Chadwick & Darwood

[2021] FCCA 821

FEDERAL CIRCUIT COURT OF AUSTRALIA

Chadwick & Darwood [2021] FCCA 821

File number:

DNC 14 of 2021

Judgment of:

JUDGE YOUNG

Date of judgment:

16 March 2021

Catchwords:

FAMILY LAW – spousal maintenance – application by the wife for urgent spousal maintenance – whether the husband has capacity to pay spousal maintenance – where the wife is unemployed – where the wife is without secure housing – where the wife is prevented from living in the former matrimonial home due to a Domestic Violence Order – where the wife has incurred substantial legal costs – where the husband has failed to satisfy the obligation of full and frank disclosure to the Court concerning his financial affairs – spousal maintenance order made.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 24.05

Number of paragraphs:

19

Date of hearing:

16 March 2021

Place:

Darwin

Solicitor for the Applicant:

Ms Farmer of Withnalls Lawyers

Solicitor for the Respondent:

Mr Chua of Maleys Barristers & Solicitors

ORDERS

DNC 14 of 2021

BETWEEN:

MS CHADWICK

Applicant

AND:

MR DARWOOD

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	16 MARCH 2021

THE COURT ORDERS THAT:

1.The de facto husband (“the husband”) pay urgent spousal maintenance to the de facto wife (“the wife“) fixed in the sum of $900.00 a week with the first payment to commence today.

2.The husband is to pay the wife an amount for her family law legal costs on a “dollar-for-dollar” equivalent to his legal costs. For this purpose the husband is to provide to the wife a monthly statement of the legal costs he incurs and when he pays his legal costs he is to pay an identical amount to the wife for her legal costs and her solicitor is to be advised of any amount paid.

3.The wife’s costs of today’s hearing thrown away be reserved.

4.The interim hearing be adjourned part-heard to the 29 April 2021 at 2.15pm time permitting (allowing one hour).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Chadwick & Darwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an urgent spousal maintenance application.  I made orders on 8 February 2021 adjourning the matter to today for interim hearing.  I note that the parties are de facto partners but I will refer to them as husband and wife.

2. The husband has occupied the former matrimonial home at B Street with the two children who are 16 and 13 years old. The wife has, effectively, been excluded from the property by a domestic violence restraining order (‘DVO’) obtained by the husband. The DVO was obtained in a context where the relationship between the husband and the wife deteriorated. The DVO prevents the wife from coming into that property other than in the company of a police officer. There are also various other conditions.

3. Up until the time the DVO was obtained in January, the wife had lived in the home that is located on the property and the husband lived in some other accommodation also located on the property. She is now homeless. 

4. I made an order on 8 February 2021 that a sum of $15,000 from a trust account be paid to the wife with the nature of that payment to be characterised at a later date. According to the wife’s affidavit she appears to have spent a significant amount of that money, particularly on legal fees associated with defending both domestic violence applications and a criminal charge.

5. The wife’s affidavit states that the interim DVO obtained in January is still on foot. The police were apparently also seeking a further DVO, however, the police have now indicated that they will not pursue this.  The wife was apparently also charged with criminal assault on the parties’ 16 year old daughter, X. According to the wife’s affidavit, the police will be withdrawing that charge also. 

6. Of the $15,000, some $6,000 has been spent on legal fees. These legal fees, in my view, were necessarily incurred as the criminal charge would have had extremely serious consequences. As mentioned, I have been told that criminal charge has now been abandoned by the police.  Presumably, the wife has some of that money remaining. However, perhaps the wife does not have all that much remaining as she also says that she has lost her employment. The wife has provided a letter from her former employer to that effect. I suspect that not a great deal of the $15,000 is left and what has been spent has been spent on necessary expenditure.

7. There may be some money left and perhaps that can be applied to a bond if she needs to obtain a rental property.  The husband says that there is a vacant property at Town C which was apparently an investment property of the parties.  That property is not tenanted.  I have not been provided with sufficient detail about the suitability of that property as a residence for a single woman. Town C is relatively remote from Darwin, in the sense that it is a small town 60 kilometres down the D Highway.  I would consider it a relatively isolated place and I am far from satisfied that it is a suitable option for the wife at this stage.  There is no real evidence about this.  Presumably, if she is going to seek employment in Darwin, Town C would be a very long drive. I am not satisfied that that proposal is appropriate at this stage. 

8. The respondent has sought an adjournment today in order to provide disclosure. The respondent is, on the face of it, in breach of the requirement of rule 24.05 of the Federal Circuit Court Rules 2001 (Cth) for production of documents in maintenance proceedings and I will read the relevant part:

   A respondent to an application for maintenance only must bring to the court on the first court date the following documents

   It then goes on to list various finance-related documents.

9. This is not an application for maintenance only, so it may be that the rule does not strictly apply.  However, this interim hearing is largely an application for maintenance. Whether or not the rule strictly applies, common sense says that in a case like this, it should. This is a contested matter, the husband is self-employed, running a contracting building business. He should provide disclosure to the Court so the Court can assess his capacity to pay maintenance.  That has not been done. It leaves the Court in an impossible situation to do justice between these parties.  However, it is a situation entirely of the husband’s making and could have been easily addressed.

10. I am told by the husband that business activity statements, for example, which the rule requires the production of, would not be of assistance because the husband has stopped trading.  The business activity statements would reveal that. To add to the difficulty of understanding the truth of the situation the husband says in his Financial Statement that his total average weekly income is $3,157.  Ms Farmer has quite properly pointed out that the figures do not add up. The income from the partnership or business operated by the husband is said, at item 11 in the Financial Statement, to be $2,503. There is no mention of any other item. At item 16 the total is said to be $3,157. The anomaly is simply not explained. 

11. The average weekly expenses at item 60 are also subject to an element of confusion. The totals claimed there, for example, add up to $1,325 but the total overall expenditure is said to be $2,050.  There is a regrettable air of confusion about this document and I feel unable to give it very much weight.  However, my overall sense is that the husband has not attempted to assist the Court to understand his financial affairs. 

12. In other words, I am satisfied that the obligation of full and frank disclosure has not been satisfied by the husband.  Accordingly, in my view, I am entitled to approach the matter with a broad brush and I will do so. 

13. The wife’s weekly expenditure while she was living at B Street is said to be $394 a week. She is now without a home. She will now need to find rental accommodation. It was said that rental accommodation is likely to be in the range of $400 to $500 dollars a week.  I accept that is a reasonable estimate for the Darwin rental market.  At this summary stage, a reasonable estimate of the wife’s expenditure would be $894 a week. 

14. There is also an application for the wife to have legal costs paid for by the husband on a dollar-for-dollar basis.  The husband’s affidavit does not particularly address that issue. It seems apparent that there has been some considerable expenditure by the husband on legal costs, particularly in pursuing the DVO against the wife which he has apparently been seeking himself.  I see annexed to the husband’s affidavits some quite lengthy statements which appear to have been prepared by his lawyers for what I take to be a private application for a DVO. 

15. I consider that the lack of disclosure is notable and unexplained. In this case proper disclosure means detailed disclosure that would involve:

    (1)business activity statements of the past year;

    (2)personal and corporate tax returns for the last financial year; and

    (3)the most recently prepared financial statements of the company.

16. I propose to make an order until further order, that is until the matter can come back before me with proper disclosure from the husband, that the husband pay the wife the sum of $900 a week in urgent spousal maintenance with the order to commence today. The first payment will be due today.

17. I also propose to make an order that the husband pay on a dollar-for-dollar basis the wife’s legal costs until further order.  That will mean that as from today the husband’s solicitors are to disclose to the wife the amount of legal costs incurred by the husband and they are to be advised of any amounts paid by the husband. This will have effect until further order.

18. I will reserve the costs of today’s hearing.

19. The matter is adjourned to 29 April 2021 at 2.15pm. I will resume the hearing of this matter, time permitting. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       23 April 2021