GOGGIN & WILEY

[2017] FamCA 1072

FAMILY COURT OF AUSTRALIA

GOGGIN & WILEY [2017] FamCA 1072

FAMILY LAW – PROPERTY – Sole use and occupation – Interim Application – Where both the husband and wife seek sole use and occupation of the former matrimonial home – Where both parties seek that they be entitled to exclusive control of the building works of an adjacent jointly owned property –Where husband’s bail conditions would prevent one party residing in the former matrimonial home and the other to control the building works – Where considerations relevant to both matters inform the other – Where the husband has been responsible for financing both properties – Where it is unlikely that the wife will be able to retain the new property as part of the final settlement – Where husband is to have sole occupation of the former matrimonial home and exclusive control of the building works.

FAMILY LAW – PROPERTY – Partial property settlement – Litigation funding – Where husband seeks to pay the wife certain sums and monthly amounts as partial property settlement – Where wife seeks lump sum payment by husband for her legal costs as partial property settlement – Where broad assessment as to the wife’s final property division is required – Where husband is to pay to the wife the sum of $100,000 by way of partial property settlement.

FAMILY LAW – SPOUSAL MAINTENANCE – Where wife seeks the husband pay to her interim spousal maintenance in the sum of $5,470 per week – where period interim maintenance assessed at a total of $2,000 per week – where wife’s relocation costs assessed as lump sum spouse maintenance of $10,000.        

Family Law Act 1975 (Cth) ss 79, 80, 114
Queensland Building and Construction Commission Act 1991 s 44J

Younan & Younan [2012] FamCA 1042
S & S [2002] FamCA 59
Mikele & Mikele [2008] FamCA 651
Davis & Davis (1976) FLC 90-062
Davis & Davis (1983) FLC 91-319
P & P (Unreported, Family Court of Australia, Lindenmayer J, 12 July 1982)
Harris & Harris (1993) FLC 92-375
Strahan & Strahan (2011) FLC 93-466
Norbis v Norbis (1986) FLC 91-712
Stanton & Brook [2012] FamCA 230

APPLICANT: Mr Goggin

RESPONDENT: Ms Wiley

FILE NUMBER:	BRC	11427	of		2017
DATE DELIVERED:	20 December 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns (via video link to Brisbane)

JUDGMENT OF: Tree J

HEARING DATE: 24 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk QC

SOLICITOR FOR THE APPLICANT: Hartley Healy

COUNSEL FOR THE RESPONDENT: Dr Sayers

SOLICITORS FOR THE RESPONDENT: Rice Naughton McCarthy

Orders

1. That Orders 2 – 8 come into effect upon the Husband’s bail conditions being varied to provide for the Husband to be permitted to reside at 1 B Street, Suburb C in the State of Queensland.

2. That on or before 5 February 2018, the Wife vacate the premises at 1 B Street, Suburb C in the State of Queensland and provide sole occupation to the Husband of the said premises and the Wife thereafter be restrained from entering or remaining upon the said premises until further Order of this Court. 

3. That forthwith upon the making of these Orders, the Husband and Wife do all acts and things including signing all necessary documents so as to surrender their joint owner-builder permit with respect to the premises at 2 B Street, Suburb C, pursuant to Section 44J of the Queensland Building and Construction Commission Act 1991.    

4. That forthwith upon the making of these Orders and contemporaneously with the Husband and Wife’s surrender of their joint owner-builder permit, the Husband forthwith do all acts and things necessary so as to:-

   4.1.Appoint Mr D, Architect, as the Manager so as to manage and oversee the ongoing building and completion of the construction at the premises at 2 B Street, Suburb C in the State of Queensland; and

   4.2.Appoint a registered builder (at the choosing of the Husband) to take over and complete the build of the said premises at 2 B Street;

   4.3.Authorise Mr D to provide a monthly report as to the progress of the build and the Husband to provide copies of Mr D’s reports to the Wife’s Lawyers;

   4.4.Provide further information and copies of any documents reasonably requested by the Wife’s lawyers from time to time in relation to the ongoing build at 2 B Street, Suburb C.

5. The Wife be restrained and an injunction be granted restraining the Wife from contacting or attempting to have any contact with Mr D save and except for contact through her lawyers.

6. That within twenty one (21) days of the date of these Orders, the Wife do provide to the Husband all original documentation in her possession, power and control relating to the build at 2 B Street including but not limited to the following:-

   6.1.All invoices and accounts;

   6.2.All documentation relating to invoices or accounts including emails and documentation evidencing such payment of such accounts;

   6.3.All Contracts and Agreements;

   6.4.All Licenses and License Agreements;

   6.5.All Reports;

   6.6.All Certificates in relation to all building work performed on the subject property to date;

   6.7.Any other such documents as maybe reasonably requested by the Husband relating to the build of 2 B Street and as may be requested reasonably by Mr D from time to time. 

7. That forthwith upon the Wife vacating the premises at 1 B Street, Suburb C in the State of Queensland, the Wife provide to the Husband’s solicitors all keys, remotes and passcodes for the dwelling at 1 B Street, Suburb C in the State of Queensland.

8. That the Husband be the sole signatory and be solely authorized to approve and make all ongoing payments with respect to the build at 2 B Street and copy of this Order be served forthwith upon Mr E at the National Australia Bank and, the Wife sign any documents as maybe necessary to facilitate this payment arrangement. 

9. That within twenty one (21) days of the date of these Orders, the Husband pay to the Wife the following:-

   9.1.the sum of $10,000.00 to assist the Wife with necessary relocation expenses by way of interim spouse maintenance;

   9.2.the sum of $100,000.00 by way of partial property settlement;

   9.3.as and from the date of the Wife obtaining rental accommodation, a sum of $750.00 per week towards her rental costs, by way of interim spouse maintenance; and

   9.4.the Husband pay to the Wife’s nominated account the sum of $1,250.00 per week by way of interim spouse maintenance.  

10. That upon vacating the premises at 1 B Street, Suburb C in the State of Queensland, the Wife be restrained from removing any furniture and chattels located within the premises save and except for her own personal possessions, clothing and jewellery and those personal possessions and clothing of her children.

11. That the Husband continue to meet all construction costs, mortgage repayments, and outgoings for both 1 and 2 B Street, Suburb C, together with all outlays on both said properties.

AND IT IS FURTHER ORDERED BY CONSENT

Disclosure

1. That within 21 days of the date of these Orders, the Husband and Wife provide to the other by way of disclosure (if not already so provided):-

   12.1.the parties’ three most recent Income Tax Returns and Notices of Assessment;

   12.2.documenters in relation to all superannuation interests including the most recent superannuation statement;

   12.3.statements in relation to all bank accounts (including loan accounts and credit cards) which the parties have operated, or in which the parties have an interest, for the previous 12 months;

   12.4.for any company, trust or partnership in which the parties have an interest (including overseas):

   12.4.1.Company Constitution or Trust Deed;

   12.4.2.financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the last three financial years; and

   12.4.3.any Business Activity Statements for the last 12 months.

   12.5.Details/records of any investments including stocks and shares;

   12.6.Details/records of any life insurance or disability insurance;

   12.7.Any other documentation as reasonably requested by the other party.

Valuations

Real Property

1. That N Valuers be jointly appointed as court expert to value the following real properties:-

   13.1.2 B Street, Suburb C;

   13.2.1 B Street, Suburb C; and

   13.3.F Street, Suburb G.

2. That the cost of the valuation reports prepared by the valuer be paid by the Husband in the first instance with the Wife’s half share of such cost to be paid from her final property settlement.

Z Limited

1. That within 21 days of the date of these Orders, Mr P be jointly appointed as the court expert to value the Applicant’s interest in Z Limited. 

2. That the costs of the valuation report prepared by Mr P be paid by the Husband in the first instance with the Wife’s half share to be paid from her final property settlement. 

Furniture, Effects and Other Property

1. That within 21 days of the date of these Orders, the Applicant and Respondent do all acts and things necessary to jointly appoint All Asset Appraisals as the court expert to value the following:-

   17.1.the household furniture and effects (of the Husband and the Wife) at 1 B Street, Suburb C;

   17.2.the household furniture and effects at F Street, Suburb G;

   17.3.the Applicant’s record collection;

   17.4.the Applicant’s jewellery;

   17.5.the Respondent’s jewellery

   17.6.all artwork in the possession of the Applicant and Respondent; and

   17.7.the furniture and equipment at the office of Z Limited.

2. That the costs of the valuation report prepared by All Asset Appraisals be paid by the Husband in the first instance with the Wife’s half share to be paid from her final property settlement.

Mediation

1. That when the parties have received valuations in accordance with these Orders they shall convene mediation and for the purpose of agreeing on a mediator, the Respondent shall nominate a panel of three mediators to the Applicant, from which the Applicant shall select one (1) mediator within seven (7) days of receipt of the panel. 

2. That the cost of the mediation fees and any room hire shall be paid by the Applicant in the first instance with the Wife’s half share to be paid from her final property settlement.

AND IT IS FURTHER ORDERED THAT

1. Otherwise all extant applications for interim orders be 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 Goggin & Wiley 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 CAIRNS VIA VIDEO LINK TO BRISBANE

FILE NUMBER: BRC11427/2017

Mr Goggin

Applicant

And

Ms Wiley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By his Initiating Application filed 30 October 2017, Mr Goggin (“the husband”) sought a suite of interim orders, including that he have sole occupation of 1 B Street, Suburb C (“the former matrimonial home”), that he be entitled to control the building works at a jointly owned house adjacent to the former matrimonial home (“2 B Street”) and that he pay certain sums to Ms Wiley (“the wife”) by way of partial property settlement, together with monthly amounts totalling $6,000.00.

2. For her part, in her Response filed 20 November 2017, the wife also sought a number of interim orders, including that she have the sole use and occupation of the former matrimonial home, and that she continue as owner builder of 2 B Street.  She also sought that the husband pay her a lump sum of $138,810.10 by way of partial property settlement, and interim spouse maintenance in the sum of $4,370.00 per week.

3. On 24 November 2017, I heard the parties’ competing applications and reserved my decision.  This is that decision, and the reasons for it.

BACKGROUND FACTS

1. The husband was born in 1951 and hence is presently 66 years of age.  He is a professional. He is self-employed.  He has been in previous relationships to which children have been born, but they are of no relevance to this application.

2. The wife was born in 1972, and hence is presently 44 years of age.  Her most recent employment was in a customer service position with Company H, which employment she ceased during the course of the relationship.

3. The parties formed a relationship in 2011, and married later that year.  The date when they commenced cohabitation is contentious but irrelevant, however it is not in dispute that the wife gave up her employment with Company H early in the marriage.

4. The wife has two children to a previous relationship, being K, aged 11, and J, presently 13 years of age.  They lived with the parties during the course of the relationship.  K is a special needs child.

5. At the commencement of the relationship, the husband had considerable assets, including an apartment at Suburb L.  It appears as though the wife’s assets were far more modest.  In 2012 the parties purchased the former matrimonial home in joint names for the sum of $2,900,000.00.  The wife contributed $30,000.00 from her redundancy package from Company H, the parties jointly borrowed $1,672,000.00, and the remainder of the purchase price was provided by the husband in cash.

6. It is not in dispute that thereafter the husband has met all costs associated with servicing the borrowings in respect of that property.

7. In 2015 the parties purchased 2 B Street.  The purchase price was $1,355,000,00.  It was again purchased in joint names.  The purchase was funded by joint borrowings in the sum of $1,019,500.00, with the remainder of the purchase price being funded in cash by the husband.  Again, the husband has been responsible for servicing the payments in respect of the loan.

8. It was the intention of the parties that they would extensively rebuild the home on 2 B Street, and in due course move into it when the build was completed.

9. In 2015 the Suburb L property was sold for the sum of $1,350,000.00.  The proceeds of sale were applied by paying $600,000.00 off the mortgage over the former matrimonial home, and the balance being paid to the husband. 

10. The wife says that prior to the sale of the Suburb L property, it was extensively renovated, and she had considerable involvement in those works.  She also claims that she was critical to achieving the sale price for the apartment.

11. In 2016, the parties obtained a joint owner builder licence, the wife having completed the necessary course to enable them to obtain it.  In 2017 the re-build of 2 B Street commenced, with the funds for the construction being sourced by joint borrowings, seemingly a line of credit capped at $1,000,000.00.  The husband is, as with all the parties’ borrowings, the person who pays any sums due under that facility.

12. The parties separated on a final basis in late 2017.  It seems likely that their separation had something to do with a disagreement between them in relation to a proposal of the wife in regard to a business venture.  At all events, on an evening in 2017, there was a dispute between the parties at the former matrimonial home, in consequence of which the police were called by the wife.  However it seems that, having obtained and viewed CCTV footage, the police formed the view that it was in fact the wife who had behaved violently, and they brought an application, and obtained an interim protection order, in which the husband was named as the aggrieved.  At that interim hearing, the wife sought and obtained a mutual temporary protection order in her favour as well.  That required the husband to be of good behaviour towards the wife, and not commit domestic violence against her.  However since that order was made, the husband has been charged with contraventions of it, together with a criminal charge.  The wife contends (but it is unclear) that these charges arise from matters caught on the CCTV at the parties’ former matrimonial home, between different dates in 2017.

13. As a condition of the husband’s bail in respect of those charges, he is required to reside at a specified address, and not approach within 100 metres of the wife, or enter or approach the former matrimonial home.

14. In September 2017, the husband had acted so as to ensure that the wife no longer had access to the funds or accounts from which the build of 2 B Street had been being paid.  The building works have therefore stopped, with the builder walking off the site in November 2017.  The extent of works necessary to complete the works is in dispute, but appears to involve some significant steps. 

15. Further, in September 2017, it seems that the wife was wholly denied access to the husband’s bank accounts.  Since then, she has remained living in the former matrimonial home, and the husband has transferred the sum of $4,000.00 per month into an account in her sole name.  She contends that this is “entirely insufficient to meet my reasonable living expenses” and considers that she has “been left destitute and without access to reasonable funds, as a method of [the husband] continuing to inflict abuse on me and my children.”

THE SOLE OCCUPATION AND BUILDING CONTROL APPLICATIONS

Overview

1. Both of the parties seek sole occupation orders in relation to the former matrimonial home.  However the matter is complicated by the dispute about who should be in control of the building works at 2 B Street.  That is because, given the restraints imposed upon the parties by the domestic violence orders, and the husband’s bail conditions, it would not be possible for one of the parties to reside in the former matrimonial home, but the other party be responsible for the building of 2 B Street.  Further, although he contended they could easily be changed, the husband is presently restrained by his bail conditions from approaching or entering upon the former matrimonial home.

2. Therefore it can be seen that, unusually, the considerations relevant to each matter inform the other.

The law

1. Both a sole occupation order, and an order granting exclusive control of building works, are examples of injunctive relief under Family Law Act s 114. As to sole occupation, in Younan & Younan [2012] FamCA 1042, MacMillan J helpfully summarised the law as follows:

   17.The relevant criteria for determining an application for sole use and occupation has been described by the Full Court in S & S [2002] FamCA 59 as “surprisingly vague”. That being the case as highlighted by Cronin J in Mikele & Mikele [2008] FamCA 651 pursuant to s114 of the Family Law Act 1975 the Court is required to make an order that “...is proper and more importantly, to exercise discretion judicially”.

   18.      In S & S (Supra) the Full Court said at 78,264 as follows:

   The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.

   19.In Davis & Davis (1976) FLC 90-062 the Full Court at 75,309 said that the matters which must be considered include “...the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.”

   20.The full Court in Davis & Davis (1983) FLC 91-319 quoted with approval a passage from P & P an unreported decision of Lindenmayer J delivered 12 July 1982 as follows:

   In my opinion, Page’s case demonstrates a softening of the Court’s attitude towards applicants for exclusive occupation orders. It seems to indicate that it is no longer necessary that such an applicant show that it is impossible or intolerable for him or her to continue in co-occupation of the house with the other party, or that there has been some conduct by the other party which justifies his exclusion from the home. All that is necessary, it seems, is that the Court should regard the situation between the parties as being such that it would not be reasonable to expect them to remain in the home together.

1. I gratefully adopt that passage, which is also apposite to the building works injunction as well.

Consideration

1. The following factors favour the husband being entitled to solely occupy the former matrimonial home:

   ·The wife does not seek to have the former matrimonial home transferred to her as part of the ultimate final property settlement, nor, without significant borrowings, could she possibly afford it;

   ·Conversely, the husband wants, and is likely to, keep the former matrimonial home in the outcome of the ultimate property division.

2. On the other hand, the following factors tell in favour of the wife continuing to live in, and have the benefit of a sole occupation order in respect of, the former matrimonial home:

   ·Implicitly, the husband consented to her living there as part of his bail conditions (albeit not in an irrevocable way);

   ·The wife’s son has condition in relation to which he derives benefit from structure and continuity (although the wife says that she wishes to ultimately live and move next door in any event, and I note he lived elsewhere for about four or five months earlier this year) and needs an open plan home, which the former matrimonial home is;

   ·The property has security features which, the wife says, were paid for at public expense by recommendation of the police, which perhaps may not be easily replicated in any new accommodation.

3. As I have observed, also relevant to this matter is whether or not the wife should be the party continuing to be responsible for the building works at 2 B Street.  As to that, the following points suggest that she should not do so:

   ·There are legitimate concerns which the husband has in relation to the lawfulness of paying accounts from the present builder (and others) who appear to not be registered for GST;

   ·There are concerns which the husband has in relation to the wife being honest in relation to her claims for payment in relation to the build.  Most obvious is a security expense which she paid for (post-separation) as part of the build of 2 B Street, but which plainly had nothing to do with the build;

   ·The husband is concerned that there have been, and may continue to be, costs blow-outs with the build.  He says the wife’s initial estimate of the cost was less than $1,000,000.00, but the most recent quantity surveyor report estimates a build cost of $1,440,000.00.  Indeed he says it may cost as much as a further $1 million to complete the works ;

   ·Unless the wife were able to obtain significant, and perhaps necessarily non-commercial, borrowings, it is unlikely that she would be able to keep 2 B Street as part of any property division;

   ·It is therefore counter-intuitive to permit the wife to be responsible for the build of 2 B Street, when it will largely be undertaken at the husband’s expense, but to the wife’s design, and hence not necessarily to the husband’s satisfaction;

   ·Likewise, there is a risk that the wife may overcapitalise 2 B Street, which would then see the husband likely assume any ensuing loss.

4. On the other hand the following points tend to favour the submission that the wife is best placed to undertake the build and complete it:

   ·She is presently the lawful (albeit joint) owner builder of 2 B Street;

   ·She has been largely responsible for overseeing the build so far;

   ·She says she wants to try and have it transferred to her as part of the property settlement.

5. In my view, weighing all of those matters in the balance, tells in favour of the husband having both an order for sole occupancy over the former matrimonial home, and being responsible for the build completion of 2 B Street.  I give particular weight to the fact that he is solely responsible for servicing all finance in relation to both properties, including the loan funding the build of 2 B Street, but the works would otherwise be being undertaken by the wife, who does not appear to have strong prospects of being able to retain that property as part of the ultimate property settlement.  In those circumstances, particularly given the risk of overcapitalisation, the person with the greatest financial stake at risk should be responsible for the build.  That being the husband, it logically follows, given the unique circumstances of this case, that he should also occupy the former matrimonial home.

6. Given the unexpected delay in delivering this judgment, I am satisfied the wife should have until 5 February 2018 to vacate the former matrimonial home.

THE PARTIAL PROPERTY SETTLEMENT APPLICATION

Overview

1. The purpose for which the wife seeks payment of $138,810.30 to her, is exclusively so as she can meet her anticipated legal fees in these proceedings, up until, and including, mediation.  That said, and perhaps a little unusually, she does not seek to have the characterisation of that payment as between costs or partial property settlement reserved to the trial judge, but rather specifically seeks it by way of interim property division.

2. The husband opposes such an order on essentially two bases.  The first is that he says it may not be possible to claw back from the wife any excess which that sum represents over her ultimate entitlement, and secondly, that the expenditure of that sum on legal costs is disproportionate to her likely ultimate entitlement. 

The law

1. In considering an application for litigation funding by reference to s79, it is plain that the exercise of the discretion must be undertaken within the usual parameters applicable to that section[1] and because, of necessity such an exercise is likely to be imprecise, it must be conservative and the Judge satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or on a practical level, be able to be reversed.[2]  However it is no longer correct to say that the exercise of the power should be confined to cases where circumstances presented at the time are “compelling,”[3] although more is required than the mere fact that upon a final hearing the applicant would receive the amount being sought – or more – from the other party.[4]  However none of the foregoing should be confused with binding principles of law: “the nature of the issues which arise under s79 is such that there is either little or no scope for giving guidance in the form of binding rules of law.”[5]

   [1]Harris & Harris (1993) FLC 92-375 at 79,929-79,930 and Strahan & Strahan (2011) FLC 93-466 at [100].

   [2]ibid.

   [3]Strahan (supra) at [132].

   [4]Strahan (supra) at [139].

   [5]Norbis v Norbis (1986) FLC 91-712 at 75,166.

Consideration

1. Ordinarily, in applications such as this, a court would undertake some broad prospective assessment as to what entitlement the wife may have in any property division in due course.  However an extra difficulty attends this case.  Apparently all other Family Court judges in Queensland are incapable of dealing with this matter, because they are conflicted.  Whilst there is always the possibility of an interstate judge dealing with the trial, should one ultimately be required, it would be unfortunate if that were necessitated because, in resolving this interim application, I too became thereafter incapable of dealing with the matter.  I therefore propose to be somewhat circumspect in making any observations as to the wife’s ultimate likely entitlement.

2. Particularly, upon analysis, the real dispute between the parties is as to the wife’s likely entitlement to an adjustment to her contributions based entitlement under Family Law Act s 75(2). She says she has such an entitlement; the husband strongly refutes that. To resolve that dispute in this application may legitimately lead to an apprehension of prejudgment of that argument at trial.

3. With that in mind, it seems to me that the most sensible way in which I should deal with this matter, is to note that the husband concedes, in that part of his Initiating Application in which he articulates the final orders he seeks, that his liability is to pay the wife the sum of $100,000.00 by way of property settlement.  I am satisfied that concession is sound, and reflects a figure which is at least within a conservative entitlement of the wife.  Additionally, some savings as to the wife’s estimated legal costs can be reasonably anticipated; for instance, she contemplated that she would pay one half of the valuations in the sum of $5,000.00, whereas the husband contends that he should, at least in the first instance, be wholly responsible for those costs.  Further, at paragraph 12(c) of the affidavit of Mr M filed in support of the wife’s application, another $7,680.00 was budgeted in the estimated costs to cover the eventuality that the interim hearing before me on 24 November 2017 did not resolve the application, although it did.  Likewise the anticipated costs of the mediator could be ordered to be paid by the husband in the first instance.

4. Therefore there is something of an alignment between what it is likely to cost to bring the matter to, and conduct, the mediation, on the one hand, with what the husband concedes is likely to be the wife’s ultimate entitlement.  The only question then, is whether the court should, in the exercise of its discretion, be concerned about the wife expending those sums on legal fees, which may eat up most, if not all, of her ultimate property entitlement.  In my view, whilst in an appropriate case such a consideration may be deserving of weight, in these proceedings it does not.  Ultimately it is a matter for the wife as to how she spends any or all of her property settlement, and if she perceives that the best means of maximising her return is to spend that entitlement trying to increase her ultimate outcome, then that is a matter for her judgement.

5. Whilst in some cases a court may be concerned that the spouse needs to be protected from themselves, or their lawyers, these are not such proceedings.

6. I therefore am satisfied that there should be an order by way of partial property settlement to the wife in the sum of $100,000.00.

INTERIM SPOUSE MAINTENANCE

Overview

1. In the event that she did not succeed in her sole occupation application, the sum the wife sought by way of interim spousal maintenance increased to $5,470.00 per week, or $284,440.00 per annum.  She sought no lump sum in respect of any relocation expenses.

2. For his part, the husband effectively conceded a liability to pay the wife in the sum of $4,000.00 per month, together with firstly, a further $500.00 per week towards her rental costs, and secondly, a lump sum payment of $10,000.00 to assist with her relocation costs.  That said, he expressly sought that the characterisation of those sums (presumably as either spouse maintenance or interim property settlement) be reserved to the trial judge.

The law

1. In the decision of Stanton & Brook [2012] FamCA 230, Watts J said as follows:-

   Interim spousal maintenance

   18.Section 90SF(1) FLA requires a party to a de facto relationship to maintain the other party, to the extent that they are reasonably able to do so, and only if, that other party is unable to support herself or himself adequately because of certain reasons and having regard to factors set out in s 90SF(3) FLA. If the applicant establishes a need and it is shown that the respondent has a capacity to pay, then the court may make such order as it considers proper for the provision of maintenance (s 90SE(1) FLA).

   19.In interim proceedings, the Full Court in Redman and Redman (1987) FLC 91-805 endorsed a statement made by Fogarty J in Williamson and Williamson (1978) FLC 90-505 as follows:

   “Another consequence is that on an application for interim maintenance, the court conducts ‘not as final or exhaustive a hearing as would be the case if one were hearing the matter finally’ ... the evidence need not be so extensive and the findings not so precise.”

   20.So, upon an application for interim maintenance, an approach can be taken with a broader brush.

   21.Any proposed interim property order must be taken into account when interim spousal maintenance is considered (see Bevan and Bevan (1995) FLC 92-600 and Oates and Crest (2008) FLC 93-365; 216 FLR 469).

2. That useful summary of principle is equally applicable to proceedings arising out of a marriage, and I adopt it.

Consideration and s 75(2) matters

1. The husband is 66 years of age, and says he is suffering some mental health issues arising from his criminal charges and stress generally.  The wife is 44 years of age, and says she also has some health issues, and indeed the husband asserts she abuses alcohol, and demonstrates some paranoid behaviours.

2. The husband says he earns gross fees of about $1,250,000.00 per annum, but intends to limit his professional practice over the coming months, so as to be involved in the build of 2 B Street.  That said, he most recently says that he estimates his fees have recently reduced by about 70 per cent.  He has considerable property at his disposal, probably with net worth in excess of $3 million, of which over $500,000.00 is cash.  He has superannuation valued at nearly $800,000.00.

3. The wife is not presently working.  She says her expenditure exceeds the sums she receives from the husband, and from her former husband by way of child support.  She asserts modest wealth, with a net value of about $1 million (although she asserts a 50 per cent ownership of the former matrimonial home and 2 B Street), and superannuation of about $160,000.00.

4. There are no children of the marriage. 

5. In her financial statement filed 20 April 2017, the wife asserted that her total average weekly expenses were $4,595.00, of which $2,370.00 was exclusively in respect of herself.  Included in that calculation were entertainment or hobby expenses of $800.00 per week, and clothing and shoe expenses of $300.00 per week.  As to the latter, the wife appeared to think that sum reasonable, as during the relationship she claims, in her affidavit, to have spent approximately $2,500 per week on clothes.   

6. To buttress her claims that the parties, during the relationship, had “enjoyed a very high standard of living,” in her affidavit filed 23 April 2017, the wife extracted some credit card expenses from the period of the relationship.  However plainly they were from times when the parties were travelling, including overseas, where indeed they appear to have shown little disinclination for luxury.

7. The husband says that the wife’s claimed expenses are fraudulent, and that during the marriage, he gave her $4,000.00 per month to cover the entire expenses of a household then comprising four people.  However, confusingly in his affidavit he then went on to assert that he nonetheless “regularly paid for expenses intended to be covered by the monthly payment,” seemingly on his credit card, and that the wife therefore was able to divert part of the $4,000.00 to another bank account.  However other than his assertion, the husband produces no real evidence of that.

8. The husband also disputes he should shoulder the bulk, or perhaps any, of the expenditure related to the wife’s children.  There is some merit to that claim: the wife receives $225.00 per week by way of child support for them, but she wants the husband to pay another $2,000.00 per week for their expenses. 

9. In these circumstances, it is simply not possible to scientifically determine the commitments of the wife that is necessary to support herself and her 2 children who live with her, however I conclude that it is likely in the vicinity of $1,250.00 per week.  In so concluding, I note that, given the parties’ lifestyle when together, the standard of living that is in all the circumstances, reasonable, is one which many other people in the community might think unreasonable.

10. Neither party has any pension entitlement; given his age, the husband may have some access to superannuation, but it is unclear.

11. I have already noted the parties’ relatively lavish lifestyle during the marriage.

12. It is not presently possible to determine the extent to which the wife contributed to the property of the parties.

13. The wife’s earning capacity is said to have been diminished by the marriage, in that she gave up her employment upon cohabitation.  She earned about $110,000.00 per annum in that role (inclusive of superannuation) and says the husband requested her to give up that employment upon marriage.  She further asserts that the husband actively discouraged her returning to work during the marriage and she has current practical restrictions in doing so.  The husband denies all of that, and says there is no present impediment to her returning to work.

14. As has been seen, I propose to make an interim property settlement in the wife’s favour of $100,000.00, but most of that will likely be consumed in legal fees.

15. Doing the best I can, and concededly using a very broad brush, I assess that the proper order for interim spouse maintenance is in the sum of $1,250.00 per week, to which should be added the reasonable rental costs of a 3 bedroom apartment in the reasonable vicinity of the former matrimonial home.  I assess that on the evidence, albeit again using a broad brush, at $750.00 per week.

16. I am satisfied that both sums should be expressly characterised as interim spouse maintenance, as should the $10,000.00 payment towards relocation.

UNCONTENTIOUS MATTERS

1. The parties agreed a number of procedural matters to prepare the matter for mediation, and I shall order in accordance with their agreement.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment. 

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 20 December 2017.

Associate:

Date:  20 December 2017