Filmer and Filmer

[2013] FamCA 279

FAMILY COURT OF AUSTRALIA

FILMER & FILMER [2013] FamCA 279

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders – application by the husband seeking that previous orders for spousal maintenance be discharged or alternatively, be varied – where the wife seeks that the amount of spousal maintenance be increased – consideration of the parties’ financial situations – orders made increasing the amount of spousal maintenance to be paid by the husband. 

Family Law Act 1975 (Cth) s 72, 74, 75, 80, 83

Caska v Caska (1998) FLC 92-826

APPLICANT: Mr Filmer

RESPONDENT: Ms Filmer

FILE NUMBER: ADC 3244 of 2010

DATE DELIVERED: 1 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 11 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade

SOLICITOR FOR THE APPLICANT: Howe Martin & Associates

COUNSEL FOR THE RESPONDENT: Mr Berman, SC

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

Orders

1. Paragraphs 1(b) and (c) of the Consent Order of 21 December 2011 are discharged.

2. The husband shall pay spousal maintenance for the wife in the sum of ONE THOUSAND TWO HUNDRED AND FIFTY DOLLAR [$1,250.00] per week commencing and backdated to 1 January 2013.

3. Further consideration of the enforcement orders sought by the wife in paragraphs 3 and 4 of the amended Response filed on 27 November 2012 is adjourned to the final hearing of the proceedings.

4. The Application in a Case filed by the husband on 5 July 2012 is dismissed.

5. The question of costs is reserved to a date to be fixed should the parties be unable to reach agreement.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3244 of 2010

Mr Filmer

Applicant

And

Ms Filmer

Respondent

REASONS FOR JUDGMENT

Introduction

1. The wife Ms Filmer (“the wife”) seeks interim orders in relation to spousal maintenance.  The Application in a Case filed by the husband Mr Filmer (“the husband”) on 5 July 2012 sought the discharge of a Consent Order or variation of that order.  Subsequently, the wife has filed further orders sought in her Amended Response filed on 27 November 2012.

The Hearing

1. At the hearing before the Court on 11 December 2012 the husband was represented by Mr McQuade of Counsel and the wife by Mr Berman, SC of Counsel.

2. After detailed submissions judgment was reserved.

Relevant Background

1. The wife was born in 1958.  She is now aged 54.  She describes her occupation as “home duties”.

2. The husband was born in 1955 and is now aged 57.  He is employed in the financial industry.

3. The parties married in February 1981 and separated in April 2010.  There are three children of the marriage now adults.

4. Proceedings commenced in August 2010 when the wife filed an Initiating Application seeking property settlement and spousal maintenance.  The husband responded.  In February 2011 both parties discontinued their proceedings.

5. In May 2011 the wife filed a new Initiating Application seeking interim and final orders in relation to property settlement and spousal maintenance.  The husband filed his response.

6. Interim spousal maintenance orders were made by consent on 21 December 2011.

7. By Application in a Case filed on 5 July 2012 the husband sought orders that the spousal maintenance order made on 21 December 2011 be discharged.  In the alternative he sought that it be varied.

8. The wife in her response to that Application in a Case sought the dismissal of his application.  She further sought that the spousal maintenance orders made on 21 December 2011 be varied to provide for an increase in maintenance payments from $1,000 per week to $1,500 per week, or in the alternative $1,250 be substituted for $1,000 on the basis that the husband “forthwith pay or organise and pay, the reasonable costs of necessary repairs and maintenance to the former matrimonial home”.

9. In the Amended Response filed by the wife on 27 November 2012 the wife sought the following orders:

   1.That the husband’s Application filed on 05/07/2012 be dismissed.

   2.That the order for spousal maintenance made in this Honourable Court for the wife on 21/12/2011 be varied to provide that the husband pay or cause to be paid to the wife … the sum of $1,500 per week in circumstances where the wife is now solely responsible for day-to-day, utility and other expenses associated with the former matrimonial home that the husband was previously ordered to pay.

   …

   3.That by way of enforcement (pursuant to Rule 20.08 of the Family Law Rules 2004) and as a consequence of the husband’s continuing breach of the Orders made by this Honourable Court on 21/12/2011 and 28/08/2012:-

   2.1The husband do all such acts, matters and things and sign all such necessary documents to appoint the wife as his Attorney for the purposes of the sale of the following assets:-

   2.1.1The property situate at Unit …/… [B Street, Town M] in the State of South Australia (“the [Town M] property”);

   2.1.2All of the contents of the said [Town M] property;

   2.1.3The husband’s … BMW motor vehicle;

   2.1.4The husband’s interest in a property purchased in the “[GG]” development in Thailand;

   2.1.5Any and all shares held with [D Company] by the husband or any of the entities in which the husband has an interest;

   2.1.6The apartment situate at Apartment …, … Apartments, [E Street, Suburb F] (“The [Suburb F] Apartment”);

   2.1.7The husband’s interest in the [H Sport Team].

   2.2That in the alternative to 2.1.6 that the husband be restrained and an injunction be granted restraining him from causing any further funds from whatsoever source being paid into the [H Sport Team] venture/enterprise.

   2.3That the net proceeds of the sale of the above-listed assets be distributed as follows:-

   2.3.1Firstly, such as sum as is deemed appropriate by this Honourable Court to the wife in reimbursement of and to meet and defray the husband’s liability for the payments previously ordered by this Honourable Court or which have not been paid or payments which may be ordered in the future;

   2.3.2Secondly, that the balance be paid into an interest-bearing account in the name of the husband’s solicitors and the wife’s solicitors and that same be used to meet and defray the husband’s liability for the payments ordered by this Honourable Court by the husband to the wife;

   2.4That all of the payments due to the Husband or any of his entities from [J Company] including but not limited to profit distributions or dividends (“collectively the [J Company] income”) be garnisheed and that the husband be restrained and an injunction be granted restraining the husband from expending, disbursing or transferring the said [J Company] income without the express prior written consent of the wife.

   4.That the husband and the wife in their capacities as directors of [Filmer & Filmer] Pty Ltd ATF the [Filmer & Filmer] Pty Ltd Superannuation Fund (“the Super Fund”) do all such acts, matters and things and sign all documents to cause the sale of an asset of the Super Fund, namely the land and building premises at … [L Street, Suburb K] and that the husband be restrained and an injunction be granted restraining the husband from drawing any funds from the said Fund pending Orders for final settlement of property between the parties.

   2.5.   That the husband pay the wife’s costs of and incidental to this Application on an indemnity basis.

   3.6.   For such further or other Orders as are just and equitable.

10. The orders which both parties seek to be varied (being the order made on 21 December 2011 by consent) provide:

    1.Until further order the husband shall pay spousal maintenance for the wife as follows:

(a)the sum of THREE THOUSAND DOLLARS [$3,000.00] on or before 31 January 2012;

(b)the sum of ONE THOUSAND DOLLARS [$1,000.00] per week with the first payment to be made on 23 December 2011;

(c)       the following accounts as they fall due:

(i)     the wife’s telephone;

(ii)all rates and taxes and emergency services levy on the former matrimonial home;

(iii)house and contents insurance in relation to the former matrimonial home;

(iv)    registration and insurance for the wife’s motor vehicle;

(v)     the wife’s health insurance at its present cover;

(vi)    ambulance insurance cover for the wife;

(vii)     electricity and gas accounts.

2.The wife’s costs of and incidental to today’s hearing be reserved to the trial Judge.

The Law

1. The submissions received on this interim application focussed upon the husband’s ability to pay the maintenance sought by the wife, it being apparently conceded that the wife is unable to support herself adequately.

2. The relevant provisions of the Family Law Act 1975 (Cth) (“the Act”) are:

   Section 72(1)

   Right of spouse to maintenance

   (1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

   (c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2).

   Section 74(1)

   Power of court in spousal maintenance proceedings

   (1)    In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.

   Section 75(1) and (2)

   Matters to be taken into consideration in relation to spousal maintenance

   (1)    In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

   (2)    The matters to be taken into account are:

   (a)     the age and state of health of each of the parties;  and

   (b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;  and

   (c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;  and

   (d)commitments of each of the parties that are necessary to enable the party to support: 

   (i)     himself or herself; and

   (ii)    a child or another person that the party has a duty to maintain;  and

   (e)the responsibilities of either party to support any other person;  and

   (f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)     any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)    any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party;  and

   (g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;  and

   (h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;  and

   (ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

   (j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;  and

   (k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;  and

   (l)the need to protect a party who wishes to continue that party's role as a parent;  and

   (m)if either party is cohabiting with another person -- the financial circumstances relating to the cohabitation;  and

   (n)the terms of any order made or proposed to be made under section 79 in relation to:

   (i)     the property of the parties; or

   (ii)    vested bankruptcy property in relation to a bankrupt party;  and

   (naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)a party to the marriage;  or

   (ii)a person who is a party to a de facto relationship with a party to the marriage;  or

   (iii)the property of the person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them;  or

   (iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);  and

   (na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;  and

   (o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;  and

   (p)the terms of any financial agreement that is binding on the parties to the marriage;  and

   (q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage

   Section 80

   General powers of court

   (1)    The court, in exercising its powers under this Part, may do any or all of the following:

   (a)order payment of a lump sum, whether in one amount or by instalments;

   (b)order payment of a weekly, monthly, yearly or other periodic sum;

   (ba)order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;

   (c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;

   (d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

   (e)appoint or remove trustees;

   (f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;

   (h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

   (i)impose terms and conditions;

   (j)make an order by consent;

   (k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and

   (l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.

   (2)    The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.

   (3)    The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

   (4)    If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.

   (5)    If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.

   (6)    Subsections (4) and (5) do not limit paragraph (1)(d).

   Section 83

   Modification of spousal maintenance orders

   (1)    If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:

   (a)made by the court; or

   (b)made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;

   the court may, subject to section 111AA:

   (c)discharge the order if there is any just cause for so doing;

   (d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;

   (e)revive wholly or in part an order suspended under paragraph (d); or

   (f)subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

   (1A)The court’s jurisdiction under subsection (1) may be exercised:

   (a)in any case—in proceedings with respect to the maintenance of a party to the marriage; or

   (b)if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or

   (c)if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.

   (2)    The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

   (a)that, since the order was made or last varied:

   (i)     the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);

   (ii)    the circumstances of the person liable to make payments under the order have so changed; or

   (iii)   in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;

   as to justify its so doing;

   (b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;

   (ba)in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;

   (c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.

   (3)    Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.

   (4)    In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

   (5)    The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

   (5A)  In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:

   (a)the other party; or

   (b)any other person for the benefit of the other party.

   (6)    An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

   (6A)  Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.

   (6B)  Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

   (7)    For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.

   (8)    The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

1. The most relevant provisions in this matter are s 83(1), s 83(2)(a)(ii), s 83(2)(ba) and s 83(7) (the latter referring to ss 72 and 75 of the Act).

2. Notwithstanding the possible consideration of the interpretation of s 83(2)(a)(b)(ba) and (c) the helpful decision of the Full Court of the Family Court of Australia in Caska v Caska (1998) FLC 92-826 states clearly at paragraph 15 of the judgment of their Honours Fogarty, Finn and May JJ:

   “… In this regard we agree with the submission made on behalf of the appellant wife, that the conditions or matters listed in s 83(2) are clearly in the alternative …”  (Emphasis added).

Submissions

1. On behalf of the husband it was submitted that there had been a substantial reduction in the husband’s available income.  In particular, reference was made to the payments which the husband was making in reduction of the National Australia Bank (“NAB”) loan.  The husband maintains that he is paying $4,000 per month off the loan which was taken out in the name of a Family Trust, being a loan taken out on behalf of the children of the marriage to enable them to purchase a hosptality business franchise.

2. In the husband’s affidavit filed on 14 September 2012 he set out figures in summary in relation to interest payments which were due to the NAB on loans which totalled approximately $2.58 Million requiring payments of $14,000 per calendar month.

3. The husband’s most recent Financial Statement filed on 6 December 2012 (document 36) shows that the husband claims to have an average weekly income of $1,546 and an average personal expenditure of $1,536 per week.

4. Counsel for the husband conceded that following upon documents obtained by the wife and allegations made by the wife, the husband admitted that he had not previously disclosed that he had recently used the business entities to acquire real estate in Thailand known as “[GG]” and had spent in excess of $43,000 on the Thai properties ($32,670 and a further $11,000).

5. The husband has conceded in documents filed in July 2012 that he omitted disclosing in his Financial Statement previously filed in this Court, that he had purchased a property at Town M in the State of South Australia.  The husband’s documents indicate that the property was purchased for approximately $1 Million using the borrowings of approximately $600,668 from the NAB which was an interest only loan.  The earlier affidavit of the husband also refers to borrowing some monies from his brother.

6. The more recent Financial Statement filed by the husband in December 2012 (document 36) refers to the original loan from the NAB as $558,000 and a second mortgage to the husband’s brother at $300,000.

7. Counsel for the wife emphasised the significant borrowings which have been used to purchase the Town M property in the name of the husband, together with the alleged reduction in value of other significant assets, such as the interest in J Company Stores (originally valued at $700,000 but now valued at $409,000 by the husband) and the original value of international shares at $744,726 now alleged to be worth Nil.

8. There was also a discussion about the husband’s reference to the possibility of being “insolvent”.  Counsel for the husband replied that the husband was not trading insolvent, but that because he was actually meeting his other liabilities (not the maintenance order) it was asserted that there was a risk that the husband would become insolvent if he was unable to meet his liabilities with the NAB.

9. In relation to arrears which had accumulated since the husband stopped complying with the consent order, on behalf of the wife it was conceded that she had obtained funds from the business accounts totalling $28,200 and thus, at December 2012, there would be no arrears if this sum were attributed to the husband’s liability to pay maintenance pursuant to the consent order.

10. The husband describes himself in his most recent documents as “[employed in the financial industry]”.

Husband’s financial situation

1. In the affidavit filed by the husband on 6 December 2012, the husband refers to the international shares being originally included in documents at a cost base of $686,090, but now says the shares are not worth anything.  The affidavit also refers to monies provided to the parties’ children (being a total in excess of $1 Million) which he had “written off”.  This left the NAB loan borrowed in order to provide the hospitality businesses to the children still owing at $939,820.

2. The original explanation for the purchase of the Town M property and the failure to disclose the purchase is set out in paragraphs 12 to 16 of the affidavit of the husband filed on 5 July 2012 (document 20).  Paragraph 12 states:

   12.I mistakenly omitted from my Financial Statement that I own another property at [Town M].  On 18 April 2011 I settled on the purchase of a property at Lot …, … [B Street, Town M].  The purchase price was $910,000.  Now produced and shown to me and marked with the letter “C” and annexed hereto is a copy of the Settlement Statement.  I did not include that property in my Financial Statement as I mistakenly took the view that it was acquired after separation and that, given the fact that all of the monies to purchase the property were borrowed, therefore there was no equity in the property, and it was not relevant.  I now realize that is now [sic] correct and that it is relevant and should have been disclosed.

3. There are other discrepancies in the disclosure of the assets and liabilities of the husband which may be the subject of more detailed reliable evidence on final hearing. 

4. The Financial Statement filed by the husband on 5 July 2012 includes the Town M holiday home at $700,000 (cost $961,084) incorrectly included under item 43 “other personal property” (document 19).  The Financial Statement filed by the husband on 6 December 2012 only refers in item 43 to “contents at [Town M] property estimate $10,000”.  The liabilities however, under item 47 include the mortgage for the NAB on Town M of “$588,000”.  It also includes the mortgage alleged to be due to the husband’s brother at $300,000.

5. Nowhere in the additional information is the value of the Town M property set out.

6. The other assets referred to in the annexure to the Financial Statement filed on 6 December 2012 are:

   C      OTHER ASSETS

   1.    Monies loaned to [H Sport Team] (cost $288,000)  NIL

   2.    Monies loans [sic] to children (cost $1,044,322)  NIL

   3.    Interest in “[J Company]” stores  E 409,000

   4.    Apartment …, …, [Suburb F] (to be retained)  E 580,000

   5.    Contents of [Suburb F] apartment  E 20,000
     $E 1,009,000

1. Paragraph 20 of the husband’s affidavit filed on 14 September 2012 states:

   20.With respect to paragraph 2(h) of the first affidavit, I admit that, in my loan application to NAB for the purchase of [Town M] property, I asserted that we had an interest in four “[J Company]” stores.  In fact, we only have an interest in three.  I made that assertion because, at the time that I made the application for finance, I mistakenly believed that my wife and I would shortly reach a settlement of all of our financial matters and that I then may be in a position to be involved in the “[J Company]” [Suburb M] store with my brother and brother-in-law.  However because we were not able to settle all matters, my brother and sister-in-law proceeded with the acquisition of that store themselves and I have no interest in it.

2. The husband admits in his affidavit that he is now in a relationship with his secretary who resides with him.  In his affidavit filed on 14 September 2012, he refers to her and says “my partner pays for her own living expenses and food expenses”.

3. In the Financial Statement filed on 6 December 2012 no name is provided for “Other income earners in your household”.  The average weekly amount for the “gross income of each other occupant of your household” is disclosed as “$NIL”.

4. The husband alleges that there has been a substantial reduction in excess of $1 Million in the value of assets (reduction in value of J Company stores, reduction in value of loan to H Sport Team and a reduction in value of international shares).  He also alleges that substantial debts have been incurred for the purchase of the Town M property.  There is limited information about the steps, if any, taken to recover the monies in relation to the hospitality business loans made to the parties’ children.

5. These alleged reduced values and transactions need to be seen in the context of the consent order which was made on 21 December 2011.

Wife’s financial situation

1. As previously indicated the submissions in relation to the interim orders sought focussed on the husband’s ability to pay.  The wife provided in her supporting affidavit material particulars in relation to the amounts she required to continue to maintain her standard of living which was asserted to be appropriate in the circumstances.  There appeared to be no challenge of any significance to the needs of the wife, nor the amounts claimed.

2. The wife’s affidavit sets out the basis upon which she sought the changes which emphasised the failure of the husband to meet the regular outgoings, which were the subject of the Consent Orders.

Discussion and application of the provisions of the Acts

1. Section 83(1)(f) provides that subject to subsection (2), the Court may exercise its discretion to vary the order:

   “… so as to increase or decrease any amount ordered to be paid or in any other manner.”  (Emphasis added).

2. The obligations of s 83(2) require the Court to be satisfied that one of the conditions in s83(2)(a) justifies the Court in increasing or decreasing the amount ordered to be paid.

3. Section 83(2)(ba) states that the order which was made by consent can be varied if the amount ordered to be paid is “not proper or adequate”.  In this case it is the wife’s submission that the amount ordered to be paid is not adequate because the husband has failed to meet the ongoing, regular expenses which are not covered by the specific amount ordered.

4. Although the order was made by consent as recently as December 2011, the circumstances of the wife for whose benefit the order was made, have changed in that the husband has failed to meet his obligations pursuant to the Consent Order to pay the ongoing expenses.  This has resulted in significant financial disadvantage for the wife.

5. The circumstances of the husband (the person liable to make the payments under the order) have also changed to the extent that he has now disclosed the improvements to the property in Thailand and his purchase of the Town M property using substantial borrowings from NAB.

6. This decision must be made upon the evidence currently before the Court, much of which is contested.  The Court is however in a position to be satisfied on the evidence provided to it that the circumstances of both the husband and wife have so changed since the making of the Consent Order, that the Court is justified in making an order increasing or decreasing the amount to be paid.

7. The Court also takes into account under the provisions of s 83(2)(ba) that the amount ordered to be paid is not proper or adequate to make appropriate provisions for the maintenance of the wife.

8. There was no clear challenge to the ongoing situation that the wife was unable to support herself adequately.  Taking into account the factors in s 75(2) the Court is so satisfied.

9. The significant matters to be determined under s 75(2) on this interim basis are the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate, gainful employment.  The husband has clearly established a capacity for appropriate, gainful employment in his roles in the financial industry.

10. What is most significant in this matter are the property and financial resources of the husband.  He has been able to borrow large sums from NAB and acquire the properties in Thailand and Town M. 

11. Subsection (d) of s 75(2) requires the Court to take into account the “commitments of each of the parties that are necessary to enable the party to support himself or herself”.  (My emphasis).

12. Many of the commitments incurred by the husband and described as his “expenses” do not establish on an interim basis that they are necessary to enable the husband to support himself taking into account the provisions of s 75(2)(g) which refer to “a standard of living that in all the circumstances is reasonable”. 

13. Examples of such expenditure are the $4,000 a month he is paying for the FT loan taken out for the children’s business and the interest which he is paying on the Town M loan.

14. Sections 75(2)(o) “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account” requires the Court to give consideration to the monies withdrawn by the wife from the business accounts which total $28,200.  This sum has been conceded as one which would offset any claim for arrears due by the husband pursuant to the Consent Order up until December 2012.

15. It is clear from the Financial Statements and evidence provided by the husband that if the property at Town M were sold and the debt to NAB discharged, the husband’s expenses would be considerably reduced and his capacity to pay maintenance to the wife on an interim basis greatly improved.

16. The commitments of the husband in relation to the Town M property and the Thailand property and the payment of the debt in relation to the children’s hospitality business borrowings, are not and could not, at any time be described as commitments of the husband necessary to enable him to support himself.

17. Taking into account therefore the provisions of s 72 and s 75 the Court is satisfied that it is proper to make provision for the maintenance of the wife.  In accordance with the provisions of s75(1) and s75(2), the Court is satisfied that it is proper to make an order which provides for the husband to pay to the wife $1,250 per week commencing from 1 January 2013.  This sum is the sum which, taking into account the financial circumstances of both of the parties, should be sufficient for the wife to maintain herself and pay all reasonable expenses in relation to other outgoings, such as telephone, rates and taxes and insurances.

18. On the basis that the monies received by the wife from the business account cover the arrears of maintenance up until the hearing before me in December 2012, I make no order for payment of any other arrears of maintenance which have accrued.

19. Notwithstanding the past failure of the husband to comply with the orders of the Court, and taking into account that the orders are on an interim basis, it is not, at this time, appropriate to make an order for the sale of the properties at Town M and Thailand, or the sale of the husband’s shares or motor vehicles.  The husband is now being given the opportunity to comply with orders of the Court.  He may reach some agreement with the wife as to the sale of the premises at Town M, Thailand or Suburb F in a manner which would benefit the financial future of both of the parties.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 30 April 2013.

Associate: 

Date:  1 May 2013