FIGGINS & ANG
[2020] FamCA 404
•27 May 2020
FAMILY COURT OF AUSTRALIA
| FIGGINS & ANG | [2020] FamCA 404 |
| FAMILY LAW – PROPERTY – Interlocutory proceeding – application for injunctions – spousal maintenance and adult child maintenance |
| Family Law Act 1975 (Cth) ss114(3), 72(1), 66J, 66K, 66L |
| In the marriage of Waugh [2000] FamCA 1183 Brown & Brown [2007] FamCA 151; (2007) FLC 93-316 |
| APPLICANT: | Ms Figgins |
| RESPONDENT: | Mr Ang |
| FILE NUMBER: | MLC | 12085 | of | 2018 |
| DATE DELIVERED: | 27 May 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Williams J |
| HEARING DATE: | 11 & 16 March 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr St John of Queen's Counsel |
| SOLICITOR FOR THE APPLICANT: | Peter Szabo Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Strum of Queen's Counsel with Mr Matta of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Mazzeo Lawyers |
Orders
The husband pay adult child maintenance of $1,200 per month for Mr X born … 1997, commencing as at 1 April 2020 and payable monthly in advance into a bank account nominated by the wife in writing.
The husband, whether such action is undertaken by him personally or his servants or agents, provide written notice to the wife 30 days prior to:
(i)the disposal of any asset exceeding $25,000 in value;
(ii)borrowing against any item of real property in excess of $25,000 beyond its current level of encumbrance;
(iii)transferring any interest he has in any trust or corporate entity or renouncing any interest or office in any trust or corporate entity;
(iv)varying the terms of any trust deed or agreeing to any other person doing so.
Within seven days of the date of these orders the husband do all things and sign all documents to sell the shares beneficially held by him for the wife and Mr X in the City B and thereafter pay the net proceeds of the sale, after deduction of any selling costs and commissions to the solicitors for the wife on behalf of the wife and Mr X.
Contemporaneously with the sale of the shares referred to in the preceding paragraph, the husband provide to the wife’s solicitors copies of all documents evidencing sale costs and commissions incurred by him.
All extant interim applications are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Figgins & Ang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 12085 of 2018
| Ms Figgins |
Applicant
And
| Mr Ang |
Respondent
REASONS FOR JUDGMENT
On 20 January 2020 the wife filed an Amended Application in a Case and on 10 February 2020 the husband filed a Response to the application. The application was listed for hearing in the Judicial Duty List on 11 March 2020 and was heard on 11 and 16 March 2020.
Interim Issues
The following interim issues are disputed:
a)Whether the husband should be restrained by injunctions preventing him from transferring or encumbering assets, entering into loan or credit obligations and divesting himself of any interest or office holding in various trusts and companies;
b)The wife’s application for spousal maintenance, including an application for sale of the husband’s classic motor vehicle;
c)The wife’s application for adult child maintenance for the two children of the marriage;
d)The husband’s application for injunction restraining the wife and for the sale of her property.
The parties are also in dispute about discovery and disclosure, however that dispute was not the subject of submissions and does not require determination by me.
Background
The parties married in Victoria on … 1993, having cohabited since 1 March 1993. The husband has primarily resided in City B since 2009, with the wife and children residing in Melbourne They separated on 1 April 2017. Until April 2018 both parties remained in the former family home in Suburb D, when the husband visited from City B.
There are two children of the relationship, Mr X born … 1997, aged 23 years and Ms Y born … 1999, aged 21 years.
In April 2011, when aged 14, Mr X suffered a Haemorrhagic stroke which caused significant and permanent disabilities. Mr X’s disabilities are acknowledged by the husband. The wife asserts that Ms Y suffers from mental health issues, which affects her capacity to support herself. This is disputed by the husband.
The husband is aged 63 and the wife is aged 53. The husband is a company director and has interests in companies and trusts in Australia and City B. The wife is primarily engaged in home duties, together with some part time administration of a family investment company, C Pty Ltd.
The husband’s family is a large and wealthy family based in City B. At paragraph 24 of her affidavit filed 20 December 2019 the wife deposes to the assets of the Ang family trusts in Australia. These are referred to in greater detail later in these reasons.
In June 1993, the parties commenced residing in City B and commenced living with the husband’s parents in a block of apartments on City B Island, known as E Apartments, which are owned by the husband’s family entities.
The parties travelled to Melbourne in October 1993 to marry, returning to City B in November 1993 where they lived in the E Apartments until 2007.
The wife asserts that in 1995 the husband was the guiding force to assist his father to restructure his parents’ finances, including establishment of a series of complex trusts under the control of F Limited, a professional wealth management company.
In February 2004, the husband and the wife took over a defunct Australian company, previously used by the husband’s family, and established C Pty Ltd. C Pty Ltd thereafter embarked upon a series of property developments and/or acquisitions.
In 2007, the family moved to City G where they remained until 2009, prior to returning to Melbourne in September 2009.
In April 2009, the parties purchased an apartment at H Street, Suburb J which was registered in the wife’s name. She still retains that property.
The wife asserts that subsequent to the family returning to Melbourne, the husband remained in Melbourne for approximately three months, but thereafter was ordinarily resided in City B, returning to Melbourne monthly for a couple of days. The wife and children remained in Melbourne.
The wife was solely responsible for care of the children and running of the household and did not engage in any employment until 2010, when she commenced working approximately 15 hours per week as a site office assistant for her brother’s company, Figgins Pty Ltd.
In April 2011, whilst the family was holidaying in City B, Mr X fell ill and remained in hospital in City B until June 2011, when the family returned to Australia. Thereafter Mr X was hospitalised in Australia until August 2011. Upon Mr X falling ill, the wife ceased outside employment.
In January 2011, the husband advanced a loan of $260,000 to K Pty Ltd. The wife was unaware of the loan until after Mr X became ill.
In March 2012, the husband resumed working full-time in City B as a director with K Pty Ltd.
In … 2012, the husband’s mother died, and the wife asserts that she was likely to have had two wills, one dealing with assets in Australia and the other with assets in City B. This is denied by the husband. A grant of probate of the husband’s late mother’s will was obtained in the Supreme Court of Victoria in October 2017. The wife deposes clause 2 (c) of the will bequeaths to the husband “in his capacity as trustee of his family trust”, two adjoining properties at 2 L Street Suburb D. The properties were valued in the probate inventory at $980,000 and $930,000 respectively. The properties remain registered in the name of the husband’s late mother.
The wife asserts and the husband denies, there is likely to be another will disposing of the husband’s late mother’s substantial assets in City B, and if so, the husband is likely to be an executor.
In December 2012, the husband and wife formed a partnership with the wife’s parents to undertake a development in M Town, through C Pty Ltd.
In 2013, the wife asserts that the husband was offered and accepted a management role in the Ang family businesses in City B, although she is unaware of the remuneration.
In December 2014, the parties purchased, through C Pty Ltd, a residential property at 6 L Street Suburb D, for approximately $890,000. The parties contributed the deposit of 10% from their joint savings accounts and the balance of funds were transferred from City B. The wife asserts that post separation, the husband has asserted that the funds were transferred by a company, N Limited as a loan. The wife has been responsible for the day-to-day administration of the property and according to her, there have been no requests for interest or capital repayments since the funds were advanced.
In June 2015, C Pty Ltd purchased a property at 12 L Street, Suburb D for $1.18 million. The 10% deposit was paid from the parties funds in their City B accounts and the balance was obtained from sources in City B. The husband also asserts that the balance of the purchase price was advanced by N Limited, as a loan. The wife claims that there have been no requests for interest or capital since the funds were advanced.
The rent from the L Street properties is currently paid into the bank account of C Pty Ltd.
From December 2015, the husband ceased working for K Pty Ltd and commenced working for his family in City B.
In July 2016, the husband purchased a classic motor vehicle in City B, which the wife seeks to be sold. The car was purchased for $100,000 and is still subject to an encumbrance in favour of the O Bank. The payout figure as at November 2019 was $28,000.
In October 2016, C Pty Ltd purchased an apartment at P Street Suburb D, for $660,000. The 10% deposit was paid from accumulated rent payments in the company’s bank account, and the balance was paid from funds from City B. On 12 October 2016, N Limited paid $634,949 to the trust account of the solicitor acting on behalf of C Pty Ltd for the purchase of the property. The husband asserts the advance remains owing to N Limited, whereas the wife asserts that there have been no requests for interest or capital since the funds were advanced.
On 25 February 2017, the husband advised the wife that he wished to separate. Until April 2019 the husband continued to pay the wife’s expenses in accordance with existing arrangements, namely the wife would text or email the husband of the monthly amount required to discharge her credit card debt, which she had incurred for living expenses of herself and the children, and the husband would pay to the wife the requested sum.
Between 1 February 2019 and 30 September 2019 the wife incurred expenses on her credit card of $148,121.49. During that period the husband made payments of $47,401.65, in reduction of the wife’s credit card liabilities. Subsequent to 30 September 2019 the husband has not reimbursed to the wife any of her expenses incurred by credit card.
The wife asserts that during that period:
i)the husband’s personal expenditure in City B was approximately three times the amount he paid the wife for her support and that of the children;
ii)the husband also made payments to his credit card of $174,078.
The wife deposes that she drew from the accounts of C Pty Ltd, including proceeds of sale of a property in M Town, to fund the shortfall of income during that period.
In August 2017, the wife discovered that the annual accounts and tax returns of C Pty Ltd had not been submitted for approximately 12 years. She also discovered in March 2016 that her personal tax returns for 2012 – 2015 had not been prepared or submitted. In August 2017 she retained a new accountant, Mr Q to prepare the tax returns of C Pty Ltd. In those returns, the funds transmitted from City B to purchase the properties were treated as loans from the wife to the company. The husband wanted the wife to amend the accounts to describe the advances as loans from N Limited. Although requested by the wife, she asserts the husband failed to provide any documents substantiating the loans nor the source of funding.
On 9 October 2019, the wife forwarded an email to the husband requesting a transfer to her of $23,000. The husband’s response was that he had no capacity to pay such amount and the wife should make alternative arrangements. The wife asserts that subsequent to the email from the husband, she received notification from R Bank that the husband had made payments into his credit card account of $10,900.
Between 13 October 2019 and 18 October 2019 the husband visited Melbourne and stayed in the family home. The wife asserts that the husband advised the children:
i)his family held a meeting;
ii)his family had removed his authority to handle the family finances;
iii)they were closing the family businesses.
The husband deposes that on Sunday 29 September 2019, he was summoned by his siblings to a family meeting. He was advised by his siblings at the meeting that he was to have no further control or involvement in the financial affairs of the Ang family.
Despite the meeting of 29 September 2019, the husband continues to conduct his business activities through S Company and T Company, both of which were formerly companies controlled by the husband’s father and or family. The husband asserts that S Company now acts as a service company which employs staff for T Company, which in turn employs the husband.
Applications and Documents relied upon by the parties
The Wife
The orders the wife sought in the Amended Application in a Case filed 20 January 2020 may be summarised as follows:
a)spousal maintenance for the wife of $2,000 per week commencing 1 July 2019;
b)adult child maintenance of $300 per week for each of Mr X and Ms Y commencing 1 July 2019;
c)injunctions restraining the husband, without the consent in writing of the wife’s solicitors or court order:
i)entering into any loan arrangement or obligation, credit obligation or draw upon any loan account with a company or trust or with any legal person or trust;
ii)transferring, encumbering, selling or otherwise dealing with an asset exceeding $1,000 per week (including any bank account, company loan account or trust loan account);
iii)from renouncing, selling, transferring, encumbering or otherwise dealing with any interest of his, or associated entities in number VV Street Suburb D;
iv)transferring, encumbering, selling or otherwise dealing with any real property or company share in any trust estate within or outside Australia in which he, his servants and or agents are a beneficiary, including but not limited to:
(i)C Pty Ltd;
(ii)E Pty Ltd;
(iii)The Ang Family Trust No. 2;
(iv)the U Trust;
(v)The Ang Family Trust (1995);
v)doing any act or thing to vary the terms of any deed of trust and/or varying any position or entitlement held by the husband or wife in any trust;
vi)resigning or renouncing any position or office in a trust, irrespective of where the trust is registered;
vii)resigning any position held by him or on his behalf in any company;
viii)voting to appoint a director in any company;
ix)transferring encumbering, selling or otherwise dealing with any company share held by him or on his behalf;
x)doing any act or thing or abiding in the doing of any act or thing to vary the existing share structure and/or shareholdings in any company, irrespective of where the company is registered;
d)sale of the classic motor vehicle within one calendar month, with the proceeds of sale being paid to the wife’s solicitor to be placed into a trust account;
e)costs of and incidental to the application.
The wife relied on the following documents:
a)Amended Application in a Case filed 20 January 2020;
b)affidavits of the wife filed:
i)20 December 2019;
ii)11 March 2020;
c)updated Financial Statement filed 13 February 2020;
d)Summary of Response to Husband’s Summary of Argument dated 11 March 2020.
The Husband
In his Response to an Application in a Case filed 10 February 2020 the husband opposes the orders sought by the wife. The husband sought orders as follows:
a)dismissal of the wife’s Amended Application;
b)the sale of the H Street property, with the funds to be held in trust;
c)from the funds held in trust, the sum of $1,200 per month be paid to Mr X by way of adult child maintenance or otherwise;
d)injunctions restraining the wife from selling, encumbering or otherwise dealing with the properties of which C Pty Ltd is the registered proprietor;
e)the wife repay C Pty Ltd the sum of $390,000, from the funds in her V Bank account, being the proceeds of sale of QQ Street, Brisbane;
f)the wife pay the husband’s costs of and incidental to the Response.
The husband relied on the following documents:
a)Response to an Application in a Case filed 10 February 2020;
b)affidavits of the husband filed:
i)10 February 2020;
ii)10 March 2020.
c)Summary of Argument dated 11 March 2020.
At the conclusion of the wife’s submissions, the husband proposed orders in relation to the injunctive orders sought and maintenance for Mr X. The proposal was not accepted by the wife.
I will therefore address each of the category of orders sought by both parties, however prior to doing so, I will refer to the structure of companies and trusts of the husband’s family and the parties’ assets.
Ang Family Australian Trusts
The husband’s interests in his family’s Australian trusts are set out at paragraph 50 to 56 of the husband Summary of Argument, which refers to the relevant paragraphs of his affidavit.
There are four Australian based discretionary trusts of which the husband is a beneficiary / eligible object:
i)The Ang Family Trust;
ii)The Ang Family Trust No.2;
iii)The Ang Family Trust No. 3;
iv)The Ang Family Trust -1984.
The husband’s evidence pertaining to the trusts may be summarised as follows:
i)there is no evidence that the husband is or since 1992, has been an appointor of any of the Australian trusts;
ii)the letter of advice from W Lawyers, the solicitor for the husband’s late father, suggests that at one point in time the husband may have been the appointor of the number 2 and 3 trusts, but also recommends that he be removed as appointor of the trusts as well as a director of their respective corporate trustees;
iii)in early 1993 he recalls signing documents which were presented to him, but he does not know what they were;
iv)around that time, he ceased to be a director of the corporate trustees;
v)he is not a director of any of the corporate trustees;
vi)he has not received any distributions from the Australian trusts.
City B Trusts
There are two City B based discretionary trusts of which the husband is an eligible object. They are:
i)The Ang Family (1995) Trust, which was established on 24 July 1995; and
ii)the U Trust, which was established on 18 March 1997.
The professional corporate appointor of both the trusts is BB Pty Ltd and the professional corporate trustee of both trusts is AA Ltd. The husband is neither a shareholder nor director of BB Pty Ltd or AA Ltd.
The wife, in her affidavit, refers to the establishment of the professional management of the Ang family assets in 1995.
The husband’s evidence in relation to the City B trusts is set out at paragraphs 104 – 123 of his affidavit. In summary, he deposes:
i)neither the husband nor the wife are or have ever been directors or shareholders in BB Pty Ltd or AA Ltd;
ii)subsequent to the death of the husband’s parents, the corporate appointor and corporate trustee acted on the joint instructions of the husband and his six siblings;
iii)apart from one distribution of HK $400,000 in early 2017, to each of the siblings, he is not aware of any instructions having been provided in relation to either trust since the death of his late mother;
iv)until September 2019 he was a director of CC Investments, which owns the E apartments;
v)AA Ltd as trustee for the U Trust is this sole shareholder of U Corporation and N Limited;
vi)at the time of establishment of the U Trust, the husband and his brother Mr LL were authorised to provide instructions to DD Group to operate bank and share trading accounts of both U Corporation and N Limited;
vii)the husband’s capacity to exercise control over companies which are owned by the corporate trustee, in its capacity as trustee for each of the City B trusts, was expressly revoked by his siblings in September 2019.
City B Companies
The husband has been involved in a number of family companies in City B, S Company, T Company, EE Company, FF Investment and GG Company.
At paragraphs 124 -155 of his affidavit he deposes to his involvement in the companies, which may be summarised as follows:
S Company
i)S Company was started by the husband’s father in 1983/1984 to operate a distribution business of a food additive;
ii)the company owns property in the HH building in City B;
iii)the husband is not and has never been a shareholder of S Company, has been a director since it was incorporated although not actively until September 2013;
iv)S Company exited the food additive business in August 2017;
v)for a three-month period in 2019 it operated a joint-venture food business;
vi)since November 2019 S Company has operated as a service company which employs staff for T Company.
T Company
vii)T Company is a company started by the husband’s late father in 1983/1984;
viii)the husband is not and has never been a shareholder of T Company;
ix)he has been a director of T Company since incorporation however was not actively involved until 2015;
x)the company is in the business of importing goods from Australia and Country JJ to City B;
xi)until November 2019 T Company was kept afloat by the husband borrowing funds from what he refers to as his late mother’s bank account;
xii)any such funds obtained from the husband’s late mother are recorded in T Company’s financial statements as director loans from the husband;
xiii)since November 2019, T Company staff have been employed and paid by S Company, with appropriate loans being recorded in the books of both companies.
EE Company
xiv)Mr KK, Mr LL and the husband hold one share each of EE Company, which was purchased as a shelf company in August 1987. The company was dormant until 2017, when the husband invested USD$50,000 in a start-up company, which makes the plug style headphones;
xv)the investment was funded from the husband’s late mother’s bank account;
xvi)the company has not received any income or return from its investment.
FF Investment
xvii)FF Investment is a holding company, in which the husband owns one share, on behalf of himself and his siblings. The other share is held by an unrelated third party;
xviii)its sole asset is shares in GG Company and is otherwise dormant.
GG Company
xix)the company has undertaken minimal trade, after attempting to import various milk and camel milk products;
xx)none of the attempted product importing went beyond initial negotiations with potential suppliers.
Assets of the parties
The wife is the register proprietor of a property situated at H Street, Suburb J. The estimated value of the property is $560,000 and it is un-encumbered.
The husband and the wife have acquired properties in a company, C Pty Ltd. They assumed control of the company in late 2003 as a vehicle for investing in and developing property. Both the husband and the wife are directors together with the husband sister Ms RR and the wife’s sister, Ms SS.
The assets of the company comprise five properties:
i)MM Street, M Town;
ii)P Street, Suburb D;
iii)6 L Street Suburb D;
iv)12 L Street Suburb D;
v)50% interest in NN Street Suburb PP, ACT
Both the husband and the wife agree that the properties were acquired with the assistance of funds transferred from City B. Where they differ is that the husband asserts the funds advanced by N Limited, totalling $3,390,000, are loans from N Limited which are liabilities of C Pty Ltd. The wife’s position is that she is unable to identify N Limited as the source of the funds, and that there has never been any request for repayment of interest or capital from N Limited.
The wife is a specified beneficiary of the Figgins Family Trust, which is a trust controlled by her father. The husband asserts that as at 30 June 2018 the trust owes the wife $26,000.
Applications for injunctions
Wife’s Applications
The wife seeks a broad suite of injunctions. The gravemente of the wife’s application is that the husband has interests in his family’s Australian and City B trusts and companies. Unless restrained by injunction, he may seek to either divest himself of his interests and or encumber his interests to frustrate the wife’s application for property adjustment.
Furthermore, an application pursuant to s.106B of the Act would be of little assistance in relation to the City B companies and trusts.
The wife is seeking holding orders in circumstances when she is unaware of what the husband is up to, or proposing in the future, in the context of her assertions of the husband’s spectacular failure to comply with his discovery obligations.
The submissions of Queen’s Counsel on behalf of the wife are as follows:
i)the husband has failed to disclose Trust Deeds and Accounts for a number of trusts including companies and trusts in City B which were taken over by trusts emanating from Country TT;
ii)the husband concedes he had control of the U Trust until September 2019 when he resigned control, at the alleged behest of his siblings;
iii)the husband resigned as a director of CC Investments Pty Ltd, which is the registered proprietor of the E Apartments;
iv)his resignation as a director of CC Investments occurred around the time he had discussions with the children;
v)the husband has failed to provide the accounts for N Limited and the U Trust notwithstanding his claims that loans have been advanced by N Limited to C Pty Ltd;
vi)no documents have been produced by the husband to substantiate the disposition of rent received by E Pty Ltd;
vii)no explanation has been provided about the two properties which the husband’s trust was to receive from his late mother’s estate;
viii)the husband has failed to provide an explanation about the alleged loan to K Pty Ltd, and in particular an explanation why the interest has been reduced.
The husband denies the necessity for any injunctions and submits that the suspicions and fears of the wife and accusations about lack of discovery, do not meet the legal threshold for the court to make the injunctions that are sought by the wife.
Senior Counsel on behalf the husband submitted:
i)the husband had indeed complied with discovery obligations and had provided copy trust deeds which had been able to be located;
ii)many of the documents sought by the wife relate to trusts which were established many years ago, by the husband’s father;
iii)the husband had not been actively involved in the setup of his family’s trusts other than being an appointor of two trusts in 1992;
iv)he signed documents in 1993, as requested by his father, but he was unable to recall the nature of those documents;
v)in September 2019, at the behest of his siblings, he was required to resign as a director of CC Investments and he did so on 31 October 2019;
vi)other than the husband being a beneficiary / eligible object of his family’s trusts in Australia and City B, he has no office holding nor position of control in the Ang family assets;
vii)the fact that the husband is an eligible object of his family’s trusts does not put the assets of the Ang family into the asset pool of the husband and the wife;
viii)the wife’s evidence about her suspicions and fears is speculative and argumentative;
ix)there is no suggestion by the wife, let alone assertions that the husband:
(i)is likely to dispose of assets pursuant to an overall scheme to defeat any judgement which the wife might obtain against him;
(ii)has manifested a propensity to shift assets, apparently to defeat a judgement and that there is a real risk that he will do so;
(iii)has any intention to dispose of assets pursuant to a scheme to defeat any judgement which the wife might obtain in the substantive proceedings;
x)to the limited extent that the husband has taken action, which, if the injunctions sought by the wife had been in place, would have been breached, then he did so entirely appropriately:
(i)he resigned from CC Investments, which is wholly beneficially owned by AFT in 1995, in circumstances where his siblings who control the trustee required him to do so;
(ii)he transferred funds which belong to the estate of his late mother to his sister, where the executors of that estate required him to do so.
Husband’s Application for Injunctions
The husband seeks injunctions restraining the wife from selling, encumbering or dealing with any of the assets of C Pty Ltd. He relies on the following in support of his application:
i)the wife has been and is in effective control of C Pty Ltd;
ii)in 2017, C Pty Ltd sold its interest in two properties;
iii)the wife misappropriated the proceeds of sale of one of those properties;
iv)each of the C Pty Ltd properties are subject to liabilities to N Limited, which the wife does not admit;
v)the wife wrongly recorded in the books of the company, the funds advanced by N Limited, as loans from herself.
These submissions of Queen’s Counsel for the wife may be summarised as follows:
i)the properties were sold in August 2018 and October 2017 by consent of both parties, and there is no evidence of misappropriation;
ii)the wife has approached accounting issues in a proper and regular manner;
iii)there is no evidence which would justify the court making the adverse findings against the wife, as sought by the husband;
iv)there has been no misappropriation of funds, because the husband has made no payments for a dependent wife and two children for almost a year and the wife had no option but to draw funds from C Pty Ltd;
v)there is no suggestion by the wife that there should not be a proper accounting of those funds in due course;
vi)the wife has caused the accounts of C Pty Ltd to be regularised.
Applicable Law
The courts power to grant injunctions is found in s.114(3) of the Family Law Act 1975. The power is discretionary and should only be made if it is proper and in accordance with the principles stated in the pertinent authorities.
s114(3) provides:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
Both Counsel submitted that the relevant authority setting out the principles to be applied is In the Marriage of Waugh [2000] FamCA 1183 (“Waugh”).
Queen’s Counsel for the wife, in his written submissions, referred me to the observations of the Full Court at paragraph 30 and 31 of Waugh, where the Full Court cautioned against applying broad-brush principles relating to Mareva-type injunctions over assets in family law disputes.
Senior Counsel for the husband, in his summary of argument at paragraphs 113 - 115.3, refers to the relevant legal principles as announced in Waugh, as follows:
i)injunctions are not granted to preserve either party’s possible eventual entitlement to the asset pool nor are they granted on the basis of concerns;
ii)the purpose of the Mareva injunction is not to create security through a plaintiff or to require a defendant to provide security;
iii)a Mareva injunction is a drastic remedy which should not be granted lightly;
iv)it is an interlocutory order, which if granted, imposes a severe restriction upon a defendant’s right to deal with his or her assets;
v)the function of such an order is not to provide a plaintiff with security in advance for a judgement that he hopes to obtain and that he fears it might not be satisfied; nor is it to improve the position of the plaintiff in the event of the defendant’s insolvency.
Discussion
Wife’s Application for injunction
The wife’s submission is articulated at paragraph 57 of her Summary of Response to the husband’s Summary of Argument. She asserts:
i)the injunctions sought reflect the significant uncertainty that exists about the husband’s current financial position and in particular from his failure to provide documents about his rights in and/or entitlements to his family’s Australian trusts;
ii)the husband’s evidence of the events of September 2019, when he was removed from control of substantial assets by members of his family, is not corroborated by any evidence of any other member of the Ang family;
iii)the husband admits that he has already resigned as a director of CC Investments and this act foreshadows more in the future;
iv)he has transferred control of funds to his sister;
v)the injunctions sought do not bind any person other than the husband, his servants and agents and seek to preserve the status quo;
vi)the consequences of an action taken by the husband in City B, involving City B assets and/or trusts, may be unable to be remedied by an Australian court.
The wife did not initially offer the ordinary undertaking as to damages, however the undertaking was made during the course of submissions.
The husband’s submissions are set out in paragraphs 117 - 123 of his Summary of Argument:
i)injunctions sought by the wife are far-reaching and are oppressive;
ii)some of the orders sought (paragraphs 5, 6, 7 and 8 of the orders sought in the interim application) could be interpreted to affect and bind persons and/or entities who are not parties to the proceedings;
iii)there is no evidence that the wife has put those persons and/or entities on notice of her application;
iv)the wife’s purported evidence in her affidavit material is argumentative, speculative, comment, conclusion and opinion, none of which supports the granting of injunctive relief sought by her;
v)the wife has not proffered an undertaking to damages in her interim application;
vi)there is no evidence before the court to support the wife’s applications, specifically that the husband:
(i)is likely to dispose of assets pursuant to an overall scheme to defeat any judgement which the wife might obtain against him;
(ii)has manifested a propensity to shift assets, apparently to defeat a judgement and that there is a real risk he will do so;
(iii)has an intention to dispose of assets pursuant to a scheme to defeat any judgement which the wife might obtain in the substantive proceedings.
vii)The limited actions undertaken by the husband were done so appropriately, namely:
(i)he resigned from CC Investments in circumstances where his siblings, who control the trustee of AFT 1995, required him to do so;
(ii)he transferred funds which belong to the estate of his late mother, and in which he had no beneficial interest in circumstances where the executors of the estate required him to do so.
The balance of convenience must also be considered by the court, which requires the court to consider the likely outcome if the injunction is granted, and if it is not.
The wife is fearful that the husband may divest himself of assets particularly those relating to the Ang family trusts and companies, both in City B and Australia. If he did so, then an application to set aside any such transactions would be unlikely to have any beneficial effect.
On the other hand, the husband asserts that he is not in a position of control of any of the Ang family trusts and companies, either in City B and Australia, other than S Company and T Company and therefore the orders sought by the wife are oppressive and unwarranted.
In relation to the Australian Ang family trusts, the husband was a director of OO Pty Ltd, the corporate trustee of AFT 1 and AFT 4, from 1 December 1984 until 31 March 1993. He was also a director of E Pty Ltd, the corporate trustee of AFT 2, from 31 March 1983 until 31 March 1993. He currently holds shares in Vitim, although his shareholding was reduced in February 2019 from 3 of 6 issued shares to 2. He holds 99 of 100 issued shares in E Pty Ltd.
In relation to S Company and T Company, such injunctions would have the effect of fettering his capacity to run the business which provides the husband with an income. The injunction sought at paragraph 4 of the wife’s Amended Application in a Case would have the effect of the husband being unable to run a business or indeed pay a salary to himself to enable him to meet his living expenses.
The wife has identified two definitive actions of the husband in relation to disposition of any financial interest or office bearing, both of which are referred to in paragraph 74(vii) (i) and (ii) of these reasons. Apart from those two instances, I agree that the evidence she relies upon in her affidavit is a speculative comment opinion and fears. Fears and apprehension are not appropriate basis for the court to grant an injunction.
I agree with the submissions of Senior Counsel for the husband that the evidence proffered by the wife is insufficient to substantiate an injunction, in the context of what is required by the authorities nor does the balance of convenience favour the granting of injunctions as sought.
However, the wife’s suspicion and apprehension is entirely understandable, in the context of the ongoing discovery dispute between the parties, which is the subject of other proceedings.
During his submissions, Senior Counsel for the husband handed up a minute of orders which the husband proposed be consented to by the parties. That proposal requires the husband to provide to the wife 21 days prior notice of his intention to:
i)dispose of any asset exceeding $50,000 in value;
ii)borrow against any item of real property in excess of $50,000 beyond its current level of encumbrance;
iii)transfer any interest he has in any corporate entity or announcing any interest or office in any trust or corporate entity; and
iv)varying the terms of any trust deed.
I am persuaded, subject to the quantum and timeframe referred to in the orders, that the orders as proposed by the husband are appropriate to protect the wife’s interests in the matrimonial assets and to prevent the husband from divesting himself of any interest he may have in the Ang family assets both in Australia and City B.
Whether or not the husband has any interest in the Ang family assets in Australia and City B, or whether his interest may regarded as a financial resource, is a matter for findings of the trial judge. However, in that context I consider it appropriate that orders be made for the husband to provide to the wife 30 days prior notice of any intention to do any of the matters referred to in paragraph 83 hereof, save that the value of the asset should not exceed $25,000.
Husband’s application for injunctions
In his Response filed 10 February 2020 the husband seeks the following injunctions:
i)the wife be restrained from permitting C Pty Ltd encumbering or otherwise dealing with its real property;
ii)requiring the wife to repay alleged misappropriated funds, to C Pty Ltd.
The wife opposes both orders.
The husband contends that the wife:
i)has been in effective control of C Pty Ltd;
ii)has misappropriated the proceeds of sale of one of the C Pty Ltd properties;
iii)does not admit that each of the C Pty Ltd properties has an associated liability to N Limited;
iv)has caused the funds advanced by N Limited to C Pty Ltd to be recorded in the books as loans advanced by her.
The wife asserts:
i)she and the husband agreed to sell an apartment in Brisbane in October 2017 because the property market was declining;
ii)the proceeds of sale, $377,352 were applied as follows:
(i)$30,000 towards an outstanding tax bill of $87,714;
(ii)the remaining funds were deposited into the company bank account, prior to being transferred into an interest-earning account in the wife’s name;
(iii)the wife was unable to open an account in the name of C Pty Ltd;
(iv)she is prepared to account for the disposition of any funds of C Pty Ltd.
At paragraph 127 of the husband’s Summary of Argument he asserts that the court should make findings that the wife:
i)has manifested a propensity to shift assets apparently to defeat a judgement (whether in favour of N Limited or the husband) and there is a real risk that she will do so;
ii)has an intention to dispose of assets pursuant to a scheme to defeat any judgement which the husband might obtain in the substantive proceedings.
As this is an interim proceeding, it is not possible to make any findings. The allegations and counter allegations and assertions should be subject of testing of evidence and cross-examination at the trial, when appropriate findings can be made.
However, the evidence upon which the husband relies does not persuade me that an injunction restraining the wife should be made. He has not adduced any evidence to support his assertions referred to at paragraph 90 hereof.
The husband does not deny that he agreed with the wife to sell the Brisbane property in 2017. Given that the husband has been aware that the wife has effectively been in control of and managed C Pty Ltd for many years, it is surprising that he now seeks to fetter her management of the company and allege that she has misappropriated funds. This is particularly in circumstances where the wife deposes to having had no knowledge of any indebtedness of C Pty Ltd to N Limited, until the commencement of these proceedings and that the husband has not produced any documentation substantiating that any funds which were advanced, were done so with an expectation of repayment.
The wife is prepared to produce her bank statements evidencing the movement of the funds. The husband does not allege that the wife has expended any excessive amounts or attempted to inappropriately remove funds.
I do not intend to make injunctions as sought by the husband or order the wife to repay funds to C Pty Ltd, particularly in the context of the husband’s submissions at paragraphs 80 to 87 of the husband’s Summary of Argument, where he asserts that the wife would be able to support herself by drawing upon the resources of C Pty Ltd. The two propositions are contradictory in the extreme.
Wife’s Application to sell the husband’s classic motor vehicle
The wife seeks the sale of the husband’s classic motor vehicle and that the funds realised be held in trust by her solicitors. She also seeks ancillary orders pertaining to the mechanics of the sale.
The husband seeks that the wife’s application for sale of the motor vehicle be dismissed.
The wife deposes that the vehicle was purchased in City B in 2016 for the sum of $100,000, the majority of which was obtained by way of a hire purchase agreement from O Bank. The amount outstanding to the bank as at all 21 October 2019 is $28,000.
The husband’s Financial Statement filed 10 February 2020, at paragraph 29 states that he makes weekly payments of $922 referable to the payments for the car. Paragraphs 26 and 27 of the Financial Statement refer to further car related expenditure of $61 per week.
The wife submits that if the car were sold, the husband would be relieved of this obligation and be able to apply those funds towards the spousal maintenance claimed by her.
There was no objective evidence about the current value of the motor vehicle, nor whether any market for such a vehicle exists, given the current economic climate.
In my view, the wife’s needs are more likely to be met from either drawing a salary from C Pty Ltd, which could be met by funds in the company bank accounts or income from the properties, or capital drawings from the company.
I do not intend to make an order for the sale of the classic motor vehicle.
Husband’s Application to sell the Wife’s property
The husband initially sought the sale of the wife’s unencumbered property, with the proceeds of sale to be held in a controlled monies account on trust for the parties jointly, with the proceeds to be applied at first instance to adult child maintenance for the parties’ disabled son Mr X.
During submissions, Senior Counsel for the husband proposed a minute whereby the husband sell the shares held by him, in the City B and after payment of costs, the funds be paid to the solicitors for the wife, on her behalf and on behalf of Mr X.
It was submitted:
i)the proceeds of the shares, which were estimated at $45,951, could be applied for the benefit of Mr X;
ii)the husband would adopt that cause of action irrespective of any court order.
I am not persuaded by the husband’s submissions that the wife should be ordered to sell an investment property to fund Mr X’s maintenance. Such an order would be draconian and would result in the wife losing the benefit of the rent from the property, which she applies towards her current maintenance.
Spousal Maintenance
The wife seeks that the husband pay her spousal maintenance of $2000 per week, commencing from 1 July 2019 and thereafter on the first day of each succeeding month.
The husband contends:
i)the wife has not satisfied the threshold requirement that she is unable to support herself;
ii)and even if she did, the husband could not reasonably maintain the wife.
Applicable Law
Section 72(1) of the Family Law Act provides that:
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).
In In the marriage of Bevan and Bevan (1995) FLC 92-600 the Full Court set out what it said was required for the Court to make an order for spousal maintenance at [81,982] to [81,983] as follows:
i)a threshold finding under s.72;
ii)consideration of s.74 and s.75(2);
iii)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
iv)discretion exercised in accordance with the provisions of s.74, with “reasonableness in the circumstances” as the guiding principle.
In Brown & Brown [2007] FamCA 151 at [161] the Full Court referred to the applicable principles:
·The word “adequately” is not to be determined according to any fixed or absolute standard.
·The idea that “adequate” means a subsistence level has been firmly rejected.
·Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard.
·In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
·It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
·However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
In Hall & Hall [2016] HCA 23 the High Court stated:
[52] The wording of s 72(1), it has been noted (In Marriage of Astbury (1978) 34 FLR 173 at 177-178; 4 Fam LR), seems to imply that each party should attempt to support himself or herself where that is reasonable having regard to the matters referred to in s 75(2).
I will firstly address the threshold issue, namely whether the wife is unable to support herself adequately.
Both parties agree that the wife has not been in the outside workforce since the birth of the two children and that the expectation of both parties was that the wife would be engaged as a full-time homemaker and parent. The only employment the wife has undertaken is :
i)attending to the management of C Pty Ltd which she has done since 2004 and which she estimates occupies approximately 10 hours per week;
ii)Working for Figgins Pty Ltd as an office assistant, which she has done since 2010 and which she estimates occupies approximately 15 hours a week.
In support of her application, the wife relies on her Updated Financial Statement filed 13 February 2020. The husband’s Summary of Argument is critical of the wife’s lack of disclosure of her personal financial circumstances and the defects in her initial Financial Statement.
The updated Financial Statement discloses a weekly income of $390, primarily comprising rent from the Suburb J property. Her weekly expenses are stated as $2,636. Her assets are listed at $3,000,524 with liabilities of $15,137.00.
The assets include:
i)the Suburb J property valued at $560,000, from which she derives rental income;
ii)the properties held by C Pty Ltd valued at $1,885,000, absent any liability, which the husband asserts is owing to N Limited;
iii)a loan which the parties previously advanced to the wife’s sister, of $360,000;
iv)a motor vehicle valued at $26,000;
v)funds in an interest bearing account $357,524, being the proceeds of sale of a C Pty Ltd property;
vi)a loan to a relative of $7,000
The husband is highly critical of the wife for failing to :
i)disclose her part-time employment with Figgins Pty Ltd. He became aware of that employment by the wife disclosing her bank statements, which demonstrate an extremely modest income; and
ii)disclose that the Figgins Family Trust, which is operated by her father, and of which she is a specified beneficiary, owes the wife $26,000 as at 30 June 2018;
iii)depose whether wife has received or regularly receives distributions from the Figgins family trust;
iv)require the Figgins family trust to pay her the amount which is owing.
In the context of the allegations which the wife levels against the husband for failing to provide a frank and candid account of his financial circumstances, the criticisms referred to in the preceding paragraph are insignificant and I am not critical of the wife in that regard.
Paragraphs 42 - 46 of the husband’s Summary of Argument refer to C Pty Ltd as follows:
i)whilst C Pty Ltd has four directors, including the husband and wife and a sibling of each, the wife has historically operated and continues to operate the company single-handedly;
ii)as at 30 June 2018 the company had retained earnings of $161,217, which figure postdates the wife’s transfer of approximately $30,000 from C Pty Ltd into her bank account;
iii)in circumstances where C Pty Ltd pays salary and has not paid dividends, and where the wife has deposed it receives rental income, the court should infer that C Pty Ltd presently has significant liquid funds.
Furthermore, paragraphs 80 – 86 of the husband’s Summary of Argument propose that the wife would be able to adequately support herself from property and financial resources available to her.
Specifically, reference is made to:
i)the wife’s personal bank account containing $357,524 (the majority of which was the proceeds of sale of a C Pty Ltd property);
ii)the wife’s control of C Pty Ltd which would enable her to either draw a salary or, subject to repayment of the loans from N Limited, declare and pay a dividend to herself.
The submissions referred to in the preceding paragraphs unequivocally suggest that the wife should look to C Pty Ltd for financial support, rather than the husband, and if she did so, she would be unable to satisfy the threshold test in s 72(1).
This submission is almost impossible to reconcile with the husband’s applications to :
i)sell the wife’s rental property and place the proceeds in trust to provide for Mr X’s support, and thus deprive her of rental income;
ii)require the wife to pay approximately $390,000 into C to reinstate the alleged misappropriated funds.
Without access to the financial resources of C Pty Ltd, including the C Pty Ltd funds in the wife’s bank account, the wife is clearly unable to support herself. I do not accept the spurious argument about the wife’s non-disclose of nominal income from Figgins Pty Ltd.
However, with the resources of C Pty Ltd at her disposal, she would be able to support herself, and thus could not satisfy me that she has met the requisite threshold.
I have discussed the husband’s application for sale of the Suburb J property and reinstatement of the funds into the C Pty Ltd accounts earlier in these reasons. I do not propose to grant orders as sought by the husband, and consider his application to be disingenuous. Having so determined, I consider that the wife is unable to satisfy the requisite threshold for an order for spousal maintenance.
Having reached that determination, I am cognisant that the wife will be relying on capital to some extent to support herself, which may well require consideration at trial of any consequential taxation implications, which will no doubt be the responsibility of both parties.
As I have determined that the wife is unable to demonstrate that she cannot support herself, I do not propose to discuss the husband’s financial position in the context of spousal maintenance. I will address the husband’s financial position in the context of the wife’s application for adult child maintenance.
Adult Child Maintenance
The wife seeks orders that the husband pay adult child maintenance for the two children of the marriage, Mr X and Ms Y. She seeks $300 per week per child, a total of $600 per week, commencing from 1 July 2019.
The husband in his Response seeks orders that the Suburb J property should be sold to fund adult child maintenance for Mr X of $1,200 per month. During submissions Queen’s Counsel for the wife proposed that the husband sell his shares in the City B, which he holds on trust for the wife as to 15% and Mr X as to 85%. The husband seeks that the wife’s application pertaining to Ms Y, should be dismissed. He submits that he does not have the financial resources to pay adult child maintenance for Mr X from his own resources.
In the context of the wife’s applications for spousal maintenance and adult child maintenance, the wife argues it is extremely unlikely that the husband would be able to sustain his level of spending and lifestyle on his current disclosed income, and it is highly likely that the husband receives financial benefits from his family, which he has not disclosed and is unlikely to disclose in the future. The husband’s failure to adequately disclose his financial position has fostered the wife’s deep-seated mistrust of his alleged financial position.
Applicable Law
Section 66L(1) of the Family Law Act 1975 (Cth) provides:
A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
Section 66J sets out the matters to be taken into account in considering financial support necessary for maintenance of a child. It provides:
(1)In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:
(a) the matters mentioned in section 66B; and
(b)the proper needs of the child (this is expanded on in subsection (2)); and
(c)the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).
(2)In taking into account the proper needs of the child the court:
(a) must have regard to:
(i) the age of the child; and
(ii)the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and
(iii) any special needs of the child; and
(b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.
(3)In taking into account the income, earning capacity, property and financial resources of the child, the court must:
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and
(b) disregard:
(i) the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and
(ii) any entitlement of the child or any other person to an income tested pension, allowance or benefit.
(4)Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
Section 66K sets out the matters to be taken into account in determining contribution that should be made by a party. It provides as follows:
(1)In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:
(a) the matters mentioned in sections 66B, 66C and 66D; and
(b)the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and
(c)the commitments of the party, or each of those parties, that are necessary to enable the party to support:
(i) himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(d)the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and
(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
(2)In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.
(3)In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.
(4)In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:
(a)any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and
(b)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
(5)In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:
(a) by way of lump sum payment; or
(b) by way of transfer or settlement of property; or
(c) in any other way.
(6)Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
Discussion
I will firstly address the matters to be taken into account in determining contributions, insofar as it relates to Mr X.
The husband’s proposal concedes that Mr X is disabled and requires support. He proposes that the wife be responsible for Mr X’s financial support by selling her investment property and that Mr X receive a monthly payment of $1200 from the proceeds of sale. As referred to in these reasons, he also proposed that he liquidate the Tracker Fund and that Mr X receive a payment of adult child maintenance from an asset which is substantially his. He asserts that he does not have the financial resources to otherwise contribute to his support.
In relation to Ms Y, the husband contents that there is no serious contention by the wife that Ms Y requires financial support. His criticisms include:
i)the wife has not filed a Financial Statement of Ms Y;
ii)there is no evidence before the court to enable it to take into account the mandatory consideration in s.66J(1)(b)-(c) and s.66J(3).
The husband’s Summary of Argument contends:
i)it is uncontroversial that Ms Y studies on a part time basis;
ii)Ms Y regularly works 20 hours per week;
iii)she also undertakes seasonal work, in addition to her regular work;
iv)the court should take judicial notice of national minimum wages to extrapolate that she earns $389.80 per week.
I will firstly address the relevant matters to be taken into account in determining contribution to Mr X. As the husband concedes Mr X should receive $1200 per month support, I do not propose to address Mr X’s financial position, which would otherwise be required.
The wife’s financial position is set out at paragraphs 117 - 118 hereof, in the context of the application for spousal maintenance. Additionally, she is obviously providing a home for Mr X subject to him paying $95 per week board to her, and has been meeting the associated costs, including utilities and outgoings of the home.
The most relevant consideration is the husband’s income, earning capacity, property and financial resources.
In his Summary of Argument, in the context of his assertion of lack of capacity to maintain the wife, at paragraphs 88 - 93, it is asserted:
i)the husband has no surplus income;
ii)he has little in the way of liquid or quasi-liquid assets;
iii)the value of those assets is exceeded by the value of his liabilities;
iv)neither the Australian trusts nor the City B trusts represent an available financial resource to the husband;
v)there is no evidence that the City B companies could assist the husband in maintaining the wife;
vi)the principal repayments in respect of the K Pty Ltd loan are manifestly not income and are needed by the husband to support S Company and T Company, from which he derives an income;
vii)the husband relies on his Financial Statement filed 10 February 2020. In that Financial Statement he deposes to income of $2,420 per week with an income expenditure shortfall of $1,777 per week. The income expenditure includes the costs of the classic motor vehicle which are just under $1,000 per week.
Furthermore he estimates that the gross value of his assets excluding his interest in C Pty Ltd is $376,296, which includes units valued at $46,000 which are held on trust for the wife and Mr X.
His assets comprise his motor vehicle which he values at $75,000 and a loan of $230,000 to the company K Pty Ltd, which is being repaid as to both principal and interest at an average sum of $4,760 per week.
The husband’s affidavit filed 10 March 2020 deposes to the arrangements between himself and K Pty Ltd and the application of the repayments to S Company, his service company.
Paragraphs 23 – 38 of the husband’s Summary of Argument set out the legal analysis of whether or not the husband’s interests as an eligible object of the City B and Australian Ang family trusts should be considered a financial resource.
It is submitted, at paragraph 38, although he is an eligible object of the City B trusts and a discretionary beneficiary of the Australian trusts, there is no evidence that he currently holds, or has held in the past three decades any powers of control, including powers of appointment or distribution, in respect of any of the City B or Australian trusts.
At paragraph 61 of the husband’s Summary of Argument, it is submitted that the court should find, on the balance of probabilities, that the husband could not reasonably expect that support from any of the Australian trusts will be forthcoming in the foreseeable future.
As referred to earlier in these reasons, this is an interim application and I am unable to make any findings. That will be a matter for the trial judge after evidence in cross examination of the relevant parties.
Notwithstanding the husband’s submissions, I am of the view that the husband has the capacity to contribute to the modest amount of Mr X’s maintenance, at the very least from the repayments he receives from K Pty Ltd. The provisions of s.66K(2) enable the court to take into consideration matters other than income of a party.
The husband is somehow able to find funds of nearly $1,000 per week to maintain a classic motor vehicle, despite him deposing to a substantial shortfall of income and expenditure. There is no corresponding liability in his financial statement to justify how that is possible. He has also failed to satisfactorily explain how he was able to make substantial payments to the wife for her support and that of the children until he decided to initially reduce and then cease making those payments in November 2019. It is incumbent on the husband to prioritise payments to support his disabled son, rather than maintaining a classic motor vehicle.
I am satisfied that the husband has the capacity to make periodic payments of adult child maintenance to Mr X. I also note that his Senior Counsel proposed a minute whereby the husband would sell the shares in the City B shares, which he holds on behalf of the wife and Mr X, and pay that to the wife. I will make an order in accordance with that proposal.
I will also make an order providing for the husband to pay to the wife the sum of $1,200 per month adult child maintenance for Mr X, with the first of such payments to commence on 1 April 2020, and monthly thereafter.
In relation to the adult child maintenance for Ms Y, I agree with the submissions on behalf of the husband, as to the lack of evidence for me to make an order as sought.
The wife’s evidence is in paragraph 14 of the wife’s affidavit filed 20 December 2019 and paragraph 10 and exhibit 1 of her affidavit filed 11 March 2020. The onus rests on the wife to persuade the court that payments of adult child maintenance are necessary to enable Ms Y to complete her education.
That evidence does not persuade me that the requirements of s.66L(1)(a) have been satisfied, namely that the provision of maintenance is necessary to enable the child to complete her education. On the contrary, her evidence is that Ms Y has successfully managed two subjects per semester since February 2019 whilst undertaking part time employment and intends to attempt three subjects next semester. Whilst it may be highly desirable that the husband contribute to Ms Y’s financial support, the wife’s evidence does not directly address the required consideration.
There is a distinction between necessary and desirable as referred to in Paul & Paul [2012] FamCAFC 64.
Similarly, exhibit 1 to the wife’s affidavit of 11 March 2020 does not persuade me that Ms Y has a mental or physical disability, to enable s.66L(1)(b) to apply.
Prior to making an order for adult child maintenance, I must be satisfied that one of the preconditions in s.66L(1) have been satisfied. In this matter I am not satisfied, and accordingly I do not propose to address the other relevant statutory considerations.
I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 27 May 2020.
Associate:
Date: 27 May 2020
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