Hillier and Hillier

FAMILY COURT OF AUSTRALIA

HILLIER & HILLIER

[2009] FamCA 662

FAMILY LAW – PROPERTY – INTERIM – Spousal maintenance – Release of passport

Family Law Act 1975 (Cth)

Chapman and Chapman (1979) FLC 90-671
Hartnett and Samson (No 8) (2007) FamCA 1076
Martyns and Martyns (2007) FamCA 892
Mullen v DeBry (2006) FLC 93-293
Redman and Redman (1987) FLC 91-805
Richter and Maguire (2008) FMCAFam 214
Sieling (1979) FLC 90-627
Waugh (2000) FLC 93-052
Williamson and Williamson (1978) FLC 90-575
Yunghanns (1999) FLC 92-836

APPLICANT:

Mr Hillier

RESPONDENT:

Ms Hillier

FILE NUMBER:

MLC

4502

2009

DATE DELIVERED:

21 July 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

21 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS SMALLWOOD

SOLICITOR FOR THE APPLICANT:

MILLS OAKLEY LAWYERS

COUNSEL FOR THE RESPONDENT:

MR SALAMANCA

SOLICITOR FOR THE RESPONDENT:

KENNEDY WISEWOULDS

Orders

That by way of urgent spousal maintenance, the husband pay to the wife the sum of $500 per week to be paid by a payment of $2500 this day to cover the period until the return date of these further proceedings on 26 August 2009, such sum to be paid to an account nominated by the wife no later than 1.00am on 22 July 2009.
That the outstanding proceedings relating to spousal maintenance and parenting issues be otherwise adjourned to the Senior Registrar’s List at 9.45am on 26 August 2009.
That the husband’s passport be forthwith released by the registrar of the Court to the husband upon a receipt being returned to the Court and such passport to be returned by the husband to the registrar immediately upon his return to Australia.
That the costs of each party of this day are reserved.
That each party have liberty to apply on short notice, such notice to be given to my Associate by email until the return date.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That paragraph 2 of the orders made on 10 July 2009 be varied for the purposes of the period from 23 July 2009 to 21 August 2009 such that the husband communicate with the children between 8.00am and 8.15am AET.
That my reason be released as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Hillier & Hillier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4502 of 2009

MR HILLIER

Applicant

And

MS HILLIER

Respondent

REASONS FOR JUDGMENT

The parties to this dispute brought urgent proceedings which I heard in the Judicial Duty List on 21 July 2009. The decision was made difficult by the need for the husband to fly out of Australia immediately for work purposes. That trip was not disputed by the wife but what she wanted was security by a deposit of money.
The issues pursued by the wife included an urgent spousal maintenance application under s 77 of the Family Law Act 1975 (Cth) (“the Act”).
I made orders on 21 July 2009. These are my reasons.
The parties commenced living together in January 2003, married in December 2004 and separated on 1 September 2008.
There are three children of the marriage, J born in September 2003, C born in January 2006 and L born in August 2008. The children live with the wife.
Both husband and wife have been involved in a store chain. They have limited assets and serious debts mostly to the Australian Taxation Office.
The husband describes himself as a company director but his work involves franchise sales and development. Hence his current trip to the United States of America.
The wife describes herself as being occupied in home duties but she set out in her affidavit that during the marriage (that is, from 2004 to 2008) she ran the regional office of the chain store operated by the husband including a role as general manager. That plays some part in my concern about the wife’s allegation that the husband’s debt avoidance by changing corporate entities. It has limited weight because some of that activity occurred during her general manager tenure.
The wife’s opposition to the husband leaving the country without security revolved around three things:
(a)The husband’s potential not to pay financial support as provided by various court orders;
(b)His potential not to return to Australia which would then enable the wife to use the funds to get him back; and
(c)The wife has a taxation debt of $130,000 arising out of the tax minimisation procedures used by the parties. That debt was pressing with the Australian Taxation Office pursuing litigation and judgment against the wife.
The facts of this case are very confusing and the allegations not easy to follow. Even in that regard, I could not make many findings on the papers.
The critical issue in argument eventually revolved around what the husband did with what might be loosely called a monthly franchise payment or commission only just prior to the hearing. It was from that sum that the wife wanted the amount of $70,000 effectively quarantined.
The husband’s position was that the commission had already been spent or at least accounted for. I permitted cross-examination of the husband on that issue and in the course of these reasons, I will deal with that evidence.
The proceedings only began on 18 June 2009 in the Federal Magistrates Court of Australia. On 1 July 2009, the proceedings were transferred to this Court by Federal Magistrate O’Sullivan.
There were parenting arguments arising out of serious allegations by the wife. To a large degree, they were less significant before me because:
(a)The husband was going to be absent overseas until the return date; and
(b)A psychiatric examination had already been undertaken by Dr R who found no psychiatric disorder.
The issue before me related predominantly to financial issues. There was a parenting issue about the husband speaking to the children by telephone whilst he was away in the United States of America but the parties sensibly came up with a pragmatic solution.
Both parties sought an adjournment. I provided for that to occur and the parties next appearance before the Court will be in the Senior Registrar’s List at 9.45am on 26 August 2009.
The husband’s position as he outlined in orders he was seeking was:
(a)The registrar of this Court make available forthwith his passport (it having been held pursuant to previous orders);
(b)Order 7 of orders made by Federal Magistrate O’Sullivan on 10 July 2009 continue in full force and effect until the next return date; and
(c)That in addition to the payments provided by the orders of 10 July 2009 to which I have referred, the husband pay to the wife the sum of $500 per week by way of “interim spousal maintenance” until the return date, such payment to be made in advance.
Order 7 of the orders made on 10 July 2009 by Federal Magistrate O’Sullivan which to be fair, was made by consent of the parties said:
The husband continue to pay:
(a)the sum of $2,500 per month inclusive of child support as assessed from time to time;
(b)the rent due on the wife’s rental premises at […].
(c)school fees due to the [P] School in respect of the child [J] born […] September 2003;
(d)health insurance at the existing level of cover for the wife and the children; and
(e)finance payments, registration, insurance and service costs in respect of the Hyundai Tucson motor vehicle driven by the wife.
It was conceded by the parties that the jurisdiction was lacking to make part of those orders now because a child support assessment has issued.
The husband said however that he would not disturb any of the arrangements on an interim basis. I will therefore not make any such order about those matters.
According to the husband some of the payments under the order have already been made in advance.
The real issues therefore from the husband’s perspective relate to the release of his passport and the payment of urgent spousal maintenance.
The wife’s position in respect of orders she was seeking was:
(a)That the husband pay into the wife’s solicitor’s trust account the sum of $70,000 to be held in trust to secure:
(i)the payments under the orders made 10 July 2009;
(ii)to secure the husband’s return to Australia; and
(iii)to be applied towards the wife’s taxation debt of $130,000.
(b)That until further order, the husband deposit any funds received by him from any sale of the business contract and that he be restrained from dealing with, disposing of or encumbering such funds held in trust;
(c)That the husband be at liberty to collect his passport for travel to the United States between 23 July 2009 and 19 August 2009 to be returned to the Court upon his return; and
(d)Until further order, the husband be restrained from dealing with or disposing of any assets he held in the Commonwealth of Australia or the United States of America.
The parties filed on the hearing date voluminous affidavit material. That material could not possibly be of significant value having regard to the immediate issues in dispute but for the record, I have read through all of them.
The husband relied on two affidavits. The first was filed on 9 July 2009 and the second on 20 July 2009. What follows is a synopsis of that evidence. It is as follows:
·The husband is a director of a variety of companies;
·The main company T Pty Ltd generates its income as a result of franchise agreements which the husband has in place with the American parent company and although the arrangement is between the husband personally and the American parent company, he has assigned his income to T Pty Ltd;
·There are significant expenses associated with the running of the business in addition to the living expenses of the husband and the family;
·H Pty Ltd was the husband’s major trading entity previously although that has been taken over by T Pty Ltd. The company owes the Australian Taxation Office around $150,000;
·B Pty Ltd has total debts of around $165,500 to the Australian Taxation Office. This company has been used to guarantee borrowings from the National Australia Bank in the sum of $1.35 million. That seems to have been secured on the former matrimonial home in M;
·G Pty Ltd was also a company used by the husband and involved one of the franchised stores which was sold approximately two years ago and the proceeds applied to the National Australia Bank to discharge debt. Other proceeds were used to discharge a shortfall from a franchised store conducted by the wife. This company is indebted to the Australian Taxation Office in the sum of around $50,000;
·D Pty Ltd is a company which owns a motor vehicle subject to a lease and the vehicle owned and possessed by the wife. This company has liabilities of around $1.066 million which includes the State Revenue Offices of around $121,000, the National Australia Bank $314,000 and the Australian Taxation Office of $600,000 or more;
·S Pty Ltd has not traded since January or February 2008. It too received franchise fees following the sale of one of the stores. It is currently indebted to the Australian Taxation Office of around $12,700 and a credit card debt of about $50,000;
·The various debts to the corporate entities are in part guaranteed by the husband and there are debts owing to former neighbours amounting to over $635,000;
·The husband estimates his personal indebtedness not including monies owing to the National Australia Bank at an amount in excess of $1.54 million;
·The total borrowings of the wife and the husband from the National Australia Bank as at March 2009 stood at $3.6 million.
The husband’s July 2009 financial statement showed liabilities of $5.5 million against property interests of $2.179 million. That of course is the husband’s share. The details of the total pool of assets remains a mystery. On one view, the husband if not the parties, is insolvent.
Some of the evidence to which I have referred was tested by counsel for the wife in cross-examination. I shall return to that below. Much of the rest of the affidavit of the husband filed on 9 July 2009 related to disputes about what funds were or were not available to the husband.
The husband filed a second affidavit filed by leave on 21 July 2009. The major parts of that affidavit as they relate to these particular issues are:
·The husband has been attempting to juggle repayment of the debts which exceed $5 million and thus far has avoided falling into bankruptcy;
·There is a negotiation under way to sell the husband’s development agent contract which is the one through which he deals with the parent company and the contract for which entitles the owner to develop the chain stores in defined parts of Australia. There is a concluded contract of sale with a purchase price of $1.95 million a copy of which contract has been provided to the wife;
·It is a condition of the contract that he continues to work in the business for six months to assist the new purchaser and that will require his presence in Australia;
·The husband is returning to the United States for business and family reasons. One of those reasons is his obligation to train the purchaser of the contract in Australia at least until January 2010;
·The contract for the sale of business provides for a payment of $495,000 to be made on 30 July 2009 and a final payment of $1.45 million in six months time. All of the first payment will be absorbed in costs and the husband proposes that the second and final payment remain in trust depending determination by the Court of the outcome of each parties’ claim.
The wife knows much about the sale of the business because of her knowledge of its operations. She is sceptical about the whole settlement concept but maintains that she does not wish to derail it. For the purposes of that contract, the husband is required to go to the United States from 11 August 2009 to 15 August 2009 but after that, he desired to travel in the United States to see his family. The husband has two other daughters living there who had previously been in Australia until June having been raised in Australia. He has indicated a desire to assist in resettling the children before they start school in the United States.
Attached to the husband’s affidavit is a copy of an email from the parent company indicating the husband had registered for the meeting in the United States and a copy of that had no doubt been provided to the wife.
The husband’s evidence was that the major trading account was T Pty Ltd, the banking records of which showed a number of significant deposit and withdrawals. In his evidence under cross-examination, the husband said that as soon as the money was paid into that account, he withdrew all of it presumably to avoid it being caught by some creditor-type transaction. He also had to pay various sums of money for staff wages not to mention personal expenditure.
Before turning to the cross-examination of the husband about the more intricate financial details, the following was the wife’s evidence in her most recent affidavit filed 21 July 2009. She said that the husband had received large sums of commissions from the business. She pointed to T Pty Ltd receiving monthly commissions that varied markedly from $78,492 in October 2008 to $323,625 in March 2009. For the period of the total of eight months between October 2008 and May 2009, the husband’s commissions totalled $1.5 million. The wife conceded that against that however were running costs which she estimated to be between $80-90,000 per month. She said therefore that the husband had had at his disposal $787,369 since October 2008.
The inference to be drawn from that assertion is that the husband has not accounted for the significant sums of money during that relatively short period of time. That was the subject of some cross-examination to which I shall turn below.
The wife annexed to her affidavit an application which she said the husband had made to refinance the mortgages with the National Australia Bank through the Commonwealth Bank. She noted in the loan application that there was an address shown by the husband as being an address at which she was not aware that the husband had ever lived, that his annual income was $260,000, that he owned a boat and jet ski and a Porsche, that he had $75,000 in a Westpac account, that his franchise was worth $4.5 million and there were profits disclosed from 2007 and 2008 taxation returns.
Counsel for the wife pointed to this evidence as indicating that the husband could not be trusted. However, counsel for the husband by reply indicated that the document had not been signed by the husband and in any event, the form disclosed that the bank had rejected the application. One might not be surprised about that having regard to the parlous state of the husband’s financial affairs. However for the purposes of allaying my concerns about the use of that document, counsel for the husband pointed out the following:
(a)The address shown was in fact the broker and the wife was said to well know that;
(b)The boat and jet ski had been sold;
(c)The husband had never owned the Porsche but the wife in fact had; and
(d)The franchise had been worth $4.5 million but it was the husband’s evidence that the values had substantially dropped to almost half of their earlier values.
The assertion by counsel for the husband was that the wife well knew these facts and was not being candid with the Court. I must say that I was puzzled to learn that there were plausible if not innocent explanations for the document but presumably the wife should have known some of those details.
Importantly, the wife’s assertion was that additional companies other than those disclosed were held by the husband which had been set up to enable the husband to liquidate T Pty Ltd. This assertion was the foundation for the following statement:
I am aware of this because the husband has done so with other previous companies that held the operating rights for his Development Agent Contract with [the franchise company]. It has been a regular business practice of the husband to stop utilising a company once the debt level reaches too high for him service, particularly with taxation liabilities. The husband then moves all employees and supplier accounts to another entity that he has already set up.
When the husband was cross-examined, I asked him how many of the variety of companies that he had had under his control, how many had operated subsequent to separation and therefore how many before. His answer, if true, would indicate that the wife who described herself as the general manager of operations, would have been well aware of the modus operandi of the husband. In addition, part of her application related to a taxation liability which unashamedly arose as a result of a taxation minimisation scheme.
I do not intend to be critical of either party in respect of all of these matters but any anxiety about the husband’s lack of candour and abandoning the wife becomes less of a problem when I contemplate those issues.
The husband went into the witness box late in the day and was asked what happened to the $153,000 in commissions that he had just received. He said that $15,610 had been taken out for tax and he had paid a variety of amounts through “T/T” methodology. There were still payments to be made that night at midnight.
Counsel for the husband tendered as an exhibit a list of what happened to those funds. Without setting them out in some detail, $39,000 went out for staff wages, $2578 went out in rent for the wife’s premises, $9000 went out for three months payment of rent for the office structure, Child Support Agency for his first wife, lawn maintenance for the wife was $250, various car payments were made, psychologist Dr K was paid $2600 for the family report, $1690 was paid to Dr R for the psychiatrist’s report, $9000 was paid for telephones for the business and $20,000 was paid to his lawyer. A variety of other accounts including the sum of $4167 for a storage facility of the wife at N was paid. All of these sums seemed plausible.

Counsel for the wife asked why the money was immediately being taken out of T Pty Ltd and the husband responded that he did not want anyone to have access to the T Pty Ltd money. He said he had been getting locked out of the account because someone was trying to get in and he did not know who it was. After the money was taken out of the T Pty Ltd account, there was about $830 left.
The husband as asked about staff and he explained that there were six or seven people involved but he was unable to explain how much T Pty Ltd owed the Australian Tax Office other than the fact that it was hundreds of thousands of dollars. He said he was on a payment plan with the Australian Taxation Office to prevent bankruptcy.
Counsel put to the husband the assertion by the wife that he was simply running up debt in corporate entities and then liquidating them and his response was that he disagreed. He denied his wage was half a million dollars although he then conceded that his own financial statement showed that he was earning a figure of $10,650 per week.
He was asked about shipping containers to the United States and sending money there all of which had been disclosed in his affidavit. He explained what he had done with the money which included buying a motor car for himself and one for his mother. He was able to tell me how much they cost and from where they were bought.
The husband was asked about a payment of $239,000 which went into his account and which was taken out. He said it was given to him as an investment in March 2009 and he “played with it” for a couple of months. He was holding it for a person who wanted to get into a franchise but when that did not happen, he returned the money but had to pay interest of $11,000. He described the money as a loan.
Whilst I might be incredulous about that transaction, it seems consistent with the way that the husband does business. All of those matters require investigation but the unusual feature is that it is comprehensively set out in his affidavit. I am reminded again that it was the wife who was a general manager of this operation in part during the marriage.
The husband was able to explain where money had gone that he had taken from Australia which included furniture, things for his mother and cars.
Counsel for the wife suggested that it would not be at all difficult for the husband to get his hands on $70,000 as some form of security if the Court so ordered it and the husband replied that he could not.
Based upon the evidence that I have read bearing in mind that the husband’s evidence was challenged in part but the wife’s evidence was not, it is difficult for me to see where any sum of money could now surface. I am comforted by the fact that the husband has indicated that he will pay in advance the payment in respect of the support of the wife.
The initial question therefore relates to the matter of injunctions. Section 114(1) of the Act provides:
In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in sub-section 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including an injunction in relation to the property of a party to the marriage.
In Mullen v DeBry (2006) FLC 93-293 the Full Court noted that in the exercise of a discretion to grant an injunction for the preservation of property, the Court will consider an overall assessment of a number of factors to determine the just or convenient result. As such, the Court must be satisfied that there is a risk of disposal of property in order to defeat an order which might ultimately be made. (See Waugh (2000) FLC 93-052). The Court is obliged to consider where the balance of convenience lies (See Yunghanns (1999) FLC 92-836) and the Court should go no further than what is necessary to prevent either the abuse alleged or the frustration of the Court’s process (See Sieling (1979) FLC 90-627).
There is no threshold or fundamental question to be determined because s 114 simply requires a court to consider whether it is proper to make the order to which the proceedings relate.
In this case having regard to all of the matters to which I have referred, there is no indication of risk to the wife by the sale of the property in the business notwithstanding that there may be a significant concern about creditors. The balance of convenience therefore lies in not making the injunction and in my view that is the appropriate course of action.
The wife’s application for an order for $70,000 to be quarantined from the husband’s commission also faces a similar problem. However, the greater difficulty is that there is no such fund to which I can point nor any asset that could otherwise be used as security. Of the three things for which the wife sought the order, I am satisfied on an interim basis that the wife is protected by the payments being made by the husband at least in the short term whilst he is overseas. In respect of a payment of $70,000 to somehow bring the husband back to Australia, I have concerns about the jurisdictional aspect. In any event, all indicators are that the husband has three children in Australia as well as business obligations which would require his future attendances.
The third aspect related to the wife’s taxation debt. Counsel for the wife indicated that his client was seriously concerned because the taxation department had pursued her through litigation to the extent of obtaining a judgment. Whilst the husband indicated that he was aware of all of that, his comment through his counsel was that the wife had not attempted to make a payment plan with the Australian Taxation Office. I have no independent evidence of what the correct position is nor do I have any real idea what steps the Australian Taxation Office might take if they were aware of all of the matters that were placed before me. I do however have serious concerns about making an order for a payment to be directed towards one creditor without having sufficient knowledge about other creditors. In circumstances where there is likely to be a shortfall of assets to pay liabilities let alone the parties themselves having funds as an outcome, it is not appropriate for this Court to create preferences in favour of one creditor over another. The reality of life is that the insolvency laws should take over rather than the provisions of Part VIII of the Act.
In my view therefore there is no basis for me to make any order along the lines sought by the wife at this stage.
I turn then to the question of spousal maintenance. Although no application was made by the wife for the matter to be treated as an application under s 77 of the Act, it seemed common ground that it was necessary for me to determine the matter by covering the period until the matter could be examined in more detail in August. The evidence upon which each party intended to rely was their statement of financial circumstances.
The wife’s financial statement was filed on 21 July 2009. In that, she disclosed that her only source of income was maintenance from the husband of $577 per week but she agreed that he was otherwise paying her rent, vehicle expenses and health insurance. In respect of her own personal needs, she set out in that statement a need for $662 per week over and above the sort of payments that the husband had been making. However, there were expenses claimed on an averaging basis which included $140 per week for petrol, $75 for car maintenance, $20 for entertainment and hobbies, $20 for dry cleaning and $35 for necessary commitments.
The power to make any maintenance order at all lies in s 80.
Section 80(1)(h) provides for the making of a permanent order or an order pending the disposal of proceedings or until further order.
The distinction between a maintenance order under s 74 and s 77 lies in the hearing procedure. Under s 74, an applicant would be expected to provide expansive evidence to satisfy s 72 and s 75 and the respondent should be given the opportunity to test that evidence. Section 80(1)(h) provides for a comprehensive hearing even though the life of the spousal maintenance order might be limited.
That situation is clearly distinguishable from the urgent or immediate order in which the Court is not expected to do more than conduct a summary hearing without the evidence being tested. That is, where the Court is satisfied about the applicant meeting the threshold test and then about the respondent’s capacity, there is a basis for the Court to put in place a temporary measure.
In Williamson and Williamson (1978) FLC 90-575, the Full Court described the urgent procedure as a “rather pragmatic basis without any real hearing on the merits”.
In Chapman and Chapman (1979) FLC 90-671, the Full Court described the procedures as “somewhat ad hoc” which provided a court with a wide discretion not otherwise fettered by the evidentiary requirements of a normal spousal maintenance application. Whilst the discretion might be wider and the demand for evidence less so, there is still a need to establish the fundamentals of s 74.
In Redman and Redman (1987) FLC 91-805 the Full Court said that although s 74 applied, the very fact that the order was intended to be limited in time meant that different considerations applied; that is, anything that needed to be undone could be so later undone without the strict requirements of a variation under s 83 being fulfilled. It is that latter distinction that makes a final order different from a temporary order but that again is different from an urgent order under s 77.
The circumstances under which the Court has previously delineated between urgent and normal spousal maintenance have varied. In Martyns and Martyns (2007) FamCA 892, Mullane J described the situation thus:
Even though the provision in s 77 for urgent spouse maintenance is designed to address situations where the Court is not able to be precise about the need or the extent of the needs or resources of the parties, but is convinced that a person is in immediate need of financial assistance, it still is subject to s 72 – the hurdle of having to establish the reason for someone’s inability to support himself or herself.
In Hartnett and Samson (No 8) (2007) FamCA 1076, Loughnan JR spoke of s 77 in relation to urgent maintenance as follows:
The authorities have identified that as a form of relief under the general head of spousal maintenance, which is a right that applies between people who have been married, where one of them is inadequately to support themselves from their own resources, the other can be called upon to provide support to the extent of that person’s capacity. That is the relief of spousal maintenance.
In relation to urgent maintenance, the authorities have it that it is what it sounds like; an urgent remedy, not an interim remedy. It is something to keep the wolf from the door until there can be a hearing on the merits of the issue.
In Richter and Maguire (2008) FMCAFam 214 Brown FM described it this way:
Applications pursuant to s 77 have specific characteristics concerning them. They are intended to deal with urgent situations. As they apply to defined periods of time, they are in the nature of stop-gap orders. However, the applicant concerned does not have to establish that he or she is on “the breadline”. Rather the appropriate quantum of such an order must depend on the particular circumstances of the case and the financial history and background of the parties concerned.
His Honour went on to say that ordinarily it would be preferable to make an interim order rather than an urgent one.
Urgent maintenance orders are intended to meet the daily needs of the applicant and for a specific period. They are not intended to cover all of the range of expenses set out in the check list in paragraph N of the financial statement provided for in Chapter 13 of the Family Law Rules. They are clearly not intended to cover for example holidays and hobbies; they are clearly intended to cover food and necessities. By the same token, I do not think there is any justification for a “food voucher” standard nor “keeping the wolf from the door” because every case must take into account the individual circumstances of both parties. That is a particular consideration in s 75(2)(d),(g),(k) and (o).
The discretionary judgment therefore must take into account the standard of living that the parties enjoyed if the evidence suggests that the respondent has the capacity to continue that. Urgent spousal maintenance is therefore not simply intended as something to be viewed at subsistence level.
I also take into account what the husband is otherwise contributing and has agreed to continue to contribute. Of the expenses claimed by the wife, some will not fall to be paid in the weeks until the return date. In those circumstances, when I look at the husband’s offer of $500, it can be seen to cover all of the wife’s necessary expenses bearing in mind the lifestyle to which she had been accustomed. The husband’s offer paid in advance for five weeks in the sum of $2500 is an appropriate amount.
All other matters can await the August hearing.

I certify that the preceding Seventy Three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 28 July 2009

[2009] FamCA 662

21 July 2009

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