COMMETT & COMMETT

[2013] FamCA 405

FAMILY COURT OF AUSTRALIA

COMMETT & COMMETT [2013] FamCA 405

FAMILY LAW – PROPERTY – where wife sought periodic maintenance – where the wife established threshold entitlement – maintenance awarded.

FAMILY LAW – PROPERTY – where wife sought orders for sale of assets and husband did not oppose – orders for sale of assets made.

Family Law Act 1975 (Cth)

Stein & Stein (2000) FLC 93-004
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT: Ms Commett

RESPONDENT: Mr Commett

FILE NUMBER: MLC 7578 of 2012

DATE DELIVERED: 3 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 10 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B Geddes QC

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr T North SC

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The husband pay to or for the benefit of the wife for her maintenance:

   a)     the sum of $1,250 per week commencing 7 June 2013 and weekly thereafter;

   b)     all registration costs in relation to the motor vehicle driven by the wife; and

   c)     all premiums as and when they fall due in respect of the family’s private health insurance cover, current home and contents insurance policy and the wife’s life insurance policy.

2. By way of interim property settlement the husband forthwith draw down the sum of $80,000 from the available limit of the National Portfolio Facility Identifier …81 (“Portfolio Facility”) to be paid to Taussig Cherrie Fildes on account of the wife’s legal fees.

3. The husband forthwith draw down the sum of $26,000 from the available limit of the Portfolio Facility to be applied by the wife to her outstanding credit card balance. The characterisation of the said payment to be reserved for the determination of the trial Judge.

4. The husband be permitted to draw down on the Portfolio Facility for the purposes of paying the children’s school fees up to an amount of $54,000 per annum, the family’s private health insurance cover, the wife’s home and contents insurance and the parties’ life insurance premiums.

5. Save and except for the draw downs provided for in paragraphs 2, 3 and 4 hereof, the husband be restrained from further drawing down the Portfolio Facility including but not limited to drawing down from Sub Account …56.

6. The parties forthwith do such acts and things and sign all documents necessary to effect the sale of the property at … B Street, Town C in the State of Queensland, and for that purpose, the following shall apply:

   a)     the property shall be listed for sale by treaty with such real estate agent as agreed between the parties and in default of agreement as nominated by the President of the Real Estate Institute Queensland or his or her nominee;

   b)     the list price of the property shall be such amount as is agreed between the parties and in default of agreement as nominated by the President of the Real Estate Institute Queensland or his or her nominee;

   c)     the contract of sale shall provide for completion within 30 days after the date of contract, unless otherwise agreed; and

   d)     the proceeds of sale shall be paid in the following manner and priority:

   i.payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

   ii.payment of the legal costs and outlays relating to the sale;

   iii.to discharge the Portfolio Facility Sub Account …56 debt;

   iv.the balance, if any, to be placed in an interest bearing trust account on behalf of the parties pending further order or as may be otherwise agreed by the parties in writing.

7. Pending sale of the property pursuant to paragraph 6 hereof, the parties do all necessary acts and things to ensure the property is listed with a real estate agent to be agreed between the parties for holiday rental, and such rental be applied in the following order and priority:

   a)     in payment of the interest payable on Portfolio Facility Sub Account …56; and

   b)     the balance, if any, to be placed in an interest bearing trust account on behalf of the parties pending further order or as may be otherwise agreed by the parties in writing.

8. The parties do all such acts and things to sell the Make D motor vehicle and that the proceeds of sale be applied:

   a)     firstly, to discharge the associated liability, being Portfolio Facility Sub Account …31; and

   b)     the balance, if any, to be placed in an interest bearing trust account on behalf of the parties pending further order or as may be otherwise agreed by the parties in writing.

9. The parties do all such acts and things to sell the Type E boat by an agent/broker to be agreed between the parties and the proceeds of the sale after brokerage or selling costs are deducted to be placed in an interest bearing trust account on behalf of the parties pending further order or as may be otherwise agreed by the parties in writing.

10. Liberty be reserved to the husband and the wife to apply for interim property settlement upon the sale of any or all of the Town C property, the Make D motor vehicle or the boat.

11. The wife’s Further Amended Application in a Case filed 17 April 2013 and the husband’s Response to an Application in a Case filed 10 May 2013 be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7578 of 2012

Ms Commett

Applicant

And

Mr Commett

Respondent

REASONS FOR JUDGMENT  

1. The application before me today is the wife’s Further Amended Application in a Case filed 17 April 2013.  That Application was further amended at the commencement of the hearing before me and there was no objection to that further amendment.

2. The orders sought by the wife are, in summary, as follows:

   a)     That the husband pay:

   (i)periodic maintenance to the wife in the sum of $1,945 per week commencing forthwith;

   (ii)all registration and maintenance costs in relation to the wife’s motor vehicle; and

   (iii)all health insurance, home and content insurance, and life insurance premiums for the family as and when they fall due.

   b)     That the periodic maintenance payments and the child support payments as assessed be deducted from the husband’s salary by his employer and paid to the wife.

   c)     That the husband draw down the sum of $1,072,000, being the available limit of the Portfolio Facility, and pay such sum to the wife by way of interim property settlement.

   d)     That save and except for the draw down for the purposes of the interim property settlement, the husband be restrained from further drawing from the Portfolio Facility.

   e)     That the parties forthwith do all acts and things necessary to sell the Town C property, the Make D motor vehicle and the Type E boat and that the proceeds be applied, after the deduction of the costs and expenses of the sale, as follows:

   (i)to discharge the Portfolio Facility debt;

   (ii)the sum of $500,000 to be paid to the wife from the proceeds of sale of the Town C property and the balance thereafter to be invested in an interest bearing account in the joint names of the parties;

   (iii)the balance of the proceeds of sale of the Make D motor vehicle after payment of any associated liability to be paid to the wife by way of part property settlement; and

   (iv)the balance of the proceeds of sale of the boat after brokerage and selling costs to be paid to the wife by way of interim property settlement.

   f)   That pending the sale of the Town C property, the property be listed for holiday rental and the rental be applied to pay interest on the Portfolio Facility with any shortfall to be met by the husband and the balance paid to the wife by way of spousal maintenance.

3. The husband in his Response to an Application in a Case filed 10 May 2013 sought an order that all of the assets of the parties be placed on the market for sale and the net proceeds of sale, after deduction of all costs and commissions of sale, encumbrances, tax liabilities and other outgoings, be held in trust pending the final hearing, that both parties be at liberty to apply for a partial property settlement, and that, pending the sale, both parties be permitted to draw down on the Portfolio Facility at times and for such amounts to be agreed and, failing agreement, by Court order.  Apart from the proposal that each party draw down $100,000 to meet their legal costs, there was no other guidance as to what amounts and on what terms it was proposed the parties might otherwise withdraw from the Portfolio Facility.

4. These proceedings were commenced by the wife on 20 August 2012 and listed for a case assessment conference on 23 October 2012.  On 7 September 2012 the wife filed an Application in a Case seeking spousal maintenance, which was also listed for hearing on 23 October 2012. On 9 September 2012 the wife issued a further Application in a Case seeking injunctive relief, which was listed for hearing on 5 October 2012.  Orders were made by consent on 5 October 2012 restraining the husband from selling, encumbering or dealing with any assets standing in his name, whether solely or jointly with any other person, without the written consent of the wife.  The order also provided that the husband be able “to operate the Portfolio Facility” and included a notation that the husband would pay the wife $1,200 per week by way of spousal maintenance and child support pending the hearing of her application for spousal maintenance on 30 November 2012.

5. At the further hearing on 30 November 2012 orders were made by consent which provided for valuations to be obtained of the parties’ property, that they each retain $55,000 from the Portfolio Facility, and the parties noted that they intended to convene a mediation on 7 March 2013.  All extant applications were otherwise adjourned for hearing in the Judicial Duty List on 8 March 2013. When the single expert witness engaged by the parties advised that he required further time to complete his report, the wife’s Application in a Case was adjourned to the Senior Registrar’s Duty List on 9 April 2013, subject to an agreement that the husband would not draw on the Portfolio Facility.

6. On 9 April 2013 orders were made by consent which provided that a further $20,000 that the husband had paid to the wife, withdrawn from the Portfolio Facility, be characterised as spousal maintenance and the husband pay the wife’s rental accommodation. All extant applications were otherwise adjourned to the Judicial Duty List before me on 10 May 2013, in particular the injunctive relief and interim property orders sought which were beyond the jurisdiction of the Senior Registrar. The Senior Registrar otherwise listed the interim spousal maintenance application for a one day hearing before him on 29 May 2013, including cross-examination, subject to the matter being dealt with in the Judicial Duty List.

7. Mr Geddes QC submitted that I should deal with the matter on the papers and by oral submissions. Although Mr North SC initially submitted that the interim spousal maintenance application should be left to be dealt with by the Senior Registrar or, in the alternative, that if I were to deal with it I should allow cross-examination, he ultimately, on the basis of my expressing a preliminary view that I should deal with it and that I did not propose to allow cross-examination, did not press that application further. Given the history of the matter and the number of previous hearings, all of which have the potential to delay a final hearing of the matter, I am firmly of the view that I should deal with the matter and that it would not be appropriate or practical in the time available in the Duty List to allow cross-examination.

8. It is also not practical to deal with the various applications that have been filed in isolation, as the outcomes of the various applications impact upon each other. If, for example, I were to make the orders sought by the wife for a partial property settlement, that would increase the interest on the Portfolio Facility and would be likely to impact, at least in the short term and possibly in the long term, upon the husband’s capacity to pay periodic spousal maintenance or otherwise draw down on the Portfolio Facility if necessary to pay that maintenance and meet his and the families other expenses, albeit that he may no longer have the obligation to pay for the wife’s rental accommodation. That potential problem might be ameliorated if I were to make an order for the sale of assets, although that again would depend upon which assets were ordered to be sold and how soon that sale could be achieved.  

9. The wife relied upon her Affidavits filed 5 April 2013 and 17 April 2013.  The husband relied upon his Affidavit filed 9 May 2013 by way of reply to the wife’s Affidavit filed 17 April 2013 and his Affidavit and his Financial Statement both filed 4 December 2012.  It was submitted by Mr Geddes QC on behalf of the wife that the husband had not responded to the wife’s Affidavit filed 5 April 2013 and that accordingly the evidence contained in that Affidavit is unchallenged.

Background

1. The husband is 46 years of age and is a director for Company F, a well-known company.  The wife is 44 years of age and is engaged in home duties.

2. The parties were married in December 1999 and separated in March 2012.  There are two children of their marriage who are now 10 and 12 years of age respectively.  Both children attend private schools. The wife and the children live in rented accommodation in Suburb A that is close to the children’s schools. The children spend five nights per fortnight with the husband.

3. The wife deposes that she left school in Year 10, has no qualifications, and has not worked since the birth of the children of the marriage. She has no other source of income.

4. Again, in her Affidavit filed 5 April 2013, which is not the subject of any direct challenge, the wife deposes that from the date of separation until late June 2012 the husband continued to direct his income into their joint NAB account and that she continued to draw on that account to meet her living expenses and those of the children. The wife was also a signatory on the husband’s Visa account No …92. On 20 June 2012 the husband opened a NAB account in his name alone, directed his salary to that new account, and terminated the wife’s access to all of their joint bank accounts, save for another loan facility established for the purchase of her car.  

5. Thereafter, the husband paid the wife’s rent in the sum of $1,700 per week, for utilities, insurance, car registration and private health insurance, which he says costs $5,000 per annum and a periodic sum of $500 per week. The husband has continued to pay the children’s private school fees, which he says cost him $54,000 per annum. No exception was taken to the husband’s evidence in relation to the quantum of the school fees. According to the husband’s Financial Statement filed 4 December 2012 he was also paying the wife’s life insurance premiums of $89 per week. He pays a similar premium for his life insurance policy. On 9 April 2013 the husband consented to an order that he pay the wife’s rent which has been reduced from $1,700 to $1,105 because the property is on the market for sale.

6. The wife has applied for a Child Support Assessment and the husband is required and has commenced paying $423.97 per week pursuant to that assessment.

7. On 10 September 2012 the wife withdrew $80,000 from one of the parties’ loan facilities. The wife has also received two further lump sum payments of $55,000 and $20,000, drawn on each occasion from their loan facilities.  The husband alleges that prior to withdrawing the $80,000 the wife had already had access to further sums of $50,000, $1,600, $2,900, $15,879 and $600, making a total of $225,979 since 30 April 2012. 

8. The wife deposes that her weekly expenses, excluding rent, total $1,945.   She also deposes to having credit card debts of $25,759 and outstanding legal fees in the amount of $76,601.  It is hard to reconcile the wife’s estimate of her expenditure with what she appears to have spent since separation, given that she has previously had access to their joint accounts and that since June 2012, when the husband diverted his income into an account in his name alone, the husband has continued to pay her rent, utilities, car registration and health insurance, and made periodic payments in the sum of $500 per week. The wife also includes in her weekly expenditure a figure of $175 for credit card payments. The wife’s credit card statements are not in evidence but one would normally expect that they would be used to meet some of the expenses included in that weekly expenditure.

9. It is the wife’s case that none of the payments the husband has made to her or to others for her benefit have been paid out of his income and that, therefore, she has been paying for her own support whilst the husband has retained the benefit of his income.  The husband, on the other hand, deposes that prior to separation the parties had a loan portfolio facility, secured by the property they owned in Town C, and that he would draw down on those loans on an ad hoc basis to pay for business, living and household expenses.  The husband further deposes that he estimates the parties’ combined expenditure since separation to be in excess of $500,000, and he acknowledges that he has been drawing on capital as well as relying on income to meet that expenditure. The crux of the husband’s submission is that it makes no difference whether the loans are drawn down to meet the wife’s expenses or his expenses as it all leads to the same conclusion: that his income alone is not sufficient to meet their combined expenditure.

Periodic Spousal Maintenance

1. Section 72 of the Family Law Act 1975 (Cth) (“the Act”) provides that a party to a marriage is liable to support the other party to the extent that that party is reasonably able to do so if the other party is unable to support himself or herself adequately by reason of having the care and control of a child of the marriage who has not attained the age of 18 years, by reason of age, physical or mental incapacity, or any other adequate reason, having regard to any relevant matter referred to in s 75(2).

2. The wife seeks a periodic payment of spousal maintenance from the husband in the sum of $1,945 per week, and that he also pay the registration and maintenance costs for her motor vehicle, as well as all premiums for the family’s private health insurance cover, current home and contents insurance policy, and the wife’s life insurance policy.  I do not have before me evidence of the cost of the wife’s home and contents insurance or the registration for the vehicle she drives. These are not expenses the wife has included in her estimate of her weekly expenditure contained in her affidavit. Although the husband deposed that he was paying the registration for the wife’s vehicle it was not clear from his Statement of Financial Circumstances how much that was.

3. The husband does not dispute that the wife is unable to support herself adequately, however he does dispute the level of her expenditure and his capacity to support that level of expenditure.  Mr North SC did not suggest how much the husband should pay the wife, just that the husband could not and should not be required to pay the periodic amount sought by the wife and that the husband’s capacity to support the wife would be constrained by any orders made restraining him from drawing down on the parties’ loan facilities, as the wife seeks.

4. There are two issues with respect to the wife’s expenditure.  The first is, of course, whether those expenses can be said to be necessary, in all of the circumstances of this case, for the wife’s support. The other issue is what proportion of those expenses are actually referable to the wife. There was no clear delineation between the wife’s expenses and those of the two children and clearly the sum of $1,945.00 sought by the wife includes expenditure for the children in circumstances where there is a Child Support Assessment.  There is no application before me for a departure from that assessment.  

1. Although the husband concedes that the wife is unable to support herself adequately, I must make some assessment if I can based upon the evidence of what she reasonably requires for her support.  As the Full Court said in Stein & Stein (2000) FLC 93-004 at 87,129

   As set out in Redman above the apportionment of general household expenditure between members of the household is a difficult task which cannot be precisely undertaken. Whilst some differentiation is needed between the claimant wife’s needs and those of the children, a strict arithmetical approach on a per capita basis will not necessarily adequately reflect the reasonable needs of the claimant.

2. If I were to simply divide that expenditure by three, to take account of the wife and two children, the wife’s share would be $648. I am not satisfied that this would adequately reflect the wife’s expenditure and  am conscious of the fact that the wife would still incur some of the expenses she has identified irrespective of having the children in her care, particularly as the children spend five nights per fortnight with the husband.  It is clear, however, that some of the expenses listed by the wife are directly referable to the children.  On the assumption that the wife receives $424 per week by way of child support, the wife’s expenses and the remaining expenses of the children are $1,521.

3. It is also the case that some of the wife’s expenditure might be considered to be expenditure that is not reasonably necessary for her support, albeit that this is attributable to what clearly appears to have been a very comfortable standard of living for the parties pre-separation. That is not a matter that I can determine without the evidence being tested.

4. Doing the best I can on the evidence before me, I am satisfied that in all of the circumstances the sum of $1,250, which represents just under 65% of the total figure of $1,945 sought by the wife, would be a more realistic figure for the wife to receive by way of spousal maintenance.  If I were to require the husband to pay this amount, it would be $65,000 per annum, together with the wife’s rent at the current rate of $57,460 per annum and child support of $22,048 per annum, making a total of $144,506.  If the school fees of $54,000 are added to that figure, the total payable by the husband is $198,506, and that is before the husband meets any of his own expenditure.

5. The husband has not filed an affidavit replying directly to the wife’s Affidavit filed 5 April 2013 and it is submitted on behalf of the wife that on that basis the wife’s evidence is unchallenged.  However, the husband in his Affidavit filed 9 May 2013 did depose as to his income and expenditure and, insofar as that evidence contradicts the wife’s evidence, I am satisfied that he takes issue with the wife’s evidence.  The husband has deposed that PAYE tax is deducted from his salary, he pays what is agreed is approximately $5,000 per month for his personal assistant, and he says that after deduction of his car payments he receives approximately $9,000 per month or $108,000 per annum.  The wife deposes that, in addition, the husband receives a telephone allowance of $150 per month or $1,800 per annum.  It is not clear from the husband’s evidence whether that amount is included in his figure of $9,000 per month and, on that basis, I have added it to the amount he says he receives.  In addition, the husband receives approximately $504 per month or $6,048 per annum by way of loan repayments for a loan he and the wife made to Business G.  On the evidence before me I have no way of knowing what, if any, further payments the husband is likely to receive from the sale of Business H, but whether he does or does not receive any further payments, they are likely to be payments of capital and not income and even on the basis of the wife’s evidence, not likely to be substantial.

6. The wife’s evidence is that the husband has access to $395,000 per annum by way of remuneration, commission payments and distributions during the current financial year, which is made up of his salary of $250,000 per annum, the Business G payments of $6,040 per annum, estimated commissions of $91,000 and, that between September 2012 and March 2013, the husband has received approximately $44,318 from the sale of Business H.  This figure makes no allowance for the husband’s contribution to his personal assistant’s salary or tax. Whilst there may ultimately be an argument that the husband had access to these funds and that this should be taken into account at the final hearing I must also look at his capacity to meet the orders sought by the wife moving forward.

7. The husband in his Affidavit filed 4 December 2012 set out the commissions he would receive between that date and April 2013.  It was his evidence that he had received one payment of $2,126 in August 2012 and a further payment, which he said he had earned in 2011, of $16,527 on 15 October 2012.  He also deposed that, assuming the completion of the I Project in Suburb J, he expected to receive commission of $75,000 before tax.  He estimated an after tax figure of approximately $40,500 in relation to that commission.  There is no evidence before me as to whether the husband has or has not received this commission.  Given his previous evidence it would have been for the husband to produce evidence if that commission was not going to be paid and I am satisfied on the balance of probabilities on the basis of the evidence before me that the husband has or is likely to receive that payment in the foreseeable future.  Although that means that figure can, in those circumstances, be added to the husband’s annual income this financial year, I cannot conclude, notwithstanding the information provided pursuant to the subpoena by Mr K, that the husband has identified an opportunity with Company L which Company F is currently exploring that the husband will continue to receive commissions above and beyond his annual salary on an ongoing basis.  As I have previously observed it is not clear from the evidence what, if any, further payments the husband will receive from the sale of Business H, however, on the basis of the wife’s evidence as to the history of those payments, they are unlikely to be significant.

8. The wife also deposed that the husband pays his tax in arrears and that he will not have to pay his tax until March 2014 when his income tax return is lodged and assessed.  This is contrary to the husband’s evidence and, whilst it may be accurate with respect to his commissions, I have real reservations about the wife’s evidence insofar as it relates to his salary and am satisfied that the husband’s evidence with respect to tax being deducted from his salary is much more likely to be accurate.  Even if the wife is correct, the tax must eventually be paid and, in my view, should not be disregarded.

9. Even if I accepted the wife’s position in relation to the tax payable on any commissions the husband receives and, notwithstanding that I cannot be certain that commissions will be paid going forward, the husband would, on that basis, have available to meet his expenses and those of the wife and the children approximately $206,848, and approximately $18,000 of the commissions paid to the husband were paid last year. In the circumstances of this case, it seems not unreasonable to assume that those commissions have been expended.  

10. The wife has analysed and deposes in great detail to the husband’s expenditure. Her evidence relates to and challenges not just his level of expenditure but also how he has met that expenditure. The husband for his part has deposed to expenditure of approximately $137,100 per annum or, excluding school fees and child support, $61,000, which includes $5,000 per annum for the family’s private health insurance cover. It does not include his car payments which are deducted from his salary. Nor does it include amounts he has had to pay for the Town C property, which it appears both parties have continued to make use of. What the evidence of both parties does is confirm Mr North SC’s submission that these parties have been living well beyond their means and, perhaps more importantly, that this level of expenditure cannot be sustained by either of them without resort to the loan facility. That does not mean however, that the husband should be permitted to draw without restriction upon that loan facility. I certainly agree that the husband should not be permitted to draw down on that Portfolio Facility to meet expenses such as his legal fees, to the exclusion of the wife, and no doubt when this matter ultimately comes on for hearing she will seek, at the very least, some adjustment for any amounts drawn by the husband and paid out for that purpose.

Partial Property Settlement, Sale of Assets and Injunctive Relief

1. Although the main focus of the wife’s submissions was the periodic spousal maintenance, as I have previously indicated, all of the issues are connected. If I were to accede to the wife’s application the Portfolio Facility would be drawn to its limit. Although the wife in her affidavit deposes that the interest on the Portfolio Facility is debited against the loan balance, that would no longer be possible and, on her case, at least until some of their assets are realised the interest costs would increase significantly.  

2. Although the wife proposes the sale of the Town C property, the Make D motor vehicle and the boat, it could be some time before those assets can be sold. Orders have previously been made for the sale of the Make D motor vehicle.

3. In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 the Full Court confirmed the courts power to make orders for interim property settlement when it is considered appropriate to do so.

4. In this case the wife seeks that the husband draw down the sum of $80,000 from the Portfolio Facility to meet her outstanding legal fees and a further sum of $26,000 for the payment of her outstanding credit card debt by way of part property settlement. I am satisfied, in circumstances where the husband has already drawn down on the Portfolio Facility to meet some portion of his legal fees, that it would be just and equitable to make the orders sought by the wife in this regard. The wife has no other source of funds from which she can meet her outstanding legal expenses and clearly has an entitlement to a property settlement which exceeds the amount she now seeks to meet these fees.

5. I also propose to make an order for the draw down of the sum of $26,000 to be applied to the payment of the wife’s outstanding credit card debt, if only for the purposes of reducing the likely interest cost to the parties of that debt. The interest that will accrue on the outstanding credit card balance will almost certainly exceed the interest cost associated with the draw down of the $26,000.  As previously indicated, the wife’s credit card statements are not in evidence and it is in those circumstances impossible for me to determine whether they  should be treated as a debt of the marriage or, until the evidence is tested, whether the payment sought by the wife should be paid by the husband by way of spousal maintenance. On that basis I will reserve the question of whether this should be treated as an order for interim property settlement or spousal maintenance for the determination of the Trial Judge.

6. During the course of the hearing Mr North SC proposed that each of the parties should be permitted to draw down the sum of $100,000 from the Portfolio Facility to meet their legal fees. I do not however, propose to accede to that application. Firstly, this proposal was put without notice to the wife. Secondly, there is no evidence as to the husband’s outstanding legal fees, and thirdly, and most importantly, the husband has already had access to the Portfolio Facility to pay legal fees, albeit that some of those legal fees may also include expert reports which the husband has paid at first instance.

7. I am however, also not satisfied in all of the circumstances of this case that at this time I should make the order sought by the wife that the sum of $1,072,714 be drawn from the available Portfolio Facility balance and paid to her by way of interim property settlement. There is something of a tension in the wife’s case that the husband should not be permitted to draw down on the Portfolio Facility but that, on the other hand, it should be drawn down to its limit particularly in circumstances where the property available for distribution be diminished in order to meet the parties’ living expenses. Although it is true that the husband earns a substantial income by community standards, I am not satisfied that he can continue to meet the payments the wife seeks or even those that I propose to make without relying to some extent on the Portfolio Facility. Nor does it appear that the wife has turned her mind to how the interest on that fully drawn Portfolio Facility might be paid.

8. I do however, propose to make the orders sought by the wife for the holiday rental and sale of the Town C property and the sale of the Make D motor vehicle and the boat. This is not opposed by the husband. I am not satisfied however, that I should make the order sought by the husband for the sale of all of the assets. I do not have sufficient evidence before me to assess whether or not such an order would or would not be appropriate.

9. The circumstances may well be different once some of the assets have been realised. And I propose to reserve liberty to the parties to apply for interim property orders upon the sale of all or any of the Town C property, the Make D motor vehicle or the boat.  

Conclusion

1. I am satisfied that, at least in the interim, the evidence supports the husband’s case that he cannot meet the payments sought by the wife for her support and the support of the children as well as his own support without some reliance on the Portfolio Facility however, as I have previously said, that should not in my view be unrestricted. I am comforted in reaching this decision that both parties will have the opportunity when the evidence is tested to put their case, on the husband’s part that the wife’s estimate of her weekly expenses is not a true reflection of her needs and for the wife’s part that the husband had the capacity to meet both his reasonable needs, her reasonable needs and those of the children without resort to the Portfolio Facility. Both parties put their cases at the opposite end of the spectrum. I do not accept either position, but that being said neither party made submissions with respect to any middle ground. I must in those circumstances do the best I can on the evidence before me. I propose in those circumstances to order that the husband pay the wife the sum of $1,250 per week by way of periodic spousal maintenance. In addition, I propose to order that the husband maintain the family’s private health insurance cover, the registration for the vehicle used by the wife, her house and contents insurance and her life insurance premiums. This is not a mathematical exercise and as I have said the reasonableness of both parties’ expenditure can be looked at again when the matter comes on for trial. However, doing the best I can I propose to permit the husband to draw down on the Portfolio Facility for the purposes of paying the school fees, the family’s private health insurance cover, the wife’s house and contents insurance and the premiums for both their life insurance policies.  I propose to otherwise restrain the husband from drawing down on the Portfolio Facility until further order.

2. As I have previously indicated, I propose to order the sale of the Town C property, the Make D motor vehicle and the boat, with the proceeds to be applied to the repayment of the Portfolio Facility and thereafter to be invested in an interest bearing account in the parties’ names until further order. .

3. I propose to otherwise dismiss the parties’ respective interim applications and, subject to any submissions to the contrary, make an order for a Conciliation Conference.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 3 June 2013.

Associate: 

Date:  3 June 2013