Hall v Hall

[2016] HCATrans 99

[2016] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A7 of 2016

B e t w e e n -

HALL

Appellant

and

HALL

Respondent

FRENCH CJ
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 MAY 2016, AT 10.16 AM

Copyright in the High Court of Australia

MS W.A. HARRIS, QC:   If it please the Court, I appear in that matter with MS P. KARI and MS S. GORY, for the appellant.  (instructed by Barnes Brinsley Shaw Lawyers)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR D.R. SULAN, for the respondent.  (instructed by Jordan & Fowler)

FRENCH CJ:   Yes, Ms Harris.

MS HARRIS:   Your Honours, the Full Court reversed the primary judge and determined the appeal below in favour of the husband on a ground which had not been raised by him.  It discharged the interim spousal maintenance order which had been made in favour of the wife solely on the basis of an inference which had not been contended for by the husband, and which could have been met by the wife below by the calling of evidence if she had been on notice of it.

If it matters, in any event, that inference was not reasonably open to the Full Court on the evidence before it and, moreover, even if that inference were properly drawn and had not been a breach of the rules of procedural fairness, the Full Court could not have relied upon it in order to discharge the interim maintenance order consistently with the proper construction and application of section 72 of the Family Law Act.  I will come to the detail of each of those propositions soon ‑ ‑ ‑

FRENCH CJ:   I suppose the substantive question is the anterior question, is it not?  The procedural fairness question comes ‑ ‑ ‑

MS HARRIS:   That is where I will concentrate my submissions, with respect, your Honour. 

FRENCH CJ:   Yes, thank you.

MS HARRIS:   Might I start by orienting your Honours in the judgment of the Full Court.  The Full Court’s reasons appear at appeal book 405.  Can I take you first to appeal book 424 which sets out the husband’s grounds of appeal.  Your Honours will see at line 40 ground 6.  These are the grounds upon which the husband succeeded.  The learned trial judge erred in failing to consider the husband’s application for discharge of the maintenance order.  Then your Honours will see ground 7.3 at the bottom of that page – this is the other ground on which he succeeded:

The learned Trial Judge erred in failing to consider whether or not the circumstances of:

. . . 

7.3The limited knowledge of the wife’s entitlements, pursuant to her late father’s will arising from Mr Shaw’s affidavit -

Over the page:

were sufficient circumstances for the –

discharge of the maintenance order.  Now, Mr Shaw’s affidavit was the affidavit of the solicitor for the wife’s deceased father and he had deposed to the contents of the deceased’s will and he had deposed that there were no bequests in that will to the wife, but set out a clause, to which I will come, which expressed some wishes of the father directed towards the sons – that is, the wife’s brothers.  Can I ask your Honours to note ground 7.1.  It was said that the learned trial judge erred in failing to consider whether or not:

The wife’s duty of disclosure and failure to call evidence –

justified the discharge of the order and your Honours will see from ground 1 similar grounds – failure to call evidence, failure to make inquiry.  The Full Court dismissed the husband’s appeal on those grounds, rejected those grounds.  That is important, as those were the grounds which were the subject of the oral argument that is relied upon by our learned friends as putting the wife on notice of the basis on which ground 3 was going to be determined against her.  So, the argument in the Full Court on which the husband relies was actually directed to a ground on which he failed.

In any event, as we will see, those oral exchanges did not put the wife on notice of the contention which was ultimately upheld by the Full Court, and we say that even if that oral argument in the Full Court had put the wife on notice, it was too late because the matter ought to have been raised before the trial judge when she had an opportunity to put on evidence to negative the inference that was drawn against her.

The Full Court’s discussion of ground 6 and 7 on which the husband succeeded commences at appeal book 436, paragraph 122.  Their Honours first consider ground 6.  This was the ground that the trial judge had failed to consider the application for discharge at all.  Their Honours’ conclusion appears at paragraph 131 but in order to understand it, your Honours probably need to read the second half of 130.

Your Honours see from those paragraphs that the Full Court accepted that her Honour recognised there was an application to discharge the maintenance order before her and there was new evidence upon which that application was founded relating to the wife’s shares but they said her Honour failed to consider and, indeed, make any finding about whether there was sufficient new evidence before her to discharge the interim spousal maintenance order. 

Your Honours, as we will see, the only reason their Honours reached that conclusion is because in paragraph 45 of her reasons referred to in paragraph 130 by the Full Court, her Honour, for the first time, fails to mention the application to discharge the spousal maintenance order as well as the application to discharge injunctions relating to sole use and occupation of the home which had been argued by the husband. 

Now, the husband, as we will see, argued both those applications on the same grounds, namely, that there was new evidence to show that the wife could support herself so that she did not need to be maintained and she did not need to have the benefit of orders that allowed her sole use and occupation of the home and an injunction on dealing with the marital home. 

The other thing your Honours will notice, with respect, about paragraph 131 is that it does not go to ground 6.  Ground 6 was she did not consider this application at all.  What paragraph 131 reflects is a view on the part of the Full Court that her reasons did not sufficiently explain why she had rejected the application for discharge as opposed to failing to consider that application at all, and we will come back to it.

FRENCH CJ:   Well, what happens if you succeed on the procedural fairness question?  Where does that get you?

MS HARRIS:   If we succeed on the procedural fairness question, your Honour, that will infect both the grounds on which the appeal was upheld ‑ let me take a step back ‑ the grounds upon which the Full Court said the trial judge erred in dismissing the application, so your Honours would find they should not have dismissed the application on that basis and, secondly, the procedural fairness infects the next level where they purport to re‑exercise the discretion against the wife.

So, they could not, even if they were entitled to uphold one of the husband’s grounds, that could not have allowed them to re‑exercise the discretion under section 72 ‑ it is not actually a discretion ‑ but it could not have allowed them to discharge the maintenance order on the grounds of the inference that they drew.

GORDON J:   What is the relief that would then follow?

MS HARRIS:   The relief would have been ‑ ‑ ‑

GORDON J:   In this Court, if you ‑ ‑ ‑

MS HARRIS:   In this Court, the reinstatement of the trial judge’s orders, bearing in mind that the Full Court retrospectively discharged the orders with effect right back to 10 December 2013, being the date on which they were originally made, even though the relevant inference was one which related to prospective access to a financial resource.  Before we leave paragraph 131 of the reasons, your Honours will see the final sentence:

However, in relation to Ground 7.1, given our finding as to the issues of non‑disclosure and the failure to call evidence in the first appeal, we do not consider that that part of Ground 7 has any merit ‑

and that makes good the proposition that I put to your Honours that the ground to which almost all of the argument was directed by the Full Court failed.

FRENCH CJ: Well, as a matter of substance, though – am I oversimplifying the submissions to characterise them as also saying that the expression of the father’s wish in the will for an annual distribution of $150,000 in all the circumstances could not have been treated as a financial resource for the purposes of section 75(2)?

MS HARRIS:   That is where we get to if your Honours find that the inference was open to the Full Court to draw.

FRENCH CJ:   But if you succeed on that, nothing else matters.

MS HARRIS:   It does not matter, your Honour; that is right.  Your Honours would not need to determine that question ‑ ‑ ‑

FRENCH CJ:   What happens if you fail on that?

MS HARRIS:   If we fail on the procedural fairness issue ‑ ‑ ‑

FRENCH CJ:   No, on the substantive question of the characterisation of the $150,000 request.

MS HARRIS:   Then we still succeed, your Honour, because the inference which was drawn by the Full Court and which engaged, so it said ‑ ‑ ‑

FRENCH CJ:   Well, there is all the stuff they did not look at, you know, how it might be paid, and so forth.

MS HARRIS:   No, no, sorry, it is the procedural fairness issue, your Honour.  Even if a voluntary payment could satisfy the statutory test, that could not have been the basis of a reversal in this case because it had not been contended below that a voluntary payment would be made if asked for, and could therefore show that she was able to support herself.  It simply had not been contended.

NETTLE J:   Ms Harris, what do you say about the opposition’s point at appeal book 194, lines 17 through 20?  It was put by counsel before the primary judge that there was $150,000 there, if the lady chose to pursue it.

MS HARRIS:   Your Honour, I am looking forward to taking your Honours to the transcript.  That is the transcript, of course ‑ ‑ ‑

NETTLE J:   On the discharge application.

MS HARRIS:   Indeed, your Honour.  When I take your Honours to the course of the oral argument and the propositions that were put by the husband, your Honours will see that that mention of $150,000 was entirely incidental to the substantive argument that was put, and the only substantive argument that was put by the husband on the discharge application was now that we have Mr Shaw’s affidavit, we know that the wife has shares in family companies worth $7.2 million and that is the new circumstance that justifies the discharge of the order.

NETTLE J:   But it was $7.2 million worth of assets and an entitlement to $150,000 if she chooses to pursue it.

MS HARRIS:   Your Honour, could I come back to it, and I promise that I will.  When I take your Honour to the argument, your Honour will see that what Mr O’Shannessy was saying is “your Honour should discharge the order because she has got $7.2 million worth of shares”, and that is before we even come to her possible entitlement to the $150,000.  We will see earlier in the argument that he concedes he does not know whether she has got an entitlement to the $150,000, and he cannot know until he gets the will.

It is very much a throwaway line, your Honour, and what he is saying to her Honour is this maintenance order should be discharged because she has got $7.2 million worth of shares in family companies, and that is before we even get to whether she has also got an entitlement to $150,000 per annum.

The other thing your Honour notices about that is that it couches it in terms of entitlement.  That is the way it had been put by the husband.  She has entitlements under the will that she has not chased up.  That is not what the Full Court found.  Can I take your Honours to what the Full Court found, which is at 132 to 134 of their reasons at appeal book 438.  Your Honours see what is said in 132 about ground 7.3, which was upheld:

we are concerned about her Honour’s failure to take into account one particular aspect of the information provided in the affidavit of Mr Shaw, namely, that part of the wife’s late father’s will that specified that she should receive from the V Group an annual payment of $150,000 . . . Plainly, this is an expression of a wish by the father for the wife to have this benefit and it does not bind the executor –

So they accepted there was no entitlement under the will, and later, as we will see in paragraph 151, they are careful to characterise it as a voluntary payment:

it does not bind the executor, but there are clear indications or inferences to be made from the evidence before her Honour that the wife’s brothers (including the executor of the will), who now control the V Group, would carry out their father’s wish in this regard.

So this is for the first time – this proposition is simply never put below.  It is not put before the trial judge.  It is not put to the Full Court.  You should conclude she can support herself because if she asks for the $150,000 she will get it, and your Honour Justice Nettle puts to me the very high watermark of our learned friend’s submissions, the mere mention of $150,000, but when your Honour looks at page 194 your Honour does not see any proposition of the kind recorded in paragraph 132 of the Full Court’s reasons.  It was never put.  It does not matter whether she is entitled to it or not because if she asks for it she will get it.  That would have been a very simple submission and it would have been one that could be rebutted by evidence.

Now, your Honours see in paragraphs 133 and 134 of the Full Court’s reasons the reasons why the Full Court was prepared to draw this inference.  The first one was that she had a good relationship with her brothers, the second is that it was a wish of the father directed to the brothers, and third, the brothers do already provide for the wife, presumably via the [V] Group, but it is unclear on the evidence, by supplying her with late model luxury motor vehicles.  At the time of the hearing she was the registered owner of the two cars there referred to.  These vehicles replaced other brand new vehicles purchased previously for her on the same basis.

GORDON J:   Is that incorrect?

MS HARRIS:   It is, your Honour, it is incorrect.  The evidence was – and I will come to it ‑ ‑ ‑

GORDON J:   Is that paragraph at page 18 in the supplementary book where the wife says that the husband provided it and they were sold ‑ ‑ ‑

MS HARRIS:   Indeed.

GORDON J:   Provided the initial cars and they were sold?

MS HARRIS:   Indeed, your Honour.  She acknowledges at that paragraph of her affidavit that those two cars were bought for her by her brothers.  We do not know anything about the circumstances of that acquisition.  But she goes on to say those cars replace other cars which had been purchased “for me by my husband”, and I traded in that car in order to part fund the purchase of the two vehicles referred to in 133.  But the Full Court makes it look like there is this longstanding passion of the brothers providing luxury cars for the wife.  No such contention was put below and there was no evidence of it.  Then 134:

There was no evidence before her Honour that the wife had requested her brothers to comply with their father’s wish, once she became aware of the relevant terms of the will, nor that any such request had been denied.  Thus –

they go on, although it is a non sequitur:

her Honour erred in not taking into account the “new evidence” that the wife was able to seek payment . . . of $150,000 –

from the V Group.  Now, their Honours do not explain how that articulates with ground 7.3, the ground that they are purportedly upholding.  Ground 7.3 was of an entirely different character.  By 7.3, the husband said because you do not know enough about the will - she did not bring forward enough evidence about the will, the limited knowledge of the entitlements under the will - that was enough to discharge the order. 

The import of what their Honours do is quite the opposite.  Their Honours do not uphold a contention that there is a dearth of evidence.  Their Honours uphold a contention that there is plenty of evidence in order to draw a positive conclusion that she can actually support herself and that is where the husband’s counsel - we will see it in the Full Court - absolutely stopped short of making that submission and, indeed, eschewed it. 

Now, they then purported to re‑exercise the discretion having dismissed all of the other grounds.  Your Honours see what they say about that at paragraphs 150 through to 153 at 441 and at 150 they identify the only question as being whether there is now evidence before the Court that shows that she is able to properly support herself adequately.  The reason they answer that question in the affirmative is because of the inference which is drawn at paragraphs 151 to 153, namely, the same inference, that if she asks for the $150,000 from her brothers she will get it.

NETTLE J:   It would be more accurate to say, would it not, that in view of the fresh evidence one could not be satisfied on the balance that she lacked the ability to sustain herself?

MS HARRIS:   Interestingly, your Honour, that is not how they put it.

NETTLE J:   No, they do not, but it would be more accurate to put it that way, would it not?

MS HARRIS:   Having regard to the statutory test, that is right, but in a sense it does not matter, your Honour, because either way you ask the question it can only be answered against the wife if she will get this money if she asks for it, if they are right to draw the inference that she will get the money if she asks for it.

NETTLE J:   Is that because she succeeded at first instance in getting an order?

MS HARRIS:   Yes, your Honour, because the trial judge found she had a need. 

NETTLE J:   So, it falls, you say, to the applicant for discharge to establish on the balance that she lacked the resources to sustain herself?

MS HARRIS:   That the new evidence would show that she did not have the means – the new evidence would show that she was not unable to support herself.

NETTLE J:   But on the – once fresh evidence is received, does not one go back to the beginning, as it were, and rehear the application, in effect, with the benefit of the new evidence?

MS HARRIS:   Well, your Honour, the finding is she can support herself adequately because if she asks for this money she will get it.

NETTLE J:   No, I do understand your point about that.

MS HARRIS:   Therefore, she has not satisfied the section 72 test.

NETTLE J:   I appreciate that but if we just look at it in terms of principle, once fresh evidence is admitted, is it not incumbent upon the court, as it were, to go back to the beginning and rehear the application in light of all the evidence including the fresh evidence?

MS HARRIS:   Well, they purport to do so, your Honour.  That is what they say they are going to do at paragraph 148.

NETTLE J:   All right.  Thank you.

MS HARRIS:  But in fact they take into account an additional piece of evidence which was the executor’s letter. That was not before her Honour. Your Honours will not see any discussion in this part of the reasons, or otherwise, of how this payment engaged with the section 75(2) factors. Now, the only factors that may be taken into account in determining whether an applicant for maintenance is able to support herself or otherwise are those factors set out in section 75(2) and we will see that from section 75(1). Their Honours do not engage with that question at all. They do not say, “Well, this is a financial resource,” or “It’s not a financial resource but it is something I can take into account under subsection (o), any other matters.

GAGELER J:   But why are they implicitly invoking paragraph (o)?

MS HARRIS:   I do not know, your Honour.  I do not know which one they are invoking.

GAGELER J:   But it is sufficient that they identify the circumstance which clearly, in their opinion, is to be taken into account.  Why are they not, by doing that, implicitly invoking paragraph (o)?  Why do they have to spell it out?

MS HARRIS:  Your Honour, firstly because they are the only things that they can take into account, section 75(2) factors. The second issue for them is that there is law – and we have referred to it in our submissions – authorities that talk about the scope of subsection (o) and there are specifically authorities that say the availability of voluntary payments from benevolent relatives are not factors of a kind which you could fit into 75(2). They do not tell you that the applicant for maintenance can support herself. They tell you that the applicant for maintenance has to be supported by others.

If the Full Court was taking a contrary view to those longstanding authorities, referred to I believe in paragraph 70 of our submissions, then it was beholden on the Court at least to say, “The reasons why we can fit this within 75(2)(o) in this case are the following”.  But the whole problem was that because the wife is not put on notice that this inference might be drawn she does not get a chance to make submissions about why it does not come within 75(2)(o), 75(2)(b) or any other subsection of 75.  She misses that chance because the Full Court does not tell her that this is what it is considering doing.

GORDON J:   The problem I have is this.  It seems as though, despite the application being dressed up as a 72 and a 75 case, it is really treated by everyone as a 77 case, that is, an application for urgent relief.  The authorities, as I understood it, mean that when you get to a 72 and a 75 case, one of the indicia is that it is not expected there be a property settlement for 12 months and you are making an application for an interim payment and it is supposed to be on full and proper materials.

So I find it difficult that there is a complaint that the wife was not put on notice.  The fact of the matter is that everyone was supposed to have filed their affidavits.  Everyone was supposed to have filed their material.  A threshold question was supposed to be addressed giving rise to an assessment of whether the threshold was met and, if it was, taking into account, I accept, the 75(2) factors, what interim payment would be made which then would be adjusted on the final property settlement consistent with the authorities.  In three places the Full Court says this is dealt with on an urgent basis.  Is that the problem?  Is the problem that they are looking at it through the wrong spectrum, through the wrong sphere?

MS HARRIS:   Your Honour, even dealt with on an urgent basis - and when we look at what the learned trial judge did – perhaps we should go to what the trial judge did – she dealt with the application as if it was brought under both section 77 and section 2, engaged with section 85 that allows an interim order to be made so she dealt with it on both bases.

GORDON J:   But that is not right, is it, as a matter of principle?  I mean the authorities say if it is urgent it is incomplete and you make it until a certain date.  If it is interim, it is on complete information so the parties have properly prepared but on the expectation that any order that would be made would be adjusted in a final property ‑ ‑ ‑

MS HARRIS:   In a sense it does not matter because I will come to the evidence that was available to the wife and which she brought forward and it is important to understand that it was approached by the husband as a case where he was entitled to say “You have not brought forward enough evidence and so you should miss out”.  That was his entire argument so the wife was not ‑ ‑ ‑

GORDON J:   You say that argument was rejected on appeal.

MS HARRIS: Indeed, your Honour. So it is not like the wife shimmied through without that question having been engaged. That question was squarely engaged. All parties proceeded on the basis that she had to bring herself within section 72 by reference to the 75(2) factors and the husband’s argument was she has failed to do that because she has not brought forward evidence and he failed on that and he failed on that rightly, with respect.

Now, there is no notice of contention, there is no suggestion that the Full Court got that wrong but he failed on that because she did not know about the will.  When the application was first made, she had no idea what the contents of the will were and that ‑ ‑ ‑

NETTLE J:   But she did when the discharge application was made.

MS HARRIS:   She did, your Honour.

NETTLE J:   Well, that is what we are talking about, the discharge application.

MS HARRIS:   Indeed, your Honour, and she knew the contents of the will said you do not get anything, you have no entitlements.  The husband’s argument, as we will see, was you have entitlements under the will and they should be taken into account.  Mr Shaw’s affidavit comes forward and it says you have no entitlements and it was clear on the verbatim recitation of clause 14 of the will that she did not have any entitlements under the will. 

So the Shaw affidavit met the husband’s contention squarely.  There was no occasion for her to go further except for what she actually did which was to say, “I asked for a copy of the will and I was refused”.  That was accepted.  Then later, “I have spoken to my brother [C] and he has told me what the contents of the will are.  That is the first time I have known about them”.  That met the husband’s contention. 

The husband’s contention was you are not bringing forward evidence of your entitlements under the will.  Her evidence is, “I did not know until now I was even mentioned in the will.  I did not know what its contents were” and when we look at the will “I do not have any entitlements.  They are only wishes”.

Now, what the husband then had to do, if he wanted an inference of the kind drawn by the Full Court to be drawn, the husband needed to say it does not matter whether you are entitled to the $150,000 or not.  It just does not matter because if you ask for it you will get it.  Now, if his argument had been put in that way and there is not a skerrick of a suggestion of it, if his argument had been put in that way then she leads evidence to counter that.

KEANE J:   Except, is not his case that – it is not shown that if the wife did ask for it, she would not get it?  He says you have not shown what the will provides for you, and that is met by excerpts from the will, and it turns out that they are expressions of wishes.  But seen in a broader light, bearing in mind that you accept your client had the onus of showing that she was not able to support herself, why was it not necessarily part of her case to say, here is the will, it contains wishes for my benefit, but they are not really going to be worth anything.  Why is that not necessarily part of her case, that she is obliged to bring forward?

MS HARRIS:   With respect, your Honour, there are several things to say about this, and it is easiest if I take you to the argument.  The first thing is that the husband conceded that the question of her entitlement or otherwise to the $150,000 was an issue for another day, once he got his hands on the will.  He accepted, we will see in argument, in effect that there was a question whether, despite the precatory language in which the will was expressed, there was in fact an obligation on the brothers to make this payment.  That was his argument.  He accepted that he could not put a full stop on that argument – he could not run that argument to ground – until he got the will, and he did not have it at the time of the discharge application, and he did not have it at the time of the Full Court.  The best evidence that anyone could bring forward – the executor having refused to give the wife the will – was what appeared in Mr Shaw’s affidavit.

What your Honour puts to me is an area where the Full Court fell into error, because they make a slide.  They say, in effect, this is a financial resource available to her – or it is something available to her – because if she asks for it, she will get it.  That was a big “if”, and the evidence before the court was that she had not asked for it.

KEANE J:   But is that right?  Why is it not just simply that it is not shown that if she asked for it, she will not get it?  Why is that not the question?

MS HARRIS:   Because, as Mr Ackman told the Full Court, if that was the question to be asked, then it had to be asked.  It was not asked below.  That was not the question that was asked.

GORDON J:   We are trying to work out what the obligation was on the wife, in the sense of what questions she had to ask.  Mr Shaw was not cross‑examined by anybody, was he?

MS HARRIS:   No, your Honour, and that is important.  He is a legal practitioner who prepared the will, and he was not cross‑examined.  That was a point that was made.  There was no challenge to what he said.  None of the bequests, the wishes there, were, as it is set out in his affidavit, conditioned by any obligation to make the payment.

NETTLE J:   Why should it be thought that Mr Shaw would know whether or not the directors would exercise their discretion to pay $150,000?

MS HARRIS:   He would not, your Honour.  That is not the point.  I apprehend her Honour Justice Gordon is putting to me that the point that is now raised – without a notice of contention, and so should not be countenanced in this Court – is it was not just a voluntary payment; it is better characterised as an obligation on the brothers, so that they took their shares subject to a charge or an equitable obligation enforceable by the wife to pay the $150,000.

Now, that is not what the Full Court found and your Honour is right, Mr Shaw could not have deposed either way to the willingness of the [V] Group.  All he could do was set out evidence of what was in the will and that met – that directly engaged the case as put against the wife - you have entitlements under the will. 

Can I take your Honours to the evidence that was before the trial judge on 10 December when the first application was made?  I will just identify it very quickly.  The first is the wife’s financial statement.  It is in the supplementary appeal book at page 2.  The relevant page is page 12 at line 22:

Interest in any trust or deceased estate –

She identifies that she may have an interest in her father’s estate, the value of it is not known.  She does not say she does have an interest in it because she has not seen the will.  Her father had died more than four years before and she had never seen the will.  The other relevant passage is at page 15 where at line 25 she outlines the shareholdings in the private companies and that she does not know the value of them.  Not surprisingly, given as we will see, she had no involvement in the operations of the V Group and no way of knowing how much those shares were worth let alone whether the worth of those shares could be realised in any fashion. 

The next document in the supplementary application book is the wife’s affidavit of 8 November, pages 17 to 18 appear, paragraphs 54 to 56.  They are the paragraphs to which your Honour Justice Gordon directed my attention earlier regarding the cars and in 56 it is clear that prior to those most recent purchases it was her husband who had purchased vehicles for her.  Then in paragraph 67 and following ‑ ‑ ‑

NETTLE J:   So, 38,000 of the $265,000, in effect, came from the husband.

MS HARRIS:   I beg your pardon, your Honour?

NETTLE J:   The $38,000, being the trade‑in value of the Bimmer, came from the husband. 

MS HARRIS:   From the trading in of the 2007 car, that is right.  In 67 and following, she deposes to her involvement in the family business noting that her father had died in 2009.  She says nothing more about the estate.  The balance of the affidavit accepted here goes to her lack of knowledge or control regarding – or participation in the affairs of the V Group. 

The husband’s affidavit of 12 November is at 22.  Your Honours see what he says in paragraph (xxvi) at the bottom of 23, going up to 24, about his assumption about where the cars came from.  She had already disclosed where they came from.  Then at paragraph (xxix) on page 24:

My wife has often stated that she does not need to read her father’s Will but that he provided for her in his Will and she entrusts her brother, [C] with it.  To this date, five years after her father’s death she says that she does not know what was in the Will ‑

And that, as it turns out, was the unchallenged evidence on the 14 March application that she found out for the first time shortly before the discharge application.  Going back to appeal book 37 ‑ ‑ ‑

KEANE J:   She does not say that she has asked and been refused access.

MS HARRIS:   To the will?

KEANE J:   Yes.

MS HARRIS:   Yes, she does, your Honour.  I will come to that.  It happened in the course of argument on 10 December and the husband’s counsel accepted that that has occurred.  At appeal book 37, there is the excerpt from the husband’s affidavit, starting at paragraph 33:

My wife would have it that she has never seen a copy of –

the will:

she states . . . she is a beneficiary . . . but says that she does not know her entitlements.

He says he has requested a copy of the will and that has been refused and so he has subpoenaed the will.  Again, your Honours, the language he employs is redolent of an inquiry into the wife’s entitlements under the late father’s estate – her entitlements ‑ things she can actually enforce.  No summaries of argument were filed before the hearing on 10 December and her Honour’s judgment is at appeal book 217, and your Honours see from paragraph 1 on page 219:

the wife sought interim orders both by way of urgent spouse maintenance and by way of interim spouse maintenance ‑

So her Honour at paragraph 9 relies on each of 72, 75 and 77 relating to urgent maintenance and 80 relating to interim maintenance.  At paragraph 7, her Honour sets out that the primary question was:

whether the wife passed the initial threshold test, or the first test, namely whether the material before the Court disclosed that she was unable to support herself.  It was put on behalf of the husband that the wife had not qualified in that matter, nor had she established the particular need.

Her Honour then recites under paragraph 9 the terms of section 72, the “Right of spouse to maintenance”, and the correlative liability of the other party to the marriage, liability to maintain that person once the need is established, if she is:

unable to support herself . . . adequately . . . having regard to any relevant matter referred to in subsection 75(2).

Your Honour sees she refers to subsections 75(1) and 75(2), 75(1) expressing that the Court, in exercising its power to make a maintenance order under 74:

shall take into account only the matters in subsection (2) ‑

and she sets out those matters. So she correctly recognised and, like we say, the Full Court, that they were the only matters and she had to bring herself within them in order to draw a conclusion under section 72 on the threshold matters.

GAGELER J:   Ms Harris, there is a reference you drew our attention to at page 219 to these orders sought being described as interim orders.

MS HARRIS:   Yes.

GAGELER J:   What is the significance of the word “interim”?  Does it have any statutory significance and does it make any difference to the nature of the proceeding?

MS HARRIS:   Well, it is pending the making of final property and financial orders in the matter and the Full Court refers to authorities which demonstrate – if you like the court treats the threshold of proof as somewhat lower.  When we are looking for an interim spousal maintenance order, it is accepted that the parties are not going to be able to exhaustively bring forward all of their assets and liabilities or necessarily put a number on them.

GORDON J:   Is that right?  I thought that was the position for urgent applications under 77 and not for 75.  I thought that the authorities of Ashton and Pritchard said it was the opposite.

MS HARRIS:   Your Honour, the relevant authority is Re Redman and I can come back to the relevant passages in that if you like, your Honour.

GAGELER J:   I just want to relate this to the statute.  Was section 77 said to be engaged, or not?

MS HARRIS:   Well, technically yes, although her Honour did not differentiate between an order under section 77 and an interim order under the general power in 74.  So she was entitled under section 80 to make an interim order pending final disposal of the proceedings, but she did not differentiate whether it was just an urgent order or an interim one.  Now, in the way it was thereafter treated ‑ so when we come to the discharge application, your Honour, she treats it as if it is an interim order, as opposed to an urgent one.  So the language that is used by the parties and her Honour on the discharge application and before the Full Court is of interim spousal maintenance order and it was properly so characterised I think, your Honour.

GAGELER J:   But – I am really sorry to be obtuse here – does the word “interim” appear in the statute somewhere?

MS HARRIS:   The word – it is under section 80.

GORDON J:   I do not think it appears, but does not 80(1)(h) provide power ‑ ‑ ‑

MS HARRIS:   It is:

order pending the disposal of proceedings ‑ ‑ ‑

GORDON J:  

or until further order –

MS HARRIS:   It can make a permanent order or it could make an order pending final disposal and that is what this was.

GAGELER J:   But a permanent order is not ever really permanent, is it?  It is always liable to be discharged under section 83.  My understanding was that the application in this case was for discharge under section 83(1)(c).

MS HARRIS:   But it was for the discharge of an interim order, because the order was made, in effect, pending the final resolution of the parties’ property and financial interests and that is still a way off.  It was made to enable her to support herself, a need having been established – was made in order to allow her to support herself while that process was worked through, so pending the disposal of the proceedings.

If a final order for maintenance were made, then I guess it would be open to the husband at some future point in time to bring an application under section 83 and say the circumstances have changed, or there was material withholding of information, so the permanent order should be discharged.  That is not the paradigm in which we are now, your Honour.  The paradigm in which we are now is that this was an interim order made pending final disposal of the proceeding; that is, the final property orders, final financial settlement.

GAGELER J:   All right, so it was an order under section 80, and its discharge did not engage section 83, is that right?

MS HARRIS:   It is an order strictly under section 74.  Section 74 does not appear here, but your Honours will see that that confers on the court a power to make an order for maintenance, and section 80 says the kind of order that you can make is a permanent one or an interim one – a permanent one, or an order pending disposal.

GAGELER J:   All right.

FRENCH CJ:   Where does the word “interim” appear in 80?

MS HARRIS:   It does not, your Honour.

FRENCH CJ:   I notice the word “interim” appears in 74(8).  Section 74(1) confers a general power, then subsequent subsections seem to deal with bankruptcies and debtor arrangements, and so forth – then at 74(8), dealing with particular applications of the kind under 74(2), where there is a bankruptcy, or in 74(5), where there is a debt arrangement or insolvency agreement.  It provides, at 74(8):

For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when . . . 

(b)an order (other than an interim order) is made as a result of the application –

That seems to assume the existence of something called “an interim order”, although that term does not appear elsewhere.

MS HARRIS:   Your Honour, with respect, is right.  That shorthand term would appear to engage the words “an order made” pending final disposal of the proceedings in subsection (8).

FRENCH CJ:   It is not defined anywhere in the Act either.

MS HARRIS:   I do not believe so, your Honour.

FRENCH CJ:   All right.

NETTLE J:   Ms Harris, I am sorry to delay you.  The discharge application was made under section 83, or not?

MS HARRIS:   Yes, and it engaged those two criteria, that there be a withholding of information and there was changing circumstances.  I will come to it.

NETTLE J:   Thank you.

MS HARRIS:   Can I simply draw your Honours’ attention, running behind as I am, to what her Honour did on this first application?  Your Honours see at paragraph 12:

It was part of the argument in this matter that the wife’s property and possible financial resources were not clarified, and therefore the court should not be in a position to find the wife satisfied the first threshold test.  In this regard ‑

and she refers to In the Marriage of Mitchell.  Paragraph 13, “many facts that in dispute”.  Paragraph 14 is important.  It is an impeccable recitation of the oral argument, there having been no written summaries:

Counsel for the husband emphasised that the wife’s father died and the wife has not produced a copy of his Will –

The wife says I do not have a copy of it; I do not know what my father’s estate provides:

Presently, therefore, the wife may be entitled to an asset or financial resource or income that is not known.  However, it appears that it is not currently an asset which the Court can take into account as a basis upon which to offset the wife’s claim to be presently unable to support herself adequately.

Now, what that contemplates, your Honour, is it engages with the propositions that your Honours are putting to me now, that if at some future time it became apparent that she did have an entitlement under the will then the husband would have been entitled to come back to court and say well, now, it is clear she does have an entitlement under the will and I seek to have the interim maintenance order discharged on that basis.

NETTLE J:   What if it became apparent that the brothers would be disposed to pay her $150,000 per annum?  What then?

MS HARRIS:   Well, your Honour, I do not want to split hairs with your Honour but that is what the Full Court found.  They made a finding that had a very important interim step.  She had to ask first.  The Full Court did not find that the brothers had expressed a willingness to pay the money.  Now, if there was evidence before the court that somehow the brothers had procured the V Group to commit to a payment of $150,000 per annum, then we might be having a different debate, but that is not what the Full Court found. 

The Full Court found, if she goes and asks, not finding whether she ever would, if she goes and takes her cap, goes to her brothers, asks them for money, she will get it. Now, that inquiry subverted fundamentally the core paradigm of section 72. Section 72 gives a spouse a right to maintenance and a corresponding liability on her former spouse - I am using her but it can go either way obviously - corresponding liability on her former spouse, providing those two criteria are met. She establishes a need and he has the means to meet it.

Now, we say the Full Court could never find, it was wrong to find if it did so, that her need did not exist because if she asked a benevolent relative for money they would give it to her. Your Honour, if that is the law it will turn on its head every section 72, section 75 inquiry in these matters. The inquiry will no longer be limited to what is set out in section 75. The inquiry will be well, surely your parents would support you if you asked for money. Your brothers are rich. Surely they would support you if you asked for money.

With respect, your Honour, that is not the inquiry and that is why there are these authorities including Murkin that we have referred to in our submissions where the Family Court has been very clear. If you have to go and ask someone else for money you are not able to support yourself. Someone else has to support you and so the section 72 threshold cannot be met or cannot be negatived by saying, well, you can take your begging bowl out and there are plenty of people in your life who will fill it if you really need it.

NETTLE J:   So nothing less than an enforceable legal entitlement to money will count?

MS HARRIS:   No, your Honour, and your Honour sees from our submissions that neither we go that far nor the authorities in the Full Court go that far so White and Tullock v White encapsulates the matter quite well.

NETTLE J:   Well, this woman had a spes successionis, I suppose, it might once have been called.  Why should it not be valued?

MS HARRIS:   If there was an obligation under the will, I am with your Honour.  If there was something she could call for under the will, either because she had been given a bequest and there were funds in the estate – now, remember there were no funds in the estate according to the evidence, but if she had been given a bequest and there were funds in the estate then the authorities would treat that as a financial resource, not a present entitlement but a financial resource, something that she is entitled to get in.

NETTLE J:   What if she had been the object of a discretionary trust set up by the testator, would that have counted?

MS HARRIS:   Well, it would depend on the terms of the trust. You see, it is not enough that she might get some money. The section 72 need inquiry is not answered by reference to a hope or an expectation or a possibility. There has to be a level of certainty of receipt. That certainty of ‑ ‑ ‑

KEANE J:   So it is a question of fact and degree, is it?

MS HARRIS:   Yes, your Honour, in the sense that we accept that there does not have to be a legal entitlement.

KEANE J:   So, it is a question of whether there is a sufficient prospect that material advantage will inure to her from a familial relationship, for example?

MS HARRIS:   I was speaking generically about the meaning of “financial resource”. Now, we say, it would not be enough simply that she was able to go and ask her brothers for money and if she asked they would give it to her. For the reason I have tried to outline, that shifts the responsibility for maintaining her from the former spouse to a stranger to the marriage. What section 72 does is place the liability for that maintenance on the former spouse.

GORDON J:   Would you adopt what was set out in Kelly adopting the language in Bailey that you need to look at factual control to pick up the point raised by Justice Keane, that is, you look to see what happened in the past in relation to a discretionary trust to work out whether or not there is an expectation that the past distributions would continue in the future?

MS HARRIS:   Indeed, your Honour, there would have to be evidence of that kind.  So that the language in White and Tulloch about certainty – there has to be a level of certainty or control over the receipt of the property can be engaged.  If there have not been past distributions and you just hope – there is just a hope that there might be in the future, that does not go anywhere near satisfying the concept of a financial resource under 75(2)(b).

GORDON J:   Just so I am clear, when it was put to you what would you do about discretionary trusts, that is clearly not a legal entitlement in the sense that you are entitled to call for it but you would adopt that sort of construction where one looks to see whether or not there is evidence of some sort of factual control, that is, evidence of past distributions giving rise to an expectation that in the future those distributions would continue.

MS HARRIS:   Indeed, your Honour.  So I would accept that those could not be ignored and it is proper to take them into account because there is some certainty over the continuation of that pattern of ‑ ‑ ‑

KEANE J:   How many distributions from a discretionary trust have to occur before it is a financial resource?

MS HARRIS:   I do not know, your Honour.

KEANE J:   It is really a question of fact, is it not?

MS HARRIS:   It is, your Honour.  I could not answer it in the abstract and I do not need to in this case because the evidence fell so far short of that kind of paradigm.  The evidence here, your Honour, was the deceased died in 2009.  Now, if the brothers had been willing to volunteer her $150,000 a year in accordance with the wishes of the deceased, you would expect her to have been getting that income, but her evidence was that she had not.

GORDON J:   She got two cars though.

MS HARRIS:   She got two cars, your Honour, and we do not know anything about the circumstances of that, but on any view ‑ ‑ ‑

NETTLE J:   We know their value, and it is very considerable.

MS HARRIS:   Yes, your Honour, that is it.  Your Honour, there is a long way – there is a gulf between saying her brothers provided her with two vehicles and saying the corporate group of which they were directors would, if asked, volunteer a payment of $150,000 per annum indexed ‑ ‑ ‑

GORDON J:   Net of tax?

MS HARRIS:   Net of tax, every year.  You could never infer certainty of receipt from the fact that she had been given a couple of cars to which she contributed by trading in her existing car.  Your Honour, the brothers had been very secretive, if I might use that word, about the terms of the will.  If there was this willingness on the part of the brothers to volunteer $150,000 a year to respect the wishes of their father, then why had they not been paying it?  They have had the will since 2009.  One of the brothers was an executor.  Why had they not been paying it, and if they were so willing to comply with their father’s wishes, why would they not give her a copy of the will?

Your Honours will see at appeal book 111 that counsel for the husband accepted that she had asked for the will and been refused.  I have said 111 confidently.  Your Honours will see that between line 12 and line 27.  Mr Ackman, who was counsel for the wife below, had given some evidence from the Bar table, that having been put for the first time in argument, that she had not asked for a copy of the will. 

Mr Ackman said, “Well, she did in my presence”, and your Honours see at appeal book 111 that Mr Richards, who was then appearing for the husband, accepted that she had asked for a copy of the will and been refused.  So they have not volunteered the payment.  They have not told her what was in the will.  They have refused to give her a copy.  She learns about it for the very first time from the affidavit of Mr Shaw which is sworn on 20 February 2014.

GORDON J:   Sorry to interrupt, but can I just come back to this question about 75(2)(b) and the phrase “income, property and financial resources” and make sure that I am clear?

MS HARRIS:   Yes.

GORDON J:   You accept that the financial resource must be something in addition to income and property properly identified, i.e. it adds something to those two concepts?

MS HARRIS:   Yes, it does, your Honour, and the authorities are clear about that.

GORDON J:   Not only that, but that it can therefore extend to something over which someone has no legal control but if you – question of fact and degrees as Justice Keane said, if you can identify evidence of some sort of prior dispositions or some evidence to show that there is a real expectation on the facts that you would get a distribution it would fall within the concept of financial resource?

MS HARRIS:   It must be.  Can I use the words that the Full Court used in White and Tulloch (1995) 19 Fam LR 696 at 702 - and this was a strong Full Court, if I might say - Justices Fogarty, Kay and Hilton who said that while a financial resource might be something to which one is not legally entitled, there must be a degree of entitlement to it or control over it or relative certainty of receipt. In other words, you have to be pretty sure you are going to get it, and it might not be something that you could sue to enforce, but that was the only way it was put here and it is not surprising that that is the case because of the facts that I have just taken your Honours to.

The brothers had simply not - they had not volunteered the payment.  Not only had they not volunteered the payment, they had not even told her what was in the will.  It was a surprise to her to hear what her father’s wishes were.  That was all news to her.  To take up what your Honour Justice Nettle says, what the Full Court did in effect was oblige her to ask her brothers, and if she does not ask her brothers she will miss out.

KEANE J:   But is that not trying to put the request as a sort of a legal criterion, whereas it is really an aspect of the facts that when one bears in mind where the onus lies, the absence of a request is relevant because it is also – it is an aspect of the absence or a refusal.

MS HARRIS:   Yes, this is a gift.

KEANE J:   The absence of a request reflects, one might infer, the absence of a need, an indifference to the response.  It might reflect a tactical approach to these proceedings, and it might be taken into account as a matter of fact in sort of weighing whether the onus has been discharged.  But it is not regarded – and I think it is probably being a little unfair to the Full Court to suggest that they treated the necessity for a request and a refusal as a legal criterion.

MS HARRIS:   Well, I do not think we have put it like that, your Honour.  What they said is there is no evidence of her having asked and been refused, and that was true.

KEANE J:   Yes.

MS HARRIS: But what they did was in effect oblige her to ask if she wanted to support herself because they said we are discharging the husband’s obligations towards you, so you cannot expect any money from your spouse under section 72 any more, so if you want to fill that need you must go to your family.

NETTLE J:   But if she is the applicant and she wants to demonstrate that the bequest or direction – the precatory direction under the will is not worth two bob, is it not incumbent on her to adduce evidence that that is so?

MS HARRIS:   This is the problem, your Honour.  With respect, your Honour is confusing two concepts.  When we say something is not worth two bob the implication is that she is entitled to call for that in some way and so it is a resource of the kind that was described in White and Tulloch. Now, that is not this thing. Why should she have to ask her family for money? The Full Court did not say that the brothers will pay. The brothers said they will cause the family business to pay. Why should the family business pay to maintain her? That is not what section 72 provides.

KEANE J:   It is not a question about why should it.  These difficulties are not solved by asking rhetorical questions.  The question is will they?  The question is has she demonstrated that there is no sufficient prospect of support from her family that she has satisfied the onus she bears under the section.

MS HARRIS:   Your Honour, if it had been put that way – this is fundamental.  It is a fundamental answer to your Honour’s question in this case.  If it had been put that way below, she could have met it – she could have sought to meet it with the sorts of arguments that I am currently putting to your Honour and with evidence to say, “Yes, I asked for it and they won’t give it to me” or “These are reasons why I don’t want to ask”, and there might be all sorts of reasons why she does not want to ask, your Honour. 

Your Honour would be, with respect, correct if and only if that was the way the case had been run below and it was not.  The husband said not, “You know you will get this money if you ask for it, so I shouldn’t have to maintain you”.  If that is the way it was put, your Honour, then she can lead some evidence, but it is not put in that way.  Can I come now to the discharge application?

GAGELER J:   As you are coming to that, I understand it to be implicit in a number of answers you have given that on the husband’s application for discharge under section 83(1)(c) of the Act the wife bore the onus of proving that she had the right to spousal maintenance required as a precondition by section 72. Is that correct?

MS HARRIS:   That was established by the 10 December order.  So she did not have to do it afresh.

GAGELER J:   What did she have to do?

MS HARRIS:   She did not have to do anything, your Honour.  He had to, and he accepted this burden, persuade the learned trial judge to revisit the determination she had already made and he could only do it by bringing himself within section 83.  Can I take your Honour ‑ ‑ ‑

GAGELER J:   Is there Family Court case law on the nature of the proceeding under section 83?

MS HARRIS:   I daresay, your Honour.  We will look up what we can but it is important, I think, your Honour, to understand that he accepted his burden at appeal book 185, page 72 of the transcript.  Your Honours see Mr O’Shannessy’s argument on the discharge application at line 30 and following:

Paragraph 1.3 then, your Honour, that is sought to be discharged is the spousal maintenance aspect.  The affidavit of the husband, your Honour, sets out the circumstances where he asks that that issue be revisited. 

I want to come back to that, please, your Honours:

I have to firstly address your Honour, why should he be permitted to revisit a matter that has been dealt with on an interim application?  You don’t seek to say, give it a couple of months and then I will have another go.  The change in circumstances, your Honour, that we point to that permit your Honour to revisit it are twofold.

FRENCH CJ:   The statutory sources of the burden is 83(1)(c), a just cause requirement.

MS HARRIS:   Indeed, your Honour.  So it is his burden.  She has made the order.  It is his burden to show why it should be discharged and he does so on the two grounds – and while we are here we may as well read them because your Honours will not find a word about the 150,000 here.  The two grounds on which he says it should be discharged are that we now know what the value of her shares in a private company is.  Your Honour sees at line 40:

Firstly, what we say is the most significant development, your Honour, whereby . . . Mr Andrew Shaw has deposed as he has . . . The gist of what he deposes to – whilst we are saying it is not entirely satisfactory, your Honour, but he at least gives us a glimmer of the financial circumstances of the wife – are at page 9 of his affidavit where, as your Honour knows, he describes either a gift –

Now, that is not the $150,000, your Honour, and I will demonstrate why:

and in his submission, a mere gift, a mere expression of intent – the wife would receive total assets of 23.7 million.  And that the gist of this is that she already has assets of 7.2 million in shares in a private company, your Honour, and it has to be acknowledged that it would appear – although it is not entirely clear – on one view it is possible to say that the 7.2 million is a lineal proportion rather than any minority discount.

I do not know what that means:

And we simply don’t know, and it will depend on your Honour’s determination in regard to the subpoena issue, the extent to which we will gain further information.  But what is significant, your Honour, is that we now know that in 2009 –

the deceased:

the person that your Honour would reasonably suppose would know more than anything else about the value of his financial affairs – regarded those shares as being worth $7.2 million in value.  The wife’s account is, I didn’t know, and her affidavit says, I have now spoken to my brother, presumably since the affidavit of Mr Shaw came out.

That circumstance, your Honour, we say is such a profoundly different financial circumstance of the wife that it goes to that very issue of whether the wife has crossed that threshold condition where your Honour is familiar with section 72. If and only if a party is unable to support themselves do we go to the next step. That is the first matter. The second matter, your Honour, is the taxation issue –

GAGELER J:   It is a very long case.  There must be a lot of water under the bridge since 1978.

MS HARRIS:   Well, your Honour, we could not find anything that disturbed this proposition.  Your Honour, we did our best, as it were, in the time we could.

GAGELER J:   You had all of lunchtime, I know.

MS HARRIS:   But, your Honour ‑ ‑ ‑

FRENCH CJ:   So, just cause might be demonstrated for the purpose of 83 by bringing forward evidence from which it could be inferred that the other party is able to support herself. 

MS HARRIS:   That is the import of this case.

FRENCH CJ:   Then the question is, once that is in place the statutory test still goes back to the original criterion for the grant, does it not?

MS HARRIS:   It goes back to the original criterion but the important thing is that ‑ ‑ ‑

FRENCH CJ:   She might have to displace the inference otherwise available from what is sufficient to demonstrate just cause.

MS HARRIS: Your Honour, the husband would have to show that there is a reason now to conclude she can support herself, so, to reverse the original finding that she could not do so. When she obtains the order, she must show she is unable to support herself. She discharged that burden and the husband challenged the trial judge’s determination on that point and he failed. That was SOA 82 of 2013. His challenge to that was dismissed. So, his burden then was to discharge it and to show positively now she is able to support herself so that she no longer satisfies that section 72 threshold.

FRENCH CJ:   Well, if he cannot show that she can support herself he has not discharged the just cause requirement.

MS HARRIS:   Indeed, your Honour, and he sought to discharge that requirement in this case by saying she has $7.2 million worth of shares.

Now, the primary judge in the Full Court engaged with that proposition.  The primary judge said well, the value of her shares is not sufficiently certain to displace the – to now make it something I could conclude she is able to support herself and the Full Court found she did not err in that regard. 

So, this is our point that the husband did not seek to show just cause, if you like, by relying on the 150,000.  He relied on her having $7.2 million worth of shares in family companies and an argument that she was obliged to chase up or get in those assets, bring them in so as to present full disclosure of her financial status.

That contention was decided by the Full Court against the husband and your Honours see from the transcript at appeal book 372 – now, our learned friends took you to this passage but they stopped short of the critical line, if you like.  This is the page where his Honour Justice Aldridge says:

So you’re suggesting the court could draw an inference that because she hasn’t said – asked her brother’s for money, that if asked they would have given her whatever she wanted?

MR O’SHANNESSY:   No.  You can’t go that far, your Honour.  With – I’m not submitted that far.

ALDRIDGE J:   I just don’t know where it goes.

At line 36 Mr O’Shannessy says – and this is the passage you were taken to:

the only evidence being that she is on good terms with them and there being no evidence at all or any explanation.

This is the critical sentence, because it tells you what he is actually putting:

And again, your Honour, if the law is that you don’t have to chase up your own assets, this point – this fails.

Now, the Full Court found that he was wrong about that.  You do not have to chase up your assets.  You do not have to do that on an application for interim maintenance, and I will come back to the passage from Redman that I referred your Honour Justice Gordon to earlier.  But, your Honours will see that at paragraphs 66 to 97 of the Full Court’s judgment, especially at paragraphs 77 to 78 and 131 and 136.

So the contention he was actually putting he failed on and in one on a contention which he did not put at all and which could have been met by evidence.  It is said in this connection the wife’s side appreciated her ability to get benefits under the will was in issue and therein is the slide and there were a number of slides, with respect, in our learned friend’s argument.

The first argument is benefits under the will or a payment from the V Group.  Now the Full Court was very clear, she did not have a benefit under the will constituted by an entitlement to $150,000 per annum.  That was not a benefit under the will and despite what our learned friend is saying about 133, it is clear from paragraph 151 that they considered the payment to be voluntary and so any payment is in effect made outside the terms of the will. 

The second slide is between the willingness of her brothers to support her and the willingness of the corporate entity to make a payment.  Now, the Full Court determined this case against the wife on the basis that the corporate entity would make the payment but the evidence relied on is the good relationship with her brothers and the fact that her brothers have given her these two cars.  In oral submissions the husband’s counsel says - our learned friends say that paragraph of her affidavit shows that they gave her money to buy furniture during the course of her marriage. 

Well, the next sentence of that affidavit was important.  She said she got money from her brothers to do that because she was scared to ask her husband because she was afraid he would become abusive – that is, paragraph 65 of her 8 November affidavit. Those considerations no longer applied by the time the parties had broken up.

GAGELER J:   What point of the reply does this go to?

MS HARRIS:   It was put against us, your Honour, that the court was right to draw the inference it did because she has a good relationship with her brothers and it was put against us, look at paragraph 65 of her affidavit where she acknowledges that they gave her money for furniture during their marriage. 

Your Honour, the considerations which might have motivated that gift during the marriage which are described in paragraph 65 of her affidavit no longer apply once the parties are estranged and it is a very different question to say – and this is the slide – she is on good terms with her brothers so a corporate entity will pay her a $150,000 stipend net of tax, indexed every year.  That is the slide, if you like, that the Full Court made too and there was not a skerrick of evidence.

Now, again, our learned friends say there is no evidence in the affidavit of Mr Shaw about the financial position of the V Group, or the willingness of the V Group to make the payment.  So it was, and there are a number of reasons for that.  The first reason for that is because Mr Shaw was not called by the wife.  It was said that the brothers were a party to these proceedings; they were not.  Mr Shaw’s affidavit was filed on the application to set aside the subpoena, and the husband took it and relied on it on the discharge application.  It was not put forward by the wife.  Mr Shaw was not in the wife’s camp.  As it turns out, the wife played no part in any of the debate about the subpoena to which Mr Shaw’s affidavit was directed, and on which that affidavit was filed.

Your Honour Justice Nettle asked a question about the will.  I said it was not available to the Full Court because there had been a stay pending appeal.  That was correct, but it was a stay pending the appeal of the subpoena decision.  It was a stay which was granted not in favour of the wife, but it was a stay granted in favour of the beneficiaries under the will who did not want the will to be used in this proceeding.  The appeal in respect of the subpoena was heard the day after the appeal on this substantive issue, and judgment was not delivered till February 2015.

NETTLE J:   How long was that, the delay, approximately?

MS HARRIS:   It was argued in November and the judgment was delivered in February.  So, by February last year the husband has had a copy of the will.  He has had a copy of the will at all times since February 2015 but it was not available to any of the parties at the time these matters were argued either before the primary judge or the Full Court. 

But Mr Shaw was not in the wife’s camp.  So you would not expect his affidavit to address these matters, still less would you expect his affidavit to address the position of the V Group when he is the solicitor for the deceased.  There is no evidence that he has any idea what the financial position of the V Group is and the willingness of the controllers of the V Group to make a payment.  In any event, even leaving aside those points, it had not been suggested that absent a legal entitlement the V Group would be prepared to make the payment.

NETTLE J:   And fabulously rich accountants.

KEANE J:   Actually, Mr Shaw swore at paragraph 45 that he has acted:

as a lawyer for the deceased, his wife, children and their family businesses for almost twenty years.

MS HARRIS:   Paragraph 45?

KEANE J:   Page 45, paragraph 6.  It does seem that he has some knowledge and, indeed, that he acts for the children of the deceased.  Your client is one of the children.

MS HARRIS:   Yes, but he was not acting for the wife.  There has never been any suggestion that he was acting for the wife, your Honour.  He says:

I have acted as a lawyer for the deceased, his wife, children and their family businesses –

He does not say he is acting in that capacity at this moment.  Paragraph 2 of the affidavit records that he is acting for the executor.  Your Honour, it had to be - if it were relevant, Mr Shaw had to be on notice that there was some contention that the V Group would volunteer this payment.  The contention, as set out in the husband’s affidavit of 7 March, was that she was entitled to this payment and if she would not enforce those entitlements then the husband wanted an assignment so he could.

It is not an academic difference, this difference between the brothers and how they might feel towards the wife and the V Group.  Our learned friends touched on it in their argument in drawing your Honours’ attention to clause 14.9 of the will.  Clause 14.9 makes it clear that there are all sorts of contingencies that the corporation might want to take into account in making the payment including, as our learned friends say, timing. 

Now, this is very important because this was an application to discharge interim maintenance orders, a need having been established on the part of the wife.  So unless that payment was going to be available now, immediately, and on terms that it actually filled the need that had been identified by her Honour, then it could not overcome the statutory threshold.  It could not establish that she was able to support herself.  It had to be shown, not only that there was a will to make the payment, but when it might arrive.  If that payment is not going to arrive until the end of the financial year, her needs are ‑ ‑ ‑

FRENCH CJ:   I think we are covering territory well covered in your submissions in‑chief, I think.

MS HARRIS:   Thank you, your Honour.  Your Honour, can I give your Honour Justice Gordon the reference to Redman.  It is not in our list of authorities but it is referred to in our submissions.  It is In the marriage of Redman (1987) 11 Fam LR 411 and your Honour will see at the bottom of page 414 going over to page 415 discussion about interim maintenance orders.

The two key points I guess are that an application for interim maintenance engages the section 72 and section 75 tests and involves an exercise of power under section 74 but because they are interim orders they are intended to be reconsidered quite apart from variation or discharge. So they are made in anticipation that the parties will be able, down the track at a final hearing, to have another crack at these issues and it is for that ‑ ‑ ‑

FRENCH CJ:   When is the final hearing likely to be?  We have had 20 months in the Family Court.  The parties have been fighting about interim maintenance, including the time taken for the decision.  This is not a criticism of you or anyone else but it is just extraordinary that all this - I can imagine an immense amount of money that must have been spent on these debates between October 2013 when the application was made and 7 August 2015, when the Full Court gave reasons.

MS HARRIS:   Your Honour, without pointing the finger at anyone, no one is more frustrated than my client about that.

GORDON J:   When is the hearing?  When is the final hearing?

MS HARRIS:   There is no hearing scheduled, your Honour.  The most recent application was an application by the husband to disqualify Justice Dawe on the grounds of bias.  That application was dismissed in the last few weeks.  The matter is sitting in the pool, as I understand, for allocation to a trial judge, but obviously ‑ ‑ ‑

GORDON J:   For the final hearing on this question?

MS HARRIS:   I do not know what the steps are in between now and then, your Honour.  For example, a valuation still had not been undertaken because there are still applications for further information between the parties, your Honour.  It is, as I understand it, a way off.

FRENCH CJ:   Is there any single judge or registrar that takes responsibility for the control and management of these matters?

MS HARRIS:   As I understand, your Honour, it is on a docket.  I assume it is on Justice Dawe’s docket at the moment, hence the application that her Honour disqualify herself.

NETTLE J:   But she will not be the trial judge?

MS HARRIS:   I am not clear about whether that is the case or not.  We are reaching the outer limits of my understanding of the mechanics of the Family Court, your Honour, but it has gone into a pool, so she will not necessarily be the trial judge.  Certainly, she would not have been if the disqualification application had succeeded, but it did not so she may well be.

This is a good point, if your Honours please, because even though interim – because of the way things move, it is not interim in the sense that it does not matter if she has got a need for money and it is not satisfied because pretty soon there will be a final determination. As your Honour the Chief Justice points out to me, it has now been years since the trial judge found that she satisfied the section 72 threshold. The Full Court, notwithstanding that she did not know anything about the will until March 2014, discharged that order with full retrospective effect.

The point I was going to make, your Honour Justice Gordon, is that because the parties get a final crack again, a fresh crack at any maintenance questions on a final hearing, the consequence is that the application for interim maintenance, according to the Full Court, on such an application the court conducts not as final or exhaustive a hearing as would be the case if one were hearing the matter finally.

The evidence need not be so extensive and the findings not so precise, having regard to those factors and the general injunctions of 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 section 83.  So, insofar as it said – let me rephrase that.  That was the reason the Full Court said she was not obliged to chase up all her assets.  This is an interim maintenance order.  So that is why the husband failed on the arguments on which our learned friends rely.

On the section 72(o) question, our learned friends say, well, it is wide enough to accommodate this payment. Section 75(2)(o) requires the court to form an opinion. The court must form an opinion that the justice of the case requires something to be taken into account. So it is not enough for it to do it sotto voce, if you like. The court must explain if it so considers – and it is unclear whether it did so consider here – that the justice of this case requires the following circumstance to be taken into account, that if she asks

for the money, she will get it, and the inference being that the court did not properly engage with those 75(2) factors at all.

NETTLE J:   I just wanted to ask you one question.  Section 74 uses the words “may make such order”.  When you combine that with the discretionary nature of the considerations in 75, it does rather suggest that the exercise is one in an exercise of discretion, does it not?

MS HARRIS:  Your Honour, we have referred in our submissions – and I will give your Honour the paragraph reference – to the authorities in this Court and elsewhere that talk about sections of that kind. When one reads the statutory scheme together, section 74 is the section which empowers the Court to make the order. That is the repository of the power, and the power extends to the fashioning of an order having regard to the section 75(2) factors.

So in our submission, the way that the sections work is once the statutory criteria are fulfilled, there is a right and a corresponding liability, the Court has no power to decline to make an order, but it does have discretion about what that order might be.  It is paragraph 64 of our submissions.  Your Honour, if it please the Court, those are our submissions.

FRENCH CJ:   Thank you, Ms Harris.

MR JACKSON:   Your Honours, may I say ‑ ‑ ‑

FRENCH CJ:   Yes.

MR JACKSON:   ‑ ‑ ‑ two things?  One is in relation to the decision our learned friend referred to of Astbury v Astbury.  Your Honours, that decision is – if I may put it this way, with great respect to their Honours – compellingly obscure.  That is so because if one looks at page 398 where the issues are dealt with at the top of the page, it says:

It does not follow that the court will allow the party ordered to pay maintenance endless opportunities to relitigate the s 72 issues.

Well, of course, that is so.  Then, when you come to the middle of the page, the sentence commencing:

When an application is made to discharge –

et cetera.  Then it said in the last three lines:

The distinction just referred to may not be of great practical significance, since the end result in either case is that a person’s entitlement to maintenance depends upon the application of s 72.

In the present case the husband’s application to discharge the maintenance order no doubt put him to proof that there was just cause for discharging the order –

Your Honour, again, we accept that.  Then, it said:

As part of that proof he was entitled in the circumstances of this case to put forward s 72 –

And, your Honours, the difficulty there is in working out what the court was actually saying is illustrated by the reporter’s first description of the holding in the headnote.  Your Honours, where the alternatives – the two alternatives - your Honours, the situation in our submission is that you have to have just cause for setting aside the earlier order.  Once that is done, the situation is what order should then be made.  That depends on the material that is before the Court at that time.

Your Honours, so far as the hearing of the matter is concerned, I am instructed there is a registrar who has the carriage of procedural matters in this case and the current holder then obtaining a trial date is a subpoena to the brothers regarding documents in relation to the will and the V Group which has been appealed to the Full Court by, I think, our side of the matter and, prior to that, the delay was the opposition to the production of the will.  Your Honours will appreciate that upon the marriage being dissolved there is, in terms of the will, an entitlement then to the 16.5 instead of the 150 per year.

FRENCH CJ:   Yes, thank you.  The Court will reserve its decision.  The Court adjourns until 9.45 am tomorrow for pronouncement of orders and otherwise to 10.15.

AT 3.41 PM THE MATTER WAS ADJOURNED