Illgen & Yike
[2018] FamCA 17
•23 January 2019
FAMILY COURT OF AUSTRALIA
(Amended pursuant to Rule 17.02)
| AUDEN & AUDEN AND ANOR | [2018] FamCA 17 |
| FAMILY LAW – INTERIM PROPERTY – Spousal maintenance – where the wife is unable to adequately support herself and the children – where the wife is the primary carer of the children – where the husband is able to pay spouse maintenance. FAMILY LAW – INTERIM PROPERTY – Where the husband unilaterally sold the matrimonial home – where the Second Respondent asserts that the parties owe him a significant debt – where the wife seeks an interim property settlement in order to purchase a property to house herself and the children – where the interim orders may be reversed. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 72, 75, 79, 80, 90AE Family Law Rules 2004 (Cth) r. 15.5 |
| Bevan & Bevan [2013] FamCAFC 116 Bloxham & Bloxham [2018] FamCA 1070 Brown and Brown (2007) FLC 93-316 Clauson and Clauson (1995) FLC 92-595 Curnow & Curnow Unreported, Full Court of the Family Court of Australia, 28 April 1997 Hall v Hall [2016] 257 CLR 490 In the Marriage ofBevan (1995) FLC 92-600; (1993) 19 Fam LR 35 In the Marriage of Eliades (1981) FLC 91-022 N & N (1997) FLC 92-782 Nutting and Nutting (1978) FLC 90-410 Robinson and Willis (1982) FLC 91-215 Stanford & Stanford (2012) 247 CLR 108 Strahan & Strahan [2009] FamCAFC 166 |
| APPLICANT: | Mr Auden |
| RESPONDENT: | Ms Auden |
| INTERVENOR: | Mr B Auden |
| FILE NUMBER: | PAC | 3319 | of | 2017 |
| DATE DELIVERED: | 23 January 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 14 August 2018 and 12 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPLICANT: | Watts McCray (NSW) Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Campton SC |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr Cummins SC |
| SOLICITOR FOR THE INTERVENOR: | Lander & Rogers |
Orders
Pending further order
That previous parenting orders made be discharged.
That the children X born … 2002 (“X”), Y born … 2004 (“Y”), Z born … 2006 (“Z”) and W born … 2011 (“W”) live with the mother.
That W spend time with the father each alternate weekend from the conclusion of school on Friday (or from 5pm in the event it is not a school day) until 5pm on Sunday and such other times as agreed in writing between the parents. The first weekend shall commence on 25 January 2019. To facilitate this time, the father shall collect W from school at the commencement of time or from the mother’s residence on a non-school day and return W to the mother’s residence at the conclusion of time. In facilitating changeover, the father shall not enter the mother’s property and instead shall remain in his vehicle outside the boundary of the mother’s property while W moves independently from the father’s vehicle to the front door of the mother’s home.
That the children X, Y and Z spend time and communicate with the father in accordance with their respective wishes. In this regard, should any of the children express a wish to spend time or communicate with the father the mother shall notify the father and do all things necessary to assist in facilitating that wish.
That the father shall use his best endeavours to ensure that the children maintain and attend any social and extra-curricular activities that occur when they are spending time with him.
That each parent ensure the other is advised promptly of any medical emergency or significant illness suffered by any of the children while in that parent’s care.
That each parent shall be permitted to liaise directly with:
(a) Any medical professional upon which the children or any of them may attend from time to time;
(b) Each of the children’s schools to obtain information about each child’s progress.
That each parent is restrained from denigrating the other party in the presence of or hearing of the children and shall use their best endeavours to ensure that third parties are also so restrained.
Family therapy
That the parents do all acts and things necessary to attend upon Dr C, child and adolescent psychologist (hereinafter referred to as “the therapist”) for the purpose family therapy. For the purpose of this Order:
(a) Each parent shall contact the D Group within 48 hours to make an appointment to see Dr C and accept the first available appointment; and
(b) In the event Dr C is unavailable for new patients then the parties shall attend upon such other therapist as is available from the D Group and agreed between the parties and in the absence of agreement, recommended by the Independent Children’s Lawyer.
That the parties have leave to provide to the therapist:
(a) A copy of the Child Responsive Program Memorandum dated 8 May 2018; and
(b) A copy of these Orders.
Each party will do all things necessary to comply with the reasonable requests of the family therapist including:
(a) Attending upon the therapist at such times and at such places as they may direct for the purposes of family therapy; and
(b) If required by the therapist, facilitate the children attending upon the therapist including but not limited to encouraging the children to attend therapy at such times and at such places as may be requested for the purposes of family therapy.
(c) The parties are to encourage their adult son Mr E Auden to attend the family therapy if recommended by the therapist.
Both parents are restrained from discouraging the therapy process and/or the therapist and permitting or allowing any other person to do so in the children’s presence and/or hearing.
Each parent shall each bear the costs of their individual sessions and the parents shall share the costs equally of the sessions involving the children or any other joint sessions. Such costs are to be paid directly to the therapist upon receipt of any invoice issued.
That the family therapy referred to in Order 9 is to be confidential and non-reportable, except that the Independent Children’s Lawyer may obtain from time to time, a report from the therapist confirming the attendance by each of the parties and the children at therapy, and any recommendations made by the therapist in relation of further/ongoing therapy and/or other actions of the parties and/or children.
It is noted the therapy shall include a focus on:
(a) Developing insight into the consequences of exposure of the children to ongoing parental conflict;
(b) Improving co-parenting and communication between the parents; and
(c) Re-establishing the father’s relationship with the children.
Expert Report
That Dr F or any other expert as agreed by the parties in the event Dr F is no longer available be appointed as the Court Expert in these proceedings pursuant to Part 15.5 of the Family Law Rules to provide a Court Report in respect of the following children:
(a) X born … 2002;
(b) Y born … 2004;
(c) Z born … 2006; and
(d) W born … 2011.
That the Court Report is to deal with the following matters relevant to these proceedings:
(a) Any views expressed by the children and any factors that would affect the weight that the Court should place on those views;
(b) The nature of the relationship between the children with each of the parents and with significant other persons;
(c) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(d) The capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;
(e) The maturity, sex, lifestyle and background of the children and of either of the parents and any other characteristics of the children that the Court Expert thinks are relevant;
(f) Each of the parent’s attitude towards the children and the responsibilities and duties or parenthood:
(g) Exposure of the children to parental conflict;
(h) Any family violence involving the children or a member the children’s family;
(i) The effect of the children spending equal time , or substantial and significant time with each parent having regard to the parents’ current and future capacity to implement such arrangement and communicate with each other and resolve difficulties that may arise; and
(j) Any further matter that relates to the care, welfare or development of the children.
That in order to facilitate preparation of the Court Report referred to in Orders 16:
(a) The Independent Children’s Lawyer shall draft a letter of instruction (include Index of Pleadings) to the Court expert to be circulated to the Solicitors for the mother and the father within 14 days from the date of this order;
(b) Within a further 14 days the parties are to settle upon and issue a joint letter of instruction to the Court Expert;
(c) In the event that there are any issues regarding the appointment of the Court Expert or the letter of instruction, that the ICL has liberty to relist the matter for determination on 14 days’ notice.
Each of the parties shall attend upon the Court Expert for such interviews and observation sessions as the expert requires at any reasonable time nominated by the Court Expert and ensure the attendance of the children at such interviews or observation sessions at such times and places as the Court Expert reasonably requires.
Both parties shall be responsible for the costs of the Court Expert. In this regard, upon receipt of an Invoice from the Court Expert for the preparation of the Report, the parties shall each pay half of such sum within 14 days of request.
In the event any of the parties request the Independent Children’s Lawyer to make arrangements for the attendance of the Court Expert appearing in this matter, the parties shall, be equally responsible for the Court Expert’s costs in respect of such attendance.
That leave be granted to the Independent Children’s Lawyer to have photocopy access to material produced under subpoena for the purpose of providing the same to the Court Expert and that the fees in respect of that photocopying be waived.
That the husband pay to the wife by way of interim spouse maintenance the sum of $733 per week.
That by way of interim property settlement the husband shall direct that out of the sale proceeds of the Suburb G property there shall be paid to the wife the sum of $2,000,000 (“the interim property monies”).
That the wife be entitled to use the interim property monies to meet the costs of and incidental to the acquisition of real property in the northern beaches area of Sydney.
That the wife is to do all acts and things necessary to deposit the interim property monies into an account nominated by her and the interim property monies are to be to be utilised for the associated costs of and incidental to the acquisition of real property referred to in order 25, including but not limited to stamp duty, legal fees and moving costs.
That the wife be restrained from dealing with the interim property monies other than to acquire the real property referred to in order 25.
Pending any further order of the Court, that the wife be restrained from further dealing with or encumbering any real property acquired by her in respect to the interim property monies.
That the husband do all acts and things so as to cause each of the parties to receive the sum of $100,000 from the sale proceeds of the Suburb G property to meet their respective expenses and legal costs of and incidental to these proceedings.
That the balance of the sale proceeds of the Suburb G property to be placed into a Controlled Monies Account established by the wife’s solicitors in the name of the parties pending further Order or agreement between the parties, such agreement to be in writing.
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 Auden & Auden and Anor 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 PARRAMATTA |
FILE NUMBER: PAC 3319 of 2017
| Ms Auden |
Applicant
And
| Mr Auden |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The husband and wife are engaged in property and parenting proceedings relating to four of their five children following the breakdown of their 17 year marriage. An application for interim orders in relation to both parenting and property was heard by me on 14 August 2018.
Both parties seek to have the current interim orders in relation to the husband’s time with the children varied pending further order.
The paternal grandfather (“the Second Respondent”) has intervened in the property proceedings. He contends that considerable sums of money were advanced by him to the husband alone and the husband and wife throughout the marriage. He contends that these sums are debts repayable from the proceeds of sale of the family home which is the only significant item of matrimonial property available for distribution. For this reason he opposes the wife’s application that the vast majority of the proceeds of sale of the family home be paid to her for the purposes of purchasing another home to house herself and the children on the basis that such an arrangement may effectively defeat his claim in the final proceedings.
The husband also opposes the order sought by the wife for most of the proceeds of sale of the family home to be paid to her and seeks an order that such proceeds remain in a controlled monies account pending final hearing.
The wife also seeks an order that the husband pay her interim spousal maintenance which is also opposed by the husband. The other interim property order sought by the wife for release of funds to the parties for the purposes of payment of legal fees is subject to a small dispute which is dealt with in this judgment but is substantially agreed to by both the husband and the Second Respondent.
Background
The wife who is 49 and husband who is 45 met in the UK when they were students. It appears to be common ground that neither party owned any assets of significance at the commencement of their relationship though for a number of years the husband had been a beneficiary of various trusts run by the Second Respondent.
The husband and wife married in 1999 and lived for some time in various overseas countries, finally settling back in the UK in January 2000. In June 2000 the first of their five children was born.
From the time of their marriage the parties received significant sums of money from the Second Respondent. The basis upon which these sums were advanced is a matter of significant dispute in the proceedings.
The husband and wife purchased their first family home in the UK in 2004. By 2006 they had four children.
In August 2009 the husband commenced with a new employer and he and the family were relocated to Australia. A home (“the family home”) was purchased for the family in Sydney in March 2010 and registered in the name of the husband alone.
In 2011 the parties’ youngest child, a boy aged now seven (“the youngest child”) was born.
The husband became self employed as a consultant in his own business from 2012.
In October 2015 the husband apparently became aware that the wife was engaged in a relationship with another man and the parties separated. They subsequently reconciled only to separate again on a final basis in October 2016 according to the husband or February 2017 according to the wife. Regardless of the date on which this final separation occurred there is no dispute between the parties that both of them and the children continued to live in the family home.
The husband commenced property settlement proceedings in this court in July 2017. For a period of almost 12 months it seems that the parties were in the main concerned with their respective property applications.
On 7 May 2018 the parties met with a family consultant for the purposes of the Child Responsive Program. It was confirmed in the course of that assessment that the parents were then seeking orders only in relation to the youngest three children who were then aged 13, 11 and six respectively.
In her Memorandum to the court the family consultant noted that all of the children appeared to be very aware of the details of their parents’ conflict. The family consultant also formed the view that it appeared there was ongoing high conflict in the family home and as neither parent indicated that they would be moving in the near future this would likely put ongoing strain and pressure on the children. She opined that this may continue to affect negatively the children’s wellbeing and mental health and may also result in the children’s relationships with one or both parents to become damaged. The family consultant also noted that there were serious allegations of family violence perpetrated by the father raised in the proceedings. The Memorandum was released to the parties the day after the assessment.
On 19 June 2018 the wife filed an Application in a Case seeking interim property and parenting orders including exclusive occupation (with the children) of the family home, orders with respect to the children’s living arrangements and time with the husband and partial property settlement orders.
The following day, 20 June 2018 the husband as sole registered proprietor contracted to sell the family home. Settlement of the sale was due to be completed on 16 November 2018.
On 6 July 2018 the proceedings were listed before me for the first day of the Less Adversarial Trial and the wife’s application for interim orders. Due to the exigencies of that day the hearing of the wife’s application did not proceed but as the wife did not press that all matters be determined the parties were able to reach some agreement. The parties consented to short term interim orders including that the husband vacate the family home that evening (so that the wife and children would have exclusive use and occupation of the home), that all five children live with the wife and the oldest three children spend time with the husband in accordance with their wishes. So far as the two younger children were concerned orders were made with the parties’ consent that they spend time with the husband each alternate weekend from after school Friday until 5pm Sunday. The orders provided that the husband collect the two youngest children from school and return them to the family home at the conclusion of his time and also that the two younger children spend additional time including during the school holidays with the husband as agreed in writing between the parties. An Independent Children’s Lawyer was also appointed. On the same day all interim applications sought by both parents were listed for hearing on 14 August 2018.
In accordance with the 6 July Orders the husband left the family home and established a home nearby. He subsequently spent time with the two younger children the following weekend in accordance with the Orders. Thereafter, in circumstances which are in dispute the younger two children have spent time with the husband but not on all occasions in accordance with the Orders.
14 August 2018 Hearing
At the hearing on 14 August 2018 the husband and wife first consented to the paternal grandfather being joined as the Second Respondent.
I then dealt with the interim parenting applications of each parent with participation from the Independent Children’s Lawyer (“ICL”) who had been appointed in the parenting proceedings.
At the completion of the interim parenting matters the ICL was excused and judgment reserved. I then returned to the application for property orders.
PARENTING
The parties and their five children were living in the former family home together for a lengthy period of time when the parent’s relationship was no longer intact. It does not appear to be a matter in dispute that the children have all been exposed to the high level of ongoing conflict between their parents and had been involved in it to their detriment.
On 6 July 2018 the parties consented to an arrangement whereby the father moved from the family home to his own premises. The orders of that date provided that the children were to live with the mother and that the oldest three children (aged 17, 16 and 14 respectively) were to spend time with the father in accordance with their wishes. Orders were made that the two younger children then aged 12 and six were to spend time with the father each alternate weekend and at such other time as may be agreed between the parties.
It is also common ground that there have been ongoing difficulties between the parties in relation to the father’s time with the two younger children after these orders were made.
Although both parents are seeking that the current orders in relation to the father’s time with the two younger children be varied they do so for different reasons.
It is the mother’s position in summary that the father has been emotionally charged and unregulated towards the two younger children when spending time with them and that he has harmed them through being incapable of meeting their emotional needs and exposing them to family violence. She originally contended in the interim application that the children would be exposed to an unacceptable risk of harm if they were to spend time with the father and sought an order suspending his time.
The father seeks orders that the parents have equal shared parental responsibility for the children and had sought that orders with respect to his time with the two youngest children be suspended until completion of family therapy which he also proposes shall occur pursuant to an order. In lieu of the current orders with respect to his time with the two youngest children he seeks an order that these children spend time with him in accordance with their wishes.
It is the father’s case that the mother is unable to support the children in having a meaningful relationship with him and they should not be placed in the position whereby they are effectively required to spend time with him until they have received the benefit of family therapy.
The ICL proposes orders which would bring about a small change in the children’s current parenting arrangements. Pursuant to the ICL’s proposal all the children would continue to live with the mother and the youngest child only would spend time with the father on alternate weekends from after school Friday to 5pm Sunday. The ICL proposes a minor change in relation to return of the youngest child to the mother’s home that the father remaining outside the home when this is to occur. Under the ICL’s proposal the oldest four children will spend time with the father in accordance with their respective wishes and in the event that any child should express such a wish then the mother will be required to notify the father to do all things necessary to facilitate that occurring. The ICL’s proposed orders also required the father to use his best endeavours to ensure that the children attend social and extra-curricular activities when spending time with him. The ICL also proposes orders with respect to family therapy and in relation to the appointment of a single expert but the parties were unable to reach agreement about these matters.
The ICL’s proposal which includes other orders in relation to the parties advising each other about medical emergencies or illnesses and the like were agreed to by the mother during the interim hearing subject to an additional four orders being made.
The father initially opposed both the orders proposed by the mother and the ICL and sought orders which would see the previous arrangements with respect to the two youngest children discharged and an order made that these children spend time with him in accordance with their wishes. He later acknowledged that if time with the youngest child were ordered in accordance with the ICL’s proposal he would exercise that time.
Both the mother, the father and the ICL all recognise that the current arrangements with respect to the father’s time with the children is not currently operating in their best interests. It is common ground between the parents that the younger two children have not spent time with the father in accordance with the orders and that some difficulties have been encountered when that has occurred after orders were made in July 2018.
According to the mother’s affidavit the father spoke in an aggressive and threatening manner to her on a number of occasions when he collected and returned the two younger children for the purposes of spending time with them to which those children were exposed and which distressed and upset them. The mother also alleges that the father breached orders in relation to attending the family home for the purposes of collecting his property and acted in an intimidating fashion towards her (and was at the time accompanied by the Second Respondent) when moving his property. She deposes that having regard to his behaviour she has concerns that the father may not comply with the injunction restraining him from inappropriate discussions with the children.
The mother also deposes to having concerns about the father’s capacity to meet the children’s needs as she claims that he left them alone in their hotel room on the first occasion he spent time with them after the July 2018 orders were made and that the fourth child a boy aged 11 sent her text messages during the first weekend he spent time with the father complaining that he did not want to remain with the father and that the father had been making allegations about the mother’s behaviour.
The mother also expresses concerns about the younger children not attending their regular ex-curricular activities such as soccer training and games and functions to which they are invited such as birthday parties when spending time with the father. The mother expresses the view in her affidavit that there is no benefit to the children in spending time with the father unless he “is able to behave himself appropriately”.
The father takes issue in his affidavit with the mother’s version of events relating to his time with the children after the July 2018 orders.
Although the father deposes that the time with the two youngest children generally went well on the first weekend after the July 2018 orders he does not dispute that the fourth child sent him a message to the effect that he did not wish to see him on the upcoming weekend. It appears to be the father’s case that his child has been influenced by the mother.
The father deposes that the mother did not make either of the two youngest children available to him on the next occasion that they were to spend time with him and contends that this was in breach of the July 2018 orders.
The following weekend the father attended the youngest child’s soccer game and the parties’ oldest child who had by this time turned 18 contacted the father on the same weekend to make arrangements to meet with him. The father deposes that on the next occasion the youngest two children were to spend time with him, the mother did not make them available but the parties’ oldest child took the necessary steps to facilitate these children spending time with the father that weekend.
In his affidavit the father expresses concern that his fears about the mother undermining his relationship with the children have been realised. He says that the mother exercises such a powerful influence over them that it would be in all of the children’s best interests for the current orders to be suspended and for them to spend time with him in accordance with their wishes.
I am unable to make findings in relation to the disputed facts in these interim proceedings. However, I am of the view that even if all of the allegations made by the mother about the father’s conduct were proved, while this would not reflect well upon him and would give rise to matters of real concern in relation to the children’s welfare these events would not of themselves give rise to a finding that the father poses an unacceptable risk of harm to the children as she had contended at the outset of the interim hearing.
The father’s proposal had been for interim orders that the younger two children spend time with him in accordance with their wishes. Ultimately each of the parents agreed to the proposal of the ICL subject to some dispute related to changeover and attendance at extra-curricular activities,. In my view all of the orders proposed by the ICL are proper and in the best interests of the children having regard to the relevant considerations pursuant to s60CC of the Family Law Act 1975 (“the Act”).
Section 60CC factors
Considering the very limited compass of the dispute and as these are interim proceedings I will consider these matters globally rather than discuss each matter in turn.
Despite the views of the mother I do not agree that the children will not benefit from having a meaningful relationship with both parents.
However, as submitted by the ICL and in accordance with the Act greater weight must be given to the need to protect the children from the ongoing risk of psychological harm arising from exposure to such parental conflict which is so severe to amount to family violence.
The level of conflict in this family is such that all of the children other than the youngest child told the family consultant about being exposed to their parent’s constant fighting and some of them complained that the father had brought the children into the conflict and involved them in it. The daughter and fourth child also told the family consultant about a physical altercations with the father which if found proved may amount physical abuse. The fourth child became very distressed when discussing his family life with the family consultant and reported feeling scared of what the father may do to the mother as the father was becoming more aggressive. He also reported seeing the father push the mother and the parties’ daughter.
Each of the three older children expressed a wish to spend time with their father on their own terms and the fourth child told the family consultant that he wanted to live with his mother and spend time with the father on alternate weekends though he also he said he wanted his arrangements to be the same and his siblings.
The proposal of the ICL and father that the family engage in family therapy may assist in restoring the previously positive relationship between the father and the older children while providing some protection from further psychological harm as a result of being exposed to his emotionally unregulated behaviour and the parents’ conflict.
The father’s preferred proposal that the younger two children spend time with him in accordance with their wishes is likely in my view to continue to involve the children in the parental conflict. It is likely that questions may arise about whether these children are expressing a wish to see the father and allegations may be made that the mother is not facilitating that wish.
Further, although it is appropriate in my view to give significant weight to the views of the older children in particular it is inappropriate in my view to give such weight to the views of the younger two children that these wishes effectively become determinative of their parenting arrangements.
The older four children (three of whom are the subject of these proceedings) currently having a fractured relationship with their father. They would in my view benefit from engaging in family therapy with their father though the daughter and third child have made it clear to the family consultant when assessed and through their actions in choosing not to spend time with the father that they do not wish to share such a relationship at this time. While their attitudes may become problematic in that they may not agree to engage in family therapy this is not in my view sufficient reason not to order that it be attempted.
The youngest child as I understand it continues to spend reasonably regular time with his father which appears recently to have been facilitated by the oldest child who is now an adult on at least one occasion. It is likely given recent events that the fourth child will not choose to spend time with his father if he is given the choice as his father proposes. The orders proposed by the ICL would in effect regularise the current arrangement with respect to the children’s time with the father and bring about no further changes.
In my view due to the youngest child’s age and his exposure to conflict throughout much of his life it would be in his best interests for orders to be made defining his time with his father rather than leaving it up to him to decide. I accept the submission of the ICL that defined orders in relation to changeover and engagement in family therapy to improve the co-parenting relationship may mitigate such risks of exposure to further parental conflict.
There was considerable dispute between the parties about the attendance of the youngest child at extra-curricular activities and the proposed orders to deal with this matter. I am unable to resolve factual matters in dispute at this stage and am of the view that the suite of orders proposed by the ICL should be made.
The respective proposed orders and submissions included the party’s oldest son but as he had turned 18 while Judgment was reserved he is not the subject to any orders relating to the children. It may be useful however and in the best interests of the other children that the parties’ oldest son attend the family therapy and he is to be encouraged to do so in the event that is recommended by the therapist.
The parents each also propose an order for equal shared parental responsibility for the children who are the subject of these proceedings. The ICL’s proposed orders are silent as to this matter.
Section 61DA of the Act provides that when making a parenting order the court must apply a presumption that such an order is in the best interests of the child. The presumption does not apply when making interim orders if the court considers that it would not be appropriate. I am of the view that it would not be appropriate to apply the presumption in these circumstances where so many issues are in dispute including the question of whether the father has perpetrated family violence which displaces the presumption. Further, the parents have no current capacity for joint decision making or any level of co-operation in relation to the children. In the absence of an order for joint parental responsibility each of the parents will retain joint and several parental responsibility for the children pursuant to section 61DA(3).
Having regard to the foregoing I am satisfied that it is in the best interests of the children to make the interim orders as sought by the ICL.
Appointment of an Expert
In the course of the proceedings Dr F an experienced expert from Melbourne was proposed to be appointed in relation to parenting. It appeared that Dr F would be available at an earlier date than experts in Sydney. Effectively all parties agreed that so long as issues in relation to the payment of such a report were resolved that Dr F is an appropriate expert. The mother had sought that a family report be ordered but this was not pressed. I understood that to be fall-back position in the event the issue of funding was not resolved.
As an order is to be made for $100,000 to be released to the father and the mother this will ensure that there is sufficient funding available for the purposes of the expert report.
While having reached agreement about an appropriate expert the father proposes that such a report not be obtained until family therapy has been completed. Given the delay in meaningful progress in the proceedings to date and the difficulty experienced by the children while the parents’ dispute and associated conflict remains unresolved I am of the view that so long as family therapy has commenced that an expert should be appointed sooner rather than later for the benefit of the children.
Interim property orders
The wife seeks orders that the husband pay her by way of interim spouse maintenance the sum of $733 per week. By way of interim property settlement she seeks an order that the husband direct that she be paid $2 million from the sale proceeds of the family home (“the sale proceeds”) and that she be entitled to use this money to purchase a property in the same area as the family home to house herself and the children.
Under the wife’s proposal she is also to be restrained from dealing with or encumbering the property to be bought with the sale proceeds.
The final orders sought by the wife attached to her outline of case change her proposal concerning the purchase of a home as they entitle her to use the sale proceeds to purchase a house in another part of Sydney from where the family were previously living. This was not raised in the interim proceedings and no explanation has been given about this change in proposal. In my view moving the children to a different part of Sydney which must involve another change in schools would add to the instability of their circumstances. These orders were addressed at the proceedings in terms of the original proposal to purchase property in the area in which the family had been living and will be dealt with on that basis.
The wife also seeks that she and the husband receive $100,000 from the sale proceeds to meet their legal costs and that any remaining proceeds be placed in a controlled monies account to be established by her solicitor.
The husband’s interim property proposal is that the sale proceeds be applied to the costs associated with the legal expenses and discharge of mortgages and the balance be paid to a controlled monies account pending final order.
The Second Respondent supports the interim property orders sought by the husband, and also agrees to the order that the husband and the wife order be paid $100,000 for the payment of legal fees and also proposes that these funds be utilised for expenses related to the proceedings. He proposes a notation to such orders if made that in the event that the court determines that the monies advanced by him to the wife and husband were loans, then payment of the $100,000 to each of the husband and the wife be characterised as a loan from him, with such funds to be repayable to him.
A few days after the hearing the wife filed an Application in a Case seeking that the proceedings be reopened and further evidence adduced in relation to the property orders only. The application to reopen the interim proceedings was heard on 12 October 2018 and for the reasons given on 17 October 2018 the application was dismissed.
Payment for litigation funding
Dealing with the last of the property matters first each of the parties’ consents to the husband and the wife receiving $100,000 from the sale proceeds for the payment of legal fees related to the proceedings. The Second Respondent also proposes that this amount be utilised by the husband and wife for the payment of expenses related to the proceedings and in particular the fees for an expert as to parenting matters. As both the husband and the wife both claim in these proceedings to have insufficient funds for this purpose but have otherwise agreed that an expert report is required it is appropriate that an order be made that this sum also be utilised for that purpose.
As previously noted the Second Respondent also proposes that a notation be made to this order to the effect that in the event that the court determines that the monies advanced by him to the wife and husband were loans that this payment to each of them be characterised as a loan from him with such funds to be repayable to him. I do not propose making such a notation as it has no legal effect and is not necessary to provide context for the orders. It is well understood by the parties that the basis upon which the Second Respondent intervened in the proceedings is that he maintains that the monies advanced by him were loans.
Spousal Maintenance
The wife seeks an order that the husband pay her $733 per week by way of spousal maintenance.
The husband opposes the wife’s application on the basis that he contends she has not established an inability to support herself and that he has no capacity to make any such payment.
The Law and Discussion
The purpose of an application for interim spousal maintenance is to provide for the interim financial needs of the claimant. The payment of such a claim depends upon two matters: the needs of the claimant and the capacity of the respondent to pay.
These matters arise from section 72 of the Family Law Act 1975 (Cth) (“the Act”) which 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; or
(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 to in subsection 75(2)
In the Hall v Hall[1] at 496 the High Court describes s 72(1) as: “the gateway to the operation of Pt VIII in relation to spousal maintenance”.
[1] [2016] 257 CLR 490
Applicant unable to support self
The test of ability to support one’s self was interpreted in In the Marriage of Eliades[2] as:
“[N]ot identical to the test of whether one is in need but means whether the applicant is in a position to finance himself or herself from his or her own resources. That is to say, the test is whether by reason of earning capacity, by reason of capital or other sources of income which have accrued independently to the applicant, the applicant is in a position to look after herself …”
[2] (1981) FLC 91-022 at 3. See also Clauson and Clauson (1995) FLC 92-595.
The claimant for maintenance must establish that he or she is unable to support herself or himself adequately. The word ‘adequately’ was interpreted by Lindenmayer J in Nutting & Nutting[3] as:
A standard of living which is reasonable in the circumstances, including the circumstance that the parties are no longer husband and wife and that the assets and resources which were formerly available to them both in common have now been divided between them.
[3] (1978) FLC 90-410 at 77,094.
The Full Court agreed with this interpretation in In the Marriage ofBevan[4]. The Full Court also said that a court is not bound by a principle that an applicant is entitled to the same standard of living as was enjoyed prior to separation whenever the respondent is able to pay.
[4] (1995) FLC 92-600; (1993) 19 Fam LR 35.
Section 72(1) sets out two of the specific matters that may affect a person’s ability to support herself or himself adequately as having the care and control of a child or children and having no capacity for employment. The section also refers to an inability to support oneself “for any other adequate reason”.
Mullane J in N & N[5] stated that:
[T]he interpretation of the expression “unable to support herself or himself adequately” is subject to the words “having regard to any relevant matter referred to in subsection 75(2).
[5] (1997) FLC 92-782 at 84,643.
The wife who is seeking spousal maintenance has the care and control of the parties’ five children, four of whom are under the age of 18. According to orders made in July 2018 the two youngest children only spend some limited time with the husband. The husband has not paid any child support to the wife at any stage.
Each of the parties is capable in a general sense of earning a living through employment. Although the wife has professional qualifications she was last employed in that profession in the UK for about a year in 2005.
According to the her affidavit filed 9 August 2018 the wife is in the process of fulfilling the necessary practice requirements to allow her to practice in her profession in NSW, but she had not then commenced paid employment. Letters produced by various practices at which she has been gaining experience confirm that she is not employed nor in receipt of income. Although it was suggested by the husband that the wife’s evidence that she is not in receipt of an income should not be accepted there is no evidence to support his assertion that she may be receiving an income through employment.
The wife deposes to intending to work part-time and continue as the primary carer for the children until the youngest child now aged seven is of “appropriate age”. In this regard she expressed the belief in her affidavit that she may earn $800 per week “in a few months’ time”.
The wife’s contentions in relation to her expenses were not disputed and it was conceded that her expenditure was not unreasonable. There is no dispute that the husband is not paying child support even though he appears to concede that there is considerable expense in supporting the children (consistent with the wife’s Financial Statement) which is ongoing.
According to her Financial Statement filed in June 2018 the wife had a total average income of $687 and total expenditure of $2582 per week. The details of her average weekly expenses set out in Part N of her Financial Statement are quite modest for herself totalling $734 and just under $2500 per week for the five children.
At the time the wife’s Financial Statement was filed in June 2018 the parties were still both living in the family home even though their relationship was no longer intact.
According to the wife’s Financial Statement she had little property in June 2018 other than $56,500 in the bank. By August 2018 I understand that little of this sum was remaining, though that is not entirely clear. In her affidavit of August 2018 she deposed that any sum in her bank account was the balance of two withdrawals she made from the parties’ re-draw facility of $150,000 and $6660. According to the husband the first of these withdrawals was made in April 2018. According to the wife’s affidavit a significant proportion of this sum had been spent by August 2018 on legal costs and $6000 had already been spent on living expenses.
The wife also deposes to holding around £67,000 in four bank accounts as trustee for the four oldest children which she deposes she is not entitled to deal with. In the course of submissions made on behalf of the husband it was conceded that he did not submit ‘exactly’ that the wife should gain access to the funds that she holds in trust for the children for her maintenance. Nonetheless it was maintained that these funds may be a resource to which the wife has access. There is no evidence to suggest that the wife is entitled to access the trust accounts for the children and as both parties agree that these accounts were established for the benefit of the children I do not regard these funds as a financial resource available to the wife.
Although it is the husband’s position that the wife has not established her inability to support herself adequately he does seem to accept that as sole carer of all of the children she has significant commitments that are necessary to support herself and the children. In his affidavit the husband deposes to the parties reaching agreement in about November 2017 (after they had separated but both remained living in the family home) that each of them would receive $400 per week for their own support and that the parent who was paying the children’s day to day expenses in a given week should receive between $100-400 “each” per week. The wife deposes that the husband was paying her $200 per week and a further $400-$500 per week ($100 per child) which she said was spent entirely on food. The husband deposes that subsequently the parties agreed that those payments should stop.
By June 2018 when the wife filed her Financial Statement even though the parties were living in the same household she indicates that she alone was bearing all of the weekly expenses in relation to herself and her children of just under $2500 per week. She deposed in August 2018 that until recently the husband had permitted her access to his credit card to cover some of the children’s expenses but had since terminated this arrangement.
Having regard to the wife’s lack of employment which I regard as reasonable in the circumstances, the expenses involved in the care of the children, the cessation of financial support by the husband and other forgoing matters I am satisfied that the wife is unable to support herself adequately by reason of having the care and control of four children under the age of 18 and due to the arrangements the parties made between themselves up until the time of physical separation for the care of the children which have continued.
Respondent’s ability to pay
Even though the wife has established an inability to support herself adequately the husband’s liability to pay also depends upon being “reasonably able” to do so. It is the husband’s case that he is not able to pay the spousal maintenance sought by the wife.
The husband’s capacity to pay is considered on income, property, financial resources and earning capacity. Capacity to pay is assessed by determining the husband’s “surplus” after paying his necessary commitments.
In Curnow and Curnow[6] Ellis J said:
In my judgment, a party is only liable to maintain the other party to the extent that the first-mentioned party is reasonably able to do so. In determining whether a party is reasonably able to support or contribute to the support of another party, one should have regard to the income of the first-mentioned party and then the unavoidable, non-discretionary expenses of that party, including his or her reasonable living expenses. After that exercise, one can consider the amount, if any, from which the first party may be able to contribute to the maintenance of the other party.
[6] Unreported, Full Court of the Family Court of Australia, 28 April 1997.
In the husband’s Financial Statement filed 13 August 2018 he states that he does not earn a salary or receive any income from his business and has a weekly personal expenditure of $2,687.
In his affidavit filed 13 August 2018 just over a month after he moved from the family home the husband deposes to renting a nearby property. He deposes to paying a lump sum payment of $16,800 including a bond and rent for the entirety of the lease until 6 December 2018. In submissions made on his behalf it was reiterated that the husband does not receive sufficient income to pay his rent each week and had to pay a number of months “upfront”. However, in his Financial Statement the husband says that he pays $800 each week in rent. In addition to rent the husband also claims to spend $1685 each week being $1105 for himself and $580 for the children. In my view it is difficult to accept that his expenses in relation to the children are $580 per week when he has at most two of the children in his care for two nights each alternate weekend.
In relation to the husband’s expenditure the wife also relies upon records of transactions on his credit card for a two week period just immediately prior to the hearing. The records included $2350 for flights and just over $29,000 in hardware/grocery supplies. Further, according to the husband’s affidavit he also had paid his lawyers $55,000 in the past month of which $46,000 was retained in a trust account.
The wife’s counsel also relied upon the husband’s affidavit and exhibits to contradict his assertion that he does not receive any salary or income from his businesses and to demonstrate that the husband expended funds available to him just prior to the hearing in an effort to demonstrate an incapacity to pay maintenance to his wife. For example the bank records for one of his businesses indicate that between 1 July 2018 and 12 August 2018 the company made six payments into one of the credit card accounts in the husband’s name totalling $105,552.57. A bank account in the husband’s name records a balance of $119,117.13 on the 2 July 2018 which had been reduced to $8,454.54 by 10 August 2018 largely by two transfers of $76,824.99 and $30,000 respectively to “8 CH” with the transaction details of “loan pers[onal]”. Nothing about this loan is revealed in any document filed in the proceedings.
According to the husband’s affidavit he is not making any profit from the businesses in which he is engaged and does not receive any income from them. He does however depose that on 10 August [2018] he received $220,000 which he says “represent[s] the income of [one of his companies]”. He sets out the way in which this sum was dispersed including the payment of $135,000 to a consultancy, $37,000 to company credit cards and $30,000 to his lawyers. The payment to the consultant of $135,000 is described by the husband as “deferred since January 2018” but is not otherwise referred to as a liability of himself or his company in any document, including that company’s most recent tax return.
Although I am not in a position to make any findings in relation to the profitability of the husband’s businesses and income received by him I am satisfied on the basis of his own affidavit and documents produced and exhibited in the interim hearing that the husband has access to considerable funds through his businesses which enable him to pay his legal fees, travel overseas and support himself comfortably and have sufficient funds to support his former wife through the payment of spousal maintenance.
Having established that the respondent is capable of supporting the claimant, I now must consider the extent to which it is reasonable for him/her to do so.
Section 74 of the Act provides that in proceedings with respect to maintenance the court may make “such an order as it considers proper”. The meaning of “proper” was considered in Robinson and Willis[7] where Asche SJ said:
An order which is either insufficient or excessive in the circumstances, is not “proper”. In the former case because the burden of support may be thrown on the public; in the latter because an excessive order will result in inability to pay the accumulation of impossible arrears and, again, ultimately a probable recourse to the public purse.
[7] (1982) FLC 91-215 at 77,157.
The Full Court in Brown and Brown[8] considered the meaning of “proper” and “adequate”, at paragraphs 91-92 and 94-95:
Similarly, we think that what is meant by ‘proper’ in s 74 is circumscribed by the provisions of the Act relating to maintenance.
Adequacy is the key concept in determining whether the threshold set by s 72 has been crossed. But that concept is not left behind once the step into s 74 enquiry as to what is ‘proper’ is taken. Though application of the factors set out in s 75(2) may, in a given case, lead to a generous interpretation of needs that are ‘adequate’ and of what is ‘proper’, the nexus between ‘adequate’ and ‘proper’ must remain.
[8] (2007) FLC 93-316.
In determining what order is reasonable I have regard to the matters taken into account under section 75(2) when considering the wife’s inability to support herself adequately. I attach particular weight to the husband’s engagement in a business that is sufficiently profitable to support himself and to have provided some level of support for the wife and children prior to physical separation. Further, the wife has until a short time ago been engaged in gaining the necessary pre-requisites for registration and experience to re-enter the workforce in her profession and intends to do so shortly, on a part-time basis. This is not unreasonable in my view given the ages of the parties’ children particularly the youngest child and the wife’s wish to continue the role of a parent having the virtual exclusive care of all of the children, four of whom are under the age of 18.
I also take into account the other matters previously considered including the extent to which the wife contributed to the income earning capacity of the husband, the duration of the marriage and the extent to which it has affected her earning capacity together with the fact that the husband has not ever paid any child support and regard these as weighty factors.
In these circumstances and as in my view the claim of the wife is modest (and was not challenged on this basis) and reasonable I am of the view that it is proper to order that the husband pay the amount claimed by way of spouse maintenance to the wife.
Interim Property Settlement
The wife seeks an order by way of interim property settlement that the husband direct that out of the sale proceeds of the former family home she be paid the sum of $2 million. Pursuant to further proposed orders she seeks to be entitled to use this sum for the purpose of purchasing a property in the same area as the former family home. She further proposes that she be restrained by order from dealing with this sum other than to acquire the property and be also restrained from further dealing with or encumbering any such property.
Although there is some dispute about the amounts owing on the mortgage I understand that at the time of the interim hearing it was expected that at least net $2.5 million would be realised from the sale of the family home.
The leading case of the Full Court which sets out the applicable principles for interim property orders is Strahan & Strahan[9] (“Strahan”). Although Strahan deals with the making of an order to fund litigation expenses the Full Court considered in detail the principles involved in the exercise of the power to make an interim property order under ss 79 and 80(1)(h) generally. At paragraph [113] the plurality said:
There is only one exercise of the power under s 79 of the Act. However, this power may “be exercised by a succession of orders until the power … is exhausted” and the power is exhausted “when there remains no property … with respect to which orders by way of alteration of interests in property could be or have been made.”: Gabel v Yardley per Bryant CJ and Coleman J at [57]. As Finn J in Gabel v Yardley at [125] said: “it is only the final order, which deals on a final basis with all known property of the parties, which completes the one single exercise of the s 79 power”. Further, an earlier order whether made under s 79(6) or s 80(1)(h) is capable of alteration at any time prior to, or as part of the final exercise of the s 79 power: Gabel v Yardley per Bryant CJ and Coleman J at [69] – [73] and Finn J at [126].
[9] [2009] FamCAFC 166
The first step
The Full Court in Strahan went on to set out the approach to an application for an interim property order where the power is to be exercised pursuant to ss 79 and 80(1)(h). At [118] the plurality said:
… There are two stages to the hearing of such an application where the power is to be exercised pursuant to s 80(1)(h) of the Act. This is recognised by the fact that although the power under s 79 should ordinarily be exercised on a once only basis, “circumstances may arise before there can be a final hearing” where the power is exercised. Thus the first step is to resolve whether to exercise the power before a final hearing and if it is resolved to do so then the second step involves the exercise of that power.
So far as the first step is concerned, it was settled in Strahan that the Applicant is not required to establish that there are compelling circumstances at the time for making an order for interim property settlement. The Full Court in Strahan at paragraph [132] observed:
In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power…
In the course of oral submissions counsel for the husband conceded that it was in the interests of justice for the court to exercise the power under section 79 and 80(1)(h). Although Counsel who appeared on behalf of the Second Respondent did not make a similar concession the main thrust of his argument related to the inability of the court to exercise the power in circumstances where no findings of fact can be made rather than suggest that it was not appropriate to exercise the power.
The wife’s application came about in circumstances where the parties and their children had been living in the family home which is the only matrimonial asset of any significance. Although this asset was registered in the name of the husband alone the wife claimed and the husband appears to have accepted that she had some entitlement to it in the proceedings.
On 19 June 2018 a short time after the Child Responsive Memorandum was released the wife sought interim orders including that she be granted exclusive occupation of the former family home, that each party be restrained from further dealing with or encumbering the property and that the husband vacate it forthwith. The following day the husband entered into a contract to sell the property. He contends that he did so with the agreement of the wife while she contends that it was a unilateral act on his behalf. In any event by the time the application for interim orders was heard the wife had filed a further application responding to the reality that the property had been sold and that her contended interest in the home was soon to become a contended interest in the sale proceeds.
The principal asset of the parties which was also the family home for the wife and five children was sold by the only party in the proceedings who had control over it. In these circumstances it is in my view entirely appropriate and in the interests of justice that I exercise the power to make (or decline to make) an interim property order.
The second step
Having decided to exercise the power under section 79 on an interim basis, the provisions of that section “must be considered and applied but with limitations given that it is not the final hearing”.[10]
[10] [2009] FamCAFC 166 at 135
It is properly contended on behalf of the Second Respondent that the court is required to start from a position of identification and recognition of existing property interests and not proceed on the assumption that the parties interests are different from those identified. The court then must consider the justice and equity of making any property adjustment orders. It is submitted on his behalf that it would not be just and equitable for any orders to be made as sought by the wife as the effect would be to compromise his position. It is also submitted on the Second Respondent’s behalf that as the orders sought by the wife affect his rights as a third party creditor the matters set out in section 90AE(3) and (4) must be properly considered.
The position of the Second Respondent in this regard proceeds on the basis that there is no dispute in the proceedings that the he advanced considerable amounts to the parties as loans which are repayable and that such repayment will subsume the entirety of the sale proceeds. Alternatively it is contended that the only other way in which the proceedings could be resolved is by finding that the funds were advanced by the Second Respondent on some other basis such as that the funds were advanced as gifts. If this were to be found it is argued the amounts advanced are of such magnitude that the husband would receive a very significant contribution based sum in any property settlement. On this basis it is submitted that the orders sought by the wife in this application would far exceed any percentage of the funds to which she may ultimately be entitled.
It is more fundamentally the Second Respondent’s contention that the court cannot undertake a consideration of the matters in section 79(2) and (4) without making findings in relation to the advances which cannot be done in an interim hearing.
The submission is advanced on behalf of the Second Respondent that I am unable to make the orders sought by the wife on an interim basis unless I find that the Second Respondent was not owed just under $3 million by the husband which has been utilised by the parties predominantly for acquiring and improving their property and now comprises a cash amount almost equivalent of this amount. As such findings cannot be made in an interim hearing it is argued that the wife’s claim is defeated.
Further the Second Respondent submits that the approach to be taken by the court pursuant to the principles in Stanford & Stanford[11] (“Stanford”) and Bevan & Bevan[12] (“Bevan”) requires that I begin with a consideration of the existing legal and equitable interests of the parties in the property before determining whether it is just and equitable to alter those interests and as I cannot determine the scope of these interests at an interim hearing I am precluded from making any interim property orders.
[11] (2012) 247 CLR 108
[12] [2013] FamCAFC 116
The husband’s counsel made similar contentions that the court’s inability to determine whether the Second Respondent has an equitable interest in the property or the sale proceeds is a barrier to considering whether it would be just and equitable to make the orders sought.
I do not accept the proposition that there is any inability to identify the party’s respective legal and equitable interests in the sale proceeds. The husband was the legal owner of the family home and is the legal owner of the sale proceeds. The Second Respondent is not seeking a declaration that he had a beneficial interest in the proceeds of the former family home in the proceedings. Rather he seeks as a final order a declaration that as between the wife and himself there is a recognisable and ascertainable debt arising out of various loan agreements and that the wife owes him $3,023,573. In the absence of any claim of a beneficial interest in any of the property of the parties the legal and equitable interests in the property are easily ascertainable and there is no impediment to giving consideration to the matters required pursuant to section 79(2) and (4).
I also do not accept the contention advanced by the husband and Second Respondent that the extent of the Second Respondent’s advances necessarily defeat the wife’s claim whether they are treated as debts due to the Second Respondent or taken into account as contributions of the husband. The alternatives positions advanced by the husband and the Second Respondent do not in my view prevent a consideration of all the section 79 matters and the making of orders as sought by the wife if it is just and equitable to do so.
As quite properly observed by counsel for the Second Respondent in the course of his submissions the first issue to be determined in accordance with Stanford and Bevan is whether it is just and equitable in all the circumstances for the existing property interests in the property of the parties to the marriage to be altered at this stage.
The parties began their marriage almost 20 years ago with no assets of significance. Together they built their lives, accumulated property and raised five children under a mutually agreed arrangement whereby the husband earnt an income to support the family financially while the wife was engaged in household activities and in particular the care of the children. The family was benefited by the largesse of the Second Respondent. Despite the end of their personal relationship the parties continued to live in the home in which they had raised their children in recent years until it was unilaterally sold by the husband who solely had control over it. The proceeds of that sale are in his hands alone. The wife is now required to rent premises to house herself and the children adding to her already significant expenditure. Against this background and in circumstances where the wife has some capacity for employment but is likely to have the substantial care of the children for many years the requirement that it would be just and equitable to make an order is in my view readily satisfied.
As was said by the High Court in Stanford at [42]
As result of a choice made by one or both of the parties the husband and wife are no longer living in a marital relationship…any express or assumption that the parties may have had to the effect that the existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marriage relationship is brought to an end with the ending of the marital relationship and the assumption that any adjustment to those interests could be effected consensually as needed or as desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order.
Applying those observations to these proceedings it may be said that as a result of the conduct of the husband in selling the family home in which the parties and the children (and later the wife and the children) were living the existing arrangements that the family could continue to live in the home notwithstanding the parties’ separation was brought to an end. The parties cannot agree upon the way in which the wife’s interest in the proceeds of the sale can be recognised and the family can be housed and thus it is just and equitable in my view for the court to make an alteration to the husband’s sole interest in the sale proceeds.
The position is also advanced on behalf of the husband and the Second Respondent that if the wife’s proposed orders are made she will receive far more of the assets than an amount to which she is entitled. The submission that this would offend the principles in Strahan relating to “adjustment” or “clawback” can also not be sustained in my view. In Strahan the court repeated the observations of Bryant CJ and Coleman J in Gavel & Yardley referred to in paragraph 112 of these Reasons and reiterated the observations of Finn J in the same case at [126] that ‘the interim order must be capable of alteration at any time prior to, or as part of, the final exercise of the section 79 power”.
It may be correct that if interim orders are made as sought by the wife she will receive more than she would ultimately receive by way of final property settlement. However, the principle relating to “alteration” or “clawback” is expressed in terms that either the remaining property will be adequate to meet the legitimate expectations of both parties (or in this case all three parties) at the final hearing or that the order which is contemplated is capable of be reversed or adjusted if it is subsequently considered necessary to do so.
In my view while there may be some loss when the $2 million in cash is effectively converted to real estate this is capable of being taken into account in the final proceedings. The further orders proposed by the wife which limit her to utilising the funds only to the purposes of purchasing a house to accommodate herself and the children and restraining her from otherwise dealing with it mean that such orders are quite capable of being reversed or adjusted if considered necessary to do so.
Taking into account the foregoing in all of the circumstances in these proceedings I am satisfied that it is appropriate to alter the interests of the parties on an interim basis pending final order by making the orders sought by the wife.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 January 2019.
Associate:
Date: 23 January 2019
25
2
2