Doran & Doran
[2021] FamCA 246
•29 April 2021
FAMILY COURT OF AUSTRALIA
Doran & Doran [2021] FamCA 246
File number(s): PAC 1021 of 2021 Judgment of: FOSTER J Date of judgment: 29 April 2021 Catchwords: FAMILY LAW – PROPERTY – where application for interim property orders as to spousal maintenance and sole use and occupation of the former matrimonial home – where consideration of applicable principles – where orders made as sought by the wife. Legislation: Family Law Act 1975 (Cth) ss 72, 72(1), 74, 114 Cases cited: Davis & Davis (1976) FLC 90-062
Hall & Hall [2016] HCA 23
Lampros and Anor & Lampros and Anor [2012] FamCA 415
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Sieling & Sieling (1979) FLC 90-627
Number of paragraphs: 67 Date of hearing: 15 April 2021 Place: Parramatta Counsel for the Applicant: Mr Grew Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Batey Solicitor for the Respondent: McPhee Kelshaw ORDERS
PAC 1021 of 2021 BETWEEN: MR DORAN
Applicant
AND: MS DORAN
Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The wife have sole use and occupation of the former matrimonial home situate on the property at B Street, Suburb C NSW.
2.Within seven days from this date the husband pay to the wife or as she may direct in writing by way of spousal maintenance the sum of $45,000 such sum representing periodic spouse maintenance at the rate of $1,000 per week from this date for a period of 45 weeks and that at the expiration of such period the husband thereafter pay to the wife or as she may direct in writing the sum of $1,000 per week by weekly instalments.
3.The husband is retrained from making payments to the wife in any manner that may accrue to the wife any liability for the payment of income tax.
4.Any application for costs of and incidental to the present application be by way of written submissions filed and served within 14 days from this date with any submissions in response to be filed and served within a further 14 days thereafter and upon completion of submissions judgment will be reserved to chambers.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doran & Doran has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
On 26 February 2021 the applicant husband commenced proceedings in this Court seeking parenting orders in relation to the children of his relationship with the respondent wife.
Subsequently, the husband’s Initiating Application was amended on 31 March 2021 to seek financial orders consequent to the wife filing her Response on 11 March 2021, seeking orders as to both financial and parenting issues.
In that application, in summary, the husband sought the following financial orders:
(a)that the husband have, to the exclusion of the wife, exclusive occupation of the property at B Street, Suburb C;
(b)that the husband in his capacity as director of the trustee company of the Doran Family Trust pay to the wife the sum of $25,000 by way of trust distribution with such sum to be categorised at final hearing;
(c)that the wife transfer to the applicant husband her interest in the property at B Street, Suburb C to the sole name of the husband, and that applicant husband do all things necessary to discharge all mortgages and encumbrances presently registered over the property and indemnify the wife in respect of all liabilities incurred prior to the date of transfer and thereafter;
(d)payment by the husband to the wife of $342,500;
(e)that pending transfer of the property the husband shall be responsible for all mortgage payments and outgoings in relation to the property and the wife is restrained by injunction from further encumbering the property;
(f)that the husband and the wife be restrained from issuing any roll out notices of their entitlements from the Doran Family Superannuation Fund for a period of five years and at the expiration of that period the total amount to pay member benefits in the Doran Family Superannuation Fund to be split as to 55 per cent to the wife;
(g)that the wife resign as director of D Pty Limited and transfer to the husband 100 per cent of her shares in D Pty Limited and resign as a member of Doran Family Superannuation Fund and that the husband shall indemnify the wife from and against all claims, actions, suits, liabilities or demands arising out of or in connection with Doran Family Superannuation Fund and D Pty Ltd;
(h)that the wife transfer to the husband 100 per cent of her shares in E Pty Limited and resign as a member of Doran Family Trust and that the husband shall indemnify the wife from and against all claims, actions, suits, liabilities or demands arising out of or in connection with E Pty Limited and Doran Family Trust;
(i)costs.
In her Response to the husband’s Initiating Application filed on 11 March 2021, the wife sought, in summary, the following financial orders:
(a)that the husband pay to the wife the sum of $100,000 such sum to be categorised at trial and paid into the trust account of the wife’s solicitor;
(b)that the husband pay to the wife spouse maintenance at the rate of $500 per week;
(c)that the husband pay to the wife the sum of $1,250,00 and pay all sums and do all things necessary to discharge the wife from any liability for any mortgage secured over the property at B Street, Suburb C and upon payment of that sum the wife transfer to the husband her interest in the property at B Street, Suburb C and that the husband indemnify the wife in respect of any liability owing by the parties to the husband’s father or brother;
(d)that there be a superannuation split in relation to the parties’ self-managed superannuation fund such that the wife be entitled to 50 per cent of the said fund and that the parties do all things necessary to rollover the wife’s member balance into a compliant superannuation fund selected by the wife;
(e)that subject to any interim orders being made that the wife resign as beneficiary of the Doran Family Trust and assign any loan account owing to her by the Trust to the husband and that upon taking that action the husband indemnify the wife in respect of any liability associated with the Trust.
Proceedings were listed before a registrar on 3 March 2021. As at that date the husband’s interim application seeking orders in relation to the children was yet to be listed. On 3 March 2021 orders were made for the appointment of an Independent Children’s Lawyer to represent the interests of the parties’ three children and for the parties and the children to attend for the purposes of a report being made available to the Court under the Child Responsive Program.
On 11 March 2021 interim issues were listed before a senior registrar who noted that outstanding interim issues included:
(a)interim parenting;
(b)sole use and occupation as to the former matrimonial home;
(c)periodic and lump sum spouse maintenance.
Interim issues between the parties were listed in the judicial duty list on 6 April 2021. On that day the parties engaged in discussions in an endeavour to resolve interim parenting issues and ultimately on 9 April 2021 interim parenting orders were made as follows:
1.That the parties have equal shared parental responsibility for the children X born … 2006, Y born … 2008, Z born … 2010.
2.That X lives with the mother other than on the following occasions when he will spend time with the Father:
(a)Each alternate weekend from after school Friday (or 3.00pm if a non-school day) to before School Monday (or 9.00am if a non-school day) (Week 2) commencing 23 April 2021;
(b)From after school each Tuesday (or 3.00pm if a non-school day) to before School (or 9.00am if a non-school day) Wednesday commencing 13 April 2021.
3.That the children Y and Z live with the father, other than on the following occasions when Y and Z shall spend time with the mother:
(a)Each alternate weekend from after school Friday (or 3.00pm if a non-school day) to before School Monday (or 9.00am if a non-school day) (Week 1) commencing Friday 16 April 2021.
(b)From after school (or 3.00pm if a non-school day) each Wednesday to before school (or 9.00am if a non-school day) Thursday commencing 14th April 2021;
(c) With Z’s first overnight not to be before 7th May 2021.
4.That the times provided in Orders 2 and 3 herein shall operate so that the children are together on each weekend and each Tuesday and Wednesday evening.
5.That for the purposes of changeovers that do not otherwise occur at school, the parent with the child or children had been spending time with, shall deliver the child or children to the residence of the parent whose care the children are entering into.
6. That the Father be restrained from:
(a)Consuming alcohol in excess of .05 breath alcohol concentration during periods the children are in his care or 12 hours prior to the children entering into his care;
(b) Physically disciplining the children;
(c) Discussing these proceedings with the children or within their hearing;
(d)Allowing the children to read any documents produced in connection with these proceedings including legal correspondence and Court documents;
(e)Discussing the arrangements for the financial support of the children and/or the mother or the payment of outgoings for the Suburb C property, with the children or within their hearing;
(f)Denigrating the other parent or a member of their family within the presence or hearing of the children.
(g)Altering the children’s treating psychologists and/or psychiatrists except in accordance with the written consent of the other parent.
7. That the Mother be restrained from:
(a)Consuming alcohol during periods the children are in her care or 12 hours prior to the children entering into her care;
(b) Physically disciplining the children;
(c) Discussing these proceedings with the children or within their hearing;
(d)Allowing the children to read any documents produced in connection with these proceedings including legal correspondence and Court documents;
(e)Discussing the arrangements for the financial support of the children and/or the mother or the payment of outgoings for the Suburb C property, with the children or within their hearing;
(f)Denigrating the other parent or a member of their family within the presence or hearing of the children.
(g)Altering the children’s treating psychologists and/or psychiatrists except in accordance with the written consent of the other parent.
8.That the Husband shall continue to attend on Dr F as and when required and comply with the recommendations of his treating clinical psychologist Dr F or such other psychiatrist or psychologist he is to attend.
9.That the Wife shall continue to attend on Dr G as and when required and comply with the recommendations of her treating psychiatrist Dr G or such other psychiatrist or psychologist she is to attend.
10.That for a period of not less than 3 consecutive months the Parties shall undergo blood testing in relation to use of alcohol as follows:
(a)Once each fortnight, the first such test to be undertaken within 3 days of the date of these orders;
(b)The parties shall attend upon a pathology centre authorised to perform Carbohydrate-Deficient form of Transferrin (CDT) to be analysed using the High Performance Liquid Chromatography (HPLC) analysis method testing and a test specifically measuring Gamma-Glutamyl Transferase (GGT) and Mean Corpuscular volume (MCV) levels as well as AST and ALT levels;
(c)Within 24 hours of providing a blood sample in accordance with the preceding paragraph, the parties shall notify the other arty or their solicitor by text message of the date the blood sample was taken;
(d)The parties shall supply the test results to the other party and the ICL by email within 48 hours of receipt of the test results by them.
11.That the parties do all things and comply with all requests by Ms H for the children to continue to attend on Ms H for treatment.
12.That within 14 days the parties appoint a Clinical Psychologist, or such other Clinical Psychologist or Psychiatrist agreed to between the parties to prepare Chapter 15 Report and in the event the parties are not in agreement, then the Independent Children’s Lawyer is to nominate three suitably qualified clinical psychologists or Psychiatrists with the husband to choose one within 7 days and with the costs to be borne by the Husband in the first instance with the final apportionment of the costs to be determined by the trial Judge.
The remaining outstanding interim issues remained listed for judicial determination on 15 April 2021.
On 15 April 2021 an order was made by consent as follows:
That the husband give to the wife 28 days written notice of how and when the $102,000.00 currently in the J Lawyers’ Unit Trust is to be distributed, to the parties or either of them or any other proposed recipient.
Otherwise, judgment was reserved as to outstanding interim issues.
Context:
The applicant husband and respondent wife commenced cohabitation in about 2000 and later married in late 2004.
The parties separated on 27 November 2019.
There are three children of the parties’ marriage, X aged 14, Y aged 13 and Z aged 10. The children have significant emotional and developmental difficulties and interpersonal conflict. It was a consequence of those issues that the parties resolved interim parenting in the interests of the children on the basis as set out above.
The husband is presently aged 42 and is a professional, the wife is presently aged 43 and it is common ground that she is not in employment as a consequence of mental health issues, having more recently been an inpatient for a few days at a mental health facility.
Subsequent to the parties’ separation in late 2019, the wife remained in occupation of the former matrimonial home at Suburb C with the children of the marriage.
Subsequent to separation and in mid-February 2021 the children Y and Z commenced living with the husband who since separation had been residing in a property owned by his brother at K Street, Suburb C.
It appears common ground that the maternal grandmother resides at Town L, about five minutes’ drive from the former matrimonial home, and has a close relationship with the children, having been significantly involved in their care since the birth.
At the commencement of the interim hearing, counsel for the father informed the Court that outstanding interim issues for determination were the following:
(a)sole use and occupation of the former matrimonial home at B Street, Suburb C;
(b)the wife’s application for periodic spouse maintenance and/or lump sum spouse maintenance.
Counsel for the wife informed the Court that as a result of the injunctive order made by consent as referred to above, the outstanding issues were sole use and occupation of the former matrimonial home and the wife’s application for periodic spouse maintenance in the sum of $1,000 per week. During the course of submissions Counsel for the husband informed the Court that there was no issue as to the wife’s financial need in the sum claimed. It is to be inferred in that concession that it was also conceded that the wife was unable to support herself adequately as contemplated in the provisions of s 72 of the Family Law Act 1975 (Cth) (“the Act”).
At interim hearing the husband relied upon:
(a)his financial statement sworn 31 March 2021;
(b)his affidavit sworn 31 March 2021;
The wife relied upon the following documents:
(a)her financial statement sworn 10 March 2021;
(b)her affidavit sworn 10 March 2021.
Much of the affidavit evidence related to children’s issues that had been resolved by the consent orders referred to above.
The husband’s case
The matrimonial home
In April 2004 the parties sold their previous matrimonial home at Suburb M with net proceeds of sale being about $150,000. Some of those funds were applied to the cost of the parties’ marriage.
Subsequently, in February 2006 the wife and the husband’s brother Mr N as tenants-in-common in equal shares purchased the present matrimonial property at Suburb C for the sum of $900,000. The property comprised an acreage on which was situate an old cottage and an established business then known as “P Company” operated by the husband’s brother.
The purchase of the wife’s half share was funded by vendor finance in the sum of $450,000 and as at March 2021. The husband asserts the outstanding balance on the vendor finance loan was approximately $279,000, but had asserted much lesser sum to the wife shortly after separation.
Under an arrangement evidenced by deed, the wife has use and occupation of the cottage property and adjoining gardens and grounds as her primary residence.
Later in mid-2006 the husband and wife borrowed $250,000 from the Commonwealth Bank of Australia to fund renovations and improvements to the cottage occupied by them as their matrimonial home and surrounding gardens. The husband’s brother as co-owner of the property was required to be a party to the mortgage. In addition to the mortgage advance, the parties applied the net proceeds of sale of the Suburb M property to those renovations and improvements.
Subsequently in 2009 the husband’s brother financed with a mortgage advance from the Commonwealth Bank of Australia, improvements to that part of the property occupied by him and his business that included the construction of a café. At about this time fences were constructed to physically separate the commercial and residential portions of the property.
It is the husband’s understanding that his brother has expended some $750,000 in making improvements to the commercial portion of the property. As a consequence of further renovations and borrowings the husband estimates that he and the wife have expended about $600,000 in renovating and improving the residential portion of the premises.
The husband from separation and continuing remains in occupation of the fully furnished cottage property owned by his brother. He asserts that he may in the foreseeable future be required to vacate that property as a consequence of his brother’s wish to renovate and improve the premises. Curiously, no primary evidence is adduced by the husband from his brother as to these proposals.
The husband seeks to retain the former matrimonial home on a final basis. It is common ground that the wife does not on a final basis seek to retain her interest in the property.
The husband asserts that in the event that he is not provided exclusive occupation of the property he will be required to find rented accommodation for himself and the children when in his care. He estimates that rent may be in the range of about $800-$1,000 per week.
The husband proposes that he transfer a capital sum remaining in the Doran Family Trust to the wife so that she can reaccommodate herself on a commercial basis or live with her mother. On what basis the wife would be able to obtain commercial rented accommodation in circumstances where she is not in employment is left unsaid by the husband.
The husband
The husband is a professional, more recently in a small business. That business has recently entered into a merger arrangement with a larger Sydney business for an initial consideration of $400,000 and subject to revenue targets a further payment of $300,000 over the following 15 months. Those targets were reached and on 12 October 2020 a final payment of $330,000 including GST was paid to the old business. As a consequence of the initial capital payment of $437,096 the old business account was in credit $264,750 as at 28 June 2019. Upon receipt of the final capital payment of $330,000 on 12 October 2020 the old business account was in credit $402,377.
Ultimately, it appears that the husband’s prima facie entitlement to capital payments due and payable as a consequence of the merger would be in the gross sum of $350,000. The disposition of those funds remain somewhat unclear.
The husband’s missing word in order to minimise risk and minimise the incident taxation operated in part through the Doran Family Trust with the husband as Appointor of the trust and the parties and their children as beneficiaries. The trustee of the trust was an incorporated entity in respect of which the husband was the sole director and the husband and wife were equal shareholders.
After reduction of his old business’s overdraft account certain distributions were made from the capital payments received as a consequence of the merger to the Doran Family Trust. Relevantly, the husband asserts that on 1 March 2021 the sum of $82,881 was paid to the bank account of the trustee company of the Doran Family Trust. That assertion was corrected during submissions and, in fact, the sum was paid to the new trust set up by him as referred to below. Subsequent to the payment of $82,881, the old business account remained with a credit balance of $305,547. The husband asserts that he has expended some $35,600 of those funds, including $10,000 held on term deposits for two of the children of the marriage.
As to the remaining funds held by the old business the husband asserts that there is $102,000 in the business’s Q Bank overdraft account owing to the Doran Family Trust. There are certain tax implications in relation to the way those funds ultimately might be applied.
Subsequent to separation and in mid-2020 the husband incorporated another corporate trustee of which he is the sole director and shareholder and created the R Trust of which he is the Appointor and sole primary beneficiary, although the children of the marriage are discretionary beneficiaries. On 1 March 2021 the husband deposited the sum of $82,881 referred to above to the credit of this new trust. He dispersed some of those monies and as at 21 March 2021 there remained $55,582 to the credit of that account. It is to be reasonably expected that the account will be further enhanced by way of dividend and/or distribution from the new business from time to time.
Subsequently, on 1 July 2020 the R Trust, through its corporate trustee, acquired a shareholding in the major Sydney business through its corporate entity at a cost of $225,635, funded by a loan borrowing by the husband from the O Bank. The corporate trustee of the husband’s new trust operates its banking arrangements through the O Bank and dividends to be received from the new merged business are paid to that account.
The husband’s income from the new merged business remains unclear. He asserts a PAYE salary from the business of $4,231 per week, in addition to which it is clear that he contemplates receiving dividends and/or distributions from the corporate operating entity of the new business as a consequence of his buy in referred to above. He estimates those distributions to be about $835 per week in his financial statement.
The Wife’s case
There is no significant issue between the husband and wife as to the circumstances of acquisition of the present matrimonial home.
In September 2020 the wife procured a release of $9,900 from her superannuation entitlement under relaxed withdrawal rules during the COVID-19 pandemic. As at March 2021 she had only a few hundred dollars in the bank and has borrowed funds from her mother for some domestic necessities.
She asserts that the husband has represented to her that he will receive substantial dividends as a consequence of being a director of the new merged business.
The wife asserts she receives no financial support from the husband save that she remains in occupation of the matrimonial home with mortgage payments being paid by the husband and lease and insurance payments for the motor vehicle made available to her being paid by him. Otherwise, the wife receives some Centrelink family allowance benefits relating to the children. It is to be expected that such sum may reduce as a consequence of the new parenting arrangements.
As to the issues for determination:
Sole use and occupation of the former matrimonial home:
Section 114 of the Act provides:
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e) an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
Under s 114 of the Act the Court is required to make an order that “it considers proper”.
In Sieling v Sieling (1979) FLC 90-627 the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
In Davis & Davis (1976) FLC 90-062 (at 75309) the Full Court said that considerations include:
...the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.
Thus, relief should not depend merely on the balance of convenience or hardship. The authorities, however, demonstrate that the balance of convenience may decide the matter where there is intense disharmony between the parties or where each would have an equally good case for excluding the other.
Forrest J in the decision of Lampros and Anor & Lampros and Anor [2012] FamCA 415 at [50] observed:-
In this Court particularly, interim injunctive relief is primarily utilised to maintain things as they are, or to restore things to as they were until they were abruptly changed to the prejudice of an interested party, to protect claims that parties have or may have to substantive relief after a final hearing.
The applicant seeking an injunctive order bears the onus of satisfying the Court that the circumstances justify the making of that order. The test to be applied is objective and each case must be determined on its particular facts.
The Court is mindful of what was said by the Full Court in Marvel & Marvel (No. 2) [2010] FamCAFC 101 as to the difficulty in fact finding in interim proceedings where evidence cannot be tested.
The wife is relevantly the registered proprietor of the subject property.
The wife has remained in occupation of the former matrimonial home at Suburb C since separation and for a substantial part of that period the three children of the marriage resided with her. Only recently have changes been made in parenting arrangements that will see the children moving between the household of the wife and the household of the father at various times.
The husband is in a far superior financial position than the wife and at present, for some indeterminate period, has accommodation available at no cost to him. The wife has no financial capacity to provide for commercial rented premises save for such funds as may be available to her from the husband. Otherwise, the husband suggests that she can vacate the home and move to live with the maternal grandmother. The wife does not accept that proposal at this time.
The husband seeks an order for sole use and occupation in the context of interim property orders sought by him. His interim occupation of the property to the exclusion of the wife bears no relevance to the issue of property proceedings either interim or final between himself and the wife.
The wife seeks sole use and occupation to meet her accommodation needs and that of the children when in her care.
The husband’s financial dealings since separation, particularly in the context of his old business merging with a larger business as referred to above, are somewhat unclear. There still remains significant capital from the transaction to be distributed to the husband in circumstances where he is contemplating the tax ramifications of such distribution in various forms. He receives a significant PAYE salary from his new business and asserts that from his old business the original family trust is receiving funds in the order of about $40,000 per year by way of distributions. It is to be reasonably inferred that he would expect similar if not greater distributions from his new business.
The Court is cognizant that these issues are to be determined on interim basis and clearly in circumstances as they are at present the question of sole use and occupation must be resolved in favour of the wife pending further order. Such an order is proper in all the circumstances as discussed above. Such order will be made accordingly.
Spousal maintenance
In Hall v Hall [2016] HCA 23 the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, as follows:
(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).
During the course of submissions it was conceded by counsel for the husband as to the wife’s needs as claimed by her in the sum of $1,000 per week. As referred to above, that concession clearly includes the concession that the wife is unable to support herself adequately as contemplated by the provisions of s 72 of the Act.
As a consequence, the only question for determination is the husband’s capacity to meet that periodic obligation, either by way of ongoing periodic payments or a lump sum, calculated on a periodic basis.
The husband’s own proposal was that he pay to the wife by way of lump sum of $45,000 with those funds to be drawn from his newly created trust as referred to above. Clearly, in addition to those funds he has available to him further capital which is to come from the old business account that as at March 2021 had a balance of $303,426 to be apportioned between himself and his then partner.
Otherwise, the husband draws on a significant salary from his new business that he asserts in his financial statement is about $220,000 gross per annum. It is readily apparent that he has the capacity from various sources to meet an ongoing obligation for spouse maintenance pending further order, particularly in the expectation that these proceedings might well be finalised in about twelve months from now, absent earlier agreement.
Accordingly, in terms of s 74 of the Act it is proper that there be an order for the provision of maintenance for the spouse pending further order in the sum of $1,000 per week. Having regard to the proposals of the husband, an order will be made for the payment by him to the wife within seven days for the capital sum of $45,000, in such a manner as to not create for the wife any income tax liability. That sum will represent $1,000 per week for a period of 45 weeks and at the expiration of that period, the husband shall be ordered to pay to the wife the ongoing sum of $1,000 per week pending further order.
Orders will be made accordingly.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster. Associate:
Dated: 29 April 2021
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