Hand & Bodilly & Anor

[2018] FamCA 1158

FAMILY COURT OF AUSTRALIA

HAND & BODILLY AND ANOR [2018] FamCA 1158

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders – where there is a longstanding spousal maintenance order on the basis of the wife’s health – where the wife is eligible for the entitlements under the National Disability Insurance Scheme and the respondent payer seeks a dollar for dollar reduction – where adjustment is made pending final hearing.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987)
Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172
Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR 240
New South Wales v Jackson (2007) NSWCA 279
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73
The Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39

APPLICANT: Mr Hand

RESPONDENT: Ms Bodilly

INTERVENOR: Ms K Hand

FILE NUMBER: MLC 10737 of 2009

DATE DELIVERED: 15 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2nd February 2018; 9 April 2018; 8 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John QC

SOLICITOR FOR THE APPLICANT: Sayer Jones

COUNSEL FOR THE RESPONDENT: Mr Matta

SOLICITOR FOR THE RESPONDENT: Pearce Webster Dugdales

COUNSEL FOR THE INTERVENOR: Mr Kaufman

SOLICITOR FOR THE INTERVENOR: Lander & Rogers

Orders

1. That paragraphs 1 and 2 of the orders made on 27 August 2012 are suspended until further order.

2. Forthwith and commencing with a payment on the 7^th day after these orders, and until further order, the respondent Mr Hand pay to the applicant Ms Bodilly by way of spousal maintenance the sum of $1600 per week.

3. That all extant applications for final orders relating to either an increase or a decrease/discharge of the respondent’s obligations to pay spousal maintenance to the applicant are fixed for final hearing on Monday 1 October 2018.

4. That the solicitors for the parties (including the second respondent) forthwith provide to the case coordinator their agreed timetable for the filing of material for the said final hearing and failing agreement, the matter be listed as soon as practicable in the Judicial Duty List for determination.

5. That all interim applications are otherwise dismissed.

6. That the objection by the applicant (Ms Bodilly) to the releasing for inspection of the documents contained in the sealed envelope produced pursuant to the subpoena to the applicant’s accountants is upheld and such documents be extracted from the subpoenaed material and returned to the solicitors for the applicant (Ms Bodilly) forthwith.

7. That all parties have liberty to apply.

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 Bodilly & Hand 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 MELBOURNE

FILE NUMBER: MLC 10737 of 2009

MS BODILLY

Applicant

And

MR HAND

Respondent

REASONS FOR JUDGMENT

1. The proceedings between Ms Bodilly (the applicant) and Mr Hand (the respondent) have been going for many years. The significant dispute now is about spousal maintenance. These reasons concern an interim application by the respondent to vary the extant order. That application is opposed by the applicant. The matter is complicated for the reasons that follow.

2. The Applicant has long been diagnosed with a debilitating disease and is dependent upon a Commonwealth Government Disability Support Pension. That is means tested. She otherwise, subject to what is set out below, relies upon a nominal amount of interest earned on her investment and spousal maintenance from the respondent.

3. The respondent is a businessman who has been CEO of significant companies. He has remarried and earns a salary commensurate with his position.

4. The respondent’s wife is a party to the proceedings. She was joined by the applicant on the basis (as I understand it) that her interests are affected by the spousal maintenance issue. Her role in the present application, where she was represented by her solicitor, was nominal.

5. The starting point and only necessary background is that on 27 August 2012 and in Sydney, Loughnan J, after a 3 day contested hearing, made the following orders:

   1.From the date of these orders to 24 September 2012 the husband shall pay to the wife as she may direct by way of periodic maintenance the weekly sum of $3,625.

   2.From 25 September 2012 the rate of maintenance payable by the husband to the wife shall reduce to $3,323 per week.

   3.Unless the wife advises the husband otherwise in writing, the first payment of periodic maintenance shall be made within 7 days and payments shall be made weekly thereafter. 

   4.The husband shall cause the sum paid by him pursuant to order 2 to be increased annually in accordance with any positive variation in the Consumer Price Index for Sydney published by the Australian Statistician for the preceding financial year with the first such variation as and from 1 July 2013 and adjustments as and from 1 July in each succeeding year.

6. The applicant was represented in the present application by Mr St John QC who also appeared for her in the Sydney proceedings. Mr Matta of counsel appeared for the respondent.

7. It will be seen that since 2012, the respondent has been paying significant spousal maintenance. In 2017, his employment position altered and he ceased making payments. That precipitated an enforcement application which was either determined by, or resolved before, the Senior Registrar.

8. The uneasy calm did not last long and even now, there is much uncertainty about what happens to, and what is, the substantive proceeding to be determined by the Court. In part that arises from:

   (a)The uncertainty whether the applicant is seeking an increase;

   (b)The question, as yet largely unresolved, as to whether or not the respondent requires the applicant to prove all of her need for maintenance as well as the extent;

   (c)The issue of the ability of the applicant to physically participate in the proceedings because of her disability and whether the hearing should be, as she would have it, heard again in Sydney; and

   (d)What impact, if any, the recent National Disability Insurance legislation has on the entitlement/obligation of parties to spousal maintenance including the fact that it seems (at least at first blush) to not be income tested.

9. Having done the best I could to obtain clarity, and failed, I have listed the matter before me in the first week of October 2018 which, albeit a long time away, gives all parties an opportunity to get their cases ready. With all of the recent criticisms of the Court about delays, this does not fit into that category. It will take the applicant time to organise herself because she maintains her disability creates a need to rely upon people including junior counsel from Melbourne in whom she has confidence. There is further uncertainty about her “review” of the NDIS determination made in March 2018. As her senior counsel said, no-one seems to be able to say when that will be heard and determined, or how, because the applicant disputes that the present assessment is appropriate.

10. The respondent said he was ready to proceed but that same review affects his entitlement. His counsel indicated that his client would prefer to proceed and if there was a favourable review for the applicant, he would bring another variation of spousal maintenance obligation. He was otherwise ready to proceed in the next 4 weeks.

11. It will be seen that it is not easy to finalise this case but at the same time, there is an issue of the impact of the NDIS.

12. The two issues before the Court on 8 June 2018 were:

    (a)The respondent’s application for interim relief by way of a reduction in spousal maintenance relying upon the applicant’s new entitlement to NDIS support; and

    (b)The determination of two objections to subpoenae addressed to the applicant’s financial advisors and accountants who have a significant role in managing her affairs (at least according to the previous trial judge).

13. There was no formal response filed by the applicant but I am satisfied that her position was clear to the respondent. Her view is that there should be no alteration to the status quo pending the determination of the substantive entitlement.

14. It is convenient to deal with the two issues in the reverse order.

15. Objection was taken by the applicant and her financial advisors to a subpoena that was wide ranging. The only dispute was about two documents over which the applicant claimed legal professional privilege and litigation privilege.

16. The affidavit of the applicant’s solicitor sets the scene.

17. Because of the applicant’s disability, the fact that she resides in Sydney, suffers cognitive challenges about reading and has an “established relationship” with junior counsel Ms Jill Rivers, that member of counsel was engaged to “oversee” the locating and collating of the financial documents required of the applicant under an order as the litigation got under way.

18. Ms Rivers asked the accountants to prepare a break-down of documents. Ms Rivers was handed a 20 paged document of the applicant’s finances at a conference in Sydney. This document was traversed in the conference on 15 October 2017. A subpoena was soon thereafter served on the accountants.

19. The parties managed to work out some things but it was ultimately agreed that the contentious documents would be placed in a sealed envelope. The solicitor’s affidavit said that the envelope contained:

    (a)The financial break-down to which I have referred; and

    (b)A document containing a file note of the meeting.

20. After some argument, counsel for the respondent conceded (b) was no longer pressed. In my view, that was sensible.

21. The focus is therefore on (a). Counsel for the respondent submitted there was no indication this document was confidential within the meaning of the Evidence Act 1995 (Cth). The respondent’s submission was that the purpose behind pursuing this document was to “cross-check” its content with what the applicant filed in her financial statement as required by the Court.

22. Senior counsel for the applicant stressed that he was not appearing for the accountants although he advised that his solicitor did act for them. He said that their input into the objection did not matter because they had produced the documents and that was an end of their role. I do not necessarily agree with that but as the issue was not pressed further, I need say nothing about them not being heard.

23. The applicant’s argument is that the document is caught by ss 117 and 118 of the Evidence Act. He submitted this document was prepared for the dominant purpose of the litigation. As I have already mentioned, whilst there were various arguments and submissions, this came down to whether the document was confidential.

24. One of the difficulties is that the provisions relied upon relate to the adducing of evidence and it is not suggested in this hearing that that was to occur. I have already set out the purpose for which the respondent wanted to inspect the document. If the stated sections do not apply, then the common law must be the relevant aspect to consider. In my view, it really does not matter because on the assumption that the determination revolves around confidentiality, I shall only address that point.

25. Counsel for the respondent argued there was no indication this was confidential when it was prepared, not specifically so marked nor even referred to as confidential. I am satisfied however that it was prepared specifically for the impending litigation and, as agents for the wife, was prepared for the purposes of obtaining advice from Ms Rivers. The affidavit of the solicitor makes that sufficiently clear. The fact that it may have contained material which ended up in the applicant’s financial statement or indeed was not used at all, is not to the point. This document was for counsel’s benefit to advise the applicant bearing in mind the unchallenged evidence of the solicitor about the relationship of the applicant and her counsel in the unusual circumstances that prevailed.

26. To the extent that s 117 of the Evidence Act provides guidance here as a starting point, it defines a “confidential document” as a document prepared in such circumstances that, when it was prepared: (a) the person who prepared it; or (b) the person for whom it was prepared; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. It would be hard to consider that the accountants had any other understanding than that the document was being requested for court proceedings and specifically by the applicant’s counsel. There is no specific evidence about what they understood the contractual nature of their obligation could be but because of the nature of the request, the pending proceedings and the fact that the driving force of the preparation of the document was the applicant’s counsel, I would infer that this was such that they were under an obligation not to disclose it without the applicant’s permission.

27. In New South Wales v Jackson (2007) NSWCA 279, the New South Wales Court of Appeal considered the definition of “confidential documents” in the context of the uniform evidence law. There the Court was concerned with whether witness statements obtained by the Department over which privilege was claimed, were “confidential documents”. Giles JA said:

    [41] The definition refers to an obligation “whether or not the obligation arises under law”. In Carnell v Mann (1998) 89 FCR 247 at 258 the Full Court of the Federal Court declined to confine the obligation to the type of obligation arising in a solicitor/client relationship, as must be so when s 119 is not confined to client/lawyer dealings. (See also s 120, under which there can be a confidential communication or document where a party does not have a lawyer.) It can extend to an unspoken obligation, and to an ethical, moral or social obligation. Especially when a lawyer is not involved, the particular circumstances determine whether an obligation implicitly arises, as can be seen from decided cases. Whether a communication or document is confidential can also arise in connection with loss of client legal privilege under ss 122 or 123 of the Act, and some of the cases address it in that connection.

    …

    [46] In Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234 Bergin J said at [33] that —

    … matters relevant in assessing whether a confidential obligation is implied in relationships or circumstances outside that of solicitor/client include the nature of the relationship in question and the circumstances, including conduct and/or conversations, surrounding the communications or documents in question. It is also permissible to have regard to the nature of the documents in question and the purpose and context of their communication: see Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd (1998) 13 NSWLR 689 at 695E.

    [47] Her Honour was concerned …with communications with a litigation funder. It was held that the relationship of litigant and funder and the nature of the communications, necessarily extending to the merits of the litigation, made it appropriate to imply that information provided to the funder would not be disclosed by it. In Bulk Materials (Coal Handling) Services Pty Ltd v Coal and Allied Operations Pty Ltd to which her Honour referred, not a case under the Act, it was said to be implicit in their nature and the purpose of their provision that pages from a loss assessor’s report provided by an insurer to the plaintiff were to be kept confidential by the plaintiff.

28. The concept of the privilege considered in the Evidence Act was similar, but not identical to the common law concept. However, the statute which was discussed and relied upon by both parties seems to me to be the appropriate approach to consider here.

29. In Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 reference was made to what Megarry J said in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47:

    First, the information itself ... must "have the necessary quality of confidence about it." Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.

30. Megarry J's analysis was that information was "of a confidential  nature" if it was not "public property and public knowledge". It is again hard to imagine here that the accountants saw themselves as doing anything other than preparing information for the applicant’s legal advisors regardless of whether or not it might ultimately have ended up in a financial statement to be filed with the court. The relevant time is that at which they prepared the document and then handed it to the recipient.

31. Megarry J’s analysis, which I respectfully adopt, was that if the reasonable man standing in the shoes of the recipient of the information would have realised that, upon reasonable grounds, the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.

32. There are innumerable authorities about this sort of concept such as The Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 51 (Mason J as a single judge of the High Court); Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR 240 at 255 (Dunn J); O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 326 per Mason J (with whom Murphy, Aickin, Wilson and Brennan JJ agreed); Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at 443 (Gummow J); Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73 at 86-87 (Gummow J).

33. The approach or test adopted by Megarry J as to whether this particular material was confidential seems the appropriate one to apply here. That is, I find that a reasonable man would have expected that the accountants would have understood they had an implied duty not to simply make their document available and, as the compulsion of law test does not assist here, I accept the document was intended to be confidential.

34. In my view, the objection of the applicant should be upheld. The documents in the sealed envelope should be forthwith returned to the solicitors for the applicant.

35. I turn then to the contentious issue of the spousal maintenance noting that it is the respondent’s application. He seeks that the order as made by Loughnan J be reduced to $1476 per week pending final hearing down from $3,505. He relies on s 83(1)(f) of the Family Law Act 1975 (Cth) (“the Act”).

36. The applicant’s position is that there should be no alteration until trial but if there is to be, it ought not be as submitted by the respondent and certainly not discharged but rather suspended.

37. Whilst this case began in 2017 as a result of the respondent’s employment change, the immediate issue now is the entitlement of the applicant to money from the NDIS and its impact upon the existing spousal maintenance order.

38. The applicant’s case is that she is not seeking an increase but rather a variation of the structure of the 2012 orders. That is, she has incurred various costs over the years since the order was made and increases in those have not kept pace with any increases in her income. Thus, there was criticism of the applicant that notwithstanding the specific services she was using and the costs of which were factored into the court’s judgment, she had altered the nature and extent of what the trial judge had anticipated she would incur to enable a continuation of the services. For example, she changed carers to less expensive operatives. But even there, a dispute arose. She is currently having carers for 32 hours per week but estimates she will need 37 hours. She was also using limousines, and that was something that the trial judge had anticipated, but they are not now used and she has a car which others drive. The applicant says that she endeavours to reduce her costs because she does not have the money to pay. 

1. Into all of this comes the new NDIS entitlements. The respondent’s view seems to be that, as there is now an assessed value for the various services to which the applicant is entitled, that sum should be just reduced from his obligation.  The respondent’s submission looks logical. He says that his obligation is $3,505 and the NDIS assessment is $105,554.25 per annum and therefore when one is subtracted from the other, the shortfall is $1,476 per week. He relies on the assessment of the NDIS (and so does the applicant) and also the applicant’s financial statement. It is asserted (and I have no contrary evidence) that despite the assessment of the NDIS in March 2018, no money has been received by the applicant. In part, absent the opportunity to test the evidence, that lack of response in respect of payment may be due to the fact that invoices have not been sent to the NDIS for payment.  That seems to be a task of the applicant’s accountants. No evidence was provided as to why the invoices and/or service agreements had not been completed in circumstances where the applicant has been eligible for the entitlement since the end of March.

2. In the meantime, the applicant’s needs continue which must be met out of what she has but of course, some of those expenses can be delayed and others relating to annual costs have been averaged. The applicant says that obtaining the carer services has been problematical at times and she needs them such as at meal time. Such is the dilemma that she is not only not having proper meal but she has now significantly lost weight.

3. The relevant provisions of s 83 of the Act applicable here are as follows:

   (1)If there is in force an order …. with respect to the maintenance of a party ……. the court may:

   ·discharge the order if there is any just cause for so doing; or

   ·suspend the order; or

   ·vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

   …

   (2)The court shall not make an order … decreasing an amount ordered to be paid ….. unless it is satisfied that, since the order was made or last varied, the circumstances of a person for whose benefit the order was made, have so changed as to justify its so doing.

   (7)For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.

4. In his reasons for judgment, the trial judge, Loughnan J (at [150] onwards) discussed the applicant’s needs in 2012. The aide memoire his Honour was given showed expenses of $3688. Attendant care was accepted at $1,703. His Honour canvassed the applicant’s desires for hire car transport against the options of using her own car or taxis and accepted her position. There were costs incurred for the applicant’s accountancy in circumstances where the accountant came to her and it seems his Honour accepted there was a need for her to have that service because of the complexity of her finances. His Honour also rejected the respondent’s argument about an allowance for repairs to appliances and furnishings and allowed that estimated expense. These same expenses now have to be viewed through the recent financial statement which, because the case was heard on submissions and untested evidence, give some insight into increases over time. But so too, there is now the NDIS.

5. It is important to take into account ss 72 and 75(2) of the Act in this application under s 83.

6. Section 72 provides that the respondent is only obliged to provide spousal maintenance if the applicant is unable to support herself adequately by reason of one of the statutory bases. Thus, in a s 83 variation application, the Court is obliged to reconsider those issues. It is not suggested in this discrete application (although I am also unsure what the respondent’s position will be in the final hearing) that the respondent does not have the capacity to pay whatever is ordered nor that the applicant qualifies for spousal maintenance because of her disability.

7. Section 72 also requires the Court to take into account the matters in s 75(2) of the Act so far as they are relevant. The age and state of health of the applicant have not been the subject of challenge by the respondent in this application. He does not challenge that she cannot be gainfully employed. Below, I shall take into account the commitments of the applicant that I am satisfied are needed for her support. It is also important to recognise that one mandatory consideration is standard of living but the Act refers to that in the context of what is reasonable. The respondent has not addressed that issue here whilst the applicant refers to his affluence.

8. Section 75(2) also has a generic provision relating to any other matter that the “justice of the case” requires to be taken into account. That has a number of aspects. First, the Act makes clear that the obligation to support a spouse arising from the marriage relationship is not time limited; the focus is on reasonableness and adequacy of lifestyle. Secondly, the community, as reflected by the parliament, has introduced the NDIS to enable people such as the applicant to have an opportunity to participate in society and to have a better quality of life; this new scheme is not income-tested. How that fits with s 75(3) which requires the courts to “disregard” an income tested Disability Pension is a matter that parliament will no doubt one day address. However, when one looks at the scheme, the benefits focus on lifestyle improvement and participation in activities rather than the core day to day issues such as the cost of food and utilities. Whilst the Act requires the Pension to be disregarded, it is not so easy to disregard expenses incurred of a discretionary nature because the court is required to make an assessment as to what is reasonable. In this case, there was little by way of submission (and nor could there have been) by counsel for the respondent but the court is still obliged to make its own assessment of reasonableness.

9. The various factors in sections 72 and 75(2) are therefore not of much assistance in determining this discrete application.

10. It is important to understand the role of the NDIS and to that end, the applicant tendered the NDIS assessment and correspondence. I understand the applicant’s entitlement as assessed is now the subject of a review because, in her view, it is not adequate.

11. The advice to the applicant is that for her support to be funded by the NDIS, it needs to be “deemed reasonable and necessary” and “linked to an outcome” she had identified. The core budget is flexible and the applicant can choose how she spends that funding. The applicant had requested self-management of her daily living, assistive technology, consumables, daily activities and social community and civic participation. The NDIS agreed to the applicant’s request.

12. The applicant can choose how she spends the amount in each budget allocated but she cannot swap supports within those budgets.

13. Her assistive technology budget is $750 per annum. This is for equipment after an assessment and recommendation by a suitable professional. That is about $15 per week.

14. Her approved daily living is $15,450 or about $300 per week. This is for her allied health professional, therapist and such things as daily routines, mealtime management, communication and the like.

15. Her transport allocation is $1,606 per annum or $30 per week which is a contribution “towards” transport costs and that is paid fortnightly. Indicative of how limited this amount is, the applicant says that she spends $110 per week but if her petrol, car maintenance, car insurance and registration are considered, she spends $196 per week. 

16. Her core supports assessment came to $87,748 per annum or about $1700 per week. This was stated to be for the purchase of daily equipment and was designed to assist with undertaking activities of daily living which was defined as meaning self-care and community participation. It seems to include assistance with domestic activities and supports to sustain informal networks.

17. These category descriptions are vague as no doubt they must be but I have inferred that they are parts of a budget. They cannot be inter-changed but there is some flexibility about what categories some of the activities include.

18. I am satisfied that the applicant has somewhere around $2045 per week but some of that, such as the assistive technology is not available unless there is an established need and in respect of transport costs, the budget is not designed to cover all transport.

19. The sensible approach is to look at what the applicant prepared with the assistance of her accountants and her junior counsel last October for the purposes of the court. No doubt, she will be using similar assertions in the foreshadowed review of the NDIS assessment.

20. The total claimed as estimated expenditure was $4,125 per week. That included everything from rates on her home to discretionary expenditure on gifts, accounting fees and her personal trainer. The personal trainer is something that is specifically mentioned as an NDIS expense.

21. The financial statement was not the subject of specific challenge because the applicant could not be cross-examined but I have approached this assessment of what is reasonable on the basis that some expenses are specifically covered by the NDIS and others would not be having regard to their reasonableness test.

22. Of the $4,125, I consider a reduction is justified in areas such as repairs to furniture, appliances and medical equipment because, apart from the fact that she estimated these costs, they will now be specifically matters to be considered by the NDIS. Without their assessment approval, the applicant would need to acquire the items herself. That would seem to fly in the face of the specifically qualified professionals assisting her. She will undoubtedly incur these sorts of expenses but the NDIS calculated the sum at $30 per week and of course, that is subject to review. She anticipated her attendant care at $1900 per week but the NDIS thought the appropriate need was $1700 per week. I interpret the definition to include more than just attendant carers. That too will be the subject of the review.

23. The applicant’s financial statement also included what I would describe as discretionary expenditure. Whilst there is no doubt the applicant is entitled to that, it is also important to recognise that she has a Disability Pension which must be disregarded (s 75(3)) but no doubt it is being used to also cover expenses of a discretionary nature. Whilst the pension must be disregarded, I consider it can be taken into account indirectly in relation to the reasonableness of the applicant’s non-core expenses which are modest anyway.

24. I would therefore assess the reasonable expenses towards which the respondent should contribute as approximately $3,650 per week.

25. The NDIS contribution towards the applicant’s life is likely to eventually (when the invoices are sent in) be in the vicinity of $2045 per week when averaged out but that depends upon invoices being drawn for certain items which the applicant acquires. It may be that those items will not be acquired although with her estimated expenses for repairs and replacements well-exceeding the items allowed by the NDIS, one might reasonably expect the budget will be fully utilised.

26. In those circumstances, the current spousal maintenance exceeds her expenses and the applicant still cannot adequately support herself without maintenance. I assess the contribution that the respondent should be making as $1600 per week until trial. I agree with the submission of the applicant’s senior counsel that there should be a suspension of the order rather than a discharge. I agree for two reasons. First, there is the applicant’s NDIS review which may alter her entitlements but also make clearer just what of the budgets, she is able to spend for her own needs. Secondly, none of the expenditure which forms the core calculations under the Act has been able to be tested. As will be self-evident, I have assessed the reasonableness of the applicant’s expenditure based on the findings of Loughnan J, the evidence of the applicant as to her increased and varied costs of living and the philosophical approach I understand is being taken by the NDIS particularly on the issue of what is reasonable from their perspective. In those circumstances, the suspension rather than discharge also gives the respondent an opportunity to argue that I should have allowed less for certain expenditure or taken more of the applicant’s income into account.

27. Finally, I have set this matter down for final hearing in early October. The parties must come up with a timetable for not just the filing of their respective material but also making clear to each other what case they intend to promote. For example, if the respondent intends to argue that he should have no obligation based upon the entitlement of the applicant to the NDIS, that needs to be spelt out clearly in writing. It may be that the government needs to reconsider s 75(3) if it desires the court to ignore the NDIS entitlement because at the moment, the entitlement is not income tested. The respondent also needs to make clear what, of the applicant’s case, he intends to challenge as to expense, need and the like. If there is no agreement about a timetable, the respective solicitors may approach the court jointly for that exercise to be done.

28. Senior counsel for the applicant observed that there may also be an application for litigation funding. For this case to proceed in October, that should be done quickly and, with the shortage of court resources, the judicial duty list is the only place that I can see where such an application could be heard if not by me.

I certify that the preceding Sixty Six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 June 2018.

Associate: 

Date:  15 June 2018