Groves & Groves

[2021] FamCA 560

FAMILY COURT OF AUSTRALIA

Groves & Groves [2021] FamCA 560

File number(s):	SYC8296 of 2016
Judgment of:	HARPER  J
Date of judgment:	2 AUGUST 2021
Catchwords:	FAMILY LAW – SPOUSAL MAINTENANCE – Whether the husband should be ordered to pay $3,000 per week as spousal maintenance – In circumstances where the wife claims that she is unable to rely on her superannuation funds – Where husband agrees to orders allowing wife to access jointly held self-managed superannuation fund - Orders be made in accordance with the husband’s proposed orders – turns on its own facts.
Legislation:	Family Law Act 1975 (Cth) ss 72(1) and 75(2)(o)
Number of paragraphs:	17
Date of hearing:	19 July 2021
Place:	Sydney
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr Kearney SC
Solicitor for the Respondent:	Barkus Doolan

ORDERS

SYC8296 of 2016

BETWEEN:

MS GROVES

Applicant

AND:

MR GROVES

Respondent

ORDER MADE BY:	HARPER  J
DATE OF ORDER:	2 AUGUST 2021

THE COURT ORDERS THAT:

1.That within 28 days of date of these Orders the Husband pay to the Wife the sum of $325,000 by way of partial property settlement, with:

(a)the Wife to be restrained from utilising $300,000 of those monies save specifically for the purposes of her legal costs and disbursements in these proceedings;

(b)the Wife to pay $1,778.70 of the $25,000 remaining, to Dr B in payment of his invoice dated 13 May 2021 for preparation of his report in these proceedings (should that invoice not already have been paid by date of these Orders) and thereafter file and serve Dr B's report forthwith;

(c)the Wife to use such portion of the remaining $23,211.30 as necessary to meet the expenses identified at Order 8 of the Wife's Application in a Case dated 10 November 2020 (such that she requires they still be met).

2.That further to Order 4 of the Orders of this Court dated 26 April 2017 and by way of confirmation of that Order, the Husband and Wife in order of priority, forthwith:

(a)do all acts and things to change/move the ANZ share trading account (held in the joint names of the parties) of the G Superannuation Fund ("the Groves SMSF") into an account with ANZ Trading in the name of the Groves SMSF;

(b)do all acts and things to cause the Westpac Banking Corporation to remove the hold unilaterally placed by the Wife on the account of the Groves SMSF with Westpac Bank; and

(c)do all acts and things (including all acts and things necessary to forthwith sell such shares in the Groves SMSF [excluding shares held by the fund in D Limited ("D Company")]) as necessary to enable the Wife to draw down on the whole of (or such portion as she requires of) her member entitlement in the Groves SMSF.

3.That the Wife's Application for spouse maintenance otherwise be dismissed.

4.That the parties each pay their own costs.

Note:   The form of the order is subject to the entry in the Court’s records.

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

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

REASONS FOR JUDGMENT

HARPER J

1. These proceedings have been in the Court for many years. The Chief Justice and the Deputy Chief Justice have both made notations in previous orders to the effect that this matter needs to be brought to finality.

2. On 16 November 2020, the wife filed an Application in a Case seeking wide ranging orders, some of which were not easy to understand.

3. The proceedings came into my docket and were listed for a first day Less Adversarial Trial on 25 May 2021. On that occasion I listed that part of the wife's Application in a Case dealing with spousal maintenance and or litigation funding be stood over for hearing on 19 July 2021.

4. In her Application in a Case the wife sought the following orders for spousal maintenance and litigation funding:

   Spousal Maintenance

   2. That pursuant to section 72 and 74 of the Family Law Act 1975 (Cth) the Husband pay to the Wife, by way of ongoing spousal maintenance, sum of $3,000.00 per week as follows:

   2.1 The first payment to be made within two (2) business days of the date of these orders of a sum equivalent to four (4) weeks of spousal maintenance;

   2.2 The second payment to be paid twenty-eight (28) days from the date of these orders, and continue each 28 days thereafter with each payment being a sum equivalent to 4 weeks of spousal maintenance (to be paid in advance);

   2.3 The Husband shall cause the payments (pursuant to this order) to be made directly to the Wife via Westpac Account ending …08 (or as otherwise nominated by the wife in writing).

   Arthritis Aides and Lap Top

   8. That within seven (7) days of the date of these Orders the wife shall be at liberty to purchase the following equipment:

   8.1 Electric Knife;

   8.2 Arthritis solutions kettle tipper and soft handle scissors;

   8.3 Can and bottle opener pull(s);

   8.4 Food processor;

   8.5 Dycem Anchorpads (x2);

   8.6 Lattex mattress Queen size electric bed;

   8.7 Height adjustable desk;

   8.8. Workout equipment to assist with arthritis rehabilitation up to value of $7,000;

   8.9 Apple Watch series 6;

   8.10 Software for Macbook;

   …

   Legal Costs

   18. Within 90 days of the date of these Orders the Husband shall payor cause to be paid a sum $300,000.00 to E Lawyers for Legal Costs and Disbursements.

5. By his Further Amended Response to an Application in a Case filed 6 July 2021 the husband sought the following orders for spouse maintenance and litigation funding:

   1. That within 28 days of date of these Orders the Husband pay to the Wife the sum of $325,000 by way of partial property settlement, with:

   1.1      the Wife to be restrained from utilising $300,000 of those monies save specifically for the purposes of her legal costs and disbursements in these proceedings;

   1.2      the Wife to pay $1,778.70 of the $25,000 remaining, to Dr B in payment of his invoice dated 13 May 2021 for preparation of his report in these proceedings (should that invoice not already have been paid by date of these Orders) and thereafter file and serve Dr B's report forthwith;

   1.3      the Wife to use such portion of the remaining $23,211.30 as necessary to meet the expenses identified at Order 8 of the Wife's Application in a Case dated 10 November 2020 (such that she requires they still be met).

   2. That further to Order 4 of the Orders of this Court dated 26 April 2017 and by way of confirmation of that Order, the Husband and Wife in order of priority, forthwith:

   2.1       do all acts and things to change/move the ANZ share trading account (held in the joint names of the parties) of the G Superannuation Fund ("the Groves SMSF") into an account with ANZ Trading in the name of the Groves SMSF;

   2.2      do all acts and things to cause the Westpac Banking Corporation to remove the hold unilaterally placed by the Wife on the account of the Groves SMSF with Westpac Bank; and

   2.3      do all acts and things (including all acts and things necessary to forthwith sell such shares in the Groves SMSF [excluding shares held by the fund in D Limited ("D Company")]) as necessary to enable the Wife to draw down on the whole of (or such portion as she requires of) her member entitlement in the Groves SMSF.

   3. That the Wife's Application for spouse maintenance otherwise be dismissed.

   4. That the parties each pay their own costs.

6. It can be seen that the husband is prepared to make a payment to the wife of $325,000, for litigation funding and some other expenses. This corresponds broadly to the wife's orders 8 and 18. It should be pointed out here that she is now self-represented and it would not be appropriate to order payment to lawyers no longer on the record.

7. Both parties filed Case Outlines. By his Case Outline the husband submitted that the only remaining area of debate in respect of the wife’s Application in a Case seemed to be whether he should be ordered to pay $3,000 per week as spousal maintenance. The wife's Case Outline ran to some 80 pages. Much of the material in the Case outline was either hard to follow or irrelevant. After hearing oral argument I was satisfied the only real area of debate did, as the husband submitted, concern whether he should be ordered to pay $3,000 per week as spousal maintenance, in addition to the payment of $325,000.

8. The husband argued that the wife did not meet the threshold in s 72(1) which is in the following terms:

   (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).

9. The husband argued that the wife has, and has had for some time, access, because she is retired, to a superannuation entitlement in a self-managed superannuation fund called the "Groves SMSF". The value of this fund is approximately $800,000. Consequently, she does not meet the threshold because she can support herself adequately from this source.

10. The wife did not dispute she can access her entitlements in the Groves SMSF. She made a number of assertions, which were not easy to follow, but in essence she appeared to argue that the husband has large financial resources and he should be compelled to pay her, rather than her being forced to deplete her own financial resources. She submitted it would be unfair for the husband to use joint funds, some of which she says were stolen, while she has to use her superannuation which she has to live on for the rest of her life.

11. She made other arguments to the effect that there were compliance problems with Groves SMSF, and a forensic audit was necessary before her entitlement could be quantified. However the wife accepted in argument that she presently put forward no evidence to support this contention.

12. The wife consistently claimed that the husband was using coercive control over her because she had to rely upon him complying with Court orders to access her entitlement in the Groves SMSF. This argument was difficult to understand. If the Court ordered the husband to pay to the wife the spouse maintenance which she herself seeks, she would have to rely upon him complying with that order.

13. I am unable to accept any of the wife's contentions. The husband has agreed to pay the amount for litigation funding which she sought in her own application together with an additional $25,000. I do not accept there is any reason why the wife cannot access the Groves SMSF for living expenses until a final hearing and the delivery of judgment. The husband's proposed order 2 gives the broadest possible protection to the wife by compelling the husband to facilitate this happening. The wife's allegations of coercive control are not substantiated.

14. It is clear the wife does not think it is fair that she be forced to access superannuation for living expenses prior to final determination of the proceedings instead of getting money from the husband by way of spousal maintenance. But on the threshold question, that is beside the point. The question is whether she is unable to support herself adequately from superannuation on one of the grounds set forth in s 72(1)(a), (b) or (c) having regard to the factors in s 75(2) of the Act. I am satisfied that she can, and therefore does not meet the threshold for jurisdiction for the orders for spousal maintenance that she seeks.

15. It should be pointed out here that the property pool is likely to be no less than approximately $13 million. As I understand it, the wife claims she should receive a substantial proportion, indeed half, of this asset pool on a just and equitable property adjustment. The husband did not contend that no property adjustment should be made in favour of the wife. If she is correct she will receive a substantial award of assets at final hearing. If so, clearly she will not have to rely upon superannuation for the rest of her life and whatever is spent by her on living expenses out of superannuation until final orders are made can be taken into account in a final property adjustment under s 75(2)(o).

16. I am not persuaded the wife meets the threshold in s 72(1). Accordingly, it is not necessary to make a finding whether the husband had capacity to meet a spousal maintenance order. I note that he denied capacity.

17. I will make the orders proposed by the husband.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       2 August 2021