DITTMAR & DITTMAR

[2017] FamCA 1036

FAMILY COURT OF AUSTRALIA

DITTMAR & DITTMAR [2017] FamCA 1036

FAMILY LAW – INTERIM – Spousal Maintenance – Whether the husband should pay Spousal Maintenance to the wife – Where each party alleges the other has had the benefit of substantial matrimonial property – Where each party alleges non-disclosure by the other party – Need for spousal maintenance – Capacity to pay spousal maintenance.

In the Marriage of Mitchell (1995) FLC 601
Mullen v De Bry (2006) FLC 93-293

Family Law Act 1975 (Cth)

APPLICANT: Ms Dittmar

RESPONDENT: Mr Dittmar

FILE NUMBER: SYC 6068 of 2015

DATE DELIVERED: 31 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 7 & 8 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: SWAAB Attorneys

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: Antunes Lawyers

Orders

Pending Further Order.

1.The husband pay, by way of interim spouse maintenance, the mortgage instalments as they fall due on the mortgage registered against the title to B Street, Suburb C (the former matrimonial home).

2.The husband cause the sum of $9,139 to be drawn from the D Trust and paid to the wife on the 7^th day of each calendar month.

3.The husband cause to be drawn from the D Trust the sum of $7,388 (the calculated shortfall of his financial circumstances allowing for a slightly greater tax figure) each month and paid to himself to meet his shortfall of income.

4.The husband cause to be paid into the D Trust any sum received by way of remuneration (including bonus payments) from his employment, of any nature, over and above the sum of $6,600 per week after deduction of calculated taxation.

5.The husband is permitted to draw up to an additional $2,000 per month from the D Trust, provided he does at the same time pay to the wife an equal amount of money which may also be sourced from the D Trust.

6.The husband may, with the consent of the wife, withdraw funds from a nominated source, being an asset to which the husband has access, on the proviso that, unless she otherwise agrees, he pays to her an identical sum of money which may be accessed from the same source as the fund which the husband proposes to access.

7.Any funds drawn from the D Trust or any other asset of either of the parties, which drawing is permitted by these orders, shall abide the determination of the trial judge as to the characterisation of same. (i.e. is it a partial property payment, spouse maintenance or a payment which should be characterised in another way).

8.Until further order, and subject only to the permissions contained in these orders, the husband is restrained from:

(i)Dealing with any of the assets of the D Trust, the D Superfund and the E Family Fund, otherwise than as agreed to by the wife (such agreement not to be unreasonably withheld).

(ii)Drawing any further funds upon or increasing the borrowings secured against the former matrimonial home at Suburb C or the properties at F Street, Suburb G, or H Street, Suburb J.

(iii)From selling, transferring, or alienating his interests in any of the property specified in this order.

(iv)Dealing with any funds which may be realised upon the disposition of any of his shares in K Ltd.

(v)Increasing the amount of his borrowing with Commonwealth Securities.

9.The husband is not to deal with the proceeds of the sale of shares in public companies, held in his name, or the joint names of the parties, without first giving 21 days’ notice to the wife in writing.

10.The husband has leave to apply to the Court on short notice should he seek to vary any of the injunctions made herein in circumstances where the consent of the wife to any sought variation is not given.

11.The wife is not to unreasonably withhold consent to any request by the husband to vary the provisions of the injunctions and orders herein made. Where consent is given by the wife to a variation of these orders such written consent shall act as a variation of the subject order.

12.The husband is permitted to draw funds from the D Trust in order to meet the expenses of the trust including taxation, accountants fees and the like.

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 Dittmar & Dittmar 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 SYDNEY

FILE NUMBER: SYC 6068 of 2015

Ms Dittmar

Applicant

And

Mr Dittmar

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is the Initiating Application filed by the wife, Ms Dittmar, on 30 May 2016. It is the order number 3 sought as an interim order contained in that application, together with the order sought in Exhibit W1, being the wife's minute of order, which is pursued in this proceeding. The orders as sought by the wife relate to spousal maintenance and injunctive relief.

2. The wife's application is supported by an affidavit filed by her on 30 May 2016, an affidavit filed 3 November 2016, and her Financial Statement sworn 3 November 2016.

3. The orders sought by the wife are opposed by the respondent husband, Mr Dittmar. He relies on his Response to Initiating Application filed 12 September 2016, his Financial Statement filed 12 September 2016, his further Financial Statement filed 4 November 2016, and an affidavit filed by him on 13 September 2016.

4. Before proceeding further it is unfortunately necessary to make comment about the wife’s affidavit sworn 27 May 2016 and the husband’s affidavit sworn 12 September 2016. The wife’s affidavit is filed in support of the interim orders sought in her Initiating Application filed 30 May 2016. That application sought injunctions having financial consequence, an order for disclosure of financial information, an order for spouse maintenance and an order for adult child maintenance. In the hearing conducted in this case the wife pursued only order 3 in the Initiating Application together with a Minute of Order marked as exhibit W1. That document sought an injunction restraining the husband from dealing with certain aspects of his financial circumstances.

5. In support of the orders which she sought in the hearing the wife relied upon all of the content of her affidavit sworn 30 May 2016. A significant portion of that affidavit did not address evidence which could be said to support either of the orders she sought or oppose any order the husband sought.

6. The husband relied upon an affidavit sworn 12 September 2016. That affidavit was not prepared pursuant to the Family Law Rules. It was formulated as an affidavit in reply to the wife’s affidavit of 30 May 2016. The Family Law Rules do not allow for an affidavit in that form to be filed.

7. The consequence of the above is that it is very difficult for the Court to determine what the husband’s financial circumstances are from the manner in which he has prepared his affidavit.

Background Facts

1. The parties married in 1989 and separated either in December 2012 or in March 2013. A divorce was granted on 18 December 2015. The husband is 49 years of age, and the wife 55. There are three children of the marriage, all of whom are now over the age of 18 years, however, Mr L, who is 19, is attending university in Brisbane and the husband has agreed to meet expenses associated with that education.

2. The former matrimonial home is situated at B Street, Suburb C, and is owned by the husband and wife.

3. The husband lives in a de facto relationship with his partner Ms M. She has two children aged 12 and 9 who are currently not living in Australia, having been removed by their father. Proceedings are underway to have those children returned to the care of Ms M.

4. The wife has tendered an undertaking as to damages, which was marked as Exhibit W6. The wife tendered other documents, which I will refer to shortly, which support her case.

The wife’s applications

1. The orders sought by the wife, as contained in her Initiating Application under the heading "Interim Orders", upon which she moves in this hearing, is the order numbered 3 under the heading "Spouse maintenance". The wife seeks a spousal maintenance payment of $11,513 per calendar month, or $2,656 per week.

2. She also seeks orders that the husband meet specified payments associated with her maintenance and her occupation of the former matrimonial home. These expenses include mortgage payments, utility expenses, rates and taxes, insurances, costs of repairs being effected to the property, health insurance premiums, and motor vehicle expenses.

3. By way of injunctions, the wife seeks an order which restrains the husband from dealing with specified trusts, superannuation funds and properties. She also seeks injunctions restraining him from increasing debt levels in respect of specified assets. Specifically, the wife seeks, pursuant to her Minute of Orders marked at trial as Exhibit W1, that the husband be restrained by injunction from:

   b)      Dealing with any of the property of the D Trust, the D Superfund, and the E Family Fund, save for with the consent of the wife;

   c)      Drawing down on or increasing the mortgages secured over the Suburb G, Suburb C, and Suburb J properties;

   d)      Otherwise dealing with the Suburb G, Suburb C, and Suburb J properties;

   e)      Increasing the debt value of the loan outstanding to Commonwealth Securities;

   f)      Drawing down the funds held in the parties’ Westpac Housing Loan;

   g)      Dealing with the assets of the D Superfund, the D Trust and the E Family Fund;

   h)      Dealing with the shares received as a result of his employment with K Ltd.

4. In paragraph 25 of the wife’s affidavit sworn 3 November 2016, the wife disclosed that on 18 December 2012, she had a total of $1,410,635 in available funds. In the ANZ online saver account, she had $900,056. Between 18 December 2013 and 31 December 2013 she withdrew $200,000 and paid tradespeople, legal fees, and funds to family members as inheritance in accordance with her mother's wishes. She also paid to her aunt $80,000 which she said was given to her by her mother for the purpose of paying to her aunt. The balance of her accounts is now $286,692. She provided, in her affidavit of 3 November 2016, no further specific evidence as to how the funds she had available to her on 18 December 2012 have been applied.

5. In submissions, the wife's counsel informed the court that details of how she had applied the funds under her control from the date of separation to 3 November 2016 are set out in paragraphs 23-26 of her affidavit of 3 November 2016, and paragraphs 41, 45 and 46 of her affidavit sworn 27 May 2016.

6. Part of the expenses claimed by the wife in paragraph 44 of her affidavit of 27 May 2016 is the monthly expenses for the children and herself. The wife's evidence is that Ms N, now aged 21, and Ms O, now aged 23, both still reside with her in the former matrimonial home. In her Financial Statement sworn 3 November 2016, the wife states that the former matrimonial home is occupied not only by herself, but her children Ms O, Ms N and Mr L. She set out that Ms O has an income of $320 per week, Ms N has an income of $910 per week, and Mr L has no income. She further deposed that Ms O contributes $50 worth of groceries and food each week, and Ms N contributes $5 of groceries and food each week. Mr L contributes nothing.

7. In paragraphs 45 and 46 of her affidavit sworn 27 May 2016, the wife makes very general statements about her living costs which are said to provide detail of how she has expended (all except $287,000) of the $1.4 million which she had in available funds at the date of separation.

8. Apart from seeking spousal maintenance, the wife has a substantial complaint to make about the husband's dealing with assets during the last six months. In submission, the wife said that in the last six months, the husband has liquidated $1.6 million worth of shares and placed those funds to his own sole use or into a trust controlled by himself. Further, it was submitted that $330,000 value of shares have been transferred by the husband to a family trust which he shares with his de facto wife. It was further submitted that the husband has sold the property he owned at P Street, Suburb Q, valued $1.2 million in his Financial Statement filed 13 September 2016 (and unencumbered) without notice to the wife, and acquired a property at Suburb G, which he purchased for $3.75 million and which required him to borrow substantial funds. He applied the sale proceeds of the Suburb Q property of $1.33 million to the purchase of that property.

9. In order to establish those submissions, counsel for the wife referred to the Exhibits annexed to the wife's affidavit sworn 3 November 2016. On page 62 of the Exhibits, the Court's attention was drawn to a statement provided to the husband's employer, K Ltd, being an annual statement for the year ended 30 June 2016. That disclosed a franked dividend distributed to the husband of $109,796.10 in the financial year.

10. On page 10 of the husband's Financial Statement sworn 4 November 2016, the Court's attention was drawn to the disclosure by the husband, at item 59, that he had received shares through employee share schemes in September 2016 which he had transferred to the E Family Fund. The E Family Fund is a trust established for the husband and his current partner. The wife pointed to the earlier Financial Statement of the husband sworn on 12 September 2016, which at Item 59 makes no similar disclosure and therefore dates the transfer of shares to the E Family Fund as post 12 September 2016.

11. The Court was then taken to Exhibit W2. This is a statement for the financial year ended 30 June 2016 in respect of shares held in the management account of CommSec in the name of the husband. That showed the value of shares to be $1,083,419 and a margin loan balance of $200,292. It showed a net portfolio position of $883,127. In the husband’s Financial Statement 12 September 2016, at Item 38 he listed the value of his shares in the CommSec account at $779,497. He listed the margin loan as being in credit to the value of $34,601. In the Financial Statement sworn by the husband on 4 November 2016, Item 38 showed no CommSec share account and listed the only shares as SFG, valued at $90,000. The husband showed no liability to CommSec in that Financial Statement. In Item 59 of the Financial Statement of 4 November 2016, there is no detail of any sale of shares.

12. The Court was then taken to Exhibit W4, which was a print out of a CommSec tax invoice for the sale of shares. On 1 November 2016, the husband received $121,186 from the sale of shares. The wife submitted that there is no reference to that sale in the Financial Statement that the husband swore on 4 November 2016.

13. The wife referred the Court to page 89 of the Exhibits to her affidavit, which showed the funds paid to Westpac Bank on the settlement of the Suburb G purchase by the husband. That disclosed a cheque for $2.409 million and another cheque for $202,000 in round terms. In addition, the husband provided a cheque for $1.138 million to complete the purchase.

14. On page 91 of the Exhibits, there is a Westpac Statement, showing the husband drawing on a loan in the sum of $2.6 million on 10 October 2016. Notwithstanding those borrowings in October 2016, the husband's Financial Statement of 4 November 2016 shows a liability only of $980,000 to Westpac Bank. Further, its shows that the husband is paying $2,808 per week by way of mortgage instalments referable to the Suburb G property.

15. The wife then took the Court to Item 43.1 of the annexure to the husband's Financial Statement of 12 September 2016. That disclosed that the husband had entered into a contract to purchase the Suburb G property on 29 August 2016 and had paid a deposit of $186,750.

16. At Item 43.2, as notated in the annexure to the Financial Statement sworn 12 September 2016, the husband deposed to the parties having lent money to the D Trust. As at 30 June 2015, the loan account was in the sum of $2,965,798. The disclosure further provided that the monies, which had been borrowed against the former matrimonial home, had been lent to D Trust by the parties. This was for the purpose of funding the purchase of a Suburb J property in 2009. In relation to the D Trust, the Court was then taken to the notes provided for Item 11 in the husband's Financial Statement of 4 November 2016. This provides details that the Trustee, R Pty Ltd, is controlled by the husband as the sole shareholder and director.

17. In the notes to Item 43.2 in the husband’s Financial Statement sworn 4 November 2016, the husband set out that the loan in the current account in the D Trust was estimated to be $2.5 million. The husband had set out in Item 11 to that Financial Statement that the 2016 tax return would need to take into account the sale of shares and payment of loans, however, no specifics were provided.

18. The wife in paragraph 17 of her affidavit sworn 3 November 2016, stated that between 16 September 2016 and 6 October 2016, an amount of $931,150 was deposited to an NAB bank account in the name of the D Trust. Of that sum, an amount of $556,000 was then transferred out of that account for the benefit of the husband. That assertion was confirmed by the husband before the Court as being correct.

19. The Court was then taken to the husband's contract of employment at page 41 of the Exhibits to the wife's affidavit. In the 2015 year, the husband received a bonus of $150,000 and in the 2016 financial year, his bonus was $145,000. On pages 14 and 15 of the Exhibits to the wife's affidavit are details of his bonuses received in those two financial years.

20. The wife submitted that the husband's unilateral action in

    a)disposing of the unit he owned at Suburb Q, which was unencumbered,

    b)liquidating shares which had been held in a CommSec account, and

    c)drawing funds out of the D Trust generated from the sale of shares and receipt of income,

    placed him in a position (after the purchase of the Suburb G property) of substantially increasing his outgoings so as to put him in a position where he seeks to demonstrate that he does not have the capacity to pay any spousal maintenance to the wife.

21. The Court was informed that the parties had reached an agreement in relation to payments which would be made by the husband for the support of the parties' son Mr L, who was attending university in Queensland. The Court was also informed by the husband's legal representatives that the husband would continue to pay the mortgage which is secured against the former matrimonial home at Suburb C. The matter was adjourned for further hearing to 8 December 2016 on the application of the husband, who was unable to meet the case put before the Court by the wife. That hearing was vacated and the parties elected to make written submissions rather than another appearance before the Court to make oral submissions.

Written submissions of the parties

Written submissions of the wife

1. The wife filed written submissions in accordance with the Directions made on 7 November 2016. Those submissions were received on 15 February 2017.

2. The wife submitted she has not worked in paid employment since 2009 and has been the primary caregiver and homemaker during the marriage. She suffers from significant health issues as contained in her affidavit evidence, which are not contested by the husband.

The husband’s non-disclosure

1. The wife submitted that the husband has deliberately failed to make full disclosure of his financial conduct from March 2015 to the current date. It was submitted that the husband has been “silent, obtuse or misleading by omission in his disclosure of documents”. The following examples of his conduct were provided:

   d)The husband has provided no information as to the quantum of his short‑term incentive scheme income pursuant to his employment, and as to the extent of the long-term incentives he has received;

   e)The husband failed to disclose the purchase and/or sale of the Suburb Q and Suburb G properties until after the contracts were exchanged;

   f)The husband failed to disclose the alienation of funds obtained from the liquidation of his shareholdings in the D Trust;

   g)The husband has failed to particularise the fact of the disposal of the CommSec share portfolio, the amounts received under that portfolio, and the application of those funds;

   h)The husband has refused to prepare the 2016 financial statements for the D Trust and to disclose any value of the benefits he received from that trust;

   i)The husband has not disclosed the specie, number and value of shares sold by either him personally or through the D Trust after 1 July 2015. He did not disclose that the value of the credit loan account of the parties in the D Trust has reduced since 30 June 2015; and

   j)The husband failed to disclose the existence of the E Family Trust.

2. Notwithstanding the husband’s failure to disclose, the wife submitted that the following financial information is available on the objective evidence. To that effect, the wife produced a bundle of documents which she asserted proved the following:

   a)The husband’s CommSec share portfolio has a net value of $833,419 and produces an income of $32,152 per annum;

   b)As at 12 September 2016, the value of the husband’s portfolio was recorded at $779,497 with a credit in the CommSec margin loan facility of $34,601 (a total of $814,098);

   c)The husband sold some of the CommSec share portfolio to assist in the acquisition of real property at Suburb G, although the quantum of shares sold is not disclosed;

   d)The husband’s Financial Statement filed 4 November 2016 indicates that the entire CommSec portfolio has been liquidated, meaning that the husband received the benefit of at least $883,000 from the share disposal from 20 June 2016 to 4 November 2016;

   e)The value of the shares held by the D Trust as at 30 June 2015 was $1,360,393. As at 30 June 2016 that amount appears to have decreased to $532,615. The wife submitted that the husband’s affidavit confirms that he received the benefit of the $828,000 by way of part repayment by the trust of his and the wife’s credit loan account.

3. As to the husband’s income since separation, the wife submitted that the following sums were ascertainable from the evidence available:

Financial Year ended	Amount
30 June 2012	$2,436,907
30 June 2013	$114,550
30 June 2014	$511,001
30 June 2015	$662,353
30 June 2016	$727,657
Total	$4,452,468.00

1. The wife further submitted that in addition to the husband’s income, he has not disclosed the following:

   a)Distributions that he has made from the D Trust for the benefit of the children but which he has retained, which she said totals an amount of $335,574 up to 30 June 2015;

   b)Value of shares received from K Ltd since he commenced employment there in 2013;

   c)Rental income derived from the Suburb J property owned by the D Trust (of which he is the sole shareholder and director of the trustee);

   d)Rental income derived from the property at F Street, Suburb G.

2. The wife submitted that the husband has engaged in a calculated and systematic process to withhold documents and information from the wife.

Spousal maintenance

1. The wife submitted that the husband concedes the wife having satisfied the threshold in s 72 of the Act for spousal maintenance.

2. It was submitted that s 75(2)(j) is a highly relevant consideration in this case. The wife has not been employed on a full-time basis for a very long period, and was out of the workforce for a number of years to enable the husband to improve and develop his skills, experience and income earning capacity. It was submitted that the wife’s opportunities to provide for her own future self-support were restricted and limited by her role within the marriage.

3. The wife’s reasonable weekly expenses, as calculated by her, are $3,215. The wife is currently drawing on capital to meet those needs. The amount left for her disposal is $160,450.72.

4. The wife cannot adequately support herself due to her health, her role during the relationship, and her current circumstances which include meeting her expenses from the capital that remains available to her.

5. The wife submitted that the husband has had the benefit of no less than $4.2 million over the past 2 ½ years.

Injunctive relief

1. In relation to the wife’s claims for injunctive relief as set out earlier, the wife made the following submissions.

2. The wife submitted that the principles to be considered for the purposes of making interlocutory injunctions for the preservation of property are contained in the Full Court case of Mullen v De Bry (2006) FLC 93-293. She submitted that those principles are as follows:

   a)The fact of the current claim pursuant to the Act;

   b)Evidence to the disposition of property by the respondent;

   c)The effect of such disposition on the anticipated order in favour of the wife;

   d)Injunctions not extending beyond that which is necessary to protect the wife’s claim.

3. It was submitted that it cannot be known whether the husband will seek to vary the terms of the current interlocutory orders.

4. The wife submitted that there is evidence of disposition of substantial sums of money by the husband and his unilateral use and application of the lion’s share of property of the parties absent the wife’s knowledge (as summarised in her submissions in relation to non-disclosure). In effect, it was her submission that the alleged non-disclosure of the husband is sufficient to warrant the making of the injunctions sought.

Written submissions of the husband

1. The husband filed written submissions, received on 6 March 2017, opposing the wife’s applications for interim spousal maintenance and injunctive relief.

Spousal maintenance

1. The husband submitted that the sum the wife is seeking by way of spousal maintenance actually amounts to $5,456 per week, or $283,712 per annum. The husband made this assertion based on the wife seeking $2,656 per week in spousal maintenance in addition to the $2,800 per week which he asserts is the financial cost of Orders 3.2.1 to 3.4 sought by the wife (in relation to expenses and outgoings for the Suburb C home, health insurance premiums, and motor vehicle registration costs).

2. The husband said the wife is wrong to submit that he concedes her having passed the threshold test under s 72. He submitted that his Response did not constitute a concession that the wife had reached this threshold. He submitted that the wife still bears the onus of establishing that she is unable to support herself adequately. It was the husband’s submission that the Court would not be satisfied of that threshold being reached.

3. The husband submitted that the wife has adduced no evidence that, by reason of her age or any physical or mental incapacity, she is unable to obtain appropriate gainful employment.

4. It was submitted that the fact that the wife has not worked since 2009, of itself, does not render her unable to support herself.  In the husband’s submission, the wife has conceded that she has made no attempt to obtain any form of employment.

5. In relation to supporting the children, the husband submitted that the parties’ eldest two daughters, Ms N and Ms O, both have a weekly income and should not be regarded as being financially dependent on the wife. The husband further submitted that the child Mr L cannot be considered a member of the wife’s household as he resides on campus and the husband meets the costs of his education. He submitted that there is currently no child under the age of 18 who is a member of the wife’s household.

6. In relation to the wife’s assertions of poor health, the husband opposed those assertions and submitted that the wife’s “extensive travel regime” since separation suggested that she is in good health. The husband set out various overseas trips the wife has taken post-separation.

7. It was also submitted by the husband that a significant issue in these proceedings relate to what funds the wife has currently available to her. It was submitted that the wife had approximately $1.4 million at separation.

8. As to the wife’s financial position, the husband relied on the wife’s Financial Statements sworn 27 May 2016 and 3 November 2016. He submitted that there is no explanation as to why the wife’s overall expenses have increased from $3,371 to $3,599 per week between the two Statements. As at 3 November 2016, the wife stated the total amount of funds held by her in various bank accounts totals $288,085, which is a decrease of $7,624 from the $295,709 she asserted she had saved as at 27 May 2016. It was submitted by the husband that there is an inconsistency between the decrease in the wife’s savings and the amount of her total expenditure per month (on the basis that her outgoings total $3,599 per week).

9. Further, it was submitted that the decrease in the wife’s savings from $288,085 in November 2016 to $160,450.72 in February 2017 (as asserted in her written submissions) is unexplained.

10. The husband submitted that the wife has failed to properly disclose her financial position.

11. The husband submitted that, in the event that the wife’s affidavit sworn 7 December is read despite his objections to it, the wife deposed in that affidavit to having a sum of $80,000 in a term deposit which is not disclosed in her Financial Statement of 27 May 2016.

12. The husband submitted that the wife’s claimed expenses in Part N of her Financial Statements are not supported by documentation and/or they are excessive and not reasonable. The husband submitted that the expenses claimed in her Financial Statement are inconsistent with the amounts she claims she has spent on things such as clothing, and health, in her affidavit sworn 7 December 2016 (which is objected to). He provided examples of the inconsistencies. The husband submitted that, based on the expenses outlined in her December affidavit, the wife’s claimed expenses in Part N of her Financial Statements are exaggerated.

13. The husband submitted the following:

    a)That the wife is not spending anywhere near that which she asserts; and

    b)That the wife has funds that she has failed to disclose; and/or

    c)That the wife has financial resources available to her which she has not disclosed.

14. The husband submitted that he does not have the capacity to meet the orders sought by the wife in relation to spousal maintenance, after meeting the payments in support of their child Mr L, and making mortgage payments on the Suburb C property and the property that he occupies. The husband therefore submitted that the wife’s application be dismissed.

Injunctive relief

1. As to the wife’s claim for injunctive relief, the husband argued that this application should be dismissed.

2. The husband submitted that her complaints in relation to the husband’s sale of the Suburb Q property and subsequent purchase of the Suburb G property are without substance. He submitted that the wife was advised of contracts being exchanged for the sale of the Suburb Q property.

3. It was submitted that the wife has not made any assertion that the husband has made threats to dispose of assets to the wife’s disadvantage or to remove assets beyond the reach or scope of these proceedings.

4. In response to the wife’s apparent assertion that the husband should be restrained by injunction due to his alleged non-disclosures, the husband submitted that the wife has herself made significant non-disclosures. He submitted that this is particularly in relation to funds held by the wife overseas. The husband submitted that a significant issue remains about the extent of the wife’s current financial circumstances.

The wife’s response to the husband’s submissions

1. It is noted here that the wife, upon receipt of the husband’s submissions on 6 March 2017, sent a letter by email to my Associate asserting that the husband’s submissions contain a number of incorrect factual assertions.

Determination

Has the wife met the threshold set out in section 72 of the Act to enable the court to consider whether the husband has capacity to make a payment of spouse maintenance?

1. Section 72 requires:

   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).

1. In this case the wife said she is unable to support herself because she has been out of the workforce for many years and she has issues with her health which would make it unsustainable for her to hold down a job.

2. This case is attended by claim and counter claim of failure to make a proper disclosure. The husband challenged the wife’s claim that she cannot work, that she requires a payment of maintenance in addition to the payment of the mortgage instalment on the former matrimonial home which the husband has agreed to pay. He challenged the wife to explain how she has reduced a fund of $1.4 million which has been in her control since the separation, to a fund now said by her to be only $160,000.

Does the wife have the capacity to support herself?

1. The wife was born in 1960. She is 56 years old.

2. The parties were married in 1989 and separated in December 2012 or on 9 March 2013. There was therefore 24 years of cohabitation.

3. The parties eldest child was born in 1992 and the youngest in 1997. All are over 18 years of age. The two eldest children (now adults) live with the wife in the former matrimonial home at Suburb C and the youngest child attends university in Queensland.

4. The wife has significant qualifications which might make her capable of securing employment with significant remuneration. This conclusion is based on the wife’s evidence contained at paragraph 49 and following of her May 2016 affidavit. She holds a Bachelor degree and a Masters of Business Administration (MBA).

5. The wife was employed between 1981 and 1992 in full-time employment with Company S and attained a senior management position. She completed a MBA during her time with Company S.

6. The wife has conducted her own businesses. Whilst in the UK in 2002/3 she obtained a permanent position with Company T.

7. Between 2004 and 2008 the wife conducted her own business under the corporate umbrella of U Pty Ltd.

8. Between 2008 and 2009 the wife had contract work as a senior consultant. That was her last paid employment.

9. In early 2016 the wife engaged in attending workshops and subscribing to online courses to retrain herself.

10. Since the separation the wife has not sought to engage in any employment. Put plainly, her health combined with the stress she said she is experiencing with the family law proceeding have left her without the will or capacity to hold down meaningful remunerated employment.

11. In relation to her health issues the wife set out in paragraph 63 of her May affidavit the conditions which she currently suffers. Some of her descriptions are medical diagnosis and cannot be given weight without some expert evidence to support same. However, there are adequate descriptions of symptoms which provide a good understanding of the debilitating aspects of her health. The descriptions include back and leg pain; upper back pain; shoulder and arm movement constriction; migraines which leave her bedbound until it passes. In relation to those symptoms the wife has medication which she takes.

12. Notwithstanding the wife is being treated by medical practitioners for most of her symptoms (if not all) she has not provided any evidence from any of those practitioners. In this case, however, I conclude, that is not fatal to the wife’s case that her state of health is part of the reason why she is unable to obtain employment and support herself. I conclude that the symptoms she has described do provide an evidentiary basis for her to submit she is unfit for work.

13. Given that the wife has been out of the workforce since 2009 and has now engaged in retraining I consider that to be a reasonable response to the financial circumstances in which she finds herself and that it is reasonable to expect that at some time in the near future, if her health permits, she will be in a position to pursue employment.

Does the wife have a need for spouse maintenance? If so what is that need?

1. The wife’s Financial Statement sworn 3 November 2016 states her income as $113 per week. That is made up of $111 from interest on bank accounts and $2 in share dividends. In addition she sets out that her daughter Ms O contributes $50 per week in food expenses and her daughter Ms N contribute $5 per week in food expenses.

2. The wife sets out her expenses as $3,599 per week and that figure includes $344 of expenses for the two adult children. The expenses also include council and water rates, comprehensive car insurance and CTP green slip expenses, home contents insurance, health insurance, car registration, gas, electricity, telephone, internet, Foxtel, security  monitoring, repairs and maintenance to the former matrimonial home. All those expenses are sought by the wife to be paid as spouse maintenance.

3. The husband has undertaken to pay the mortgage instalment on the former matrimonial home which he said is $2,085 per week. He said he makes that payment for the purpose of “preservation of property.” The husband denies that is a disguised concession that the wife has established a need for spouse maintenance.

4. The husband meets the costs of Mr L’s college fees at the university.

5. The husband in his submissions attacks the wife’s stated expenses set out in Part “N” of her Financial Statement. In particular he said the expense of $126 for educational expenses per week, gardening of $200 per week, home cleaning $100 per week are not supported by any objective evidence and/or are, in the circumstances, excessive. Many of the wife’s other claimed expenses are said to be excessive.

6. It is the husband’s case that the wife has, on her own evidence, demonstrated she does not require the level of maintenance she seeks. The husband said this can be seen in the movement of the savings accounts controlled by the wife post separation.

7. In the period between 27 May 2016 and 3 November 2016 (the dates of sworn Financial Statement filed by the wife) the wife’s stated “cash at bank” changed from $295,709 to $288,085 a difference of $7,624. That movement does not support the contention of the wife that “she is running a deficit of $14,607 per month”.

8. There is an issue to determine in relation to the wife’s affidavit sworn 7 December 2016 and filed on 9 December 2016. This affidavit was filed after the hearing day which occurred on 7 and 8 November 2016. The matter did not conclude as an adjournment was sought by the husband and granted. The matter was listed for further hearing on 8 December 2016, however, that date was vacated because of other court commitments. Further dates were offered by the Court, however, it became very difficult to co-ordinate dates which were available for the parties, their legal representatives and the Court. Ultimately the parties elected to address the circumstance by each providing written submissions in an agreed time frame.

1. The husband objects to the wife being able to rely on the further affidavit filed by her on 9 December 2016. There are a number of reasons the affidavit is capable of being opposed by the husband, not the least of which being that it must mean that the wife was not in a position to proceed with the hearing on the first hearing day, namely 7 November 2016. The husband sought an adjournment of the hearing which was opposed by the wife. An adjournment was granted on condition that the husband make a payment of spouse maintenance in the sum of $11,513. This was a sum which the husband, on his case, said he could not afford.

2. Prima facie it appears to be unfair to the husband in the above circumstances to allow the wife to file further material to establish her case. No leave was sought to file further affidavit evidence and no leave given by the Court. The Family Law Rules do not permit more than one affidavit from a party to support an interim application.

3. In the circumstances I propose to consider the wife’s application based upon the evidence which was filed by the wife prior to the hearing day of 7 November 2016.

4. The wife seeks an order that in addition to the weekly spouse maintenance payment of $2,657 (expressed as $11,513 per calendar month) the husband pay, inter alia, council and water rates, home and content insurance. Those three expenses the wife said in her Financial Statement are $56, $64 and $123 per week (total $243 per week). Additionally, the wife seeks the husband pay electricity, gas, internet, secure monitoring, mobile phone, health insurance, and motor vehicle expenses. Those expenses, as stated in the wife’s Financial Statement are $83, $59, $18, $85, $95 per week and total $340. Additionally, the wife lists a number of repairs or maintenance items for the house which she seeks the husband pay.

5. The wife has not included in her Financial Statement a cost for the mortgage on the former matrimonial home and that is because the husband pays that item. The husband’s Financial Statement shows the mortgage cost for the former matrimonial home as $2085 per week.

6. I have considered the expenses of the wife which she has included in her Financial Statement. The expenses in some instances are examples of a high standard of living. That standard was enjoyed by the parties, particularly towards the end of their cohabitation, as the conceded evidence of the parties’ incomes and activities shows. I find, therefore, that the wife does have a reasonable need for the types of expenditure which she has listed in her Financial Statement.

7. Even if it be the case that some of the wife’s expressed weekly financial needs are exaggerated, unreasonable or unnecessary, she clearly does in her present circumstances have a need for a substantial payment of spouse maintenance. I have added those items (from the wife’s Financial Statement) which appear to be reasonably required by the wife for the circumstances in which she lives and conclude they total $2109. In addition she would require the husband to meet the mortgage payment for the former matrimonial home.

8. It is part of the husband’s case that the wife has access to her savings which were $1.4 million at the date of separation and are now $286,000 as stated in her Financial Statement. The wife said she should not be required to live by drawing on her capital when the husband has the capacity to support her with the payment of spouse maintenance. Such a submission is based upon decisions of this court to that end. See In the Marriage of Mitchell (1995) FLC 601.

9. I propose to now consider what capacity the husband has to meet the wife’s spouse maintenance need.

Does the husband have capacity to pay spouse maintenance?

1. The husband presents his capacity to pay in his Financial Statement sworn 4 November 2016. He states his income as $8,654 per week as salary, $2,404 as an estimate of his anticipated annual bonus and provides further detail in Note 11 in the annexure to the Financial Statement. That note provides evidence that the husband has in the past received distributions from the D Trust. The trustee of that trust is R Pty. Ltd. The husband is the sole shareholder and director of that company. The husband said both the 2015 and 2016 tax returns for the trust have not been completed.

2. I note that the husband has not set out whether he received any distribution from the trust during the last 12 months. It seems the reason may be that he does not know if he did or did not receive a distribution given the accounts for the trust have not been prepared.

3. The husband’s expenses are $13,176 per week. Of that sum $2,085 is paid for the mortgage on the former matrimonial home where the wife and children live. In addition the husband pays $1,013 in expenses for the children, his partner and his mother as he identifies in Part N of his Financial Statement. The expenses as stated in Part N of his Financial Statement do not appear to be the subject of challenge. There are clearly expenses which are listed there which like the wife, cannot be paid from income because there is insufficient income to meet those expenses.

4. On the face of the husband’s Financial Statement he has no capacity to meet a spouse maintenance order from his income.

5. The D Trust is the subject of notation in the annexure to the Financial Statement of the husband. In note 43.2 advises that the husband and wife have lent $2.5 million to the trust. The fund was largely sourced from a mortgage secured against the Suburb C property (former matrimonial home) for $1.9 million. The trust owns a property at Suburb J and has acquired shares in public companies.

6. What has not been provided by the husband is a statement as to the amount of funds, if any, which he has received from the trust during the last 12 months whether as dividend, repayment of his loan or in any other form. It is this source of funds which the wife seems to be asserting is available to provide income/support for the wife pending the completion of the property proceeding.

7. In her submissions, the wife said that the accounts for the trust for the 2015 year show there was distributed to beneficiaries $101,346.79. That was represented by allocation of $50,673.40 to Ms N Dittmar and 50,673.39 to Mr L Dittmar. They are adult children of the parties. The wife also points to the assets of the trust as including “shares in public companies” $1,360,393. In relation to the 2015 accounts for the trust the husband said the accounts have not yet been finalised and the document attached by the wife as an exhibit to her affidavit is but a draft.

8. The husband, in his affidavit, said his lifestyle is modest compared to that enjoyed before the marriage. He financially supports his partner Ms M. He also supports his mother. He also supplies support to the adult children.

9. The husband said he pays Mr L’s college fees.

10. The husband said that the wife has had access to up to $1.2 million of the parties’ funds since separation.

11. The wife relied further on an affidavit sworn by her on 3 November 2016. Again this affidavit was not filed pursuant to the Family Law Rules because the Rules only allow for one affidavit to be filed in support of an interim application.

12. In the wife’s November 2016 affidavit she annexed documents. One of the documents was a copy of the husband’s 2015 tax return. That showed the husband had income from his employment of $501,574, income from capital gain of $168,088 and income from the trust with all sources totalling $662,353 as taxable income. I note that the capital gain figure is not income in a traditional sense but assessed as same for the purpose of tax assessment.

13. As from 1 July 2016 the husband’s “total Fixed Annual Remuneration” is $475,000. In addition, he may receive a bonus and he may also have employee shares allocated to him.

14. It is common ground that in December 2012/ January 2013 the husband purchased a unit at Suburb Q where he took up residence following the separation. In order to fund that purchase the husband withdrew in the order of $900,000 from the D Trust. The wife said the unit was purchased in his sole name. The wife said she was not consulted before the husband withdrew the funds from the trust.

15. It is the aspect of the control of the trust which drives the wife to seek the injunctions she sets out in the minute of order exhibit W1.

16. In October 2016 the husband sold the Suburb Q property, following his contracting to purchase a property at F Street, Suburb G. The Suburb G property cost $3.735 million. The husband sold the Suburb Q unit for $1.33 million. In order to complete the purchase of the Suburb G property the husband transferred $556,000 from the D trust to himself. The settlement sheet for the purchase of the Suburb G property shows the husband paid $1,138,752 towards the purchase and the Westpac Banking Corporation Ltd provided a cheque for $2,409,246. The husband would also have had to pay the deposit of $133,000. The wife annexed documents which suggest the deposit was funded from the sale of shares in public companies.

17. The wife said in her affidavit that at the date of separation she had funds under her control totalling $1.411 million. The wife has $286,692 remaining from those funds. Some of the funds were gifted to others as she understood her mother had desired. The wife now holds quotes to effect repairs to the former matrimonial home which total nearly $46,000.

Determination

1. The wife clearly has a need for spouse maintenance pending the determination of the property proceedings. I find that from his regular fixed income (amounting to $475,000 per annum [$9,134 per week not $8654 as set out in his November 2016 Financial Statement] together with an estimated $125,000 ($2,404 per week) for bonuses. That will provide him with an income of $11,538 per week. I find the husband has fixed expenditure (i.e. payments which can’t be avoided such as tax, mortgages, rates etc) before sustenance and other expenses of $10,771 as set out in his Financial Statement. That then leaves the husband with only $767, and perhaps less because the tax figure set out in the husband’s Financial Statement is for a lesser sum than I have found his income to be.

2. The husband clearly spends more than $700 more than his fixed expenditure each week. In Part N of his Financial Statement he said his average weekly expenditure is $2,405 per week. The conclusion can only be that the husband has access to other funds to meet that shortfall. The source available to the husband is the D Trust, and more recently possibly the E Family Fund.

3. The husband has treated the D Trust as his own sinking fund where clearly it is a matrimonial asset and therefore potentially subject to an order which the Court has jurisdiction to make.

4. The Court in determining an application for spouse maintenance is required to consider the provisions of section 75(2). I have done that in this case by considering those matters which the evidence is sufficient to identify and which relate to that provision of that section. One section which has not been specifically considered by me in this interim spouse maintenance application is section 75(2)(o). Under that provision I turn to consider matters of justice as between the parties, when considering this application for spouse maintenance. In the absence of injunctions the husband has the ability to treat the assets of the D Trust as his personal bank. The reality is the assets of the trust are matrimonial property. Those funds should be available to both parties for an interim order. I also consider under this section that the wife has expended a large sum of the parties’ funds which were under her control at the date of separation. Even handedness of approach to each party dictates such matter be considered.

5. In order to do justice in this case a series of orders need to be made so that each of the parties have about the same standard of living in the circumstances of having shared a long marriage. That is achieved, in my view, by the following:

   Pending Further Order.

   1.The husband pay, by way of interim spouse maintenance, the mortgage instalments as they fall due on the mortgage registered against the title to B Street, Suburb C (the former matrimonial home).

   2.The husband cause the sum of $9,139 to be drawn from the D Trust and paid to the wife on the 7^th day of each calendar month.

   3.The husband cause to be drawn from the D Trust the sum of $7,388 (the calculated shortfall of his financial circumstances allowing for a slightly greater tax figure) each month and paid to himself to meet his shortfall of income.

   4.The husband cause to be paid into the D Trust any sum received by way of remuneration (including bonus payments) from his employment, of any nature, over and above the sum of $6,600 per week after deduction of calculated taxation.

   5.The husband is permitted to draw up to an additional $2,000 per month from the D Trust, provided he does at the same time pay to the wife an equal amount of money which may also be sourced from the D Trust.

   6.The husband may, with the consent of the wife, withdraw funds from a nominated source, being an asset to which the husband has access, on the proviso that, unless she otherwise agrees, he pays to her an identical sum of money which may be accessed from the same source as the fund which the husband proposes to access.

   7.Any funds drawn from the D Trust or any other asset of either of the parties, which drawing is permitted by these orders, shall abide the determination of the trial judge as to the characterisation of same. (i.e. is it a partial property payment, spouse maintenance or a payment which should be characterised in another way).

   8.Until further order, and subject only to the permissions contained in these orders, the husband is restrained from:

   (i)Dealing with any of the assets of the D Trust, the D Superfund and the E Family Fund, otherwise than as agreed to by the wife (such agreement not to be unreasonably withheld).

   (ii)Drawing any further funds upon or increasing the borrowings secured against the former matrimonial home at Suburb C or the properties at F Street, Suburb G, or H Street, Suburb J.

   (iii)From selling, transferring, or alienating his interests in any of the property specified in this order.

   (iv)Dealing with any funds which may be realised upon the disposition of any of his shares in K Ltd.

   (v)Increasing the amount of his borrowing with Commonwealth Securities.

   9.The husband is not to deal with the proceeds of the sale of shares in public companies, held in his name, or the joint names of the parties, without first giving 21 days’ notice to the wife in writing.

   10.The husband has leave to apply to the Court on short notice should he seek to vary any of the injunctions made herein in circumstances where the consent of the wife to any sought variation is not given.

   11.The wife is not to unreasonably withhold consent to any request by the husband to vary the provisions of the injunctions and orders herein made. Where consent is given by the wife to a variation of these orders such written consent shall act as a variation of the subject order.

   12.The husband is permitted to draw funds from the D Trust in order to meet the expenses of the trust including taxation, accountants fees and the like.

6. I consider that orders made as set out above are capable of achieving a just result for the parties at this time.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 31 March 2017.

Associate: 

Date:  31 March 2017