is able to so meet them. It is not necessary for the wife to apply her small amount of capital remaining to her support in the circumstances of this case. On the evidence at this interim hearing, the husband is reasonably able to support the wife given his financial circumstances and capacity which includes probably his shareholdings; access to cash at bank; and company funds including unpaid present entitlements.
The wife’s application is one that meets the threshold articulated in s 72 of the Act. In making an order that the Court considers proper for the wife’s maintenance, those relevant matters in s 75(2) of the Act have been considered, in particular, the wife’s health, her primary care of the parties’ child and her entire reliance on Centrelink payments to meet her living expenses which considerably exceed those payments.
The wife sought the engagement of single experts to complete valuations of the various entities in which the husband has an interest. Those valuations were submitted to be necessary to facilitate the parties’ engagement in mediation and, if necessary, to provide the Court with the necessary evidence to make findings and a final determination in the parties’ property proceeding. Further, counsel for the wife submitted that the husband has access to and control of the relevant entities’ financial documents and, as such, can provide those documents to a valuer as engaged by the parties. I observe that the husband is a director of various of the entities and, as claimed by the wife, beneficially and otherwise entitled to an interest in most of the entities.
The husband submitted that he had available to produce, and would so produce to the wife, the land tax valuations and council rate valuations of the relevant real properties. Additionally, the husband suggested that the 2024 financial documents of the relevant entities would likely be available at the end of February 2025 and could thereafter be provided to the wife. He sought that the parties attempt a mediation based on valuations by reference to these documents. The wife’s counsel did not object to reliance at this stage on those third-party source documents to ascertain, if possible, an agreed valuation of the real property and entities for the purposes of proceeding to a mediation.
The wife sought an order particularising outstanding disclosure which the husband has not provided. That order will be made as sought. The husband has an ongoing duty to disclose such documents to the wife and I observe that the husband submitted that he has provided some disclosure to the wife and is willing to provide ongoing disclosure in accordance with his obligations to do so.
The wife sought orders including that the husband not draw, transfer or otherwise withdraw funds from ANZ Home Loan Account number ending #...05, or sell, transfer or encumber the FMH. I will make those orders in all the circumstances.
The wife sought that the husband be ordered to keep the wife updated on significant matters in connection with the family provision proceedings regarding the husband’s late father’s estate. Given the quantum of the husband’s late father’s estate, with the husband and his brother Anthony being significant beneficiaries as asserted by the wife, and with both having control of the primary trading entity, the progress of such litigation is significantly relevant to this proceeding. I shall make an order in the terms as sought. The husband does not oppose same and indeed has provided some necessary information to date. I shall provide further for notification to be given to the wife of the husband’s intention to compromise that action should that occur.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 25 February 2025
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