GRESHAM & GRESHAM - [2018] FamCA 841

FAMILY COURT OF AUSTRALIA

GRESHAM & GRESHAM

[2018] FamCA 841

FAMILY LAW – PROPERTY – Interim application – Where the wife seeks that orders be made for a partial property distribution – Where the wife seeks that orders be made for spousal maintenance – Where the wife seeks that orders be made for a departure from a Child Support Assessment so as to increase the child support payable by the husband to her – Where the husband seeks that orders be made for a departure from a Child Support Assessment so as to decrease the child support payable by him to the wife – Where the wife seeks that orders for the sale of a property in the United Kingdom – Where the husband seeks that orders for the sale of the former matrimonial home – Where the husband is the primary financial contributor – Where the wife is the primary carer and homemaker – Where the Court finds that the parties have lived beyond their means – Where the Court finds that the wife cannot reasonably support herself – Where the Court finds that the wife cannot adequately fund her litigation – Where the Court finds that the husband has financial resources which enable him to pay spousal maintenance and non-periodic child support – Where the Court declines to depart from the current Child Support Assessment providing for periodic payments – Where the Court declines to make orders for the sale of certain properties at this interim stage – Orders made for spousal maintenance – Orders made for non-periodic child support – Injunctive order made.

Child Support (Assessment) Act 1989 (Cth) ss. 116, 117, 124, 145
Family Law Act 1975 (Cth) ss. 72, 74, 75, 79, 80, 114
Federal Court of Australia Act 1976 (Cth) s. 37

Family Law Rules 2004 rr. 1.04, 4.15, 4.23

Acton & Burton [2015] FamCA 469
Aitken & Murphy (No 2) [2012] FamCA 239
Bagala & Bagala (2009) FLC 98-043
Beck and Sliwka (1992) FLC 92-296
Blueseas Investments Pty Ltd & Mitchell (1999) FLC 92-856
Child Support Registrar & Nixon (2007) 36 Fam LR 571
Drysdale & Drysdale [2011] FamCAFC 85
Felice v Felice [2011] FamCA 162
Hall v Hall [2016] 257 CLR 490
In the Marriage of Farr (1976) FLC 90-133
In the marriage of Gyselman (1992) FLC 92-279
Iphostrou & Iphostrou [2011] FamCA 20
Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108
Maroney & Maroney [2009] FamCAFC 45
Martin & Martin and Ors [2013] FamCA 222
McCrossen & McCrossen (2006) FLC 93-283
Medlow & Medlow (2016) FLC 93-692
Mijac Investments Pty Ltd v Graham [2013] FCA 296
Modra v Victoria (Department of Education and Early Childhood Development and Department of Human Services) (2012) 291 ALR 429
Philips & Samuels [2017] FamCA 125
Redman & Redman (1987) FLC 91-805
Saxena and Saxena (2006) FLC 93-268
Seymour and Seymour [2011] FamCAFC 97
Sklavos v Australasian College of Dermatologists [2013] FCA 1065
Sresbodan & Sresbodan and Ors [2013] FamCA 480
Stein & Stein (2000) FLC 93-004
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Warwick and Cutler and Anor [2016] FamCA 934
Wenz v Archer (2008) 40 FamLR 212
Yewen & Child Support Registrar [2014] FCCA 2399

APPLICANT:

Ms Gresham

RESPONDENT:

Mr Gresham

FILE NUMBER:

SYC 7914 of 2016

DATE DELIVERED:

19 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

6 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Watson & Watson Solicitors

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Within seven (7) days, the parties do all acts and things reasonably necessary to cause to be transferred from the B Bond (portfolio number …) to the C Account (BSB …; account number #12) the sum of $185,000.
The parties do all acts and things reasonably necessary to cause monies to be paid from the C Account to the wife, up to the sum of $40,000, as are required to reimburse to the wife for her medical expenses, within seven (7) days of production of receipts or invoices, evidencing expenses that she has incurred or will incur in excess of the amount recoverable from Medicare and/or private health insurance.
Within seven (7) days of compliance with order 1 herein, or such other time as the parties agree in writing, the parties do all acts and things reasonably necessary to cause the sum of $145,000 to be transferred from the C Account to the trust account of the wife’s solicitors, Barkus Doolan, with such sum to be applied toward the payment of the wife's legal costs, disbursements, expert and Counsel fees, as required. Any balance of those funds remaining in that trust account upon finalisation of these proceedings is to be released to the wife.
Subject to order 5 herein, the husband pay to the wife, by way of periodic spousal maintenance, the sum of $931 per week, with the first payment to be made within seven (7) days and weekly thereafter.
The husband’s obligation to pay spousal maintenance, pursuant to order 4 herein, is subject to the wife taking all steps as are necessary to facilitate such payments being made from the B Bond until those funds have been exhausted and, thereafter, from such other account or source of funds as is nominated by the husband.
The parties forthwith do all acts and things reasonably necessary to require Australia and New Zealand Banking Group Limited to reduce the current repayments due and owing in respect to the mortgage over the property at D Street, Suburb E NSW (“the Suburb E property”), in terms of the C Account, to interest only repayments.
The husband pay, as and when they fall due, all costs of premiums for private health insurance for the children with their existing health fund at the current level of cover, and any gap medical expenses (including but not limited to medical, hospital, dental, orthodontic, physiotherapy, optometry and pharmaceutical costs and expenses) not otherwise met by the private health fund.
The husband pay the following expenses in respect to the children:
(a)The costs of and incidental to the children's attendance at their current schools or any other school agreed upon in writing by each party or, in the absence of agreement, as ordered by the Court;
(b)Agreed additional school tuition and tutoring fees;
(c)School textbooks and materials;
(d)School and sports uniform and shoes;
(e)School camps and excursions; and
(f)The costs of registration and participation (including costs of equipment, uniforms and shoes) in sporting teams and extracurricular activities.
The non-periodic child support, together with the periodic child support paid by the husband, is to account for 100 per cent of the annual rate of child support payable by the husband under any administrative assessment. The annual rate of child support payable by the husband under any assessment issued from the date of this order to its termination is to be reduced by 100 per cent.
The parties forthwith do all acts and things necessary to cause a copy of these orders to be lodged with the Registrar of the Department of Human Services (Child Support).
In the event that the husband does not comply with order 1(a) made on 7 May 2018 within 14 days, the wife be granted liberty to apply within a further 7 days.

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 Gresham & Gresham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7914 of 2016

Ms Gresham

Applicant

And

Mr Gresham

Respondent

REASONS FOR JUDGMENT

Introduction

In this application, the wife seeks interim property orders, including for a partial property distribution, spousal maintenance, a departure from a Child Support Assessment and various injunctive orders.
While the husband agrees that the Court should entertain an application for departure from the current Child Support Assessment, he contends there should be a reduction in the amount he is required to pay. The husband also seeks orders requiring the sale of the parties’ former matrimonial home at D Street, Suburb E NSW (“the Suburb E property”). The wife currently resides at that property with the parties’ children.
The husband acknowledges that the wife has a need for spousal maintenance, however, he contends that the payments he is making towards the mortgage and expenses associated with the Suburb E property, together with meeting his child support obligations, has exhausted his capacity to make any such payments.
In this matter, the parties and the Court have been required to apply considerable resources to adjudicate a dispute between the parties concerning how to best manage their resources, such as to enable them to maintain a reasonable standard of living, pending final resolution of these proceedings by way of settlement or Court determination. Through the implementation of a degree of common sense and goodwill, the parties would have the capacity to do so themselves. The fact that they are spending such a substantial amount of their combined resources on legal fees is regrettable. The parties and their legal advisers are reminded of their responsibility in achieving the main purpose of the Family Law Rules (“the Rules”), as set out in rule 1.04. That main purpose is to obligations to “ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”.

Background

In 1968, the husband was born. He is currently aged 50 years.
In 1972, the wife was born. She is currently aged 46 years.
In 2003, the parties were married in the United States.
On 1 November 2003, the wife relocated to the United Kingdom to live with the husband.
The husband contends that at the commencement of cohabitation, his assets totalled approximately AUD $1,857,039 and were, as follows:
a)A property at F Street (“the F Street property”) valued at £450,000;
b)A property at G Street, City H (“the G Street property”) valued at £180,000;
c)50 per cent share in a property at J Street, City H (“the J Street property”) valued at £37,500;
d)Shareholdings in a government approved savings vehicle;
e)An S Ltd policy; and
f)Company K shares valued at USD $104,323.
The husband contends that, at the commencement of cohabitation, his liabilities totalled approximately AUD $893,609 and were, as follows:
a)Mortgage over the F Street property at £275,000;
b)Mortgage over the G Street property at £75,000; and
c)50 per cent of the mortgage over the J Street property at £22,500.
In this way, the husband values his net assets at the commencement of cohabitation at approximately AUD $963,430. The wife does not accept the husband’s contentions as to the value of his initial contributions to the property of the marriage.
The husband acknowledges that, during the course of their marriage, the parties received a significant gift in the sum of $1,000,000 from the wife’s parents, but otherwise contends that the wife made little financial contribution to the matrimonial property pool. The wife contends that the husband has not given adequate recognition to her contributions to the matrimonial property pool.
In May 2005, the parties purchased a property at L Street, Suburb M in the United Kingdom (“the Suburb M property”) for £827,500.
In April 2006, the husband sold the F Street property and applied the net proceeds (£67,000) to reduce the mortgage on the Suburb M property.
In 2007, the parties’ child X was born. He is currently aged 10 years.
In 2009, the parties' child Y was born. She is currently aged nine years.
In 2011, the parties' child Z was born. She is currently aged seven years.
In May 2014, the husband resigned as a Managing Director at Company N.
On 23 September 2014, the parties engaged Company O to provide financial advice with respect to their intended relocation to Australia. Subsequent to obtaining that advice, the parties entered into a number of financial transactions, including the husband transferring 99 per cent of his interest in the G Street property to the wife on or about 14 April 2015. The husband contends that consequent upon that transfer, the mortgage on the G Street property was increased from £146,750 to £231,000 and that those additional funds were contributed towards the purchase of the Suburb E property. The husband further contends that various arrangements were also made with respect to his retirement interests.
In January 2015, the husband accepted an employment contract with P Pty Ltd (“PPL”), which required him to commence work in Sydney in June 2015.
On 3 June 2015, the parties and the children relocated from the United Kingdom to Australia. The parties agreed to sell the Suburb M property.
In January 2016, the parties purchased the Suburb E property for $5,000,000 in their joint names. The total cost of the purchase was $5,293,546. The husband contends that the purchase was funded by the following:
a)Mortgage from Australia and New Zealand Banking Group Limited of $3,500,000 (“the ANZ mortgage”);
b)Monies transferred from the United Kingdom of $300,000;
c)Gift from the wife's parents of $1,000,000; and
d)Loan from the wife's parents of $550,000.
In February 2016, the sale of the Suburb M property was settled and, in the period between 7 March and 19 May 2016, $1,985,760 from the proceeds of that sale was transferred to an Australian bank account, leaving £20,000 in an account in the United Kingdom. The husband contends that the funds transferred were used in part to partially repay the ANZ mortgage and, in part, to fund renovations to the Suburb E property.
On 16 June 2016, the parties separated.
The husband contends that, at the date of separation, the wife and he held two joint bank accounts with ANZ. The husband further contends that, in May 2016, the wife withdrew $675,000 from one of those accounts in two transactions. The husband also contends that, the deposit for the purchase of the Suburb E property was reduced from 10 per cent to 5 per cent and that the wife was provided with $200,000 from those funds, $100,000 of which was repaid to her parents.
On 30 November 2016, the wife commenced these proceedings.
On 6 September 2017, Le Poer Trench J made the following interim property orders, by consent:
1. Pending further Order, the wife have exclusive use and occupation of the Suburb E home.
2. Pending further Order, as and by way of spouse maintenance the husband pay the following expenses in relation to the [Suburb E] home:
2.1 all repayments of principal and interest in respect of the mortgage;
2.2 utility accounts including but not limited to gas, electricity, water rates and usage charges;
2.3 home and contents insurance premiums for the existing policy;
2.4 council rates.
3. That pending further Order the husband pay or cause to be paid all premiums for the current family health insurance policy with [R Insurance] at the current level of that cover.
4. The Court notes that the content of Orders 2 and 3 above represents a partial resolution only of the wife's claims for interim spouse maintenance and is made without prejudice to the contention of each party with respect to spouse maintenance.
5. That within 7 days the wife shall submit to the husband’s solicitors the names of 3 single expert accountants to carry out a valuation of the husband’s UK pension entitlements and those held in [Country Q] both in the husband’s name and the joint names of the parties.
6. Within 7 days of the husband’s solicitors receiving the wife’s nomination pursuant to Order 5 the husband shall nominate one of the single expert accountants to be appointed as a single expert to carry out the valuation.
7. The husband’s solicitors shall within 21 days of the expert being nominated by the wife prepare a joint letter of instruction to the single expert accountant appointed pursuant to Order 5 which shall ask the single expert to address the following matters:
7.1 The current value of each of the UK pension entitlements;
7.2 Whether or not the UK pension entitlements can be assigned to either of the parties in shares other than as currently held by him;
7.3 If the UK pension entitlements can be assigned, any tax consequences arising for either or both of the parties with respect to the same;
7.4 If assigned, whether that amount can be transferred to Australia and whether there are tax consequences then arising.
8. That the husband obtain 3 market appraisals for the [G Street] property and provide them to the wife within 28 days.
9. That the parties jointly request within 7 days, a letter from [S Ltd] setting out the current value of the endowment policy within 7 days.
10. That within 7 days the wife provide to the husband bank statements for the account into which the amounts of $100,000 and $575,000 were deposited on or about May 2016 from the date of the first deposit to date.
…
13. That it be noted that upon obtaining valuations/appraisals the parties have agreed to participate in a private mediation.
On 6 December 2017, the following interim parenting orders were made by Senior Registrar Campbell:
1. That the children … live with the mother.
2. That the children spend time with the father as follows:
2.1 During school terms as agreed between the mother and the father or failing agreement on a two week cycle basis as follows:
2.1.1 In week one, commencing at 5.30pm on a Friday and continuing until 7.30pm on Sunday.
2.1.2 In week two, commencing after school on Wednesday and continuing until the commencement of school on Thursday.
2.2 During school holiday times as agreed between the parties or failing agreement as follows:
2.2.1 During the Autumn, Winter and Spring school holidays at the end of Terms 1, 2 and 3 respectively from 5.30pm on the last day of the school term to 5.30pm on the second Saturday of the school holidays for the child [X].
2.2.2 During the Summer school holidays commencing at the end of Term 4:
2.2.2.1 In 2017 from 5.00pm 21 December 2017 to 9.00am 23 December 2017 and on the fifth (5) and sixth (6) weekends of the school holidays commencing at 5.30 pm Friday and concluding at 8am on the Monday.
2.2.2.2 In each following year on the first, fifth and sixth weekends of the school holidays commencing at 5.30pm Friday and concluding at 8.00am on the Monday.
2.3 On special occasions in the event that the children are not already with the relevant parent the children shall spend time with their parents as agreed but failing agreement:
2.3.1 With the father on Father’s Day from 9.00am to 7.30pm.
2.3.2 With the mother on Mother’s Day from 9.00am until 7.30pm.
2.3.3 Commencing in 2017 and in each odd numbered year thereafter with the father from 9.00am Christmas Eve until 9.00am Christmas Day and with the mother from 9.00am on Christmas Day until 9.00am on Boxing Day.
2.3.4 To the extent it is necessary for the purpose of Order 2.3.3; the father will collect the children from the mother’s home on Christmas Eve and on Boxing Day and the mother shall collect the children from the father’s home on Christmas Day.
2.3.5 Commencing in 2018 in even numbered years with the mother from 9.00am Christmas Eve until 9.00am Christmas Day and with the father from 9.00am on Christmas Day until 9.00am on Boxing Day.
2.3.6 To the extent it is necessary for the purposes of Order 2.3.5; the mother will collect the children from the father’s home on Christmas Eve and on Boxing Day and the father shall collect the children from the mother’s home on Christmas Day.
2.3.7 The children shall spend time with the father for three (3) hours from 3.30pm to 6.30pm on each of the children’s birthdays to the extent that the child whose birthday it is living with the mother on that day.
2.3.8 The children shall spend time with the mother for three (3) hours from 3.30pm to 6.30pm on each child’s birthday to the extent that the child whose birthday it is living with the father on that day. …

On 26 February 2018, the husband's base remuneration from PPL was increased from $350,000 (including superannuation) to $354,000 (including a $20,048.80 superannuation contribution). In addition, the husband is entitled to receive annual bonuses, the calculation of which is based on his performance in the preceding calendar year. The husband's 2017 gross performance bonus was $79,250 ($42,772 net).
On 7 May 2018, a Divorce Order was made.
On 7 May 2018, Rees J made the following interim orders and notations by consent:
1. That the parties forthwith and within 7 days do all acts and things and sign all documents necessary to release from the Investment Account held with [T Bank] in the UK, being portfolio number 376987284 ("the [T Bank] account") the following:
a. The sum of $50,000 to the wife to be characterised by the trial judge;
b. Such sum as is necessary to pay in full the outstanding school fees with respect to the children’s attendance at [U School] and [Suburb E Prep].
2. That upon the [T Bank] authority being signed by the parties, the money shall be transferred to the [T Bank] general investment account and the husband shall do all acts and things necessary to transfer from the said account the sum of $50,000 into the bank account nominated by the wife within 7 days.
3. In the event that either the husband or wife fails to comply with his obligations pursuant to this Order, then the parties shall be at liberty to restore the matter to the list on 48 hours’ notice.
4. The Court notes that the parties have negotiated Heads of Agreement so as to resolve all outstanding property and financial matters between them.
5. In the event that the matter does not resolve by way of Final Consent Orders being submitted to the Court, then the parties shall be at liberty to restore the matter to the Judicial Duty List upon 7 days’ notice to other party.
6. That all outstanding interim applications be adjourned to a date to be allocated by the Court upon either party seeking to relist the matter as referred to above.
IT IS FURTHER ORDERED
7. The Court notes that it is advised that the matter is resolved in principle.
8. Leave is granted to the legal representatives in the event that the matter is resolved to file consent orders for the attention of the docket registrar.
The Heads of Agreement (Exhibit “W-4”) referred to in the orders of Rees J are, as follows:
1. The parties have agreed to resolve all outstanding issues with respect to property and financial matters on the following terms subject to the proportion of terms of settlement as between the parties:
2. That the property situated at [D Street, Suburb E] (“the [Suburb E] property”) be transferred to the wife within 3 months of the date of the making of orders and simultaneously upon the transfer the wife shall:
2.1 Discharge the ANZ mortgage secured against the [Suburb E] property;
2.2 Provide the husband a release with respect to any loan outstanding to the wife’s parents
3. In the event that the wife is unable to refinance the [Suburb E] property mortgage within the timeframe specified above in the [Suburb E] property shall be marketed for sale the wife shall have the conduct of the sale including choice of agent, sale method and sale price, subject to the proposed order specifying timeframe is yet to be agreed upon.
4. Upon the sale of the [Suburb E] property pursuant to paragraph 2 then the proceeds will be applied as follows:
4.1 Payment of the real estate agents fees and legal costs associated with the same;
4.2 In order to discharge the ANZ Bank mortgage;
4.3 In order to pay the wife’s parents all amounts outstanding under any loan;
4.4 The balance of the proceeds shall be paid to the wife.
5. From the date of the making of these orders until either the settlement of the sale of the [Suburb E] property for 3 months from the date of the orders, whichever occurs last, the husband shall be responsible for the payment of the mortgage and all outstanding is referrable to the [Suburb E] property pursuant to the interim orders made in September 2017.
6. The parties shall do all acts and things and sign all documents necessary so as to facilitate a pension sharing order in the wife’s favour in respect to the [VPLC] UK pension fund held in the name of the husband so that the wife receives the benefit of $300,000 from the said account, when the same can be paid to her by the trustee or equivalent and she shall be responsible for her own taxation incident.
7. The husband pay to the wife by way of spouse maintenance the sum of $1000 per week for a period of 2 years from the date of the making of the orders, commencing upon the expiration of 3 months or the sale of the Suburb E property, whichever is the later.
8. That the parties enter into a binding Child support agreement that provides for the payment of child support as follows:
8.1 Husband to pay periodic child support pursuant to the assessment up until the settlement of the sale of the Suburb E property for 3 months from the date of the orders, whichever occurs last:
8.2 Thereafter the husband shall pay to the wife by way of child support the sum of $1000 per month per child;
8.3 By way of non-periodic child support from the date of orders being made the husband shall pay:
8.3.1 All school fees (and incidental costs pre-agreed by both parents)
8.3.2 Agreed extra-curricular activities;
8.4 The husband shall pay the health insurance premiums with respect to the current policy covering both the wife and the children at the current level and also be responsible for the payment of any Gap medical costs associated with the children that are not covered by Medicare or the children’s private health insurance, and organise the policy coverage.
9. The parties forthwith shall release to the wife the sum of $100,000 from the UK Investment Bond ([T Bank]) Account as follows:
9.1 The sum of $50,000 shall be released as at the date of these heads of agreement;
9.2 The balance of $50,000 shall be released to the wife upon final orders being made.
10. The above agreement is subject to the following:
10.1 The husband wishes to obtain a single expert valuation of the [Suburb E] property and this shall be achieved by way of the wife’s nominating the names of 3 real estate valuers and the husband electing 1 of the valuers within 48 hours of the date of these Heads of Agreement;
10.2 The husband shall immediately authorise [Mr W] and [AA Accountants] to speak to and obtain information he may require from [Company O].
10.3. In the event that the valuation obtained with respect to the [Suburb E] property exceed $6.5 million than the parties agree that the terms of this document shall be revised;
10.4 In the event that the investment held in the husband’s name through [Company O], including but not limited to [BB Country Q] Pension and the [CC Country Q] Pension exceed a combined value of $2,327,778, not including transaction costs, then the terms of this agreement shall be revised by the parties;
11. This agreement is subject to the preparation of the following:
11.1 Consent orders dealing with property and financial matters;
11.2 Binding Child support agreement dealing with child support issue;
11.3 Deed of release under the succession act.
In accordance with clause 10 of those Heads of Agreement, the parties have obtained a valuation of the Suburb E property. That valuation values the Suburb E property at $6,850,000. As a result, in accordance with clause 10.3, the parties are not continuing to implement the Heads of Agreement and have sought to have the relevant issues litigated. Ironically, unless common sense prevails, it can be anticipated that the parties will spend considerably in excess of the $350,000 in ongoing litigation, being the surplus above the figure referred to in clause 10.3. Further, the emotional cost of that process is unquantifiable, but nonetheless real.

Applications

The wife’s application

The wife seeks orders as set out in her Further Amended Application in a Case filed on 2 May 2018, as follows:
THE COURT NOTES:
A. The following definitions for the purposes of these Orders:
A. 1. "[Suburb E] property" means the property situated at and known as [D Street, Suburb E] being the whole of the land contained in Folio Identifier … registered in the joint names of the parties;
A. 2. "the mortgage" means registered mortgage number … securing the loan in the parties' joint names from ANZ Bank;
A. 3. "[C] Account" means the account held in the parties joint names with the ANZ Bank having BSB … account number …12;
A. 4. "children" means [X] born … 2007 ("[X]"), [Y] born … 2009 ("[Y]") and [Z] born … 2011 ("[Z]");
A. 5. "husband" and "father" means the Respondent, [Mr Gresham];
A. 6. "wife" and "mother" means the Applicant, [Ms Gresham];
A. 7. "the [G Street] property" means the property located at [G Street, City H], of which the husband holds 1 per cent and the wife holds 99 per cent;
A. 8. "UK mortgage" means the mortgage secured against the [G Street] property;
A. 9. "UK endowment policy" means the husband's entitlements in the [S Ltd] endowment policy having plan number … which matures on 1 October 2018 at a maturity value of £67,500;
A. 10. "the [B Bond]" means the bond held in the parties’ joint names which the husband refers to as the 'education bond' together with the general investment cash account held with [T Bank] which as at 5 February 2018 have the following values: the Vanguard Life Strategy 60 per cent equity fund account having … of £162,258 and the general investment account having a balance as at 5 February 2018 of £5,971.
A. 11. "[Company K] shares" means the shares held in the husband's sole name with [Company K] held on the New York Stock Exchange;
A. 12. "[PPL] shares" means the shares held by the husband with [PPL] held on the New York Stock Exchange;
A. 13. "UK pension entitlements" means:
i. "[CC Country Q] pension" means the husband's pension scheme in [Country Q] Private Retirement Scheme. The trustee for the retirement scheme is [CC] ([Country Q]) Limited. The value of the husband's interest in [CC Country Q] pension is £325,486;
ii. "[BB Country Q] pension" means the [BB] Scheme, a retirement scheme based in Country Q. The trustee for [BB] are [DD Ltd Country Q]. The husband's entitlement in the [BB] has a current value of £881,102.09;
iii. "[VPLC] UK pension" means the husband's personal pension plans with [VPLC] bearing the following policy numbers:
1. #13;
2. #44; and
3. #69.
The [VPLC] UK pension has a combined value of £238,788.24.
THE COURT ORDERS THAT UNTIL FURTHER ORDER:
1. The husband pay or cause to be paid:
1.1 to the wife or as she may direct in writing, the sum of $1,675 per week as and by way of maintenance, with the first payment to be made within 7 days of these Orders and weekly thereafter;
1.2 all premiums referrable to the family health insurance policy so that the wife is in receipt of the husband's level of cover.
2. That within 28 days of the date of the making of these Orders and simultaneously the husband and the wife shall do all acts and things and sign all documents as may be necessary to list the [G Street] property for sale, with such agent as the parties agree to appoint in writing and in default of agreement as to the agent, the parties will within 7 days of default, list the [G Street] property for sale with such agent as the President of the National Associates of Estate Agents (NAEA) or its then nearest equivalent shall appoint ("the agent") with the costs of and incidental to such appointment to be paid equally by the parties as and when the costs fall due.
3. To give effect to Order 2:
3.1 the parties shall forthwith on the making of this Order, give notice to vacate to the tenant of the [G Street] property;
3.2 the Court NOTES that the parties shall be guided by the agent as to the manner in which the [G Street] property is to be sold and the negotiations that the parties have with any prospective purchaser in relation to the sale of the [G Street] property;
3.3 the Court Orders that:
3.3.1 the parties shall instruct such solicitor as they agree upon to conduct the sale on behalf of both parties and in default of agreement as to which solicitor, the parties shall, within 7 days of default of agreement as to which solicitor, instruct such solicitor as may be appointed by the President for the time being of the Law Society of England and Wales ("the solicitor"), the costs of and-incidental to such appointment to be borne by the husband and the wife as and when same falls due;
3.4 the parties shall cooperate with the agent in relation to the sale of the [G Street] property;
3.5 the parties shall execute all documents necessary to complete the sale of the [G Street] property;
3.6 if the agent deems any costs need to be incurred to better present the [G Street] property for sale with a view to enhancing the sale price, provided such expenses do not exceed £5,000, unless otherwise agreed to in writing, the parties may pay in equal portions such costs as and when they fall due.
4. That upon completion of the sale of the [G Street] property, the parties shall do all acts and things and sign all documents necessary to have the proceeds of sale disbursed in the following manner and priority:
4.1 all monies necessary to obtain a discharge of the UK mortgage;
4.2 all costs and expenses of sale, including legal costs and disbursements, advertising expenses and agent's commissions;
4.3 the amounts required to pay all council and water rates outstanding with respect to the [G Street] property;
4.4 the amount required to reimburse each party for any marketing or advertising costs in the event that those costs were not met equally by the parties prior to the sale;
4.5 that the balance remaining be paid into the [C] Account.
5. That pending the sale of the [G Street] property, the husband shall pay, as and when they fall due, all repayments required in respect of the UK mortgage.
6. That forthwith the parties do all acts and things and sign all documents necessary to cause the entirety of the [B] Bond to be liquidated and all proceeds received including the cash available to be paid into the [C] Account.
…
8. That forthwith the husband do all acts and things and sign all documents necessary to sell all of his [PPL] shares and pay the net proceeds of the sale of those shares after the payment of applicable tax arising from the sale of those shares into the [C] Account.
…
10. That the parties forthwith approach the bank and request that the current payments due and owing under the [Suburb E] mortgage be reduced to interest only and sign all necessary documents to cause this to occur.
11. As and by way of departure from the administrative assessment of child support for the children in respect of each child support year pending final determination of these proceedings, that:
11.1 The father pay or cause to be paid by way of periodic child support for the children the sum of $424 per week for [Y], $483 per week for [X] and $344 per week for [Z], the first payment to be made within 7 days of the date of the making of these Orders, and then weekly thereafter into a bank account nominated by the mother;
11.2 That the amount of child support payable by the father pursuant to the preceding sub-paragraph is to be varied on the review date in each year commencing on 1 July 2018 to such sum as shall be determined by multiplying the sum being paid on the review date by the fraction N/B where "B" is the CPI in respect of the quarter year ended on the day 12 months prior to the review date, namely 30 June, and "N" is the CPI in respect of the quarter year ending on the day immediately preceding the review date;
11.3 The father pay as and when they fall due all costs of premiums for private health insurance for the children with the existing health fund at the current level, and any gap medical expenses (including but not limited to medical, hospital, dental, orthodontic, physiotherapy, optometry and pharmaceutical costs and expenses) not otherwise met by the private health fund;
11.4 The father pay the following expenses for the children:
11.4.1 the costs of and incidental to the children's attendance at their existing school or any other school agreed upon in writing by each party or, in the absence of agreement, as ordered by a Court;
11.4.2 agreed extra school tuition and tutoring fees;
11.4.3 school textbooks and materials;
11.4.4 school and sports uniform and shoes;
11.4.5 school camps and excursions;
11.4.6 the costs of registration and participation (including costs of equipment, uniforms and shoes) in sporting teams and extracurricular activities.
11.5 That the non-periodic child support together with the periodic child support paid by the father is to account for 100 per cent of the annual rate of child support payable by the father under any administrative assessment and the annual rate of child support under any assessment issued for each year from the date of this Order to the termination of this Order is to be reduced by that amount.
11.6 That the parties forthwith do all acts and things necessary to cause a copy of this Order to be lodged with the Registrar of the Department of Human Services (Child Support).
…
16. That within 7 days from the date of the making of these Orders, the husband pay or cause to be paid the sum of $40,000 to the wife with such sum received by the wife to be categorised by the trial Judge.
17. That the husband pay to the trust account of Barkus Doolan, the sum of $245,000 by way of lump sum interim costs with such sum to be applied toward the payment of the wife's legal costs, disbursements, experts fees and counsel as required and any balance remaining on settlement of this matter or Orders being made by the Court be released to the wife.
18. That in the alternative to Orders 16 and 17 and only if the Court refuses to make those Orders, then the Court order that the wife by this order upon sufficient funds becoming available in the mortgage offset account be entitled to withdraw and the husband do all acts and sign all documents as requested of him to cause such withdrawal from the mortgage offset account such sums as necessary to satisfy the payment to the wife of $40,000 with such payment to be categorised by a trial Judge at the hearing and the payment of $245,000 by way of interim costs.
19. That the Respondent pay the Applicant's costs of and incidental to these proceedings.
The wife also seeks that order 2 contained in her Application in a Case filed on 14 June 2018 be made, as follows:
2. That by way of enforcement of Order 1(a) of the Orders made on 7 May 2018, the husband forthwith pay to the wife's nominated bank account the sum of $5,000.
During the course of the hearing, Senior Counsel for the wife acknowledged that proposed order 1.2 of the wife’s application has been addressed in order 3 of the orders made by Le Poer Trench J on 6 September 2017, which read:
That pending further Order the husband pay or cause to be paid all premiums for the current family health insurance policy with [R Insurance] at the current level of that cover.
Accordingly, I will not further consider the wife’s proposed order 1.2 in these proceedings.

The husband’s application

The husband seeks orders in accordance with those set out in set out in his Outline of Case Document (Exhibit “6-H”), as follows:
1. That within 14 days of the date of these Orders the parties do all acts and things and sign all documents necessary so as to effect a sale of the Suburb E property, in the State of New South Wales being the land comprised in Certificate of Title Folio Identifier … ("the Property") for the best price reasonably available in the following manner:
1.1 List the property for sale by public auction within one (1) month from the date of these Orders with such agent as the parties may agree to appoint and in default of agreement as to Agent within fourteen (14) days of the date of these Orders then such agent as the President of the Real Estate Institute of New South Wales shall appoint ("the Agent") the costs of and incidental to such appointment be borne equally by the parties as and when same fall due;
1.2 The reserve price for the purposes of such auction shall be $6,850,000 or such price as may be mutually agreed upon by the parties or, in the absence of an agreement reached within fourteen (14) days of the date of these Orders shall be the reserve price shall be the amount nominated as the fair market value thereof by a valuer appointed by the President for the time being of the Australian Property Institute (Inc) ("the Valuer") and the costs of and incidental to such appointment and valuation to be borne equally by the parties as and when same fall due;
1.3 The Valuer shall if requested by either the husband or the wife at a date three (3) calendar months after the date upon which the Property is first listed pursuant to paragraph 2 above and thereafter at three (3) calendar monthly intervals until the Property is sold, nominate a sale price other than the originally nominated sale price.
1.4 The parties shall cooperate in every way with the Agent including (without limiting the generality of the forgoing):
1.4.1 Making the key available to the Agent.
1.4.2 Allowing inspection of the Property at all reasonable times requested by the Agent.
1.4.3 Doing or saying nothing to hinder or prevent a sale being effected.
1.4.4 Ensuring the property including the grounds are in neat and clean condition at the time of inspection by the Agent and prospective purchasers.
1.4.5 Signing all documents requested by the Agents in relation to the listing for sale of the Property except a Contract or Agreement for sale which has not been authorised by the parties' solicitors.
1.5 In the event that the bidding at the auction does not reach the reserve price the parties or such of them as attended the auction may negotiate with the highest bidder or any other interested person and effect a sale of the Property at a price which is not more than 10 per cent below the reserve price, or at such other price as the parties agree upon writing.
1.6 If the Property remains unsold, the parties shall do all acts and things and sign all documents necessary to immediately relist the Property for sale by public auction again, on a date nominated by the said Agent and at such auction there shall be no reserve price unless otherwise agreed by the parties in writing.
1.7 The parties shall each execute a Contract for Sale in the form prepared by solicitors having the conduct of the sale at the sale price.
1.8 The parties shall instruct a solicitor to act on the conveyance of the property or failing agreement within a period of seven (7) days the parties shall accept the nomination of a solicitor as appointed by the President for the time being of the Law Society of New South Wales.
1.9 Neither party may confer on any Agent without the consent of the other party any right to any sole or exclusive agency in respect of the Property or to any commission.
1.10 The party not in possession shall be entitled upon reasonable notice once per fortnight to enter review the state of repair of the Property.
1.11 If the Agent shall certify in writing to the parties' solicitors it is reasonably necessary for work specified in such notice to be carried out to the Property so as to assist in effecting sale and provided the costs of any such work is less than $1,000 either party may cause such work to be carried out and the costs thereof shall be borne by the party who elects to proceed with the work
2. That the proceeds of sale of the property at [D Street, Suburb E] NSW be applied as follows:
(i) In payment of any registered mortgage over the property.
(ii) In payment of the costs of sale including agents commission.
(iii) In payment to the Wife 65 per cent of the sale proceeds by way of interim property settlement and such moneys to be used by the Wife for the purchase of alternate accommodation for herself and the children and the costs of obtaining such alternate accommodation.
(iv) The balance to be invested in a Controlled Monies Account in the name of both parties.
3. That the parties forthwith and within seven (7) days do all acts and things and sign all documents necessary to release from the investment account held with [T Bank] in the UK being portfolio number #84 ( ("the T Bank Account") the following:
(a) The sum of $50,000 for the Wife to be characterised by the Trial Judge.
(b) The sum of $50,000 to the Husband to be characterised by the Trial Judge.
(c) The sum of $20,000 to be applied by the parties in payment of school fees due to [U School] and [Suburb E Prep] but subject to the parties undertaking that the amount of $20,000 shall be applied in payment of the asserted school fees.

Evidence

The wife relied upon the following documents:
a)Her Financial Statement filed on 2 May 2018;
b)Her Affidavit filed on 2 May 2018;
c)Her Affidavit filed on 14 June 2018; and
d)Her Affidavit filed on 2 August 2018.
The husband relied upon the following documents:
a)His Financial Statement filed on 3 August 2018;
b)His Affidavit filed on 31 August 2017 (paragraphs 1 to 29 and 32 to 42);
c)His Affidavit filed on 4 May 2018; and
d)His Affidavit filed on 3 August 2018.

Issues for determination

Pending the Court considering the parties’ respective applications for final relief, the issues for determination in these interim proceedings are, as follows:
a)Should there be an order for the enforcement of order 1(a) made on 7 May 2017?
b)Should there be an order for a partial property distribution, and if so, should there be an order compelling one or other of the parties to sell real property in order to raise funds for that distribution?
c)Should there be an order for spousal maintenance?
d)Should there be an order departing from the current Child Support Assessment?
e)Should there be orders redeeming some of the parties’ investments, pending the final hearing of the matter?

Enforcement order

The wife contends that the husband has failed to comply with order 1(a) of the orders made by Rees J on 7 May 2018, in that he has only paid to her the sum of $45,000, rather than $50,000. It is quite clear that the order, which was made by consent, required the husband to pay to the wife the sum of $50,000, in addition to “outstanding school fees with respect to the children’s attendance at [U School] and [Suburb E] Prep”.
The husband, however, contends that the lesser amount was paid to the wife as a result of the wife choosing to receive the amount in British Pounds, at £37,000. That amount converted to $63,932.01. Of that amount, $17,168.91 was utilised as payment for the children’s school fees, leaving $46,763.10 to satisfy the payment to the wife so ordered. The husband contends that he further increased that figure by $939, so that the sum of $47,702 was paid to the wife in accordance with the relevant orders.
Therefore, by his own admission, after payment of the relevant school fees, the husband has only paid to the wife the sum of $47,702 and he should forthwith pay the balance of $2,298 to her.
I will give the wife liberty to apply if this situation is not rectified within 14 days of the date of these orders.

Partial property distribution

In this matter, the wife seeks an interim distribution of property in order to fund some specific expenses, as well as the ongoing litigation of these proceedings. The wife says that, in order to release the required funds to her, the G Street property should be sold and the net proceeds deposited into the C Account. That property is owned 99 per cent by the wife and 1 per cent by the husband. It did not appear to be disputed that the equity in the G Street property is approximately $315,000 AUD.
The husband similarly seeks that an interim property distribution be made in favour of both parties, but says that the Suburb E property should be sold in order to provide for that.
It was acknowledged by both parties that an order for the sale of property enlivens consideration of the Court’s power under s 114 of the Family Law Act 1975 (Cth) (“the Act”) to make suchorder or grant such injunction as it considers proper in relation to thepropertyof the parties: Philips & Samuels [2017] FamCA 125 at [65].
In Martin & Martin and Ors [2013] FamCA 222 at [15], Cronin J said:
Section 114 of the Family Law Act 1975 (Cth) (“the Act”) enables the Court to provide a discretionary remedy. The fundamental principle is that an order should only be made if it is proper.
The term “proper” means “reasonable and just in [the] circumstances”: In the Marriage of Farr (1976) FLC 90-133 at 77,437.
As will be discussed, there is an overlap in the concepts of what is reasonable and just, in terms of the application of s 114 of the Act, and the precondition to the making of any adjustment of interests in matrimonial property in terms of the requirement that it be “just and equitable” to do so.
In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,645 to 85,646, the Full Court set out the two stages for determining an application for partial property settlement orders. The first stage is a “procedural step”, which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) of the Act to make an order for partial property settlement, prior to a final hearing. At this stage, the “overarching consideration” is the interests of justice. The second stage is the “substantive step”, where the provisions of s 79 of the Act, including the “just and equitable” precondition set out in s 79(2), must be considered and applied, but with limitations, given that it is not the final hearing.
Further, in Medlow & Medlow (2016) FLC 93-692 at 81,090, the Full Court said:
The onus was clearly upon [the applicant for relief] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent]’s property claim. The onus was not on the [respondent] to adduce such evidence.
While these are interim proceedings, the information before the Court satisfies me that the contributions of each of the parties, as considered against the criteria set out in s 79(4) of the Act, are such that, at final hearing, it is likely that orders will be made adjusting the parties’ interests in the matrimonial property such that each of the parties will receive a distribution in excess of the amount that they seek in these proceedings.
In circumstances such as those of this application, where it is likely that the wife is seeking access to funds that will ultimately be determined to be hers, it is unnecessary for there to be “any detailed inquiry as to the purpose for which the funds are to used”: Felice v Felice [2011] FamCA 162 at [12].
Sufficient particulars must nonetheless be provided to enable the Court to:
a)Determine that the application is “genuine” (Strahan at 85,657);
b)“[I]dentify the circumstances that make it appropriate to give consideration to exercising its power” (Strahan (2011) FLC 93-466 at 85,657; Sresbodan & Sresbodan and Ors [2013] FamCA 480 at [51]); and
c)Sufficiently weigh the identified need “against the benefit of having only one exercise of a s 79A power” (Strahan at 85-656 citing Riethmuller FM in Wenz v Archer (2008) 40 FamLR 212).
In Strahan at 85,656, Thackray J said:
…it is important to note that s 80(1) is couched in the permissive. Hence, although the Court must give consideration to the matters set out in s 79(4) when hearing an application for an interim payment, it has no obligation to make an interim order. The Court “may” do so if it considers that it should in the exercise of its discretion.
At order 16 of her application, the wife seeks an order for the husband to pay or cause to be paid to her the sum of $40,000, with such sum “to be categorised by the trial judge”. Senior Counsel for the wife contended, however, that the “reality” is that the wife calls upon the Court to exercise its interim property power.
At paragraph 45 of her Affidavit filed on 2 May 2018, the wife explains the basis for that application, as follows:
I have some immediate expenses that I must meet for which I will also need a lump sum. I am required to have an epigastric hernia repair. I can tender at the hearing of this matter a copy of a letter from [Dr EE] dated 1 May 2018 in relation to the costs of this surgery (Tab 8 of my Tender Bundle). The costs include surgeon fees after the medical rebate is applied of $9,312.50; an anaesthetist's fee of $1,200; assistant surgeon fee of $270; theatre fee of $620; and in addition I am required to pay an excess on my health insurance of $500 in order to receive any rebate back. The total costs of that surgery will be $11,902.50.
It is clear that an order for the partial distribution of property may be appropriate where it is necessary for a party to a marriage to meet debts that have been properly incurred: Strahan at 85,643 citing Wenz v Archer. I respectfully agree with the statement of Reithmuller FM (as he then was) in Wenz & Archer at [52], where his Honour said that a party should not “be denied the ability to liquidate assets when there are real needs for those resources, such as to meet debts which may result in the party being pursued by creditors”.
It has not been suggested that the expenses that the wife says she will incur in relation to her medical treatment, as referred to in paragraph 45 of her Affidavit, are unnecessary. I am satisfied that it is in the interests of justice for there to be a partial distribution of property in order to satisfy those debts. To ensure accountability in respect to the payment of those expenses, the relevant order will require funds to be released to meet those expenses upon the production of relevant receipts or invoices.
Further, at order 17 of her application, the wife similarly seeks an interim property order requiring the husband to pay or cause to be paid $245,000 into the trust account of her solicitors by way of lump sum interim costs.
The calculation of the figure of $245,000, sought in respect to legal costs, was explained in the costs notice annexed at page 66 to the wife’s Affidavit filed on 2 May 2018. That costs notice relevantly records that the costs of the wife up to and including 9 February 2018 are approximately $150,570.27. The total costs and disbursements to be incurred by the wife up to and including a final hearing, which is estimated to run for five days, are $395,570. That figure includes an amount of $100,000, which is identified as being the costs of the five day final hearing, at $20,000 per day.
In the alternative to orders 16 and 17, at order 18, the wife seeks that the amounts referred to in those orders be paid into the parties’ joint ANZ account (BSB …; account number #12) in respect to the mortgage over the Suburb E property (“the C Account”) and that she be authorised to draw upon the funds so held in that account to satisfy those payments.
During the course of the proceedings, Senior Counsel for the wife clarified that his client’s position, in the event that orders were made in accordance with her proposed order 18, that the totality of the amount sought in respect to interim costs would not be immediately transferred to the trust account of her solicitors, but rather, that she would have authority to access those funds, as required, during the course of these proceedings.
The need to fund litigation expenses is a legitimate purpose for seeking an order for partial property distribution in terms of the application of the first test adumbrated in Strahan. In that respect, in Blueseas Investments Pty Ltd & Mitchell (1999) FLC 92-856 at 86,128, the Full Court said that:
... [a] highly relevant matter that distinguishes litigation under the Family Law Act from ordinary civil litigation ... is the fact that very often the wealth of the parties is controlled by one rather than both of them.
In those circumstances, it has been observed that “[i]t is important that if possible, an attempt is made to level that field”: Iphostrou & Iphostrou [2011] FamCA 20 at [60].
Accordingly, having regard to those authorities, I am satisfied that it is in the interests of justice for there to be a further order for the partial adjustment of property to provide funds to the wife for litigation expenses. However, at this stage of the proceedings, I am not satisfied that an order should be made for the totality of the amount sought by the wife to be paid. Specifically, it is premature, in my view, to require an adjustment of $100,000 in respect to the estimated five-day final hearing at $20,000 per day.
In that respect, in exercising power under the Act, I am required to have regard to the main purpose of the Rules, to which I have earlier referred.
It is to be noted that Rule 1.04 is consistent with the obligation of parties and practitioners under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”). Specifically, s 37M(1) of the Federal Court Act provides:
The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
While in no way suggesting that the legal practitioners involved in these proceedings would do other than comply with their professional obligations, the parties, the Court and the public are entitled to assume that legal practitioners will comply with their obligations under the Rules.
As described by Tracey J in Mijac Investments Pty Ltd v Graham [2013] FCA 296 at [49], those obligations include an obligation for practitioners to offer “objective and considered advice” to their clients. In that decision, his Honour continued:
This includes advice as to matters such as whether a proper basis in law exists for the making and pursuit of a particular application and the contents of any affidavits sworn in support of such an application. Without such advice, the just resolution of disputes according to law and as quickly and inexpensively as possible may well be hampered, if not frustrated.
There is similarly an obligation to not unreasonably fail to accept an offer. This is made clear by Greenwood J in Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108, where his Honour said, at [94], that this requires a party to “carefully assess all the material, including the discovered material, to determine and confront the strengths and weaknesses of their case”.
As stated by Jagot J in Sklavos v Australasian College of Dermatologists [2013] FCA 1065 at [35]:
These provisions are not merely exhortatory. The duty is real and can be enforced, if necessary, by appropriate costs orders.
That obligation applies to both parties and practitioners. Indeed, as Gray J observed in Modra v Victoria (Department of Education and Early Childhood Development and Department of Human Services) (2012) 291 ALR 429 at [31]:
… the impact of those sections on the obligations of legal practitioners practising in this Court is significant.
In summary and by way of conclusion, on this point, this Court similarly takes seriously the obligations placed on practitioners and parties to make a genuine attempt to achieve a resolution of cases before the Court in order to avoid the litigants incurring the significant financial and emotional costs associated with litigation.
For those reasons, I am satisfied that it is in the interests of justice for there to be a distribution to the wife in the sum of $145,000 in respect to anticipated costs and not the sum of $245,000, as sought by her. However, that is not the end of the matter. It is now necessary to consider the second stage of Strahan.
In considering the second stage, the Full Court in Strahan applied, with approval, the following statement of principle by Riethmuller FM (as he then was) in Wenz & Archer at [52], where his Honour said that the task of considering whether it was just and equitable to make such an order:
… requires a consideration of the matters relevant to making a final order under s.79, not the least of which is that the order be ‘just and equitable’: s.79(2). In order to determine whether or not to exercise, on an interim basis, the power under s.79, the case must be first analysed in terms of s.79 to identify the range of outcomes that may flow in final orders. Whether it is just and equitable to make interim orders will require a balancing of the risks of unduly limiting the final orders that can be made (or even potentially defeating parties’ claims or legitimate expectations) against the circumstances said to show that it is just and equitable to make interim orders.
In Aitken & Murphy (No 2) [2012] FamCA 239 at [158], Young J said that, in considering whether to make an order for a partial distribution of property prior to final hearing, “care must be taken not to potentially defeat any party’s claim or legitimate expectations in a final hearing, including, the fact that a party should not be “required to liquidate an asset reasonably sought to be retained in the final hearing”.
The husband contends that, in order to fund an interim property distribution to the wife, the Suburb E property should be sold. As stated, the parties agree that the value of that property is $6,850,000.
The wife contends that the Suburb E property should not be sold for the following reasons.
Firstly, the interim orders made by Le Poer Trench J on 6 September 2017 provided for the wife to have exclusive occupation of the Suburb E property. The function of that order would naturally be defeated if the Suburb E property were to be sold.
Secondly, the wife ultimately seeks to retain the Suburb E property on a final basis. On her account, that is not an unrealistic or fanciful outcome. At the hearing, the wife provided an aide memoir dated 6 August 2018 (MFI “1”) which set out her understanding of the parties’ respective contentions in regard to the matrimonial property pool (including superannuation, add backs and financial resources). According to the wife’s Schedule of Effect (MFI “2”), the total net value of the property pool is $8,271,306 (noting that that figure is $3,462 more than the total net figure provided in the wife’s aide memoir). The husband contends that the net value is $7,935,826. According to the wife, the Suburb E property is currently subject to a mortgage of $2,118,418. In this way, if that property were to be transferred to the wife, she would receive equity to the value of $4,731,582. Ultimately, the wife’s application would see her receive $4,294,569 of the net total assets, or 51.92 per cent. On the husband’s account of the quantum of the total net assets, the wife’s application would see her receive 54.12 per cent of the total property pool. The wife contends that such a distribution, having regard to the fact that she is the primary carer of the parties’ three young children, is not unrealistic. I accept that, leaving aside the question of quantum, the expectation of such a distribution is not unrealistic.
The husband contends that the wife’s application is mistakenly based on the premise that, if the interim orders she seeks are made, there is a reasonable possibility that, at final hearing, the Suburb E property will be transferred to her. The husband argues that the wife’s aide memoir fails to include the impact of the orders sought by the wife in these interim proceedings. Specifically, it is contended that the matrimonial property pool would be reduced by the following:
a)The sale of the G Street property valued at $683,859; and
b)The wife drawing from the C Account the sums of $40,000 and $245,000.
In this way, the husband says that it is not realistic for the wife to expect that if the interim orders she seeks in these proceedings are made, she will retain the Suburb E property upon final resolution of this matter. That is, in circumstances where the property pool would be reduced by the interim distributions sought by the wife, totalling $285,000, the wife cannot expect to retain such a large portion of the property pool, being that which would be attributable to the Suburb E property.
Further, if orders are made as sought by the wife, the husband says that the parties’ assets will be depleted to a point where ANZ may call in its mortgage on the Suburb E property and require that property to be sold. The husband contends that the parties should confront that reality and accordingly, that orders should be made, in these interim proceedings, for the Suburb E property to be sold. The husband contends that the orders he proposes would provide for sufficient funds to be allocated to the wife to enable her to rehouse herself and the children in comfortable accommodation.

In these interim proceedings, it is not possible to make a determination as to whether it is likely that, at final hearing, an order will be made requiring the Suburb E property to be transferred to the wife. In circumstances where the Suburb E property is the parties’ former matrimonial home, is where the children have been raised and is subject to an order for exclusive occupation in favour of the wife, it would not be just and equitable to require the Suburb E property to be sold at this stage of the proceedings. To do so, would defeat the wife’s claim at final hearing, which I have determined is not fanciful or so unlikely that the prospect of it occurring should be dismissed. However, I note that, with each interim distribution ordered in these proceedings, the prospect of the wife succeeding in that application is diminished.
The husband opposes any order for the sale of the G Street property, as sought by the wife. He notes that he purchased that property prior to the parties’ relationship and that, while, on financial advice, the title of the property was adjusted significantly in the wife’s favour prior to the parties moving to Australia, he wishes to retain it. Specifically, in his Affidavit filed on 4 May 2018, the husband contends that the rent received from the G Street property allows for the maintenance of certain insurance policies to the benefit of the family in the event of the death or critical illness of himself or the wife.
The wife responds to the husband’s opposition to the sale of the G Street property as noting that the husband wishes to retain it for revenue raising purposes, as opposed to a desire to return to the United Kingdom to live in it. Senior Counsel for the wife contended that the husband’s desire to retain that property for the purpose of receiving rental payments should be given a less priority to the challenges confronting the parties, pending the final resolution of these proceedings, which include “paying school fees, putting food on the table and maintaining mortgage payments”.
I accept that the wife’s desire to retain the Suburb E property has significantly greater substance than the husband’s desire to retain the G Street property. However, in these interim proceedings, I am not in a position to determine that the husband’s desire to retain the G Street property is unreasonable, particularly given that he owned that property prior to the parties’ relationship. Again, in circumstances where an order requiring the G Street property to be sold would defeat the husband’s claim for orders at final hearing including, specifically, an order that the G Street property be transferred to himself, I find that, at this stage in the proceedings, it would not be just and equitable to deprive him of that outcome.
Accordingly, I reject both parties’ applications for, on the part of the husband, the Suburb E property to be sold and, on the part of the wife, for the G Street property to be sold.
It is to be noted, however, that included in the matrimonial property pool is an investment bond held in the United Kingdom and managed by [Company O] (portfolio number …) (“the B Bond”). At paragraph 9 of his Affidavit filed on 3 August 2018, the husband says that, in accordance with the orders of Rees J made on 7 May 2018, £37,000 was withdrawn from the B Bond in order to fund an interim distribution to the wife and the payment of school fees. The balance sheet provided by the wife at the hearing lists the current value of the B Bond as $216,000 AUD.
The wife seeks that an order be made for the B Bond to be liquidated and all proceeds paid into the C Account. At the hearing, Senior Counsel for the wife summarised the wife’s application, in that regard, as follows:
… [the wife] effectively, endeavours to seek a series of orders that would see that property and interests that the parties have in an account in the [United Kingdom] brought on shore and credited against the mortgage on [the [Suburb E] property] or we would be equally open to an offset account that will bring about a reduction in the outgoings in relation to the [Suburb E] property …
Senior Counsel for the wife further submitted that the effect of that reduction in the mortgage over the Suburb E property would put the parties in a position to realistically invite ANZ to alter the terms of the loan so that repayments would be reduced to an interest only figure, pending final hearing.
In the circumstances, I propose making an order in terms of the wife’s proposed order 6, save insofar as the amount that I will require to be transferred from the B Bond to the C Account will be the sum of $185,000, being the amount of $40,000 for the wife’s medical treatment and an additional amount of $145,000 in respect to anticipated legal fees. This will leave a balance in the B Bond of approximately $31,000 AUD.
I note that the husband’s proposed order 3 seeks that, from the proceeds of the sale of the Suburb E property, respective payments of $50,000 be made to himself and the wife, together with an additional amount of $20,000 in respect to the children’s school fees. I address the issue of the children’s school fees in my consideration of the wife’s application for a departure from the current Child Support Assessment. In circumstances where the husband has an income of approximately $8,580 per week, access to funds in the T Bank Offshore Account and the employment entitlement to the annual vesting of PPL shares, he is far better able to fund his litigation, as compared to the wife. Moreover, for reasons which I have set out above, I do not propose to make an order for the sale of the Suburb E property. In those circumstances, I do not propose to exercise my discretion to make an order for the adjustment of property as sought in order 3 of the husband’s application.

Spousal maintenance

Firstly, I note that the wife has sought an order that the husband pay all premiums referrable to the family health insurance policy so that she is in receipt of the husband’s level of cover. This appears to be a somewhat duplicated version of consent order 3 made by Le Poer Trench J on 6 September 2017. Further, there is no evidence that the current level of cover paid for by the husband for the benefit of the wife is insufficient to meet her needs. Accordingly, I decline to make that order.
Further, the wife has sought orders that the husband pay to her the weekly sum of $1,675 as spousal maintenance.
Section 72 of the Act provides:
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).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
In Saxena and Saxena (2006) FLC 93-268, Coleman J explained that in determining whether to make an order for spousal maintenance, the Court should follow a four step process, as follows:
a)Can the applicant support themselves adequately?
b)If not, what are the applicant’s reasonable needs?
c)What capacity does the respondent have to meet those needs?
d)What order is reasonable, having regard to s 75(2) of the Act?
Those matters are addressed in the following paragraphs.

The wife’s ability to support herself

In this matter, both parties acknowledge that, owing to her obligation to care for the children, the wife is unable to support herself “adequately”, in terms of s 72(1) of the Act. In that respect, it is to the husband’s credit that he acknowledges that the wife is “unable adequately to support herself on an interim basis”. That point is effectively conceded in the consent orders made in September 2017.

What are the wife’s reasonable needs?

In McCrossen & McCrossen (2006) FLC 93-283 at 80,838, the Full Court, after referring to a number of earlier authorities, said that the question as to whether or not a person is able to support themselves “adequately” is:
… not to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances. [References omitted].
The evidentiary requirements in respect to interim applications for spousal maintenance were considered by the Full Court in Redman & Redman (1987) FLC 91-805. In that case, at 76,081, the Full Court said that it was appropriate to maintain some flexibility in approach. Consistent with that decision, in Drysdale & Drysdale [2011] FamCAFC 85 at [40], Coleman J, in exercising the appellate jurisdiction of the Full Court, said:
It is the nature of an interim spousal maintenance order that, as here, it is made after a circumscribed hearing, in reliance upon evidence which is incomplete and/or unable to be fully tested. Whilst different to urgent spousal maintenance pursuant to s 77 of the Act, orders for interim maintenance are as their title implies. The Court hearing and determining financial proceedings between the parties on a final basis, as clearly will occur in this case in the absence of any intervening settlement, has abundant power to accommodate within its final orders, whether by way of settlement of property or spousal maintenance, any anomalies which full agitation of disputed issues of fact may reveal to have resulted from an earlier interim spousal maintenance order.
Further, in an application for spousal maintenance, it is necessary to distinguish between the expenses of the applicant and the expenses of the children of the parties’ relationship: Stein & Stein (2000) FLC 93-004.
The wife sets out her weekly expenses at annexure “A” to her Financial Statement filed on 2 May 2018. Leaving aside those items which the wife identifies as currently being paid by the husband and which, I understand, the husband undertakes to continue to pay, the wife’s weekly expenses are, as follows:

a)Food and household supplies at $80;
b)Dry cleaning at $25;
c)Gardening, lawn mowing at $65;
d)Cleaning (house/pool) at $81;
e)Repair of furnishings/appliances at $12;
f)Replacements at $12;
g)Chemist/pharmaceutical at $12;
h)Medical (note I have pending procedures) at $384;
i)Dental/orthodontics at $35;
j)Water/sewage rates at $8;
k)House maintenance/repairs at $25;
l)Furnishings at $12;
m)Telephone/Internet at $58;
n)Clothing and footwear at $115;
o)Petrol at $60;
p)Motor vehicle service and repairs at $35;
q)Parking at $20;
r)Driver licence at $2;
s)Fares and taxis at $100;
t)Entertainment at $150;
u)Travel and holidays at $100;
v)Self-education at $46;
w)Books, papers and periodicals at $7;
x)Gifts at $12;
y)Hobbies at $74;
z)Hairdresser/toiletries at $46;
aa)Donations at $5;
bb)Beautician at $14;
cc)Cosmetics at $12;
dd)Shoe repairs at $3;
ee)Pet/vet/kennel at $18;
ff)Foxtel at $9; and
gg)Cigarettes/tobacco/alcohol at $42.

Those figures total $1,679.
In Hall v Hall [2016] 257 CLR 490 at [8], the majority decision of the High Court, in referring to an extract from Redman & Redman (supra), held that:
No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order (12). But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth).
It is frequently overlooked that there are specific obligations of disclosure in cases involving applications for spousal maintenance. Rule 4.15 provides:
Evidence to be provided
(1) On the first court date and the hearing date of an Application for spousal or de facto maintenance, each party must bring to the court the following documents:
(a) a copy of the party’s taxation returns for the 3 most recent financial years;
(b) the party’s taxation assessments for the 3 most recent financial years;
(c) the party’s bank records for the period of 3 years ending on the date on which the application was filed;
(d) if the party receives wages or salary payments—the party’s payslips for the past 12 months;
(e) if the party owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and
(f) any other document relevant to determining the income, needs and financial resources of the party. …
The wife’s Financial Statement is evidence of her expenditure. However, in circumstances where documentary evidence has not been produced to support each item of expenditure and specifically, where the wife has not provided a copy of her bank statements for the three years prior to the filing of her application, in exercising my discretion pursuant to s 74 of the Act, it is appropriate to consider the reasonableness of the wife’s claims. Taking that approach, I modify the wife’s schedule of claimed weekly expenditure in terms of the following figures:
a)Gardening and lawn mowing (item 7) reduced to $32.50;
b)Cleaning (house/pool) (item 8) reduced to $40.50;
c)Repair of furnishings/appliances (item 9) deleted, having regard to subsequent claim for House maintenance/repairs (item 22);
d)Medical (item 13) deleted, as the orders provide for a partial property distribution to the wife of $40,000 to meet such expenses;
e)Water/sewerage rates (item 21) deleted, as the orders of September 2017 provide for the husband to meet that expense;
f)Clothing and footwear reduced to $39;
g)Fares and taxis (item 56) reduced to $30 in circumstances where expenses have been recognised in respect to a motor vehicle;
h)Entertainment (item 58) reduced to $75; and
i)Travel and holidays (item 59) reduced to $50.
Adjusted total will therefore be: $931.
I note that this amount is broadly consistent with the amount of spousal maintenance referred to in paragraph 7 of the Heads of Agreement, as set out above.

The husband’s capacity to pay

It did not appear to be in dispute that the husband’s net weekly pay, excluding bonuses is $3,898.
Pursuant to the orders made on 6 September 2017, the husband has an obligation to meet the following weekly expenses in respect to the Suburb E property:
a)Mortgage at $2,394.23;
b)Council rates at $69.90;
c)Gas at $24.83;
d)Electricity at $56.49;
e)Water at $41.54; and
f)Household and contents insurance at $97.21.
The husband is also required to pay the weekly expenses attributable to the premiums for the current family health insurance policy at $102 and child support at $635.
These expenses total $3,421.20. This leaves a surplus of $476.80 from the husband’s net income, with which he is required to sustain himself.
In 2017, the husband received a discretionary bonus from his employer which increased his income by $822.58 per week. In this way, using that bonus figure, the husband’s total surplus weekly income, after expenses paid for the benefit of the wife and the children, is $1,299.33.
At Part G of the husband’s Financial Statement, the husband’s weekly expenditure is listed as $1,474 (not including income tax or the wife’s life insurance). The husband’s other expenditure, set out in Part N of that document, totals some $805.
In this way, those expenses of the husband are more than his net surplus income, set out above. Accordingly, the husband does not have the capacity to pay weekly spousal maintenance to the wife without drawing upon or borrowing against capital. In that respect, in determining the “reasonable ability” of a party to satisfy an order for interim spousal maintenance, the Court is not confined to consideration of that party’s income only, but rather, as stated in Maroney & Maroney [2009] FamCAFC 45 at [56]:
Once a party, establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.
I have noted that, after funds have been withdrawn from the B Bond in order to satisfy the order for a partial property distribution in favour of the wife, it appears to be the case that the amount of approximately $31,000 will be left in that fund. This provides the husband with the capacity to meet the wife’s weekly needs, assessed to be $931. Clearly, the husband only has capacity to pay that amount weekly until the funds in the B Bond have been depleted. However, as will be discussed the husband also has access to shares in his employer, PPL, which vest on an annual basis.

What order is reasonable having regard to section 75(2) of the Act?

Section 72(1) of the Act provides that in determining the extent to which the wife is unable to reasonably support herself and the extent to which the husband is reasonably able to do so, the Court is required to have regard to any relevant matters set out in s 75(2) of the Act.
Section 75(2) sets out those potentially relevant matters, as follows:
(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 a 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.

Further, Rule 4.26(2) relevantly provides:
(2) On the first court date and the hearing date of the application, each party must bring to the court the following documents:
(a) a copy of the party's taxation returns for the 3 most recent financial years;
(b) the party's taxation assessments for the 3 most recent financial years;
(c) the party's bank records for the period of 3 years ending on the date on which the application was filed;
(d) if the party receives wages or salary payments--the party's payslips for the past 12 months;
(e) if the party owns or controls a business, either as sole trader, partnership or a company--the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and
(f) any other document relevant to determining the income, needs and financial resources of the party.
While the parties have provided certain documentation in respect to their income and expenditure, neither party has provided a copy of their taxation returns, taxation assessments or bank records for the past three years. As will be discussed, this presents difficulties in terms of considering both of the parties’ applications for a departure from the current Child Support Assessment.
The evidentiary basis for the wife’s application is set out in paragraphs 79 to 81 of her Affidavit filed on 2 May 2018, as follows:
79. I refer to my Financial Statement filed here with which identifies at Part N, those expenses that I pay for the children.
80. I say that there are grounds for a departure in the circumstances of this case and it would be just and equitable and otherwise proper to make the orders sought by me in my Response to an Application in a Case.
81. I can tender at the interim hearing if required a schedule setting out the grounds of my application for child support departure orders (Tab 12 of my Tender Bundle).
Tab 12 of the annexures to the wife’s Affidavit (pages 39 and 40) sets out the grounds for her application, as follows:
1. The wife has made an application for an administrative assessment of child support for the children of the marriage.
2. A child support assessment has been requested to be issued by the Child Support Registrar.
3. The husband and the wife are parents of the children.
4. The wife is entitled to receive child support from the husband.
5. The husband is the person liable to make the payments under an assessment.
6. The husband and wife are parties to proceedings being instituted in the Sydney Registry of the Family Court with respect to property and spouse maintenance.
7. This Court has jurisdiction under the Child Support (Assessment) Act to hear and determine the child support application at the same time as it deals with other financial matters.
8. It would be in the interests of the husband and the wife for the Court to consider at the same time as it hears the pending applications of the wife, whether an order should be made for departure from the assessment in the special circumstances of the case.
9. There are grounds for a departure in the circumstances of this case.
10. It would be just and equitable, with regard to the children, the husband and wife, and otherwise, proper to make the orders sought by the wife.
11. Application of the administrative assessment in relation to the children would result in an unjust and inequitable determination of the level of financial support to be provided by the husband for the children.
12. The husband and the wife are the parents of the children and have the primary duty to maintain the children.
13. The wife has identified, and described to the best of her knowledge and ability in her Financial Statement sworn on 30 November 2016:
13.1 Income, property and financial resources of the wife;
13.2 The commitments that are necessary to enable the support of the children;
13.3 The proper needs of the children;
13.4 The direct and indirect expenses incurred by the wife in providing for the care of the children, including housing, clothing, food, entertainment, education and transport costs.
14. The wife has no present capacity to earn and derive income and/or any substantive income due to her role in caring for the children.
15. The husband has the capacity to pay the amount sought by the orders, noting the income earned by the husband in prior financial years.
16. The children do not have any ability to earn or derive income from any source within their control and they have no assets under their control, or held for their benefit, that produce, or are capable of producing income.
17. Hardship would be caused to the wife and the children if the orders sought by the wife are not made, insofar as the wife will be unable to meet the children's proper needs including but not limited to education (school fees) and medical expenses.
Issues to be determined with respect to child support:
18. The level of child support payable by the husband to the wife with respect to the child by way of:
18.1. periodic child support payment;
18.2. non-periodic child support.
A precondition to the consideration of an application for a child support departure order is the Court being satisfied, in terms of s 116 of the Child Support Act, that the hearing of such an application is in the interests of both parties: Seymour and Seymour [2011] FamCAFC 97 at [84]. Insofar as he also sought a departure from the current Child Support Assessment, the husband contends that that provision has been satisfied and I proceed to consider the applications on that basis.
In considering this application, it is necessary for the parties and the Court to appreciate the legislative context of the provisions to which I have referred. In Bagala & Bagala (2009) FLC 98-043 at 97,211, Riethmuller FM (as he then was) succinctly observed:
The objects and purpose of the Child Support Scheme are to provide an informal, inexpensive and timely avenue of review for disputing parties.
In Yewen & Child Support Registrar [2014] FCCA 2399, Judge Brown referred to the fact that there is now a detailed administrative framework to deal with child support applications, with limited involvement of the Court. His Honour analysed the legislative history regarding child support and stated:
[76] The rationale for the exclusion of the court, from the process of review, is readily explicable in light of the objects as outlined in section 4 of the Assessment Act. Court proceedings, regarding child support assessments, should be the exception rather than the rule. This is particularly so, since the inauguration of the external level of appeal, in child support matters, provided by the SSAT.
[77] The instigation of appeals to SSAT, in child support matters, was part of a wide ranging reform of the child support system inaugurated by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the “Reform Act”). The SSAT is intended to be a specialist tribunal, dealing with child support matters, in preference to a court such as this one.
….
[79] The important matter to note, in my view, is that departure applications are to be heard by the court in what are categorised as being limited circumstances, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair.
I respectfully agree with Judge Brown’s analysis of the legislative history and, in particular, his Honour’s conclusion that Court proceedings regarding Child Support Assessments should be the exception, rather than the rule. In Warwick and Cutler and Anor [2016] FamCA 934, I expressed the view that his Honour’s analysis is strengthened by the fact that, since the enactment of the Tribunals Amalgamation Act 2015 (Cth), this Court no longer has jurisdiction to hear appeals on questions of law in respect to child support.
Section 117 of the Child Support Act makes clear that the wife needs to establish that “special circumstances” exist for the making of a departure order. In that respect, in In the marriage of Gyselman (1992) FLC 92-279 at 79,064, the Full Court noted:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery's case (p. 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p. 77,202 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
As stated, the difficulty of making findings of an evidentiary nature in interim proceedings is well known. In Acton & Burton [2015] FamCA 469 at [26], which also involved an application for child support departure orders in the context of interim proceedings, Hogan J said:
The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them.
The evidence adduced by the wife in these interim proceedings is not such that I can be satisfied that there are special circumstances justifying a departure from the administratively assessed Child Support Assessment. That assessment, which is set out at pages 34 to 36 of the annexures to the wife’s Affidavit filed on 2 May 2018, indicates that the child support figure calculated was based on the costs of the children being $14,492 per annum, in respect to each child. This is equivalent to $278.69 per week.
Insofar as the wife relies upon the contents of her Financial Statement as establishing the basis upon which there should be a departure from the Child Support Assessment, it is necessary to remove from Part N those items that are being paid by the husband and those items which are the subject of the application pursuant to s 124 of the Child Support Act. The child with the greatest amount of expenses is Y and, according to the wife’s schedule, those relevant expenses are:

a)Food and household supplies at $80;
b)Chemist/pharmaceutical at $7;
c)Medical at $38*;
d)Dental/orthodontics at $20*;
e)Optical at $12*;
f)House maintenance/repairs at $25*;
g)Books and stationery at $9;
h)Uniforms at $18*;
i)Excursions – extracurricular expenses (music lessons, etc.) at $60*;
j)Childcare/babysitting at $15;
k)Pocket money at $7;
l)Entertaining and outings at $30 (this item is duplicated below and will therefore be disregarded);
m)Tuition/tutoring at $75*;
n)Sports and activities at $58*;
o)Entertainment and outings at $12;
p)Lunches/school lunches at $14;
q)Holiday camp at $23;
r)Clothing and footwear at $18;
s)Travel and holidays at $57;
t)Gifts at $9;
u)Hairdressers/toiletry at $3; and
v)Cosmetics at $5.

The above figures marked with an asterisk have been provided for in terms of the orders made in accordance with the wife’s application for either spousal maintenance or non-periodic child support and will therefore be disregarded. Therefore, those expenses total $259. That figure is $19.69 less than the weekly costs assessed by the Child Support Agency for each of the children.
Accordingly, the wife has not, in terms of the requirements of s 117 of the Child Support Act, satisfied me that there are special circumstances justifying the making of a child support departure order in respect to the amount that the husband is required to pay for the benefit of the children.
Finally, I note that in Beck and Sliwka (1992) FLC 92-296 at 79,262, the Full Court stated that, in dealing with child support matters, “… it seems not unreasonable to at least pay regard to the formula [applied by the Child Support Agency]”. That statement has even greater relevance in light of the legislative reforms to which I have earlier referred, which clearly support the position that, in the ordinary course, child support should be determined administratively and by applying the relevant statutory criteria.
In having regard to Beck and Sliwka (supra), I note that Division 2 of Part 5 of the Child Support Act sets out relevant formulas that potentially apply to the facts of this case. I have not been addressed on the application of the relevant statutory formula. In those circumstances, even if I had been satisfied that, on the facts of this case, there are special circumstances that warrant a departure from the Child Support Assessment, in undertaking that task, I would have been unable to properly consider whether there should or should not be a departure order and if so, in what amount.
For those reasons, I dismiss the wife’s application for a departure from the current Child Support Assessment.
As stated, the husband similarly seeks a child support departure order, however, he seeks a reduction of the amount that he is currently assessed as being liable to pay. The “special circumstances” referred to by the husband in respect to that application are set out in paragraph 14 of his Affidavit filed on 4 May 2018, as follows:
I have been assessed for payment [of] Child Support. Exhibited to me and reproduced in Exhibit JMG-1 to this Affidavit is a copy of Child Support Assessment issued 19 January 2018 and current for the period 21 December 2017 to 14 November 2018. The annual amount of Child Support payable by me is $33,042.00 which is $1,266.50 per fortnight or $633.25 per week. I have paid the Child Support in accordance with the Assessment and there are no arrears. By reason of the Orders of the Court on 6 September 2018 the Child Support Agency does not take into account in the calculation of the child support the amount of payments being made by me in respect of the [Suburb E] property including the mortgage and other outgoings.
It is not stated how those facts constitute “special circumstances” in terms of s 117 of the Child Support Act. Moreover, once again, in circumstances where I have not been addressed on the application of the relevant statutory formula set out in Division 2 of Part 5 of the Child Support Act, I am unable to determine how the current figure was calculated, in terms of deciding whether it should be departed from. Accordingly, I also dismiss the husband’s application for a child support departure order.

Non-periodic child support

In terms of non-periodic child support, the wife also seeks that the husband make the following payments with respect to the children:
a)All costs of premiums for private health insurance for the children with the existing health fund at the current level, and any gap medical expenses (including but not limited to medical, hospital, dental, orthodontic, physiotherapy, optometry and pharmaceutical costs and expenses) not otherwise met by the private health fund;
b)The costs of and incidental to the children's attendance at their existing school or any other school agreed upon in writing by each party;
c)Agreed extra school tuition and tutoring fees;
d)School textbooks and materials;
e)School and sports uniform and shoes;
f)School camps and excursions; and
g)The costs of registration and participation (including costs of equipment, uniforms and shoes) in sporting teams and extracurricular activities.
While not stated, the wife’s application, in that regard, appears to be made pursuant to s 124 of the Child Support Act. That section relevantly provides:
Orders for provision of child support otherwise than in form of periodic amounts paid to carer entitled to child support
(1) Where:
(a) a carer entitled to child support or a liable parent makes an application under paragraph 123(1)(a) [which deals with an order that a liable parent provide child support otherwise than in the form of periodic amounts]; and
(b) the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper;
to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;
the court may make the order.
(2) In determining the application, the court must have regard to:
(a) the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and
(aa) any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and
(b) any order in force under Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and
(c) whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or, if the carer entitled to child support is not in receipt of such a pension, allowance or benefit, whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.
(3) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(3A) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(4) In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(5) Subsections (2), (3), (3A) and (4) do not limit the matters to which the court may have regard.
It can be seen that the first task before the Court, in applying the provisions of s 124 of the Child Support Act, is to determine whether “it would be just and equitable as regards the child, the carer entitled to child support and the liable parent” to make a relevant order for non-periodic child support, having regard to several mandatory preconditions. Relevantly, for these proceedings, those mandatory preconditions are:
a)The Court must have regard to the Child Support Assessment in force in relation to the children; and
b)The Court must have regard to those matters set out in subsections 117(4), (6), (7), (7A) and (8), which are extracted above.
The second task is to determine whether such an order would be “otherwise proper”, having regard to the matters mentioned in s 117(5), which is set out above. There is no definition of the word “proper” in the Child Support Act, however, it would appear to be appropriate to apply the reasoning of the Full Court in the Marriage of Farr (supra) at 77,437, to construe the term as meaning “reasonable and just in [the] circumstances”.
In addressing the statutory considerations, in terms of s 117(4), I note that I have addressed the relevant matters set out in paragraphs (a), (d), (da) and (e) in considering the wife’s application for spousal maintenance. I have addressed the considerations set out in paragraphs (b) and (f) in considering the wife’s application for a child support departure order. In terms of paragraph (g), which refers to the potential hardship to the child, the carer and the liable parent, I am satisfied that the wife and more importantly, the children, would suffer hardship if orders were not made as sought by the wife. Further, I have earlier addressed the husband’s capacity to meet certain expenses in terms of the funds held in the T Bank Offshore Account and the financial resource in the form of his PPL shares.

In terms of s 117(5), neither party disputes that they each have a primary duty to maintain the children. The debate in these proceedings concerns the extent of the children’s needs and the capacity of the husband to address those needs. It has not been otherwise suggested that either of the parties is in receipt of an income tested pension benefit or allowance that would be impacted by orders made under s 124.
In terms of s 117(6), I consider paragraph (a), being “the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained” to be of greatest relevance to this application. In that regard, I note that the application of the wife in respect to non-periodic child support payments for the children’s schooling and private health insurance (paragraphs 11.3 and 11.4 of the wife’s application) is a variation of clauses 8.3 and 8.4 of the Heads of Agreement signed by the parties and set out above.
In circumstances where, having regard to the parties’ previous agreement regarding their children attending private school, it is appropriate for orders to be made requiring the husband to pay ancillary costs associated with their education, including with regards to uniforms, tutoring and extracurricular activities. It is my view that the children would suffer real hardship if they were required to change schools, particularly during the stressful time of dealing with their parents’ separation and this ongoing litigation. That is not to say that I regard the public education system as anything other than entirely appropriate. My concern is the potential impact of such a change on the children.
Further, in fairness to the husband, it did not appear to be disputed that he would continue to pay the children’s private health insurance premiums. Nonetheless, it is appropriate to confirm that arrangement in terms of the orders sought by the wife.
In terms of the consideration referred to in s 117(7), I note that the children are all under the age of 11 years and it has not been suggested that any of the children are in receipt of an income, have an earning capacity or have their own independent access to property or financial resources.
I have earlier addressed the considerations set out in s 117(7A) in considering the wife’s application for spousal maintenance.
In considering s 117(8), I have previously commended the husband for his recognition that the wife wishes to maintain her role as the primary carer of the children and in doing so, the wife has forgone the opportunity of earning an income and exploiting her earning capacity, at this point in time.
Accordingly, for these reasons, I propose making the orders sought by the wife for the payment of non-periodic child support.

Other property orders

Sale of PPL shares

The wife seeks an order that the husband sell his PPL shares and pay the net proceeds of that sale into the C Account.
I have earlier noted the parties’ respective contentions in respect to the value of the PPL shares, which I have noted to be a substantial financial resource of the husband, along with the B Bond. I have, however, had regard to the husband’s access to those financial resources in determining that it is appropriate for the husband to pay both spousal maintenance and non-periodic child support.
Accordingly, I dismiss the wife’s application for the husband to sell his PPL shares with a view to the proceeds being deposited in the parties’ account associated with the mortgage over the Suburb E property.

Injunction

The wife seeks that the parties be required to approach ANZ with a view to taking such steps as are necessary to reduce the mortgage repayments attributable to the Suburb E property, so that they are interest only repayments. This would reduce the parties’ periodic mortgage repayments.
The husband did not appear to oppose the making of such an order, but contended that the relatively small reduction in mortgage repayments that would result from such an order being made would not address the fact that the parties are currently living beyond their means and ultimately reducing the property pool available for distribution at final hearing. There was, with respect, some substance in that submission.
Nevertheless, I am satisfied that if the parties are successful in making such an application to ANZ, the financial burden they are currently experiencing will be somewhat reduced. Accordingly, I will make an injunctive order as sought by the wife.

Orders

For all of the above reasons, I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 19 October 2018.

Associate:

Date: 19 October 2018