CHRISTIE & CHRISTIE

[2018] FamCA 331

FAMILY COURT OF AUSTRALIA

CHRISTIE & CHRISTIE [2018] FamCA 331

FAMILY LAW – PROPERTY – partial property settlement – issue being the quantum of the partial property settlement received by each party – where the husband seeks an equal division of proceeds of sale of the former matrimonial home – where the wife seeks a partial property settlement to purchase a property to live in – order that the wife receive $2,500,000 by way of partial property settlement – order that the husband receive the balance of the proceeds of sale.

FAMILY LAW – SPOUSAL MAINTENANCE – interim spousal maintenance – issue whether the wife should be paid the sum of $750 per week by way of spousal maintenance upon acquisition of a property by her – where it is conceded by the husband that he pay the wife $1,400 until she has acquired a property – order that the husband pay the wife $750 per week after she acquires a property.

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

Gabel & Yardley [2008] FamCAFC 162; (2008) FLC 93-386
Strahan & Strahan (Interim property orders) [2009] FamCAFC 166; (2011) FLC 93-466

APPLICANT: Ms Christie

RESPONDENT: Mr Christie

FILE NUMBER: MLC 12156 of 2017

DATE DELIVERED: 16 May 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 11 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Ingleby

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Matta

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent & Wilmoth

Orders

BY CONSENT IT IS ORDERED

(1)That the husband and the wife sign all documents required to ensure that the net proceeds of sale from C Street, Suburb D be applied as follows:-

(a)Firstly to repay the following debts:

(i)ANZ loan account number …89;

(ii)ANZ loan account number …16; and

(iii)ANZ loan account number …38.

(b)Secondly, the sum of $100,000 be held on trust in an interest bearing account in the parties’ joint names (“the Tax Funds”) in anticipation of taxation liabilities for the Applicant, the Respondent, the parties’ children and the parties entities for the 2017 financial year (“the Family Tax Liabilities”) being finalised.

IT IS ORDERED THAT

(c)Third, the sum of up to $2,500,000 to the wife by way of partial property settlement such sum to be applied by her to the purchase of a residential property;

(d)Fourth, the sum of $100,000 to the wife by way of partial property settlement;

(e)Fifth, the balance then remaining to be paid to the husband by way of partial property settlement.

IT IS ORDERED BY CONSENT THAT

(2)Upon the Family Tax Liabilities being finalised, the Tax Funds be applied to pay these liabilities and in the event that the Tax Funds exceed the Family Tax Liabilities then each party receive 50 per cent of the excess Tax Funds and if the Tax Funds are insufficient to meet the Family Tax Liabilities then the parties will each meet 50 per cent of the shortfall.

(3)Within 14 days of receipt of the completed financial statements and tax returns the parties sign said financial statements and taxation returns as required for the following:

(a)the parties in their personal names;

(b)the E  Trust;

(c)the Mr Christie Family Trust;

(d)the Christie Investment Trust; and

(e)F Pty Ltd.

IT IS ORDERED THAT

(4)That until further order the husband pay or cause to be paid to the wife by way of  periodic spousal maintenance the following: -

(a)The sum of $1,400 per week pending settlement of the purchase of  a residential property by the wife; and

(b)As and from the settlement by the wife of the purchase of a residential property the sum of $750 per week.

(5)That all extant interim applications be otherwise dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Christie & Christie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA  AT MELBOURNE

FILE NUMBER: MLC12156/2017

Ms Christie

Applicant

And

Mr Christie

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.By Application in a Case filed 9 February 2018 the wife, who is the applicant in the substantive proceedings, seeks orders for partial property settlement and periodic spousal maintenance.  That application was supported by the wife’s affidavit filed 7 February 2018 and her amended Financial Statement also filed that day. 

2.The husband opposed that application.  In his Response to an Application in a Case filed 19 February 2018 he sought that there be partial property settlement orders in favour of both parties.  Further he sought orders with respect to completion and lodgement of financial statements and taxation returns, and orders that an accountant be appointed to calculate taxation liabilities associated with the distribution of the proceeds of sale of the former matrimonial home and the sale of the parties’ property at B Town.  The husband’s response was supported by his affidavit and Financial Statement, both filed 19 February 2018. 

3.The parties’ competing applications were listed for hearing before me in the Judicial Duty List.  By the time of that hearing, the parties had modified their respective positions.  The issues that required determination were:-

·    The quantum of partial property orders in favour of each party;

·    Whether the wife should be paid the sum of $750 per week by way of spousal maintenance upon acquisition of a property by her, it being conceded by the husband that he will pay to her the sum of $1,400 per week by way of spousal maintenance until she has so acquired such a property.

4.These are my Reasons for Judgment with respect to those issues.

The parties

5.The wife is the applicant in the proceedings.  She is aged 56 years and is engaged in permanent part-time employment.  Her income from that employment is approximately $51,480 per annum ($990 per week).

6.The husband, the respondent in the proceedings, is aged 60 years.  He is engaged in full-time employment as a professional.  The husband was a partner in a business until 2017.  In that year the business in which he was a partner merged with another.  Since that time, the husband has been employed with that business on a two-year contract.  It is his intention to retire at the expiration of that contract. 

7.The husband’s income from his employment is received by E Pty Ltd as Trustee of the E Trust (“the Trust”) and one half is then distributed to the Mr Christie Family Trust (“the Family Trust”).  The Family Trust distributes income to the wife and the children.  The total amount paid by the business to the Trust in respect of the husband’s employment is approximately $552,000 per annum ($10,619 per week).[1]

[1] Husband’s Financial Statement filed 19 February 2018, Part D, paragraph 11.

8.The parties commenced cohabitation in 1986 and married in 1987.  The parties separated in July 2017.  There are four adult children of the marriage.  The parties’ youngest child, Ms G, is a full-time university student and dependent on the parties.  She lives with the wife. 

The proceedings

9.The wife commenced proceedings in this Court by Initiating Application filed 27 November 2017.  That application seeks “final financial orders” and orders for spousal maintenance. 

10.The husband in his Response to Initiating Application filed 19 February 2018 seeks orders for a just and equitable division of the property and financial resources of the parties.  In that application he also sought interim orders with respect to the application of the proceeds of sale of the former matrimonial home at Suburb D, the preparation of financial statements, taxation returns and the calculation of taxation liabilities of the parties or their entities. 

11.On 26 February 2018 the matter was listed for a Case Assessment Conference before Registrar Lethbridge.  That day the Registrar made orders by consent regarding the engagement of an accountant to calculate taxation liabilities of the parties.  Orders were also made with respect to disclosure, valuation of assets, the filing of documents and the matter was otherwise listed in the Judicial Duty List for hearing with respect to the outstanding interim issues. 

12.The former matrimonial home in Suburb D was sold by the parties in September 2017 and settled in March 2018.

Orders sought

13.The orders sought by the wife at the commencement of the hearing were as follows:-

1.That the husband and the wife sign all documents required to ensure that the net proceeds of sale from [C Street, Suburb D] be applied as follows:-

(a)    To pay the ANZ loans …89, …16 and …38 in the approximate sum of $1,340,000;

(b)    To set aside a sum of $100,000 to be held in an interest-bearing account in anticipation of taxation liabilities for the 2017 financial year for the husband, wife, children and entities being finalised, such sum to be applied to the liabilities with any surplus to be divided 50/50 and any shortfall to be met 50/50;

(c)    $100,000 to each of the parties’ solicitors by way of litigation funding;

(d)    $70,000 to the wife by way of spousal maintenance at $1,400 per week for one year;

(e)    $2,500,000 to the wife by way of partial property settlement;

(f)     Balance to the husband.

14.The parties ultimately agreed to a consent minute in relation to paragraphs 1(a) to 1(b) of the wife’s proposed orders. The parties also agreed to an order relating to signing financial statements and tax returns.

15.Whilst the Minute of orders sought provided by the wife’s counsel indicated that she sought payment of lump sum spousal maintenance, during the course of submissions it was conceded that in fact what was sought was payment of a weekly periodic amount in the sum of $1,400 per week pending settlement of the purchase by her of a residential property and thereafter such payment to be reduced to the sum of $750 per week.

16.The husband sought orders in the following terms:-

1.The balance of the [C Street] proceeds of sale of approximately $3,290,000 be divided equally between the parties as follows:-

(a)    A payment to the Respondent of approximately $1,645,000 by way of a part property settlement; and

(b)    A payment to the Applicant of approximately $1,645,000 with such payment to be characterised as follows:-

(i)$230,000 to be characterised at trial; and

(ii)The balance of approximately $1,415,000 by way of a part property settlement.

17.With respect to the wife’s maintenance claim, it was conceded by the husband during the course of submissions that an order for him to pay to the wife the sum of $1,400 per week pending settlement of the purchase by her of a residential property was appropriate.  Further, it was conceded by the husband that there should be a reduction in that sum to $750 per week upon settlement of the purchase of the house. 

18.The husband agrees to each party receiving $100,000 by way of litigation funding but contends that that sum was included within his proposed division of the balance of sale proceeds. He submitted that if the wife’s application for partial property settlement was accepted, then each party should receive $100,000 by way of litigation funding.

19.At the conclusion of the submissions I reserved my judgment. 

20.Upon the conclusion of the Judicial Duty List at approximately 4.25pm the parties through their counsel sought to make further submissions with respect to the wife’s application for spousal maintenance.  Contrary to earlier submissions made by Counsel for the husband, it was contended that the order for the wife’s periodic spousal maintenance should discharge upon settlement of any purchase of a residential property by the wife.  It was submitted on behalf of the husband that the wife would thereafter continue to receive distributions from the Family Trust in the sum of $750 per week pending the final hearing.  That position was opposed by the wife.

21.The matter was conducted on the papers.  Each party relied upon the material referred to above and their counsel’s oral submissions.  Given the nature of the hearing, contentious facts cannot be determined without evidence being properly tested.  Accordingly, in determining the matter, I have relied upon those facts which are agreed or not in issue. 

Partial property settlement

22.Pursuant to s 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”) the Court has the power to make orders pursuant to s 79 of the Act for partial property settlement.

23.In Gabel & Yardley [2008] FamCAFC 162; (2008) FLC 93-386 the majority of the Full Court (Bryant CJ and Coleman J) confirmed at paragraph 57 that:-

…the court’s power to make orders with respect to settlement of property is not necessarily exercisable at only one time, and can properly be exercised by a succession of orders until the power to make orders with respect to property is exhausted…

24.In Strahan & Strahan (Interim property orders) [2009] FamCAFC 166; (2011) FLC 93-466 (“Strahan”) the Full Court, whilst acknowledging that it is preferable that there be one final hearing in s 79 proceedings, considered the circumstances in which the Court might exercise its power to make orders for partial property settlement. At paragraph 132 the Full Court stated as follows:-

…[I]n our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

25.At paragraph 137 the Full Court concluded that:-

Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant … will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the orders sought to be made”…As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought … then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.

(Citations omitted)

26.At paragraph 139 the Full Court emphasised that in order to establish a case for interim property settlement more is required than the mere fact that upon a final hearing the applicant would receive the property being sought from the other party.  At paragraph 140 of the judgment Boland and O’Ryan JJ noted that matters such as the financial circumstances of both parties may be relevant as may be the need for funds. 

27.The primary basis for the wife seeking a partial property distribution in this matter is to enable her to have a pool of funds with which to purchase a residence. 

28.At paragraph 9 of her affidavit filed 7 February 2018 the wife deposes that the former matrimonial home at C Street was sold in September 2017 for $4,900,000.  Settlement of the sale occurred on 8 March 2018.  At paragraph 13 of that affidavit the wife deposes that she has commenced searching for a potential home to purchase in the Suburb D/Suburb H area in order to rehouse herself.  She deposes that the median house price in that area is over $2 million.  She deposes that to date she has been unable to make any offers to purchase a property as she does not have funds available to pay a deposit.  Further, the wife deposes that:-

…I seek a partial distribution of the sale proceeds of the [Suburb D] property to allow me to have the funds available to proceed with a purchase in circumstances where I am unlikely to be able to obtain a sizeable mortgage due to my income.

29.Following the settlement of the sale of the former matrimonial home, the wife has relocated to rental accommodation.  Nonetheless, she seeks the opportunity to  purchase an appropriate residential property for herself.  The wife conceded through her counsel that if orders were made in the terms sought by her any partial property payment could be made on the basis that the funds only be applied to the purchase of real property.  Therefore, it was submitted that the funds paid to her would be secured pending a final hearing of the matter.

30.In support of her application, the wife relied upon the aide memoire prepared on behalf of the husband dated 11 April 2018 which provides a summary of the parties’ assets and liabilities.  It provides as follows:-

Aide Memoire prepared on behalf of respondent husband

Asset	Owner	Estimated value
C Street Deposit	Wife	$   370,000
C Street Proceeds of Sale	Wife	$4,399,000
J Street, B Town	F Pty Ltd	$2,800,000
Mr Christie Family Trust	Joint	$2,530,000
Interest in Company K	E Trust	$   200,000
Interest in Company L	E Trust	$   350,000
Bank savings	Husband	$     23,000
Bank savings	Wife	$     54,000
Bank savings	F Pty Ltd	$     23,000
Shares in Company M	Husband	NK
Boat	Husband	$     30,000
Famous artist painting	Wife	$     80,000
Total assets (excluding superannuation)		$10,859,000
Liability	Owner	Estimated value
ANZ Loan (account number …89	Husband	($600,000)
ANZ Loan (account number …16)	Mr Christie Family Trust	($540,000)
ANZ Loan (account number …38)	E Trust	($200,000)
Amount payable to Company L	E Trust	($350,000)
Estimated 2017 tax liabilities	Various	($100,000)
2018 PAYG tax liability	Husband	($   30,000)
CGT on sale of Family Trust share portfolio	Joint	($608,655)
CGT payable on sale of B Town	Joint	($670,817)
Income tax payable on distribution of B Town proceeds of sale	Joint	($502,880)
Total Liabilities (excluding superannuation)		($3,602,352)
Net Assets (excluding superannuation)		$7,256,648

31.The Aide Memoire discloses the husband’s estimate as to the value of the parties’ assets (excluding superannuation) to be $10,859,000 and the liabilities to be $3,602,352.  Therefore, based on that document, the parties’ net assets excluding superannuation total approximately $7,256,648.  The wife does not concede the liabilities claimed by the husband in respect of:-

·CGT on the sale of Family Trust share portfolio            $608,655

·CGT payable on sale of B Town   $670,817

·Income tax payable on distribution of B Town

proceeds of sale  $502,880

32.Those disputed liabilities total $1,782,352.  Hence, the wife’s position is that the parties’ net assets total approximately $9,039,000.

33.In addition to those assets the parties have superannuation interests totalling $4,600,000. 

34.The payment of $2,600,000 ($2,500,000 for purchase of property and $100,000 for legal costs) sought by the wife represents approximately 34.5 per cent of the net assets (excluding superannuation) asserted by the husband, that is $7,256,648.  Based on the wife’s estimate of the pool ($9,039,000) the amount sought by her is approximately 28 per cent of the pool.

35.Indeed, it is submitted on behalf of the wife that if superannuation (which based on the husband’s case will move into a payment phase within two years) is taken into account the husband’s pool of assets is valued at approximately $11,856,000 and the amount sought by the wife of that pool is approximately 21.9 per cent.  On the wife’s case, if superannuation is included the parties’ pool of assets is valued at approximately $13,600,000 and the amount sought by her reduces to approximately 19.1 per cent of that pool.

36.It is submitted by the wife that in the context of what is a long marriage and where the husband concedes that the parties’ contributions are equal and the adjustment sought by him on a final basis is that there be an equal division of the parties’ interests, that a partial property settlement in the terms sought by her is just and equitable.  It was submitted that without release of those funds the wife will not be in a position to rehouse herself at this time as she does not have sufficient income-earning capacity to borrow funds to facilitate a purchase.  It was submitted that there is a significant disparity in the parties’ current income-earning capacities.  It was also submitted that when one has regard to the assets identified in the husband’s aide memoire that there are sufficient other assets against which the husband will be able to seek a property settlement.  In particular, the wife pointed to the parties’ interest in the property at B Town and to the shares held in the Family Trust which are estimated in the aide memoire to be valued at approximately $5,330,000. As discussed the wife does not accept the CGT liabilities over the B Town property and the shares.

37.The husband opposes the orders sought by the wife and contends that there should be an equal division of the net sale proceeds of the former matrimonial home and on that basis each party receive the sum of $1,645,000 with the wife’s payment to be characterised as $1,415,000 by way of part-property settlement with the balance to be characterised at trial. 

38.It was submitted by the husband’s counsel that to award the wife the amount sought by her by way of partial property settlement may result in her receiving an amount greater than her entitlements pursuant to s 79 of the Act. That submission was made on the basis that the estimates provided in the aide memoire prepared on behalf of the husband may in fact over-state the value of the parties’ interests. In particular, it was submitted that the husband’s estimate that the B Town property is valued at $2.8million was over-stated. Further, it was submitted that the value attributed to the interest in the Family Trust at $2.53million may be incorrect. I note that those were the values attributed to those interests by the husband in his financial statement filed 19 February 2018.

39.It was conceded by counsel for the husband that the adjustment to be sought by him in respect of property at the final hearing was an equal division of the parties’ interests.  However, the husband’s counsel sought to emphasise that the mere fact that the wife was entitled to receive property in that amount at final hearing does not of itself establish an appropriate case for an interim property settlement. 

40.Counsel for the husband was critical of the fact that the wife provided no particulars as to an identified property which she sought to acquire.  I do not accept that criticism.  Given the wife does not currently have access to funds to enable her to pay a deposit and settle a purchase there is little point, from her perspective, in identifying a specific property to purchase at this time.  It is her case that until such time as she has confidence in her ability to access funds, she is unable to actively seek out an appropriate property.  I accept that submission. 

41.It would appear that the husband is endeavouring to limit the amount the wife may apply to the acquisition of a new residence.  He concedes that the sum of $1,415,000 may be released to her by way of part-property settlement.  Having regard to the wife’s evidence as to the median house price in the areas in which she seeks a property, that sum may be insufficient.  I accept that the wife has limited borrowing capacity given her age and income. 

42.In circumstances where the wife is living with the parties’ adult child in rental accommodation and where the wife seeks to apply her partial property settlement towards purchasing a property to live in, I am satisfied that it is just and equitable to make an order for partial property settlement.  I am satisfied that the amount sought by the wife is appropriate notwithstanding the reservations expressed by the husband as to the value of the parties’ interests in the B Town property and the Family Trust.  The amount sought by the wife, being approximately 34.5 per cent of the husband’s pool excluding superannuation, is well less than the percentage adjustment conceded by the husband.  Those amounts do not take not account the parties’ accumulated superannuation entitlements valued at $4.6 million.  Even if the husband has overstated the value of the interests in B Town and the Family Trust, there is capacity to adjust against the other assets and the wife’s entitlements to superannuation.  Given that the husband anticipates retirement within two years I am satisfied that appropriate adjustments are capable of being made at trial.  In any event, it is conceded by the wife that funds released to her should be applied to the acquisition of a residence.  Accordingly, the husband will have the security of that real property against which further adjustment can be made if necessary.

43.In circumstances where the primary purpose of the wife in seeking a partial property settlement is to secure accommodation for herself and the parties’ adult child, given the recent sale of the former matrimonial home occupied by them, I am satisfied that this is an appropriate case for the exercise of the power pursuant to s 79 of the Act to make an order for partial property settlement as sought by the wife.

44.The wife proposes that the balance of the proceeds of sale of the former matrimonial home be paid to the husband by way of partial property settlement.  An order in those terms will provide the husband with a lump sum of approximately $690,000.  Submissions were made by the husband’s counsel that the husband may also seek to acquire a residential property.  Having regard to those submissions, I am satisfied that it is just and equitable that there be a partial property settlement in favour of the husband in accordance with the wife’s proposal. The wife will receive $2,500,000 which can be used by her only for the purchase of a property, and as agreed each party will receive a further $100,000 to be applied by them to their legal costs .

Spousal maintenance

45.Section 72(1) of the Act provides that:-

(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).

46.The threshold issue in determining a claim for spousal maintenance is whether the applicant, in this case the wife, is able to support herself adequately. 

47.If the wife is unable to adequately support herself, the capacity of the husband to meet a spousal maintenance order must then be considered.

48.Section 74 of the Act provides that the Court may make such order as it considers proper for the provision of maintenance. In exercising jurisdiction under s 74 the Court shall only take into account the matters referred to in s 75(2) of the Act.

49.The husband concedes that pending the acquisition by the wife of a residence for herself, it is appropriate that there be a spousal maintenance order in her favour in the sum of $1,400 per week. 

50.Prior to the sale of the former matrimonial home it is common ground between the parties that the husband was paying or causing to be paid to the wife for her support the sum of $750 per week.  That this is so is acknowledged in the husband’s financial statement filed 19 February 2018.  At part G paragraph 31 of that financial statement, the husband deposes that he pays maintenance to the wife in the sum of $750 per week.

51.It was submitted by the wife (and conceded by the husband) that that sum should be increased to $1,400 per week given that the wife is now required to pay for rental accommodation following the sale of the former matrimonial home.

52.The issue between the parties is whether upon settlement of a purchase of a home by the wife, the amount of periodic spousal maintenance payable by the husband should reduce to $750 per week.  As discussed above whilst it was initially conceded by the husband that an order should be made in those terms, following the reservation of my judgment further submissions were made on behalf of the husband that the amount currently paid to the wife (and described as maintenance in his financial statement) are in fact amounts paid to her by the Family Trust.  Accordingly, it was submitted that there should be no order for on-going periodic spousal maintenance after the wife has acquired a new home for herself.  It was contended on behalf of the husband that the Family Trust will continue to pay the sum of $750 per week to her without the necessity for an order of the Court. 

53.The distinction sought to be drawn by the husband as to who is responsible for making the payment for the wife’s maintenance seems to be one of semantics.  The reality is the husband’s income is paid in part into the Family Trust and it would appear that he is responsible for directing how funds paid into the Family Trust are applied.  At paragraph 47 of his affidavit filed 19 February 2018 the husband deposes that throughout the marriage he implored the wife to take responsibility for management of entities including the Family Trust.  Whilst the wife occasionally attended conferences with the parties’ accountant and stockbroker the husband deposed that “Despite [his] attempts and encouragement, [the wife] has refused to be actively involved in our finances”.  Hence it would appear from the husband’s own evidence that he has been responsible for determining how funds held in the Family Trust are applied.  In circumstances where the husband concedes in his financial statement that the amounts paid to the wife from the Family Trust are for her maintenance, I am satisfied that there should be a maintenance order as sought by the wife (and originally conceded on behalf of the husband).  Therefore the orders that I propose to make, subject to submissions as to form, are as above

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 16 May 2018

Associate: 

Date:  16 May 2018