Davern & Davern
[2021] FedCFamC1F 138
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Davern & Davern [2021] FedCFamC1F 138
File number(s): SYC 9296 of 2020 Judgment of: ALTOBELLI J Date of judgment: 18 October 2021 Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks interim spousal maintenance orders – Where the wife is unable to support herself financially – Where the husband claims no capacity to pay – Issues of inadequate disclosure by the husband – Where husband is found to have capacity to pay – Orders made for periodic spousal maintenance.
FAMILY LAW – PROPERTY – Where the wife seeks interim property orders for the imminent sale of the yacht and proceeds be used to satisfy the parties’ debts and distributed to the parties – Where the husband did not oppose the sale of yacht – Where the husband proposed the sale of yacht be delayed to allow improvements to the yacht – Orders that the yacht be sold expeditiously while allowing time for improvements and proceeds be used to satisfy the parties’ debts and distributed to the parties.
Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75 Cases cited: Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Marriage of Mitchell (1995) FLC 92-601; [1995] FamCA 32
Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 558
Division: Division 1 First Instance Number of paragraphs: 51 Date of last submission/s: 23 August 2021 Date of hearing: 23 August 2021 Place: Sydney Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Mr Todd Solicitor for the Respondent: Unified Lawyers ORDERS
SYC 9296 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) BETWEEN: MS DAVERN
Applicant
AND: MR DAVERN
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
18 OCTOBER 2021
THE COURT ORDERS BY CONSENT THAT:
1. By way of spousal maintenance, the husband pay the following to the wife pending further order:
a.all instalments at the current scale to the private health fund for the wife (policy number …93), including cover for private hospital, optical, physiotherapy, dental and medical expenses for the wife in addition thereto meet such expenses as in respect of the wife which are not able to be recovered from the fund provided the wife shall not undergo any elective procedure without the parties’ written agreement;
b.contents insurance in relation to the wife's Commonwealth Bank home insurance (policy number …19); and
c.all amounts owing in respect of the parties' storage facility operated in Tasmania.
THE COURT ORDERS THAT:
2. By way of spousal maintenance, the husband pay the following to the wife until four weeks after the date the wife receives the payment pursuant to Order 7 herein:
a. The sum of $1,655 per week into a bank account nominated by the wife; and
b. The wife’s mobile telephone bills.
Sale of Vessel B
3. The husband shall first consult with the wife about decisions, and otherwise keep the wife fully informed of, all matters referred to in Orders 4, 5, 6 and 7 below.
4. By no later than three months from the date of these orders, the parties do all such things and sign all documents necessary to list for sale, and sell, Vessel B for the best price reasonably obtainable, on the following terms and conditions:
a. The parties appoint C Brokers (“the broker”) as agent to conduct and facilitate the sale of Vessel B, and the parties forthwith do all things necessary to appoint the broker, including signing the “Authority to Sell and Appointment of a Broker”;
b. The parties shall copy each other into all correspondence sent to the broker, any other agreed broker and/or any prospective purchaser, and shall instruct the broker and/or any prospective purchaser to copy both parties into all correspondence.
c. The husband is permitted, within two months from the date of these orders, to undertake further repair work to Vessel B as he considers appropriate, in consultation with the wife, before Vessel B be listed on the market for sale. Provided the husband has accounted to the wife in relation to all expenses incurred by him in this regard, those expenses be paid out of the sale proceeds.
d. The husband shall move Vessel B to a port that is recommended by the broker when it is placed on the market for sale.
e. The parties shall instruct the broker to comply with these orders.
5. The husband shall:
a. notify the wife via email within 24 hours of arrival at the port which is recommended by the broker prior to sale, confirming to the wife which port the yacht is docked;
b. forthwith provide to the broker a copy of Vessel B's current registration and current insurance certificate;
c. forthwith do all things necessary, at his cost, to instruct the broker to arrange a survey report of Vessel B, with such costs to be reimbursed on settlement of the sale of Vessel B, if such survey is recommended by the broker;
d. ensure that an inventory of items, including any items contained in any storage shipping container, are prepared and ready to be provided to the purchasers at settlement of the sale, or prior if requested by the broker;
e. pay any upfront fees as and when they fall due to the broker in respect of the sale (including but not limited to listing Vessel B for sale) and indemnify the wife with respect to same;
f. cooperate in every way with the broker including (without limiting the generality of the foregoing):
i.allowing photography and inspection of Vessel B at all reasonable times requested by the broker;
ii.providing all necessary documentation to the broker as required for the sale, including current registration, ownership and insurance documents;
iii.doing or saying nothing to hinder or prevent a sale being effected;
iv.ensuring Vessel B is in a neat and clean condition at the time of inspection by the broker and prospective purchasers; and
v.allowing access to Vessel B by the broker and any prospective purchasers at any and all reasonable times.
g. the parties shall both sign all documents requested by the brokers in relation to the listing for sale, and sale, of Vessel B;
h. unless otherwise agreed in writing, the parties shall accept any offer to purchase Vessel B over €2,200,000 and as soon as practicable thereafter the parties shall do all things and sign all documents necessary to effect the sale of Vessel B;
6. Within seven days of the date of these orders, the parties do all things necessary to instruct Commonwealth Bank of Australia to cause their Commonwealth Bank Complete Access Account (BSB: … Account no. …29) to require joint signatures to operate (“the Joint Account”).
7. Upon settlement of the sale of Vessel B, the net proceeds of sale after payment of broker's commission shall be deposited into the Joint Account and the parties thereafter forthwith do all acts and things, and sign all documents necessary to pay the following from the Joint Account:
a. $200,000 to the wife;
b. $200,000 to the husband;
c. an amount to the husband in reimbursement of expenses incurred by him pursuant to Order 4(c) and Order 5(c), and which are not otherwise able to be recovered under insurance;
d. any and all amounts necessary to the Australian Taxation Office to discharge the Wife's Tax Liability;
e. all amounts outstanding to the Accountant, owed by each of the parties in their personal capacities;
f. all amounts necessary, including outstanding amounts, to the Accountant, and any auditor, in respect of having all outstanding Financial Statements prepared, and all outstanding tax returns lodged, in respect of the Davern Family Trust, E Trust and Davern Superannuation Fund; and
g. any and all amounts necessary to F Finance to discharge F Finance loan number …38.
Other
8. The parties, in their capacity as trustees of the Davern Superannuation Fund, forthwith do all things and sign all documents as directed by G Accountants that are necessary to enable and cause the financial statements and tax returns of the Davern Superannuation Fund to be submitted to the Australian Tax Office on behalf of that superannuation fund.
9. The parties have leave to provide a copy of these orders to the broker, Commonwealth Bank of Australia and the Accountant.
10. In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders then the Registrar of the Court be appointed pursuant to section 106A of the Act to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument, and the defaulting party shall pay the costs of the non-defaulting party in relation thereto.
11. The matter be referred to the Docket Registrar.
THE COURT NOTES:
A.For the purposes of these orders, the following definitions apply:
a."Act" means the Family Law Act 1975 (Cth).
b."Accountant" means Mr H of G Accountants situated at J Street Suburb K, NSW, or any other accountant agreed between the Parties in writing.
c."E Trust" means the E Trust, a discretionary trust established by Deed on 26 August 2015 between Ms L as settlor, M Company as the Trustee, the Wife as the Appointor and the Parties are the general beneficiaries.
d."Vessel B" means the yacht known as "Vessel B" and registered in the name of N Company.
e."F Finance" means F Finance loan number …38, secured against the Motor Vehicle 1 (registration …) and of which the Husband and Wife are the borrowers.
f."Husband" means Mr Davern, born … 1972.
g.“Party” means the Wife or Husband.
h."Parties" means the Wife and Husband collectively.
i."Davern Family Trust" means the Davern Family Trust, a discretionary trust established by Deed on 1 January 2004 between Mr H as settlor and the Husband as Appointor, Trustee and Principal beneficiary, and the Wife falling within classes of beneficiaries.
j."Davern Super Fund" means the Davern Superannuation Fund, a self-managed superannuation fund established by Deed dated 30 November 1999 and of which the Parties are the Trustees and sole members.
k."Wife" means Ms Davern born … 1974.
l."Wife's Tax Liability" means the outstanding liability of the Wife to the Australian Taxation Office and of which the sum of $159,768.62 was overdue as at 1 June 2021.
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).
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 by this Court under a pseudonym Davern & Davern has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J
INTRODUCTION
When the Respondent husband (“husband”) made his affidavit on 10 August 2021 he was living on the 24.5 metre yacht known as Vessel B in Europe and was making his way from Country O to the European Union. The yacht was purchased in December 2017 for AUD3,450,000 and the parties appear to have reached agreement to list the yacht on the market for sale in Europe for €2.5 million (approximately AUD4,000,000) but to accept any offer over €2.2 million. The yacht is insured for €2.5 million. The documents before the Court suggest that it has accommodation in four cabins, not including crew, and has five bathrooms. Its features include an integrated washer/dryer, microwave, computer with 17 inch computer monitor with printer and scanner, satellite phone, and home entertainment system with five cube speakers, a 41 inch widescreen television, as well as air-conditioning.
The husband has lived on the yacht since shortly after the date of separation in December 2018 with Ms P. The husband disputes the Applicant wife’s (“wife”) contention that he and Ms P live in a de facto relationship even though the material before the Court creates the impression that they are in some form of relationship, including a financial relationship.
Doing the best the Court can to understand the evidence about the husband’s financial circumstances, the weekly costs associated with running the yacht total: $800 for what the husband describes as City Q/fuel, $567 for yacht insurance, $400 for electricity when moored at marina, $250 for fuel, $2,250 for maintenance and repairs, $1,500 for what the husband described as saving for the December yacht insurance payment and $485 for mooring fees. This totals $5,767 per week. These figures come directly from the husband’s financial statement made 10 August 2021 whilst he was in Country O.
Notwithstanding this evidence, most of which comes from the husband himself, the husband contends that the wife’s expenditure is unreasonable and, for example, that the weekly rental she pays on the Sydney apartment occupied by the children and herself in the sum of $1,655 is excessive.
These reasons for judgement explain the orders that the Court has made in a contested application for maintenance and interim property orders.
BACKGROUND
The wife is 47 years old, describes herself as an administration manager, and lives in Sydney with the children of the marriage. The husband is 49 years old and describes himself as a CEO on garden leave. He lives on the yacht. The parties commenced cohabitation in 1994, married in 1999, and separated in December 2018. They thus lived together for a period of approximately 24 years. They have four children aged between 13 and 22. The three youngest children live with the wife in an apartment in Sydney, with the older child visiting from time to time.
When the parties commenced cohabitation they had no assets of significance. The husband was very successful in the development of a business, the income from which seems to have provided this family with a very comfortable, if not lavish lifestyle. Their financial affairs are relatively complex. In 2020, the husband resigned as the CEO of the company that he largely established and floated on the stock exchange. When he resigned it was on the basis of an agreement that included that he remain on the payroll of the company for 12 months. More will be said about this below.
COMPETING APPLICATIONS
The orders sought by the wife are contained in her Case Outline filed on 20 August 2021.
The wife seeks an order for spousal maintenance in the sum of $1,655 per week, a figure which corresponds to her weekly rental commitment. In addition she seeks an order that the husband pay the wife’s mobile telephone bills. This maintenance would be paid until four weeks after the wife receives the lump sum that will be referred to below. The husband opposes this order.
The wife seeks an order that the husband pay for health insurance for her and the children, contents insurance and the storage fees in respect of a storage facility. The husband agrees to make these payments.
The above order is sought as interim maintenance but in the alternative as urgent maintenance. From the Court’s perspective, there was no need to treat this application as one for urgent maintenance only.
The wife sought orders for the sale of the yacht. Most of the orders sought by her are agreed to by the husband. The issues in respect of which this Court will need to adjudicate include whether the husband has the sole carriage of the sale, or whether the wife be appointed as joint trustee with him in relation to the sale. There is an issue about who should be appointed as the broker in respect of the sale. The wife wants the yacht listed for sale no later than 1 October 2021, but the husband wishes to defer this for two months to enable repairs to be made. There is a dispute about where the yacht will be moved to pending the sale. There is agreement that once the yacht is sold each party receive $200,000, subject to the characterisation of this payment. There is also agreement about the payment of a number of other expenses.
The orders sought by the husband are identified in his Case Outline filed on 13 August 2021. Most of the issues have been identified in the preceding paragraph. Where there are differences, they will be discussed below.
The main issue before the Court, therefore, is spousal maintenance. As the parties have agreed to interim orders for disposal of their property, the Court is called upon to decide ancillary issues only.
This is an interim hearing. Both parties make contentions that cannot be tested in cross-examination. The Court must do the best it can having regard not just to the evidence of the parties, but the documents that they rely on in support of their applications. The focus is on the here and now, not what has or may have happened in the past, and not what might happen in the future. A final hearing will provide the opportunity to examine the past with a level of detail that is not possible in an interim hearing. Changes that might occur in the future are matters that are more properly raised in the context of an application to vary orders, rather than being matters that are somehow susceptible to crystal ball gazing by this Court in an interim hearing.
THE EVIDENCE BEFORE THE COURT
In support of her case, the wife relied on the following documents:
(a)Her Affidavit filed 25 June 2021;
(b)Her Financial Statement filed 25 June 2021;
(c)Her Application in a Case filed 30 June 2021;
(d)Her Tender Bundle;
(e)Her Further Tender Bundle;
(f)Her Further Tender Bundle; and
(g)Her Notice to Produce sworn 8 August 2021.
In support of his case, the husband relied on the following documents:
(a)His Response to an Initiating Application filed 21 February 2021;
(b)His Response to an Application in a Case filed 10 August 2021;
(c)His Affidavit filed 10 August 2021;
(d)His Exhibits to his Affidavit filed 10 August 2021; and
(e)His Financial Statement filed 10 August 2021.
THE APPLICABLE LAW
The application for spousal maintenance is brought pursuant to s 74 of the Family Law Act 1975 (Cth) (“the Act”). The High Court in Hall v Hall (2016) 257 CLR 490 at [3] described s 72(1) as the “gateway” to the operation of a spousal maintenance application, which states 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).
The High Court in Hall v Hall also explained at [8] that the Court, in determining the “threshold requirement of s 72(1)”, must have regard to “any relevant matter referred to in s 75(2)” on the balance of probabilities. Similarly, the Full Court in Marriage of Mitchell (1995) FLC 92-601 noted that the determination of whether the wife can support herself “adequately” is to be determined with reference to the matters referred to in s 75(2) of the Act.
The Full Court in Saxena v Saxena (2006) FLC 93-268 at [39] identified a four-step process when considering a spousal maintenance application, as follows:
(a)Can the Applicant support themselves adequately?
(b)If not, what are the applicant’s reasonable needs?
(c)What capacity does the respondent have to meet those needs?
(d)What order is reasonable, having regard to s 75(2) of the Act?
CAN THE WIFE SUPPORT HERSELF ADEQUATELY?
The Court finds that the wife cannot support herself adequately, without maintenance from the husband. The wife works full-time and there is no serious suggestion that she is not working to capacity. In her Financial Statement made 25 June 2021 she deposes to a weekly income of $1,827, and weekly expenses of $5,653. The latter figure includes all expenses for the wife and the children. At the time of the financial statement the wife was not in receipt of child support. That may have changed. As will be seen, however, even when child support is factored in, and children’s expenses are factored out, there is still a substantial deficit between the wife’s income, and her expenses.
WHAT ARE THE WIFE’S REASONABLE NEEDS?
At the outset it must be recognised that the wife’s claim is for maintenance in the sum of $1,655 per week, being the amount of rental that she pays. In many ways it is a distraction to have regard to the total expenditure claimed in the sum of $5,653 per week. Of course, the focus needs to be on the expenses that are attributable to her only, not the children. In that regard, item 32 should read $1,265.40 which is the total of the second column, and noting that the stated total appears incorrect.
When the $1,265.40 is inserted at item 32, the total expenditure claimed by the wife amounts to $3,922.40. It seems relatively uncontroversial, however, that some of the expenses claimed by the wife, are in fact paid by the husband. The order contemplated to be made by consent certainly reflects this. This means that three items of weekly expenditure need to be deducted: $129 for house and contents insurance, $91 for health insurance, and $67 for storage fees, totalling $287. This reduces her total expenditure to $3,635.40 per week. According to the wife, therefore, the weekly shortfall is $1,808.40.
The husband is critical about the amount of rent that the wife pays per week. The Court does not accept this criticism. The wife and children have lived in this accommodation since the date of separation. The weekly cost of her accommodation is but a fraction of that of the husband. There is nothing unreasonable about this claim. The comparable figures the husband produces for alternative rental accommodation are well out of date.
The husband complains about the absence of corroborating documents to support the expenditure claimed by the wife. Quite apart from the fact that this Court does not regard any of her expenses as excessive, this is an interim hearing and thus it was not necessary for her to prove every single item of expenditure that she claims.
The husband’s case outline makes this assertion: “Globally; including by virtue of the observation that in most respects the wife’s claimed specifically categorised expenses exceed those of the husband.” The Court categorically rejects this. On the husband’s own evidence, the total cost of his accommodation vastly exceeds that of the wife.
In the husband’s case outline he makes a number of assertions in relation to aspects of the wife’s financial circumstances dating back to 2017 and 2018 which, respectfully, does not address the issue at hand. These are matters for cross-examination at a final hearing.
The Court is comfortably satisfied that the wife has established that she is in need of the sum of $1,655 per week.
The wife also sought an order that the husband pay her mobile telephone bills. At Part N, item 60 of her financial statement, she deposes that this is $105 per week. The wife deposes to the husband historically making these payments. If the husband is found to have capacity to make this payment, it will be so ordered.
DOES THE HUSBAND HAVE THE CAPACITY TO MEET THE WIFE’S REASONABLE NEEDS?
Before turning to the husband’s evidence, it is important to recognise that the wife’s case raises issues about whether the husband has complied with his duty of disclosure to the Court. There are some issues which are simply not capable of determination at an interim hearing such as the husband’s various shareholdings, and the true nature and extent of his superannuation interests. What is clear to the Court, however, is that the husband’s evidence makes no reference to what would appear to be his entitlement to potentially substantial accrued annual leave, and possibly long service leave entitlements, which he would, in the normal course, be paid on the conclusion of his employment at the end of December 2021. It is curious indeed that this issue received no attention in the husband’s case despite it being clearly articulated both in the wife’s evidence, and in her case outline document. The strong impression formed is that when the husband’s employment concludes at the end of December 2021 he would become entitled to both accrued annual leave entitlements which may be in excess of $370,000, as well as an unknown amount for long service leave. It is important to recognise that this is information known to the husband and he can hardly complain about both the wife and the Court’s attempt to quantify these benefits to him when it was at all times his responsibility to put this evidence before the Court.
In his Financial Statement made 10 August 2021 he deposes to a weekly income of $16,160 and expenses of $21,700, a shortfall of $5,540 per week. In his case outline, he acknowledges that his present expenses include budgeting in advance for what otherwise would be expenses not presently incurred. The rationale for this is that the husband will have no income after the end of December 2021 and because of a no-compete clause, cannot work in the same industry.
The Court repeats its earlier observation that this application is being dealt with in the here and now, and any future changes to the husband circumstances should be dealt with by way of an application to vary. The husband presents as being a highly skilled and successful businessman. The Court does not accept his contention that he will necessarily be without income in 2022 or in receipt of a lesser income, simply because of a no-compete clause. Moreover, as will be seen below, the Court does not accept his contention that he will be unable to work because he will be effecting repairs to the yacht.
Item 19 is taxation in the sum of $6,985 per week which is consistent with his payslip.
Item 21 which is designated for mortgage payments/rent, the husband claims: “City Q/fuel” as $800 per week. It is not clear precisely what this relates to. Insofar as it purports to cover the cost of fuel, presumably for the yacht, there is also a claim for fuel at item 60 in the sum of $250 per week. It was incumbent on the husband to explain this duplication, but he does not do so. The $250 per week appears reasonable, so that amount at item 60 will be allowed. The only relevant reference to City Q in the husband’s affidavit is at [115]. This creates the impression that this expenditure item might be for mooring fees. In this regard the suggestion seems to be that the mooring fees in City Q was about $9,600 for a period of six months. This would amount to about $370 per week and thus goes nowhere near explaining the figure of $800 at item 21. In any event, perhaps the larger concern is that the boat is clearly not moored at City Q, based on the husband’s own evidence. If it is a prospective expense, the Court does not take it into account. At [113] the husband deposes, in quite categorical terms, that he does not intend to move the yacht permanently to Country R until it is ready for sale. Indeed, elsewhere in the affidavit he asserts that the cost of repairs would be much less in Country O. Item 21 cannot be allowed for present purposes.
At item 26 of his financial statement, he claims weekly yacht insurance payments in the sum of $567. The evidence indicates that the insurance is current, and that the premium is not due until the end of this year. The yacht could be sold before then. In any event the husband may be in receipt of his annual leave and long service entitlements by then, and this sum can be used to pay the insurance premium. Item 26 is not allowed.
Item 29 ($2,812 per week) represents the loan repayments in relation to the husband’s executive loan which appears to relate to shares allotted from his current employer. The payment is consistent with [1.4] of the deed of release that the husband entered into with his former employer.
In item 31 the husband claims to pay a total of $2,170 per week for the benefit of the two children under the age of 18. He contends that $895 represents child support pursuant to an assessment in respect of which he has lodged an objection, and $1,275 per week for school fees. It does seem that the husband has historically been paying the children’s school fees in the sum of $5,100 monthly. However, correspondence between the parents and the children’s school suggests that the Term 2, 2021 school fees and charges were paused until the end of June 2021. The only reasonable interpretation that can be given to this correspondence is that notwithstanding the husband’s evidence, the school fees have not been paid for at least part of this year. Indeed, the wife’s evidence refers to outstanding school fees of $16,770 as at the date of her affidavit on 25 June 2021. She concedes that until December 2020 the husband was paying school fees, and then in Term 1, 2021 paid part of the school fees and did not pay anything for Term 2. Doing the best the Court can, it seems as if the husband is not currently paying the school fees but may well have done so in the past.
In relation to the child support claimed by him in the sum of $895 per week the wife’s evidence is that no support is being paid. The husband deposes, however, to receiving the assessment on 27 July 2021, and having made the first payment from 8 August 2021. Given the nature of child support and the manner in which it is collected from a PAYG salary earner, it is plausible that these payments are being made. Accordingly, at item 31 the Court will allow $895. The Court notes that the husband has lodged an objection in this regard and depending on the outcome of this, his child support liability may reduce. That, of course, will increase his capacity to pay maintenance, not decrease it.
Turning to Part N, item 60, the husband deposes to total further average weekly expenses of $8,298. These expenses warrant close scrutiny.
The claim for $400 weekly for electricity is implausible given the fact that, based on the husband’s own evidence, the yacht is at sea. A claim for electricity totalling $20,800 per annum is manifestly excessive. The Court accepts that the husband would have to pay for electricity when the yacht is moored at a marina, and will allow $50 per week, on average, for that amount.
The husband claims as maintenance and repairs the sum of $2,250 per week, or $117,000 annually. The Court accepts as a general proposition that the cost of maintaining and repairing the yacht may well be greater than or similar to such costs in relation to a home. The evidence indicates that past maintenance and repairs may well have been very expensive, as a result of the damage caused by a lightning strike, but these costs were substantially met from an insurance claim. Even after a close examination of the documents filed in the husband’s case, it is hard to see how he arrives at the figure of $2,250 per week. It may be an annualised estimate based on past expenditure, but the focus is on the present cost of maintenance and repairs, and it is simply not possible to discern from the evidence how this figure was calculated. The Court did not expect complete itemisation, but a more fulsome explanation of this very substantial figure was warranted. The Court is prepared to allow $500 per week.
The husband claims $1,500 per week in relation to savings for the December yacht insurance payment. For reasons given above, this claim is not allowed.
The husband claims mooring fees of $485 per week. It was incumbent on the husband to provide evidence to explain how fees totalling $25,220 annually are payable in respect of the yacht which, based on the husband’s own evidence, spends time at sea. The Court accepts that the yacht cannot be at sea all the time, and that a mooring fee is likely. Doing the best the Court can, it allows $250 per week in this regard.
The husband claims education expenses of $1,275 weekly. The reasons set out above, this is not allowed in circumstances where it does not appear he is currently paying those school and education expenses. For the same reason, the Court does not allow the husband’s claimed expenditure of $1,500 per week, described as savings for school fees given his anticipated unemployment from December 2021. The Court does not accept that he will necessarily be unemployed. The necessity to save for school fees is unclear given historical concerns about actual payment of the same and, in any event, the availability of a sum from the husband’s termination benefits to meet this amount.
Having regard to the above, the Court finds that the husband’s Part N expenses are allowed for a total of $1,688 weekly. Moreover, the husband’s total weekly expenses allowed by the Court amounts to $12,448 per week resulting in a surplus of income over expenditure of $3,712 per week. Accordingly, the husband has the capacity to pay to the wife the sum sought by her, being $1,655 per week on account of the rental, the other payments that he agrees to make, as well as the wife’s mobile phone bills.
OTHER ISSUES
The remaining issues in dispute surround the mechanics of selling the yacht. The wife seeks an order that she be appointed as a joint trustee for the sale. In effect, the husband says this is impracticable given the location of the yacht in Europe, and the wife’s lack of experience in matters relating to the yacht. It seems to the Court, however, that the wife’s real interest is in transparency, and accountability in relation to the sale. This can be achieved in ways other than appointing her as a joint trustee. The Court is concerned about the impracticability of joint decision-making in a case where the parties are so distant from each other, both in a physical and emotional sense. In addition, the evidence clearly indicates that the husband has more knowledge and experience than the wife does in relation to yachting matters. Accordingly, the Court will not make the orders sought by the wife in relation to her appointment as a joint trustee for sale, but will oblige the husband to consult with her.
There is a dispute between the parties about appointing the broker to sell the yacht. The husband proposes one in Europe, while the wife proposes one in Australia. The yacht is in Europe, and there seemed little contention that the best market for sale was in Europe. Accordingly, the Court prefers the husband’s nominated broker.
Both in relation to the sale, and the appointment and communication with a broker, the Court will make orders obliging the husband to first consult with, and otherwise keep the wife informed in all respects about the sale of the yacht.
The final issue for determination is when the yacht is to be placed on the market for sale. The husband’s proposed order leaves it open, on the basis that he wishes to do all things necessary to bring the yacht to a saleable condition. The order proposed by the wife is for an immediate sale, with no repairs or maintenance to be carried out save by agreement. The husband gives evidence about the desirable work to optimise the presentation of the yacht for sale. The Court is prepared to allow the husband two months from the date of these orders to effect such maintenance and repairs to the yacht as he considers appropriate, in consultation with the wife, before the yacht must be placed on the market for sale. Provided the husband has been transparent in relation to expenses incurred by him in this regard, those expenses can be paid out of the sale proceeds.
Insofar as there may be a dispute between the parties about where the yacht should be moored when it is placed on the market for sale, the parties are to accept the recommendation of the broker.
This matter is to return to the Docket Registrar.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Dated: 18 October 2021