HOCH and HOCH

[2018] FCWA 75

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: HOCH and HOCH [2018] FCWA 75

CORAM: DUNCANSON J

HEARD: 17 APRIL 2018

DELIVERED : 20 APRIL 2018

PUBLISHED : 1 MAY 2018

FILE NO/S: PTW 5432 of 2017

BETWEEN: MS HOCH

Applicant

AND

MR HOCH

Respondent

Catchwords:

SPOUSAL MAINTENANCE - Where the wife is unable to support herself adequately - Consideration of the wife's reasonable needs - Order for payment of spousal maintenance

COSTS - Dollar for dollar order

Legislation:

Family Law Act 1975 (Cth) s 72, s 74, s 75(2), s 117

Representation:

Counsel:

Applicant	:	Ms [F]
Respondent	:	Mr [S]

Solicitors:

Applicant	:	[Law Firm A]
Respondent	:	Kim Wilson & Co

Case(s) referred to in decision(s):

Brown and Brown (2007) FLC 93-316

Drysdale & Drysdale [2011] FamCAFC 85

Hall v Hall (2016) 257 CLR 490

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Hoch], the wife commenced these proceedings for financial and parenting orders on 28 August 2017.

2For determination is the application of the wife for interim spousal maintenance and related financial orders and for a payment to her by the husband, [Mr Hoch] for legal costs. The husband also seeks financial orders.

BRIEF BACKGROUND

3The husband and the wife commenced cohabitation in 1997. They married [in] 2001. They separated finally in July 2016.

4There is one child of the marriage, [P] born [in] 2008. The child lives with the parties on a week about basis.

5 The husband is [an engineer]. The wife is an [accountant]. The wife lives in a property owned by the husband at [Regional Town A] ("[Property A]"). The husband rents accommodation at Regional Town A.

THE ORDERS SOUGHT BY THE WIFE

6The interim orders sought by the wife are contained within her amended application filed 24 October 2017, although there were some variations to the orders sought during the course of submissions. The orders sought by the wife can be summarised as set out below.

Periodic spousal maintenance

7The wife seeks an order that the husband pay by way of periodic spousal maintenance the sum of $800 per week.

Legal costs

8The wife seeks an order that within seven days the husband pay the sum of $10,000 to the trust account of the wife's solicitors and there be a dollar for dollar order. Any monies paid by way of the dollar for dollar order ultimately be characterised by the trial judge.

Injunction

9The wife seeks an order restraining the husband by injunction from dealing with any real property in his sole name including encumbering the property without her consent. Although not sought in her application, an injunction was sought restraining the husband from drawing down on the mortgages relating to the properties.

THE ORDERS SOUGHT BY THE HUSBAND

10The orders sought by the husband are contained within an amended response filed 10 April 2018. Those orders can be summarised as set out below.

Property A

11The husband proposes to pay the minimum mortgage repayments in respect of this property in which the wife currently resides.

The European property

12The husband proposes to sell the property he owns in [Europe]. Linked to that property is an insurance policy with MLP Insurance in Europe. The husband proposes to liquidate such portion of his interest in the policy so as to provide the sum of $50,000 to the wife and $50,000 to himself by way of partial property settlement, with these payments to be finally characterised by the trial judge. At this stage the husband is unsure if he can liquidate part of this policy without the sale of the property in Europe or whether it can only take place upon a sale.

The joint account

13The husband seeks to close the parties' joint account in Europe with the proceeds to be paid to the mortgage against the European property.

14The husband opposes the orders sought by the wife for spousal maintenance, payment for legal costs and the injunction.

Agreed matters

15It is agreed that the husband will pay the mortgage repayments in respect of Property A. It was agreed that the European property be placed on the market for sale and the parties be appointed joint trustees for the sale with the net proceeds to be held in an interest bearing account.

16It is also agreed in principal that there will be a partial liquidation of the MLP Insurance policy in Europe. The wife's position was that the husband should make enquiries about that. If the policy could be liquidated without a sale of the European property that should occur, but if not the European property should be sold with a liquidation or partial liquidation of the policy.

17It was agreed the wife should receive $50,000 from the proceeds of the policy. The husband also sought payment of $50,000 from the proceeds and in submissions I understood this not to be opposed.

18The husband agrees to pay the premiums for the wife's private health insurance. He also agrees to pay certain of her weekly expenses pertaining to Property A, including house repairs, gas/water and electricity.

19Of the wife's personal expenditure the husband agrees to pay the rates and unit levies in respect of Property A and the home insurance premiums in respect of that property. As to the joint bank account the wife seeks disclosure in relation to it.

SPOUSAL MAINTENANCE

20Section 74 of the Family Law Act (1975) (Cth) gives the Court a discretionary power to make orders for spousal maintenance.

21Section 72 governs a party's right to spousal maintenance and provides as follows:

(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c)for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

(2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

22Section 75(2) contains the matters which the Court must take into account in exercising jurisdiction under s 74.

23In Hall v Hall (2016) 257 CLR 490 the High Court summarised the applicable legislative requirements as follows (footnotes omitted):

3.Part VIII of the Family Law Act governs, amongst other things, spousal maintenance. The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That subsection provides that "[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)".

4.The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That subsection provides that, "[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part".

5.A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters (s 75(1)). Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as "the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment". They also include, by virtue of s 75(2)(o), "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account".

...

8.Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding … A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).

24The question as to whether the wife meets the threshold test imposed by s 72 and is thus entitled to receive spousal maintenance from the husband is disputed.

25The wife relies on s 72(1)(c) submitting that she is fully exercising her employment capacity, but is unable to support herself adequately from her own resources.

26The husband disputes an inability of the wife to support herself adequately because he says:

·her expenses are inflated, and if modified, can be met by her income;

·she is entitled to receive the proceeds of an insurance policy of approximately $40,000 but has chosen not to do so; and

·the wife has been offered the payment of €15,000 in settlement of an insurance claim for an [injury] which she has not accepted.

27The wife disputes all of the above. With respect to the insurance policy she says she is not entitled to receive those proceeds and in any event she does not wish to liquidate her own insurance policy while the husband retains his. As to the offer in respect of her injury it is being considered and she is yet to consult with her surgeon.

28The Full Court in Brown and Brown (2007) FLC 93-316 discussed the concept of whether a party can support herself or himself "adequately" at [161]. The Full Court said that "at a general level", the following propositions emerge from the relevant authorities:

•The word "adequately" is not to be determined according to any fixed or absolute standard.

•The idea that "adequate" means a subsistence level has been firmly rejected.

•Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties' standard of living may have to be lower if financial resources are insufficient to maintain that standard.

•In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.

•It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.

•However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.

29The parties' child is nine years of age and lives with each of them on a week about basis. Previously the wife was the child's primary carer which she deposes impacted upon her earning capacity. She recently commenced employment with hours commensurate with her need to care for the child. Her salary is $50,000 plus superannuation and she has not been able to find employment with a higher salary.

30Upon the evidence I am satisfied that the wife is currently maximising her earning capacity, but she is nevertheless unable to support herself adequately. Although the husband does not agree that she is unable to support herself adequately, he proposes to meet certain expenses of the wife including those pertaining to her accommodation. In all the circumstances I am satisfied the wife meets the threshold test imposed by s 72 of the Act.

The wife's financial circumstances

31The wife's financial circumstances are set out in her financial statement filed 13 April 2018. The wife is in receipt of an average weekly wage of $962. She is in receipt of government benefits by way of Family Allowance which I disregard for the purposes of this determination.

32The wife receives child support of $230 per week, although it is understood that amount will reduce to about $212 per week. The issue of child support requires to be dealt through the administrative process and I intend to approach the wife's application for interim spousal maintenance as distinct from child support. It follows that when considering the wife's expenses I shall disregard amounts claimed to the extent that they are for the benefit of the child. I do not accept the wife's argument that the amount to be paid to the wife by way of spousal maintenance should be increased to meet a shortfall in respect of the child's expenses.

33The wife's personal expenditure as set out in Part G of her financial statement amounts to $223 taking into account the payments the husband will make on her behalf being rates, unit levies and home insurance.

34The wife's average weekly expenses for herself as set out at Part N of her financial statement amount to $1,272, although this amount was amended during the course of submissions.

35It is agreed the husband will pay the following weekly expenses for the wife:

·House repairs $5.00

·Gas/water $8.50

·Electricity $33.50

Total $47.00

36This sum falls to be deducted from the total of the average weekly expenses claimed by the wife.

37At issue is an amount of $264 per week claimed by the wife to cover miscellaneous expenses including life insurance, government pensions, health insurance, laptop, Qantas club, travel insurance and internet costs. These are expenses which the wife says are currently not being paid, but will have to be paid. The wife concedes that the husband will meet her private health insurance premium and an amount of $77 in that respect should be deducted from the sum claimed. She further breaks down the sum claimed as follows:

·Qantas club $7

·Travel insurance $10

·Internet $20

·Life insurance and government pensions $92

·The balance to be applied to purchasing

a laptop computer $58

38The wife calculates her total average weekly expenditure to be $1,148. This is the Part N expenses less the weekly expenses the husband agrees to pay as set out at 35 above and deducting $77 from the miscellaneous expenses.

39The husband disputes most of the wife's weekly expenses. It appeared from the husband's submissions that he compared many of the wife's weekly expenses to his own. Where the wife's expenses were less than his, they were accepted by him. Where they exceeded his they were not acceptable. For example, the wife includes an amount of $250 per week for food for herself. The husband deposes to an amount of $180 for himself and therefore says the wife's figure ought to be $180.

40I have considered the husband's submissions as to the wife's expenses carefully, but unless I state to the contrary I consider the wife's expenses to be reasonably stated.

41The wife includes an amount of $30 per week for her telephone. The husband submitted that this item should be $10 per week taking into account the wife's employer meeting her telephone expenses. In fact in terms of the wife's contract of employment her employer will reimburse her the cost of business phone calls of up to $40 a month. I do not therefore consider an amount of $30 to be unreasonable.

42Similarly with respect to the wife's motor vehicle costs, the amounts claimed by her are not unreasonable. Her contract of employment provides that if she requires to use a vehicle for company business, she must use a company pooled vehicle.

43The wife includes an amount of $165 for clothing and shoes per week. The husband says this should be $60 because that is his expense. I do not consider the wife's expense in this respect to be unreasonable.

44The wife includes an amount of $35 per week for medical, dental and optical. I accept she incurs costs in relation to her injury that are not necessarily covered by the health insurance premiums met by the husband.

45The wife includes an amount of $70 for hairdressing and toiletries. I do not consider this to be excessive.

46The amount of $264 claimed for miscellaneous expenses is slightly more problematic. It is agreed by the wife that it should be reduced by $77 being the private health insurance premiums which are to be met by the husband and the amount claimed therefore reduces to $187.

47I consider the amounts claimed for Qantas club, travel insurance and internet are reasonable, a total of $37.

48The wife has not been paying the premiums for her life insurance and government pensions, although she would like to do so. There was little evidence about this and I was told from the bar table the amount is $92 per week. She also wishes to purchase a laptop computer and has averaged out the balance of the amount to cover the cost of that item that is an ongoing amount of $58 per week. The evidence about these items was inadequate and unsubstantiated.

49In the circumstances I do not consider the amounts of $92 and $58 to be reasonable. An amount of $37 will be included for this item of miscellaneous expenses.

50I calculate the wife's average weekly expenses to be $998. This is the amount of $1,272 claimed less the items being paid by the husband referred to at paragraph 35 above totalling $47 and deducting an amount of $227 from the miscellaneous expenses.

51The wife's personal expenditure amounts to $223 as set out at paragraph 33 above. The total of the wife's average weekly expenses and personal expenditure is $1,221.

52The wife's average weekly income is $962. There is a shortfall of $259 per week.

53With respect to the matters raised by the husband, I am unable to make any finding at this interim stage whether the wife is entitled to receive $40,000 from an insurance policy. The evidence does not permit me to make that finding. The wife wishes to continue to pay her policy pointing out that the husband proposes to maintain his, except to the extent of liquidating $50,000 for each party. The wife is considering an insurance payment in respect of her injury. I do not accept it should be applied to her maintenance if she receives it. As stated I do not accept many of the reductions proposed by the husband to the wife's expenses.

54I find the wife's reasonable needs to amount to $259 per week.

55The wife estimates the average weekly expenses for the child to be $721 per week. The amount of child support she currently receives is $230 per week.

56For reasons set out above, I do not accept the wife's submission that approximately a further $400 should be paid to her by way of spousal maintenance to meet the shortfall in the costs she incurs for the child.

The husband's financial circumstances

57The husband's financial circumstances are set out in his financial statement filed 10 April 2018. His average weekly salary is based on his PAYG summaries as at 30 June 2017 and is estimated to be $11,390. His total average weekly income is estimated to be $12,100.

58The wife submits that many of the husband's expenses are tax deductable pointing to his 2016 tax return which included deductions of $39,259. These deductions pertain to Property A occupied by the wife as well as work related expenses, for example telephone and internet, which are expenses included in Part N of his financial statement. Similarly travel costs, medical insurance and motor vehicle expenses are capable of being deducted.

59The husband's personal expenditure at Part G of his financial statement, excluding his Part N weekly expenses amounts to $9,256 per week. This includes liabilities and outgoings paid by the husband for the properties. The husband owns a property [in] [Perth] and claims weekly expenses of $722 in respect of this property. The wife submits that this property is unoccupied except when the husband works in Perth and she therefore questions expenses such as repairs of $29, maintenance of $67, management of $10, cleaning costs and internet. She submits the property could be rented out and expenses claimed in tax.

60I accept the husband occupies this property at times, but in the circumstances it appears the expenses pertaining to it may be capable of reduction.

61In relation to Property A, the husband will be meeting certain of the wife's expenses, but these are already included in the expenses claimed by him.

62The husband's average weekly expenses are set out at Part N of his financial statement. The average weekly expenses for himself amount to $2,248. They are mostly not unreasonable having regard to the level of his income although some are tax deductible.

63In relation to the wife's submissions about the husband's expenses I disagree it is unreasonable for the husband to incur a cost of $6 for Netflix and that he should be required to view entertainment which is free to air. This is in the context of the husband's gross annual income of $629,200 per annum.

64Having regard to the husband's very high income, I consider he has the capacity to pay interim spousal maintenance to the wife.

65I consider the husband is able to maintain the wife to the extent she is unable to do so adequately. In coming to that conclusion I have taken into account the following:

·the husband's gross annual income based on his 2017 PAYG summaries including rental income is $629,200 per annum, or $12,100 per week;

·the husband is able to tax deduct a number of the expenses which he has claimed; and

·expenses with respect to the Perth property are capable of modification in circumstances where that property is substantially unoccupied and it is open to the husband to consider his options in this respect.

66Finally I draw to the parties' attention that the order I intend to make for payment by the husband to the wife of interim spousal maintenance is made in the context of an interim hearing in which much of the evidence is in dispute and cannot be fully tested. As the Full Court said in Drysdale & Drysdale [2011] FamCAFC 85:

… The Court hearing and determining financial proceedings between the parties on a final basis, as clearly will occur in this case in the absence of any intervening settlement, has abundant power to accommodate within its final orders, whether by way of settlement of property or spousal maintenance, any anomalies which full agitation of disputed issues of fact may reveal to have resulted from an earlier interim spousal maintenance order. …

SECTION 75(2) MATTERS INSOFAR AS THEY ARE RELEVANT

67The husband is 49 years of age. The wife is 44 years of age. The husband deposes to the pressure upon him as a consequence of these proceedings. He has an underlying [autoimmune] disease with an unclear prognosis and a chronic inflammation of his [shoulder]. He deposes both of these may affect his future capacity to work. The wife has a permanent disability with respect to an injury. Both parties are in employment as set out above.

68The income, property and financial resources of each of the parties are as set out in their financial statements to which I have referred above.

69The husband attaches a schedule of the parties' assets, liabilities and superannuation to his financial statement. In terms of this schedule the total net assets and superannuation of the parties amounts to $889,372. The wife does not agree this schedule.

70The husband proposes to sell Property A and the property in Europe and wishes to retain the property in Perth.

71The parties' nine year old son lives with each of them on a week about basis.

72The parties' commitments are set out in their financial statements and I refer to my findings as to their reasonable expenses. Neither party has the responsibility to support any other person.

73The parties' superannuation entitlements are as set out in their financial statements. I disregard the wife's entitlement to government benefits.

74Both parties are entitled to a reasonable standard of living. The husband has a high income. They enjoyed a good standard of living during the relationship. The wife seeks to maintain that standard of living. The husband's income now supports two households.

75The wife refers to having gone from enjoying a very good lifestyle to having few assets.

76Both parties have made relevant contributions, but I am unable to make any findings about these at this interim stage.

77The parties were married for just over 15 years. The wife says she gave up her career to support the husband in his.

78The orders sought by the parties have not yet been fully particularised. Both parties take issue with the disclosure of the other.

79The husband pays child support of $230 per week.

80Both parties have incurred legal costs and I refer to the orders sought by the wife in this respect below.

81Having regard to the s 75(2) matters as set out above, the wife's earning capacity is a significant factor. The wife is unable to support herself adequately. I have found the total of her reasonable needs to amount to $259 per week. The husband should pay spousal maintenance to the wife in that amount.

82As and by way of additional spousal maintenance the husband will pay various expenses for the wife including private health insurance premiums and costs pertaining to Property A.

PAYMENT FOR LEGAL COSTS

83The wife seeks payment of a lump sum of $10,000 to apply to payment of her outstanding legal costs, which are currently in the region of $60,000. The wife also seeks a dollar for dollar order. Although no submissions were made about the head of power, to make the orders sought I assume the wife asks the Court to exercise its power pursuant to s 117(2) of the Act and make an interim order for costs.

84The wife must persuade the Court that there are circumstances which justify the Court making such an order for costs as it considers just, notwithstanding the general position that each party shall bear his or her own costs.

85In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 the Full Court reviewed earlier decisions relating to both interim costs and interim property orders and identified the relevant considerations. The majority (Bolan and O'Ryan JJ) said:

90.In Zschokke at 83,217 the Full court said that "whether the matter was determined as an interim property settlement order under s 80(1)(h), or as an interim costs (or security for costs) order under s 117(2), or indeed even a maintenance order", three matters would all be relevant, namely:

1.a position of relative financial strength on the part of the respondent;

2.a capacity on the part of the respondent to meet his or her own litigation costs;

3.an inability on the part of the applicant to meet his or her litigation costs.

The Full Court at 83,218 said that two criteria identified by the trial judge in that case "being complexity in the financial affairs of the respondent and a need for an expert investigation into those affairs" are not necessary pre-conditions for the making of an order under any of the possible heads of power. However, "the complexity of, or need to investigate, the respondent's financial affairs would be a factor or factors, the existence of which would add considerable weight to the case for an order of the type in question".

91.In Paris King Investments Brereton J at [30] said:

Thus, where an interim order for litigation expenses is to be made as an interim costs order under s 117(2), and probably also if it is to be made as a maintenance order under s 74, there are at least three requirements: first, a position of relative financial strength by the respondent; secondly, a capacity on the part of the respondent to meet his or her own litigation expenses; and thirdly, an inability by the applicant to meet her or his litigation expenses from her or his own income assets or financial resources.

Brereton J in this passage did not suggest that the three "requirements" were relevant if an order was made under s 79 of the Act.

86The husband has had the capacity to meet his own litigation costs. His total costs and disbursements to the end of February 2018 amounted to $69,920. To date, the husband has paid his legal costs from savings and income.

87The wife deposes to having incurred total legal costs and disbursements to the end of February 2018 amounting to $78,558. Pursuant to orders dated 6 November 2017, the husband paid the wife the sum of $25,000 by way of partial property settlement to be finally characterised by the trial judge. He also paid the wife a further sum of $20,000 as partial property settlement for legal fees also to be finally characterised by the trial judge. I accept the wife is unable to meet her own litigation costs.

88The wife deposes to requiring disclosure from the husband and to a lack of knowledge of financial matters. She wants the position in relation to the husband's MLP Insurance policy investigated.

SECTION 117 OF THE ACT

89Section 117(2) gives the Court power to make costs orders, including interim costs orders, if the Court is of the opinion that the circumstances justify it in doing so. The Court shall have regard to the matters listed in s 117(2A) which provides as follows:

In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a)the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g)such other matters as the court considers relevant.

90The financial circumstances of the parties are as contained in their financial statements as set out above. As to the parties' conduct in relation to the proceedings, both are critical of the other's disclosure.

91The husband asserts the wife is able to receive $40,000 from an insurance policy. She disputes this.

92As to any other relevant matter, I am unable to identify a source from which a payment of $10,000 could be made by the husband to the wife. The husband is about to receive his salary but a significant part of it will be allocated to mortgage repayments and other fixed expenses.

93The assets and liabilities of the parties as set out in the husband's schedule are not agreed by the wife. I am unable to identify the interests of the parties in their property or the value thereof.

94In all the circumstances I refuse the order sought for payment of $10,000 by the husband for the wife's legal costs.

95In considering whether to exercise my discretion whether to make a dollar for dollar order, I take into account the significant disparity between the financial circumstances of the parties, including the husband's ability and the wife's inability to date to meet their litigation expenses.

96The husband has a significant income, but says he cannot afford to make the payments sought by the wife.

97The husband has been able to fund his litigation through income derived from personal exertion.

98Taking into account these matters and balancing the relevant considerations in s 117(2) I find it is just to make orders under s 117 of the Act and in particular a dollar for dollar order.

99The dollar for dollar order will not be open ended. The husband proposes to access the sum of $50,000 for each party from the MLP insurance policy in Europe. He is unable to say whether the European property must also be sold or whether he can access those funds without the sale. He is unable to say how long this process might take. I am of the view the dollar for dollar order should remain in effect until the husband provides the wife with the payment of $50,000 as proposed by him.

100The payments of $50,000 will be characterised by the trial judge. At this interim stage it is clear the wife requires those funds to meet her legal costs as a significant amount is outstanding. The same cannot be said with respect to the husband. Both parties will have to account for their use of funds at trial.

Injunction

101The wife seeks to restrain the husband from accessing funds from the mortgage account by further drawing down on that account. The husband says that no further funds can be drawn down from the mortgage account and funds previously drawn were necessary to meet the payment ordered to be made to the wife.

102Although the husband has drawn funds from the mortgage account he has also earned a significant income and continues to do so. The wife has been provided with funds.

103The wife has not persuaded me that there is a risk that her property claim would be defeated or significantly diminished if the injunction is not granted. I am not satisfied that it would be just or convenient to grant the injunctions sought and I decline to do so.

Joint account

104The husband seeks to close the joint account in Europe with the proceeds to be paid to the mortgage against the European property. The wife's objection to this is that she has not had disclosure of this account. I shall make an order that both parties file an undertaking as to disclosure within 21 days. Upon compliance with that order the joint account may be closed.

SUMMARY

105In summary the outcome is as follows:

·the husband will pay spousal maintenance to the wife in the sum of $259 per week;

·there will be orders for payment by the husband to the wife for spousal maintenance in kind as agreed between the parties;

·there will be a dollar for dollar order; and

·there will be orders with respect to the MLP Insurance policy and if necessary, for the sale of the property in Europe and a provision of $50,000 to each party.

106The applications of the wife to the extent that they seek a lump sum payment for costs and an injunction are refused.

THE ORDERS

107Counsel were given an opportunity to prepare a joint minute of orders reflecting the above outcome.

108I made orders as follows:

1Until further order, the husband pay as and by way of periodic spousal maintenance to the wife the sum of $259.00 per week, commencing Monday 23 April 2018 and each week thereafter.

2Until further order, the husband pay as and when they fall due:

(a)all instalments in respect of the mortgage for [Regional Town A property] [("[Property A]")];

(b)all instalments in relation to private health cover for the wife to retain said cover at its current level;

(c)all rates, unit levies and home insurance in respect of [Property A];

(d)all house repairs, gas, water and electricity accounts in respect of [Property A];

(e)all costs of air conditioning maintenance; and

(f)all insurance excess payments for the home insurance

and the husband forthwith pay any arrears accrued or outstanding for any of the above items.

3That within 7 days after the payment by or on behalf of the husband of any money in payment of accounts:

(a)rendered by the husband's solicitors or counsel in respect of these proceedings (including moneys already paid by the husband to his solicitors or counsel for accounts already rendered from 17 April 2018); and

(b)rendered by any accountant, valuer or other expert engaged by the husband in respect of these proceedings

the husband pay or cause to be paid the same amount of money to the wife's solicitors.

4Within 1 business day after the payment by or on behalf of the husband of any money referred to in order 3 above, the husband shall cause to be given to the wife's solicitors a memorandum stating the amount or amounts paid.

5All money paid to the husband's solicitors by or on behalf of the respondent husband referred to in order 3 above be held in trust by the husband's solicitors and not be applied in payment of his legal costs and expenses until such time as the same amount has been paid by or on behalf of the husband to the wife's solicitors and in the event that such payment to the wife's solicitors has not been made within 7 days after the payment by or on behalf of the husband of any money referred to in order 3, the husband direct his solicitors to pay 50% of the amount or amounts so held by them in trust to the wife's solicitors.

6The amounts paid by or at the direction of the husband to the wife's solicitors under these orders be applied by them in payment of the wife's legal costs and expenses incurred and to be incurred by the wife in the conduct of these proceedings including but not limited to the reasonable costs and expenses:

(a)rendered by the wife's solicitors or counsel in respect of these proceedings; and

(b)rendered by any accountant, valuer or other expert engaged by the wife in respect of these proceedings.

7Any monies paid to the wife pursuant to orders 3 to 6 hereof be characterised for the purpose of this application as costs or spousal maintenance, with the ultimate characterisation to be determined by the Trial Judge.

8Upon the making of these orders the parties do all acts and things and sign all documents necessary to put the real property situate in [Europe] ("the [European] property") on the market for sale immediately and sell the [European] property as soon as reasonably practical in the following terms:

(a)the parties be appointed joint trustees for sale;

(b)the agent be agreed between the parties and failing agreement the husband nominate two proposed agents and the wife select one of those two nominations;

(c)the listing price be agreed between the parties and failing agreement as nominated by the agent;

(d)the parties enter into a contract for the sale of the [European] property at a price to be agreed between the parties and failing agreement the price be nominated by the agent;

(e)the parties do co-operate in every way with the agent including but not limited to:

(i) making keys available for inspection;

(ii)ensuring the home is available for home opens and inspections at least one per fortnight; and

(iii)enabling maintenance and repairs to be carried out as agreed between the parties and failing agreement as recommended by the agent in writing.

9Upon settlement of sale of the [European] property the proceeds be distributed in the following manner and priority:

(a)pay all agents fees and commissions;

(b)pay such sum to discharge the mortgage against the [European] property including but not limited to any penalty fees;

(c)such sum to be set aside in a joint bank account to meet the estimated tax (if any) on the sale of the [European] property;

(d)such sums to reimburse either party for any maintenance or repairs paid by them in preparing the [European] property for sale provided such maintenance and or repairs is agreed between the parties in writing or failing agreement as recommended by the agent; and

(e)the balance (if any) to be paid into and held in an interest bearing joint bank account of the parties (with joint signatures required prior to the release of any funds) pending further agreement or order of the court.

10Until further order the husband be appointed sole trustee for the tenancy of the [European] property and be entitled to receive all net rental monies and do apply such monies to the mortgage for the [European] property.

11Upon settlement of the sale of the [European] property the husband do all acts and things and sign all documents necessary to do the following:

(a)liquidate (i.e. convert into cash) such portion of his interest in the MLP Insurance in [Europe], account number [XXX] to fund the payments referred to in the subparagraph below as soon as reasonably practicable;

(b)upon liquidation and after deduction of any expenses associated with the liquidation of and transfer of funds to Australia the net proceeds of the liquidation be paid to the parties as follows:

(a)$50,000 be paid to the wife by way of a partial property settlement to be finally characterised by the Trial Judge; and

(b)$50,000 be paid to the husband by way of a partial property settlement to be finally characterised by the Trial Judge.

12Upon execution of paragraph 11 hereof and the receipt by the wife of the funds therein the orders contained in paragraphs 3, 4, 5 and 6 hereof cease to have effect.

13Both parties file and serve an Undertaking as to Disclosure within 21 days.

14Upon compliance with paragraph 13 of these orders:

(a)paragraph 10 of the Minute attached to the orders made on 6 November 2017 be discharged; and

(b)the parties do all acts and things and sign all documents necessary to close the joint bank account in [Europe] with the proceeds to be paid to the mortgage against the [European] property.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM
ASSOCIATE

1 MAY 2018