Gruit and Sloan

[2019] FamCA 449

FAMILY COURT OF AUSTRALIA

GRUIT & SLOAN [2019] FamCA 449

FAMILY LAW – SPOUSAL MAINTENANCE – Interim Lump Sum – orders made for spousal maintenance – husband a high worth person – matter proceeding to further mediation – husband to pay wife $11,200 per month – husband to pay wife $12,000 for retrospective spouse maintenance – husband to pay wife $120,000 for interim costs.

Family Law Act 1975 (Cth) ss 79, 80

Carmel-Fevia & Fevia (2010) 43 Fam LR 405
Redman & Redman (1987) FLC 91-085
Williamson and Williamson (1978) FLC 90-505
Stein & Stein (2000) FLC 93-004

APPLICANT: Ms Gruit

RESPONDENT: Mr Sloan

FILE NUMBER: BRC 4722 of 2018

DATE DELIVERED: 12 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 14 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G Richardson SC

SOLICITOR FOR THE APPLICANT: Hopgood Ganim Lawyers

COUNSEL FOR THE RESPONDENT: Mr B Geddes QC

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

UPON THE UNDERTAKING OF THE WIFE, MS GRUIT:

A.     That she will not sell the property located at J Street, Suburb H, more particularly described as Lot …on Survey Plan … Local Government B Region Community Management Statement … Title Reference … without the consent of Mr Sloan or without first providing Mr Sloan with twenty one (21) days’ notice of her intention to sell the property.

B.     That she will not encumber the property located at J Street, Suburb H, more particularly described as Lot … on Survey Plan … Local Government B Region Community Management Statement … Title Reference … without the consent of Mr Sloan or without first providing Mr Sloan with twenty one (21) days’ notice of her intention to encumber the property.

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

Disclosure

1. That without prejudice to the wife’s entitlement to seek further disclosure in the event that the matter does not resolve at the mediation provided for within these Orders, within twenty eight (28) days of the date of this Order, the Respondent shall disclose to the Applicant:

   (a)Personal individual taxation returns for the three (3) most recent financial years;

   (b)Notices of Assessment for the three (3) most recent financial years;

   (c)Bank statements in relation to all accounts in the Respondent’s name solely or jointly with any other person from 1 January 2017 to date.

   (d)Credit card statements in relation to the Respondent’s personal credit cards he has access to, from 1 January 2017 to date, but excluding company credit cards;

   (e)Copies of all statements of all credit facilities (including loans, leases, overdrafts) in the Respondent’s sole name or jointly with any other person from 1 January 2017 to date;

   (f)Copies of the ledgers for the loan accounts including beneficiary loan accounts evidencing the drawings referred to in the Respondent’s evidence in either the Respondent’s or Applicant’s name or in the joint name of the parties (solely or jointly with others) from 1 January 2017 to date. The parties agree the Respondent may redact any entries which relate to people other than the parties to these proceedings;

   (g)Reconciliation and receipts (if any) in relation to transactions undertaken by the Applicant on the Respondent’s National Australia Bank Credit Card, account number ending …, … and … from 1 January 2017 to 30 April 2018;

   (h)In respect of any self-managed superannuation fund (“SMSF”) of which the Respondent is a trustee (or director of a corporate trustee) and/or member the following (if any):

   (i)A copy of the trust deed and rules for the SMSF;

   (ii)A copy of the last annual return of the SMSF; and

   (iii)A copy of the complete financial reports for the trust including all notes for the three (3) most recent financial years.

   (i)In relation to all companies which the Respondent controls or has an interest in such as director or shareholder of a company, the following in respect of each entity:

   (i)a copy of the memorandum and articles of association of each company;

   (ii)a copy of the last annual return of each company showing directors and shareholders;

   (iii)a copy of the financial documents being balance sheet and profit and loss accounts (financial statements) and tax returns for the three (3) most recent financial years;

   (iv)a copy of management accounts for the financial year ending 30 June 2019, with the final accounts to be provided as soon thereafter as available;

   (j)In relation to all trusts which the Respondent controls or has an interest in such as beneficiary or appointor, the following in respect of each trust:

   (i)a copy of each trust deed and any amendments thereto;

   (ii)a copy of the financial documents being balance sheet and profit and loss accounts (financial statements) and tax returns for the three (3) most recent financial years;

   (iii)a copy of the ledger for the loan accounts including beneficiary loan accounts in either parties name (solely or jointly with others) in the trust showing the credit balance from 1 January 2017 to date. The parties agree the Respondent can redact any entries which relate to people other than the parties to these proceedings; and

   (iv)a copy of management accounts for the financial year ending 30 June 2019, with the final accounts to be provided as soon thereafter as available.

   (k)Board Packs being the bundle of documents provided to board members and generally described as W Group Board Papers in respect of the period as and from 1 February 2019 up to and including 30 September 2019, such document to be disclosed on the basis that they are only provided to the legal representatives and accountants advising the Applicant.

Mediation

1. That the parties shall attend mediation with the Honourable Stephen Thackray.

2. That for the purpose of the mediation in accordance with these Orders, the parties shall:

   (a)appear in person with their legal representatives and participate in the process in Brisbane;

   (b)comply with these Orders prior to mediation;

   (c)exchange with the other party three (3) business days prior to mediation a position statement setting out their balance sheet, the relevant material facts, a chronology of relevant dates and the matters contended to be relevant to the determination of this matter in accordance with the Family Law Act 1975; and

   (d)make a bona fide endeavour to reach an agreement.

3. That once the parties have set the date for mediation they shall communicate this to the Associate of Justice Baumann with a view that the matter will be listed for mention within approximately fourteen (14) days of the mediation and on the basis the parties will be requesting that the case be managed to trial in the event that the matter has not resolved by consent at mediation.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That by way of interim spouse maintenance pending further order, the husband shall pay to the wife a sum of $11,200 each month, commencing 14 July 2019 and on the fourteenth day of each month thereafter.

2. That the payment shall be deposited to a bank account nominated by the wife in writing.

3. That by way of lump sum spouse maintenance for the period commencing 14 September 2018 and concluding 14 July 2019, the husband shall pay to the wife the sum of $12,000, payable on 14 July 2019, to a bank account nominated by the wife.

4. That within fourteen (14) days the Respondent pay $120,000 to the wife’s lawyers’ Trust Account towards the wife’s legal costs and outlays including accountant’s fees in these proceedings and in payment of legal costs owing by the wife to K Lawyers, M Legal Group and the loan owing by the wife to Mr L for her legal costs arising from these proceedings.

5. That the characterisation of the payments made by or on behalf of the husband to the wife’s lawyers pursuant to Order 8 hereof be adjourned to the trial judge.

6. That these proceedings be adjourned for Case Management Hearing at 9.30am on 5 December 2019 in the Family Court of Australia at Brisbane.

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 Gruit & Sloan 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 BRISBANE

FILE NUMBER: BRC 4722 of 2018

Ms Gruit

Applicant

And

Mr Sloan

Respondent

REASONS FOR JUDGMENT

1. Substantive property proceedings were commenced by the wife Ms Gruit (“the wife”) in the Federal Circuit Court of Australia on 2 May 2018. The Respondent is Mr Sloan (“the husband”). The parties were married in 2018.

2. There are factual disputes about when the parties commenced cohabitation (the wife asserts it was mid-2010, whilst the husband asserts it was after 20 January 2011 when the parties had signed a Financial Agreement). The Financial Agreement was entered into pursuant to s 90UB of the Family Law Act 1975 (“the Act”) on 20 January 2011 but the parties agree that the Agreement lapsed on their marriage. There is a dispute about the parties’ intentions after marriage to enter into a fresh Binding Financial Agreement. It is not necessary to resolve this factual dispute at this time – including a dispute as to when separation, under the one roof, occurred. At this stage I adopt a date of separation of April 2018.

3. When the property Application was dealt with initially on 10 August 2018, the parties consented to a number of orders including for the appointment of an agreed mediator to conduct a mediation on 14 September 2018. The mediation was unsuccessful.

4. On the 15 October 2018, the wife amended her substantive Application, seeking final orders as follows:

   “1. That within 60 days the Respondent do all acts and things required to transfer to the Applicant all of his right, title and interest in the property at [V Street, Suburb Q], Queensland (“the [Suburb Q] property”).

   2. That on or before the transfer provided for in paragraph 1, the Respondent do all acts and things required to discharge or refinance the mortgage registered over the [Suburb Q] property in favour of [Bank T] so that it may be transferred to the Applicant free of encumbrance.

   3. That contemporaneously with paragraph 1, the Respondent vacate the [Suburb Q] property.

   4. That within 90 days the respondent pay to the Applicant the sum of $30,000,000.

   5. That pending the Respondent’s compliance with paragraph 4:

   (a) the sum of $30,000,000 be secured by way of a registered charge against such corporate or trust entities as the Applicant may elect;

   (b) the Respondent pay to the Applicant periodic spousal maintenance in such amount as this Honourable Court deems just.

   6. That otherwise each party retain any other assets or liabilities registered in his or her name, or held in his or her possession.

   7. That the Respondent pay the Applicant’s costs of and incidental to these proceedings.”

5. On the same date the wife filed an Application in a Case seeking a range of interim and interlocutory orders for spouse maintenance, interim costs, disclosure, appointment of expert valuers and an order compelling the husband to complete the purchase of Lot …, “Suburb C” (“the Suburb C unit”) in the wife’s name.

6. That Application in a Case was amended on 4 June 2019 (which was the Application before me on 14 June 2019), and the relief sought in respect of the Suburb C unit was no longer sought, as that issue was resolved by consent on 10 December 2018 (before Judge Coates), on the basis of the unit purchase (for around $2.3 million) being completed and the property was to be retained by the wife as part of her property settlement claims. That transaction has been completed.

7. Relevantly, Order 4 made 10 December 2018 provided that:

   “4. The Applicant be restrained from selling, disposing, encumbering or dissipating the value of the Suburb C property pending further order of the Court or written agreement between the parties.”

8. At the commencement of the Interim Hearing before me, where Mr Richardson of Senior Counsel appeared for the wife and Mr Geddes of Queen’s Counsel appeared for the husband, and as the written submissions reflected, all issues were alive for interim determination.

9. However, after an opportunity to negotiate was available, by the time the hearing recommenced before me later that day, the parties had reached some further interim orders (which are recorded at the commencement of these Reasons), in respect of:

   a)detailed particularised disclosure; and

   b)a further attempt at mediation before the Honourable Stephen Thackray.

10. As a result of those agreements, the wife did not press at this time for orders to appoint single expert valuers and the need for the Court therefore to consider fully whether the orders for valuations and/or further discovery sought was obviated for the time being. As Mr Richardson SC indicated, with more fulsome discovery as now ordered, the wife will (subject to the determination of the interim costs question), be in a position to engage her own expert to assist her providing information likely to enable her to have a better understanding of the husband’s financial position.

11. Whilst this pragmatic and sensible approach to preparing the matter for a further mediation is to be applauded, the husband did not resile in any way from his primary position that the nature of the wife’s articulated substantive claim and the size of the pool of assets, means disclosure and an expensive valuation exercise “is not particularly relevant to the issue in dispute which is the wife’s entitlement” – relying upon the decision of Cronin J in Carmel-Fevia & Fevia (2010) 43 Fam LR 405 at [84]. The wife’s submissions (both written and oral) challenge that proposition, but as the matters have evolved, no useful purpose is served in my undertaking that analysis now – as interesting an intellectual exercise it might be.

12. A further issue which is contextually important is that, by the end of the Interim Hearing, the parties agreed the Court should make an order (which it did) that Order 4 made 10 December 2018 be discharged. The effect of so doing is to enable the wife to either sell or encumber the currently unencumbered property as she may wish to do. I note that the Suburb C unit is vested in the name of the wife as trustee for the “E Family Trust”, which the wife controls.

Applications to be determined

1. The remaining applications to be determined by me are, as pleaded in the wife’s Application in a Case filed 4 June 2019:

   “Interim Spousal Maintenance

   1.That until further Order, the Respondent pay to the Applicant periodic spousal maintenance in the sum of $15,000 per month, commencing within 7 days of the Court date, with such payments to be made by automatic bank transfer into the Applicant’s [Bank N], account number …, together with a further sum to be paid within 7 days being the aggregate of $5000 per month for the period commencing 14 September 2018 to date of this order.

   Interim Costs

   2.That within 14 days the Respondent pay $120,000 to the Applicant’s lawyers’ trust account towards the Applicant’s legal costs and outlays including accountant’s fees in these proceedings and in payment of legal costs owing by the Applicant to [K Lawyers], [M Legal Group] and the loan owing by the Applicant to [Mr L] for her legal costs arising from these proceedings.

   3.That in the event the matter has not been resolved by consent or judicial determination and the payment referred to in Order 2 has been expended by the Applicant’s lawyers (and certified by them to be so spent), the Respondent shall pay to the Applicant’s lawyer’s trust account further payments of $50,000, payable within 14 days of the certification being provided, such further payments to be capped at 4 payments in the amount of $50,000, and used towards the Applicant’s legal costs and outlays in these proceedings.

   4.The characterisation of the payments made by or on behalf of the Respondent to the Applicant’s lawyer pursuant to Orders 2 and 3 be adjourned to the trial judge.”

The husband’s financial position

1. For the reasons which follow, it is neither necessary nor possible to make a finding as to the husband’s current exact financial position, noting that the majority of his accumulated wealth is represented by holdings or interests in an ASX listed public company and ancillary corporate and trust entities. Such interests are likely to be subject to normal market fluctuations for the usual reasons.

2. However, I am satisfied that:

   a)at the time the parties entered into the s 90UB Agreement on 20 January 2011, the husband estimated he had business and personal assets of a nett value of approximately $666 million;

   b)the husband estimated he had business and personal assets of a nett value of approximately $464,149,840 at the conclusion of the relationship in April 2018 as set out at paragraph 15 of the husband’s reply Affidavit filed 23 July 2018. Although the wife challenges whether this significant drop in the husband’s wealth over seven years is accurate, for the purposes of these interim proceedings I do not need to further explore this issue;

   c)an accountant familiar with all aspects of the husband’s business interests, Mr F, in his Affidavit sworn 13 June 2019 seeks to explain the variation between the nett wealth estimates of $666,424,190 (at 31 March 2010) and $464,149,840 (at 30 June 2018), arising principally from a significant reduction in the nett profit of the ASX listed company. Without more, Senior Counsel for the wife disputes this reduction for the reasons attributed by Mr F; and

   d)the husband’s evidence as to his income is that:

   i)he receives a salary of $105,000 per year; and

   ii)he otherwise supports himself from drawings from the entities (some of which the husband says have created loan liabilities subject to Division 7A repayment arrangements). Those loans were estimated by Mr F to total $29,208,154 as at 30 June 2018.

3. It is in these circumstances, not challenged by the husband, that he has both the capacity to pay sums to the wife for both spouse maintenance and/or interim costs – although his submissions are that the wife cannot, on the law, establish she has such a need or that it is just and equitable to do so.

Interim spouse maintenance

1. Section 72 of the Act provides as follows:

   “(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.”

2. The following facts appear established by the yet untested evidence of the parties so far as the wife is concerned.

   a)The wife is 46 years of age and is the primary carer of her son Y (10 years) from a previous relationship;

   b)At present the parties continue to reside under the same roof, with the husband meeting the expenses of rates, electricity and other charges (acknowledged by the wife at Part N of her most recent Financial Statement filed 4 June 2019 (“the Financial Statement”). She does not pay rent;

   c)The wife does not receive child support from Y’s biological father and the husband has paid private school fees to date for Y. The parties acknowledge the husband has no legal duty to do so. The husband says he will voluntarily continue to pay Y’s school fees;

   d)At commencement of the relationship the wife was the owner/manager of a business at Suburb G. The business was sold after cohabitation commenced;

   e)There is no evidence that the wife holds any formal qualifications. She says she has not been employed in the workforce for 19 years, however as already noted, she has managed a business and has managed her property investments;

   f)The wife contends, but the husband disputes, that the wife sold her business at the husband’s urging and after his requests to allow her to be available to him and to enable her to travel as his partner. The husband says that when the business was sold it was failing and he covered the liabilities on the sale;

   g)The husband has five children (from two previous relationships), with the two youngest being of school age. The wife, in addition to Y, is the mother of Ms Z (now aged 18 years) who is a University student in City P.  The wife says (at paragraph 51 of her Affidavit filed 7 March 2019), that she wishes to provide financial assistance to Ms Z for her university fees, accommodation, car and travel expenses. Again, although the husband has in the past supported Ms Z financially, he has no legal duty to do so;

   h)The husband admits the parties travelled extensively and that often they did so using private jets and a luxury yacht available through his various business interests. However it was paid for or accessible, the wife’s description that they enjoyed a “high standard of living” seems apt. I return to this issue below when analysing some of the husband’s criticisms of the wife’s expenditure on personal items;

   i)It is not seriously in dispute that from separation in April 2018 until the unsuccessful mediation on 14 September 2018, the husband continued (without court order) to financially support the wife and her expenditure (including expenses for Ms Z and Y) by allowing:

   i)access to a credit card with a monthly limit of $10,000. Although not entirely clear, it seems that what occurred is the wife could use the card up to a monthly limit of $10,000, which was then cleared totally by the husband to allow the wife’s use of $10,000 for the next month; and

   ii)an additional monthly amount of $5,000 was deposited to the same credit card account.

   The effect of these arrangements was that the wife had available from the husband, $15,000 per month for her unrestricted use. In addition, she has her own separate income which is explained further below in these Reasons;

   j)As and from 14 September 2018, the husband changed the arrangements he had voluntarily made (and the wife had relied upon) by ceasing to make the deposit of $5,000 a month to the credit card for the wife’s use, thereby “limiting” her support from the husband to $10,000 a month. That is the current situation. The husband did not, in his Affidavit filed 12 June 2019 contest these were the arrangements;

   k)A dispute does exist as to how the wife has used the funds in her bank accounts since September 2018. The wife deposes (at paragraph 21) to having “total savings” at that time of $203,574 and (at paragraph 22) she has paid or incurred legal expenses totalling $175,137 since that date. The wife’s Financial Statement reveals current bank accounts of less than $5,000. The wife claims she did not have the capacity to meet her own outstanding credit card liability of $4,800 (see Item 51);

   l)The wife’s Trust owns, unencumbered, the Suburb C unit purchased off the plan under a contract dated 17 November 2016 for $2,195,000. It is common ground that the husband provided all the funds necessary for the wife to complete the purchase (including legal expenses and stamp duty), of approximately $2.3 million. In her Financial Statement, the wife estimates that the value of the unit is now $2 million;

   m)At the time of cohabitation, the wife was the owner of two units at Suburb D, said in the s 90UB Agreement to have a combined value of $3,200,000. The wife does not own those units now, having it seems sold them and then made an investment of $1,000,000 into R Investment Funds on 15 May 2014, which investment is attracting no income and is the subject of commercial litigation; and

   n)In addition to the Suburb C unit, the wife owns a unit at J Street, Suburb H which she claims has a value of $500,000. These two units attract income, as dealt with below.

Is the wife unable to support herself adequately

1. Although the husband criticises the asserted failure of the wife “to provide all documentation or information relevant to establishing her asserted inability to support herself adequately, including particularising her current necessary and reasonable expenses”, I am aware of the well settled approach to interim maintenance cases from as far back as Redman & Redman (1987) FLC 91-085 namely:

   “…on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p.359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.”

2. A further criticism is made on behalf of the husband, that the wife is not able to use a claim for spouse maintenance as a mechanism to obtain support for her children (even where the husband during the relationship chose to do so) – see Stein & Stein (2000) FLC 93-004 at [50]. Through the aide memoire prepared by Counsel for the husband, he pointed to payments from the wife’s bank accounts clearly associated with support for her children.

3. It does not appear that when the husband provided the monthly support to the wife of $15,000, that it was based on any particular estimate of expenses. I do not accept he implicitly accepted those were the expenses. Whilst the husband now raises concerns about the wife’s purchasing, for example, expensive handbags and the like, the husband is not shown to have sought, during that period, to restrict the wife’s discretionary expenditure. Accordingly, it is hardly surprising that now when he seeks to do so, the wife points to the reduction in her ability to maintain the same standard of living that she has previously enjoyed (at least since separation). When s 75(2)(g) refers to “a standard of living that in all the circumstances is reasonable”, past living arrangements and use of income is such a circumstance. If that were not the case, then adopting merely reasonable levels of subsistence without considering any previously enjoyed expenses (that some people would never contemplate or would regard as “luxuries”), would be the guide.

4. Applying these principles, and the evidence, I assess the wife’s reasonable weekly living expenses to be as follows (not, of course, allowing for rent to be paid):

Income tax (see note 1 below)	$487.00
Health insurance (item 26)	$61.00
Motor vehicle insurance (item 26)	$51.00
Motor vehicle registration (item 27)	$14.00
Credit card minimum payment (item 30)	$100.00
Part N discretionary expenditure (as claimed)	$3,333.00
$4046.00

1. Note 1 - The wife claims income tax of $637 per week. The husband asserts only $226.80 was payable for the 2017/2018 financial year (see Exhibit 9). However, during the 2017/2018 financial year the wife’s taxable income did not include any income from the Suburb C unit. For the 2017/2018 financial year the wife’s taxable income was less than the tax free threshold of $18,200 resulting in essentially no tax payable. If the wife had no other income other than the nett income from the two investment properties, then nett income of approximately $1,862 per week would arise and income tax of $487 would be payable. I adopt that figure. The wife has accumulated capital losses they can only be offset by capital gains. On the current level of savings, no allowance for interest of savings is made.

2. To the extent that the wife’s submissions at paragraph 25 sets out her “weekly needs at $7433”, this figure adopts the full sum of $6,002 (at Part N) which incorporates $2,629 for the children Ms Z and Y, including such items as education expenses ($594) and rent for Ms Z ($540). It is simply inconsistent with authority to allow the wife to claim such expenses by way of spouse maintenance. It would be possible to minutely examine every line item in the wife’s claims under Part N.  Certainly the husband does not accept them as accurate.  Considering the circumstances, I allow them, on an interim basis.

3. To assess any shortfall in her ability to pay her reasonable living expenses of $4046 a week, allowance needs to be made for the income she generates from the two rental properties. I adopt the wife’s sworn calculations as follows:

J street property		Rent	$575.00
Less expenses (item 24)	$190.00
Landlord insurance	$6.00	$196.00
Nett	$379.00
Suburb C Property		Rent	$1,805
Less expenses (item 24)	$328
Landlord insurance	$8.00	$336
Nett	$1,469

1. The total nett income therefore amounts to $1,848 revealing a shortfall of $2,577 per week or $11,167 per month.

2. In the history of the relationship I:

   a)do not regard it as unreasonable that the wife maintains her role as primary carer to Y, and with limited qualifications and no recent work history (certainly since cohabitation) for an external employer, I do not accept at present she has a further capacity to generate income. Such an issue would be the subject of greater scrutiny at a final hearing, looking much further into the future;

   b)although, with the injunction lifted on dealing with the Suburb C unit, the wife could look to raise funds on her unencumbered interest, it is not proper at this stage that she be expected to go into debt to meet her living expenses when the husband has the capacity to do so;

   c)To the extent that the wife’s capacity to continue to support Ms Z and meet some further discretionary expenses for both children is under pressure by the order I make, then the wife may (if she so wishes), borrow against her assets to support her children – not a totally unusual occurrence in modern Australia;

   d)Although it was implicitly argued by the husband that the wife’s investment of $1,000,000 (the subject of litigation), is an investment decision that has reduced her available income for her personal use, I make no finding about that investment other than to observe the wife is not receiving any income from it. This is an issue better left to a trial.

3. It is not, in my view, ideal for the husband to continue the wife’s access to his credit card into the future. The liability for spouse maintenance on a monthly basis of $11,200 (rounded up), should be paid monthly in advance – commencing from 14 July 2019 until further order, to the wife’s nominated bank account.

Should a payment for arrears be required

1. I note that the husband ceased the additional payment of $5,000 from 14 September 2018.

2. Having now assessed the reasonable needs of the wife, I calculate the husband should make a further payment to the wife of $12,000 by 14 July 2019, being for the period 14 September 2018 to 14 July 2019 (10 months) at a rate of $1,200 a month. This allows for the fact that the wife did have access to funds (being available credit card access) of $10,000 a month during this period.

Lump sum amount

1. At the time of the Interim Hearing, the wife had expended the majority (but not all) of her savings on legal expenses. Until she decides to either sell or borrow against one of her investment properties she will not have available funds to pay her lawyers and accountants to advise her and help her to fully participate in the agreed mediation.

2. The legal principles to be applies in the determination of such applications are set out accurately, I find, in paragraphs 6.1 (a)-(k) of the submissions of Mr Richardson SC for the wife, and I do not repeat in these Reasons, save to indicate the source of power relied upon is s 79 and s 80(1)(h) of the Act.

3. I am comfortably satisfied on the untested evidence (and as Mr Richardson SC properly concedes at paragraph 6.2 (b)) and even though there remains considerable factual dispute that:

   a)even when the power under s 79 should generally only be exercised once, the interests of justice support the wife having a payment to at least proceed properly through the steps of discovery and obtaining expert advice, so as to fully participate in the agreed mediation;

   b)the wife’s claim should also be seen in the context of the husband’s opposition (at this stage) to the appointment of a single expert valuer – the costs of which would greatly exceed the interim payment to the wife;

   c)the wife’s claim for a cash payment of $30 million when seen in the context of the husband’s wealth persuades me it is just and equitable for a payment of $120,000 to be paid at this stage and that:

   i)there is no reasonable argument open to the husband that he would not be able, if that be the situation, to recover that sum from the wife’s current property interests;

   ii)the payment of this sum is not likely to prevent the Court from doing justice and equity to the parties at a final hearing.  Considering that it is the husband’s case on a final basis that the wife retain assets now in her possession including the Suburb C unit; and

   iii)the husband really has no limitations on using necessary funds to pay his legal team.

4. The sum of $120,000 as one lump sum is likely to adequately cover costs to and including the mediation (including Senior Counsel’s fees and a “shadow” accountant), noting that the husband is initially meeting the costs of the mediation.  I have considered the evidence offered of the quantum of solicitors and Counsel fees likely to arise for the wife.

5. Whilst the argument by Mr Richardson SC for the wife for a form of order that allows payments to a cap of $200,000 has some attraction, when the matter returns to my list on 5 December 2019 and if the matter has not resolved at mediation, orders can be considered thereafter as to further applications for costs orders, which will be shaped by the steps then necessary to proceed to a final hearing; the likely hearing time; number of witnesses (including any single experts) etc. I choose at this time not to speculate on those matters.

Conclusions

1. For the reasons now published I make the orders which appear at the commencement of these Reasons and are pronounced today.

2. The Undertaking to the Court offered by the wife and signed by her on 4 June 2019 is accepted by the Court and formed part of the submissions made by her Counsel. Even though the injunction over the Suburb C unit was discharged, I did not take it to be the wife’s positon that the offer of the Undertaking was withdrawn.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 12 July 2019.

Associate:

Date: 12 July 2019