JOLIFFE & JOLIFFE

[2019] FamCA 509

FAMILY COURT OF AUSTRALIA

JOLIFFE & JOLIFFE [2019] FamCA 509

FAMILY LAW – SPOUSAL MAINTENANCE – Urgent spousal maintenance – where the wife seeks periodic urgent spousal maintenance – where the wife is 58 years of age and has not been in paid employment for 15 years – where the parties’ child resides with the wife – found that wife is unable to adequately support herself and has an immediate need for financial support for the purposes of section 77 – where the husband submits he has no capacity to pay – found that the husband has the capacity to meet an order for urgent spousal maintenance – orders that the husband pay to the wife $750 per week by way of urgent periodic spousal maintenance and urgent lump sum spousal maintenance of $1,300.

Family Law Act 1975 (Cth)

Ashton v Ashton [1982] FamCA 9
Redman & Redman [1987] FamCA 2
Williamson and Williamson (1978) FLC 90-575

APPLICANT: Ms Joliffe

RESPONDENT: Mr Joliffe

FILE NUMBER: MLC 7613 of 2019

DATE DELIVERED: 1 August 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 17 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Matta

SOLICITOR FOR THE APPLICANT: Hargreaves Family Law

COUNSEL FOR THE RESPONDENT: Mr Levine

SOLICITOR FOR THE RESPONDENT: Boutique Family Lawyers

Orders

IT IS ORDERED BY CONSENT THAT

(1)    Pending further order, the Wife have the sole use and occupation of the property situate at and known as B Street, Suburb D (“the B Street Property”).

(2)    The parties do all such things and sign all necessary documents to pay or cause to be paid to the Wife forthwith the sum of $68,347 from the Mr Joliffe Superannuation Fund, such sum to be later characterised by the trial judge.

Spousal Maintenance

(3) Pursuant to section 77 of the Family Law Act 1975 (Cth) the Husband pay or cause to be paid to the Wife or on her behalf periodic maintenance as follows:

a.Mobile phone expenses in relation to the Wife’s mobile telephone;

b.All private health insurance premiums at the current level of cover; and

c.All costs associated with the Wife’s motor vehicle.

(4)    The Wife have the sole use of the Vehicle 1 registration number … and the Husband pay or cause to be paid any finance repayments, registration expenses, and maintenance expenses as and when they fall due.

Injunctions

(5)    Subject to order 7 and pending further order, the Husband personally and in his capacity as officeholder in any company or trust, by himself, his servants and agents, be restrained by injunction from:

a.Selling, transferring, gifting, encumbering or further encumbering or aiding the selling, transferring, gifting, encumbering or further encumbering of, any shares held by him or any such company or trust;

b.Borrowing any further funds or incurring any further debt, save and except in the ordinary and proper course of business in relation to C Pty Ltd trading as C Company only;

c.Transferring, selling, disposing of, assigning, encumbering or in any other way dealing with:

i.Any interest of the Husband, Wife, or any interest of any other entity controlled by the parties or one of them, including the business known as “C Company”;

ii.Any asset owned by any entity controlled by the parties or either of them;

iii.Any of the real properties (whether owned by the parties in their personal capacity or by an entity controlled by them);

iv.Any motor vehicle.

without the prior written consent of the Wife or order of this Honourable Court.

(6)    The Husband be permitted to apply the rental income for the investment properties held by the parties, or either of them, personally or in their capacity as office holder in any company or trustee of any trust towards the mortgage, rates, taxes and/or like apportionable outgoings.

(7)    For the purpose of order 6(b) and 7 hereof, the husband provide weekly financial reports to the solicitors for the Wife recording all income and expenses paid by the Husband and/or his agents.

Valuations

(8)    Within 60 days the parties do all acts and things and sign all documents as are required to cause F Company to be appointed, at the expense of the Husband at first instance, to prepare a sworn valuation report of the market values of the real properties at:

a.B Street, Suburb D;

b.P Street, Suburb D;

c.E Street, Melbourne;

d.H Street, Suburb J;

e.K Street, Suburb L; and

f.M Street, Suburb N.

(9)For the purposes of appointing a single expert property valuer, the Wife shall provide to the Husband the names of three single expert valuers within 28 days and the Husband shall select one of those valuers within 7 days.

Financial Disclosure

1. Within 14 days the Husband provide to the Wife’s solicitor:

   a.Bank statements for all accounts in which the Husband holds either individually or jointly with another person (including term deposits, credit card, loans and mortgages) from 1 July 2014 to current date;

   b.Details of any arrangements with any third parties in respect of referrals and commissions including, but not limited to, those arrangements with real estate agents and property developers and copies of any agreements;

   c.Copies of all invoices issued by C Pty Ltd trading as C Company to any entity within the “Joliffe Group” including the self-managed superannuation fund in respect of work purported to have been undertaking by C Company on behalf of those entities;

   d.Individual Tax Returns and Notice of Assessments for the financial years ended 30 June 2015 to 30 June 2018;

   e.A copy of the Company Constitution for any company in the Joliffe Group;

   f.A copy of the Trust Deed (and any Deed of appointment or variation) of any trust in the Joliffe Group;

   g.A list of any Trusts of which the Husband had been appointed and/or is the settlor, appointer, trustee or beneficiary;

   h.Copies of the Contracts of Sale, settlement statements and statements of adjustments for any real property purchased by the Husband in his sole name or jointly with any other person from 1 July 2014 to the current date;

   i.A copy of the mortgage agreement between the Husband and G Pty Ltd and statements evidencing the repayments of the mortgage and current balance owing;

   j.Documents evidencing how the sum of $1,000,000 borrowed by the Husband’s company O Pty Ltd as trustee for the O Trust Deed secured against the property at P Street, Suburb D, has been expended;

   k.Copies of the Lease Agreements for any real property owned by the parties and/or the Joliffe Group which is presently tenanted;

   l.Documentary evidence of any shareholding held by the Husband in any public and/or private company, in Australia and/or overseas, whether solely or jointly with any other person/s or entity;

   m.Documentary evidence of all cars, motorbikes, and other vehicles and assets registered in the Husband’s name or in which he has an interest in Australia and/or overseas;

   n.Statements of any life insurance policies and hire purchase agreements held by the Husband, or on his behalf;

   o.Details of all other liabilities in the Husband’s name or any entity within the Joliffe Group; and

   p.Copies of the Q Pty Ltd (or any other betting agency) account statements in the name of the Husband or his account username from 2014 (or the date that the account was established, if later than 2014) to date, and any other Q Pty Ltd account controlled by the Husband.

2. Within 28 days the Husband provide to the Wife’s solicitor:

   a.Copies of all loan applications made from 1 July 2014 to the current date to any financial institution;

   b.Financial Statements and Tax Returns for any entity in which the Husband holds an interest for the financial years ended 30 June 2015 to 30 June 2018 (and 2019 once completed);

   c.Bank statements for any account held by any entity in the Joliffe Group from 1 July 2014 to the current date; and

   d.Tax Returns and Financial Statements for any self-managed or other superannuation fund in which the Husband holds an interest for the financial years ended 30 June 2015 to 30 June 2018.

IT IS ORDERED THAT

(12)Pursuant to section 77 of the Family Law Act 1975 (Cth) the Husband pay or cause to be paid to the Wife the sum of $750 per week by way of urgent periodic spousal maintenance to be deposited in or transferred to the wife’s ME bank account BSB: …, account number: …20, the first payment to be made by 4.00pm on Wednesday 7 August 2019 and each alternative week thereafter.

(13) Pursuant to section 77 of the Family Law Act 1975 (Cth) by 4.00pm on Friday 2 August 2019 the Husband pay or cause to be paid to the Wife the sum of $1,300 by way of urgent lump sum spousal maintenance to be deposited in or transferred to the wife’s ME bank account BSB: …, account number: …20.

(14)    Until further order, the Husband pay or cause to be paid the following expenses for the B Street Property, as and when they fall due:

a.All mortgage / line of credit repayments;

b.All council and water rates;

c.All outgoings and utilities (including but not limited to water consumption, electricity, gas, insurances, internet and landline telephone expenses).

(15)Subject to order 7 and pending further order, the Husband personally and in his capacity as officeholder in any company or trust, by himself, his servants and agents, be restrained by injunction from making or aiding the making of any payment or transfer (including any loan, advance or gift) by him or on his behalf or by or on behalf of any such company or trust, save and except in the ordinary and proper course of business in relation to C Pty Ltd trading as C Company only.

(16)Without limiting the operation of orders 6 and 15 herein, the Husband and Wife personally or in their capacity as officeholder in any company or trust or by their servants and agents, otherwise be restrained by injunction from withdrawing or electronically transferring any monies from the Commonwealth Bank of Australia CDIA account number ending #...96 save and except with the written agreement of both the Husband and the Wife or order of this Court.

(17)All extant applications be adjourned for hearing in the Senior Registrars Duty List at 10.00 am on 19 September 2019.

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 Joliffe & Joliffe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7613 of 2019

Ms Joliffe

Applicant

And

Mr Joliffe

Respondent

REASONS FOR JUDGMENT

1. On 9 July 2019 the wife filed an Initiating Application seeking final orders for property settlement, albeit she sought to be excused from particularising those orders pending financial disclosure by the husband and the preparation of single expert valuations. The wife also sought interim orders for sole use and occupation of the former matrimonial home, a lump sum payment of $50,000 to meet her legal costs, interim spousal maintenance, child support, injunctive relief and orders for the further conduct of the matter including orders for the appointment of single experts to value the real property and the husband’s accounting practice. Time was abridged and the wife’s Initiating Application was listed for hearing before me in the Judicial Duty List on 17 July 2019.

2. At the commencement of the hearing counsel for the wife made an oral application for urgent spousal maintenance and although the parties were able to resolve a number of the issues at least on an interim basis the question of what if any urgent spousal maintenance the husband should be required to pay remained in dispute.

3. Although counsel for the husband said that his client had not had time to prepare a Response to the wife’s Initiating Application, he sought leave to file the husband’s affidavit in reply to the wife’s affidavit and a Financial Statement, and said that his client opposed the wife’s application for interim orders. Notwithstanding that counsel for the husband said that he was ready to proceed, during the course of the hearing he referred on a number of occasions to the limited time the husband had had to produce documents and adduce the evidence to meet the wife’s case and, in particular as this was one of the issues left to the court to determine, the wife’s application for what was until the commencement of the hearing interim spousal maintenance. He also referred to the court not having the evidence it needed to determine the matter.

4. The husband and wife in this case commenced cohabitation in 1998, were married in 2002 and separated finally in early 2016. There is one child of their relationship X born in… 2004 (“the child”) who lives primarily with the wife. The husband who is 48 years of age is a Professional and is the sole director of C Pty Ltd trading as C Company professional services. The business employs three Professionals including the husband.

5. It is common ground that the wife, who is almost 59 years of age, has not been in paid employment since the birth of the child of the marriage in …2004, save for a matter of weeks when she says she worked for a friend, and that she and the child have been financially dependent upon the husband both during the marriage and since separation. Prior to the birth of the child the wife was employed at a senior level as a Manager. It is the wife’s evidence that she currently has a Major Depressive Disorder/Clinical Depression and experiences low mood and a loss of interest and pleasure in usual activities. She deposes that she experiences those symptoms most days and that they can last for weeks. Although the husband acknowledges that the wife was diagnosed as having a Major Depressive Disorder following the birth of the child he does not acknowledge her current mental health issues.

Legal Principles

1. Pursuant to s 72(1) of the Family Law Act 1975 (Cth) (“the Act”) “[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)”.

2. Section 77 of the Act provides as follows:

   Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

3. In Ashton v Ashton [1982] FamCA 9 Nygh J considering the difference between an application for interim spousal maintenance and an application for urgent spousal maintenance said at 77,613-77,614 as follows:

   An application for interim maintenance is basically different from an application for urgent maintenance. An application under s 77 is heard at time when all the evidence is not yet to hand. It may have to be made ex parte or may be to be made on such evidence as the husband is able to supply in the short period before the matter is set down for hearing.

4. The difference between an application for interim spousal maintenance and urgent spousal maintenance lies in the summary nature of the hearing at a time when the court may not have all of the evidence which would be required to make an order for interim spousal maintenance and in circumstances where there is no opportunity for the respondent to test the evidence. Whilst the applicant must still satisfy the threshold questions of need and capacity to pay, as the Full Court said in Williamson and Williamson (1978) FLC 90-575(“Williamson”) the decision is one that is made on a “rather pragmatic basis without any real hearing on the merits” because it is an order which is intended to be of limited duration and once all of the evidence is available and has been tested the court can make different orders without having to meet the requirements for the variation of an order which s 83 of the Act would otherwise require.

Discussion

1. In her Financial Statement the wife deposes to nil income and expenses of $1,136 per week. Although this includes expenses for her household generally which includes both the wife and the child as the Full Court said in Redman & Redman [1987] FamCA 2:

   …a strict line between costs referable to the custodial parent and those referable to the children cannot always be drawn with clarity. Some expenditure relating to the household as a whole, such as the provision of housing, electricity, fuel, transport, and possibly food and groceries, cannot be strictly divided. Where an application is made which covers both the custodial parent and the children those expenses can with some justification be allocated under either heading. They are relevant to spousal maintenance in pursuance of sec. 75(2) para. (c) (d) and (e). In such a case it will be difficult to stipulate with any precision how the maintenance should be allocated or to challenge any such allocation if it is made.

2. Counsel for the husband submitted that the wife had not demonstrated a need for support. He based his submission on the fact that the wife was highly educated and well qualified, had previously held a number of responsible positions, and on that basis has the capacity to obtain employment obviating any need for support. He also submitted that the wife had not adduced any medical evidence as to her mental health issues and how they would impact upon her employability. In my view this disregards the likely difficulty the wife would face obtaining employment at her age and in circumstances where she has been out of the work force for almost 15 years, irrespective of any mental health issues. Even if the wife were able to obtain suitable employment which in my view is questionable there is no guarantee that she will obtain that employment in the immediate short term and it is her need for support in the short term that an application pursuant to s 77 is intended to meet.

3. Counsel for the husband further submitted that in circumstances where the parties had agreed that the wife should be paid approximately $68,000 from their self-managed superannuation fund she would have no need for spousal maintenance. However as the husband instructed his counsel to make clear the self-managed superannuation fund has no capacity to meet that payment without the sale of a real property which will take some time and in those circumstances will not address the wife’s immediate need for support.

4. Counsel for the husband made general submissions about the parties, in particular the wife, living beyond their means however did not identify particular items of her expenditure that were not reasonable for her support or the support of the child of the marriage. Although the Senior Registrar or another judge hearing the matter may, with the benefit of evidence that is not available to me and cross-examination, reach a different conclusion, on the face of it the wife’s expenditure does not appear to be unreasonable. I also note that if the education expenses for the child of $800 per week are deducted, which it appears the husband is not currently paying, the husband’s expenditure is at least as much as the wife’s notwithstanding that the child lives primarily with the wife and that she is responsible for his support in her care. 

1. Doing the best I can and adopting the pragmatic approach described by the Full Court in Williamson I am satisfied that the wife has met the threshold test and demonstrated an urgent need for financial support.  

2. Counsel for the husband further submitted that the wife had not demonstrated and the court could not be satisfied that the husband has the capacity to contribute to the wife’s support. Counsel for the wife was critical of the husband for his failure to provide the documentation required of him pursuant to r 4.15 of the Family Law Rules 2004 (Cth) (“the Rules”) which set out the documents the parties to an application for spousal maintenance must bring to court on the first court date and his failure to address the specific allegations made by the wife in her affidavit other than in very general terms. Although it is correct as counsel for the husband submitted that the wife’s solicitor had only written to the husband’s solicitor the day before the hearing requesting the documents pursuant to r 4.15, it is the rule itself and not the correspondence which requires the production of the documents and even on the husband’s case he had five or six days to get his material ready. Apart from his general complaint that the husband had had limited time to prepare his evidence and produce the required documents, counsel for the husband did not otherwise explain why, in circumstances where the husband who is a qualified accountant, has been responsible for managing the parties financial affairs and has access to all of the relevant information and documentation, the husband could not have provided a more detailed response to the wife’s affidavit. Counsel for the wife referred to a number of examples one of which was the husband’s response to the wife’s evidence about the monies the husband had lent to third parties and his ability to call in those loans. It was counsel for the wife’s submission, which I accept, that the husband evidence as to his financial circumstances should be viewed with some caution.

3. The evidence as to the husband’s capacity does lack some clarity which the husband will have the opportunity to address prior to any further hearing, however counsel for the wife referred me to two documents which he submitted amply demonstrated the husband’s capacity to contribute to the wife’s support on an urgent basis. The first of those documents was a Commonwealth Bank Statement of Position signed by the husband and dated 4 June 2019 in which the husband disclosed net salary/wages/drawings from the business of $15,000 per month. The husband also disclosed expenditure of $5,200 however this included $3,000 per month for school fees which I am satisfied he is not currently paying.

4. The second document was a Business Transaction Account statement for the period 8 to 18 June 2019 which counsel for the wife submits demonstrates a pattern of expenditure inconsistent with the husband’s assertion that the business is in a poor financial position, the negative cash flow statement he produced for the month ending 31 July 2019 and his Financial Statement in which he discloses income of $500 per week. I also note that, although the husband referred to the financial returns for the accounting practice for the year ending 30 June 2018, those returns were drafts. Counsel for the husband’s explanation that the husband had been too busy to finalise and lodge the returns would on the face of it appear to contradict his evidence as to the financial viability of the accounting practice.

5. The husband deposed in his affidavit to a number of matters which will hopefully be clarified once the relevant documents are discovered by the husband. These include the alleged taxation debt, the husband’s drawings from the practice to meet family and personal expenditure, and the application of his lottery win. Whilst if there is a tax debt one would expect that it will eventually have to be paid, there are also likely to be issues with respect to the ultimate responsibility for that tax debt in circumstances where the husband has had control of the parties finances. The wife will also need to consider the viability of the practice, the history of drawings, and how the husband has used his lottery winnings once the necessary documents are produced. In any event the husband’s evidence that the “parties’ expenses have been largely paid from drawing down upon the parties’ finance facilities and from [the husband’s] lottery win in May 2015 in the sum of $145,762.06” and his counsel’s submissions to the effect that “the parties debts and level of expenditure are unsustainable”  and “C Company does not have the resources to pay for all the wife’s expenses” does not alter the fact that on 4 June 2019 the husband told the Commonwealth Bank that his monthly income by way of net salary/wages/drawings from the practice was $15,000.  Moreover, notwithstanding that the husband says he attends meeting at a club and other venues paid for by clients and friends, the bank statement does suggest some recent expenditure on such activities.

6. Counsel for the husband submitted that it is for the wife to demonstrate the husband’s capacity to pay rather than for the husband to demonstrate that he does not have the capacity to pay. Whilst it may be that it is not for the husband to prove the wife’s case, taken to its logical conclusion that would mean that absent full and frank disclosure by a husband or wife with financial control the other party seeking urgent spousal maintenance could never establish the necessary capacity.  

7. I am satisfied that based upon the fact that the husband told the Commonwealth Bank in June of this year that his net income by way of salary, wages or drawings is $15,000 per month and he has expenses of $5,200 including $3,000 a month for school fees, that the husband has the capacity to contribute to the wife’s urgent support. Even if I use the figures in his Financial Statement rather than the figure in his statement to the Commonwealth Bank, his expenses are approximately $9,333 per month including on his figures approximately $3,466 per month for school fees which, as previously referred to, he is not paying.  

8. The orders the parties’ agree I should make by consent include orders requiring the husband to pay the wife’s mobile phone expenses, private health insurance at the current level and the costs associated with the wife’s motor vehicle. The husband also said he would do his best to pay the expenses for the B Street property where the wife and child live including the mortgage/line of credit payments, council rates, and water and utilities. In my view this is not a sufficient response to the wife’s application particularly in circumstances where this appears to have been the arrangement between the parties since separation and I propose to order that the husband meet these payments so that at least until the further hearing the wife and the child have the security of knowing that they have a roof over their heads. This is for a limited period and the husband will have the opportunity at the next hearing to demonstrate whether or not he has the capacity to meet these expenses and having regard to the orders for financial disclosure the wife should be in a position to properly assess their financial position.

9. The wife otherwise seeks a periodic payment of $1,136 per week which is the combined total of her expenses and those of the child set out in Part N of her Financial Statement. I note that the wife is not spending the $100 per week she claims for holidays due to her lack of capacity to do so. Although this may be a legitimate claim, these are urgent maintenance proceedings and I do not believe that it is an expense that I should include for the purposes of this application. I similarly do not consider that house repairs are an expense that I should include in the absence of evidence as to the urgency of those repairs. That leaves a figure of $986.

10. Although in an urgent maintenance case the dividing line between the wife’s expenses and those of the child may not be as clearly identified and it can be difficult to allocate expenses between the children and the parent they live with, the wife in this case has attempted to do so. However, as referred to by the Full Court in Redman, that is not always a clear distinction. Those which are in my view likely to be less precise include food, petrol, gifts, hairdressing and toiletries. For example one does not usually shop separately for food for children living in a household. It is also the case that although both the husband and the wife have an obligation to support the child it is the primarily the wife who is meeting the child’s day to day expenses which means she has less available for her own support, including of any amount paid to her by the husband.  Although some of the wife’s figures may not be precise I do however propose to take into account the fact that some of the wife’s expenditure does relate to the child. Doing the best I can and taking a pragmatic approach, in circumstances where the matter will be relisted for hearing in a matter of months I propose to order that the husband pay to the wife by way of urgent spousal maintenance the sum of $750 per week. This should allow the wife to meet her immediate needs having regard to the fact that she provides financial support for the child. As it is now 2 weeks since the hearing I propose having regard to the urgency of the wife’s financial position to order the husband to pay a lump sum equivalent to 2 weeks periodic spousal maintenance to the wife by 4.00pm on Friday 2 August 2019. In these circumstances and having regard to the likely blurring of the wife’s expenditure between herself and the child I propose to disregard those expenses which can be clearly identified as relating to the child.

11. Counsel for the wife sought an adjournment of approximately 3 months on the basis that the wife would require time to consider the financial and other documents produced by the husband and he foreshadowed that the wife would need to engage an expert to analyse the documentation discovered by the husband. Although the parties had agreed upon the appointment of single expert valuers to value the real property, to be paid for by the husband at first instance, the husband opposed the appointment of an expert valuer to value the accounting practice. It was the husband’s case that as the practice had no value it was unnecessary to value it. This ultimately became a dispute about who should be responsible for payment. In my view this is a dispute which is better left for the further hearing of the matter when the court will have more evidence than it currently has. Although in a perfect world the parties might be assisted in terms of a resolution of the matter by that valuation having been completed when the matter returns to court, it should not be necessary for the further determination of the interim matters. 

12. Although as previously referred to the parties had reached an agreement in relation to many of the issues in dispute, they had been unable to agree upon the wording of some paragraphs of the injunctive relief sought by the wife. In particular the wife sought an injunction in the following terms:

    That subject to Order 7 and pending further order, the husband personally and in his capacity as officeholder in any company or trust, or by himself, his servants and agents, be restrained by injunction from making or aiding the making of any payment or transfer (including any loan, advance or gift) by him or on his behalf or by way or on behalf of such company or trust.

13. Counsel for the husband submitted that the relief sought was too broad but that his client would consent to an order restraining him from making any “loan advance or gift”. Counsel for the wife submitted that in circumstances where the husband has drawn on practice accounts to fund his personal expenditure, the order was necessary to prevent further diminution of an already diminished asset pool. Whilst there is some force in that submission, in my view the order sought is too wide. I am satisfied that the husband needs to be able to continue running the practice and in those circumstances he should be permitted to make payments in the ordinary course of business and I propose to order accordingly. The husband will need to account to the wife for the payments he makes and if necessary adjustments can be made in her favour if those payments were not legitimately made in the ordinary course of business.

14. The husband also opposed the order sought by the wife restraining him from withdrawing or transferring funds from the Commonwealth Bank of Australia account number ending #...96. The rental income from the properties owned by the parties self-managed superannuation fund (“the Fund”) is paid into this account, and the mortgage repayments for those properties are paid from this account. The wife’s case is that the husband has transferred funds from that account to the practice, he says in relation to the management of the fund, and questions the need for the staff of the practice to manage the fund and the amount of work required and in those circumstances the amount charged by the practice. Although the husband denies that the self-managed fund is not being properly managed, he does not dispute that the practice has invoiced and been paid by the fund as the wife deposes and which he says are payments in the normal course of business. The wife further deposes that the husband has withdrawn funds from this account for personal expenditure.

15. The evidence has not been tested and I am not in a position to make findings in relation to whether the amounts the self- managed fund was billed by the practice were either necessary or reasonable or whether the husband has as the wife says withdrawn other amounts to meet personal expenses. However, in circumstances where it seems to be common ground that the parties’ asset base has been eroded albeit they may not agree upon the reason, and it is the husband who has controlled and continues to control their financial affairs, I am satisfied that I should make the order the wife seeks. However I am mindful that even in the period of the adjournment there may be legitimate expenses to be paid from that account and I propose, as submitted by counsel for the wife, to make that order subject to any agreement reached by the parties. What this means is that the husband who controls the day to day management of the fund and the relevant account will need to present evidence to the wife in relation to any payments that he says need to be made. It is hard to see how the wife could reasonably withhold her consent if those requests that are made are supported by evidence and legitimately require payment.

16. The matter will be otherwise adjourned for hearing in the Senior Registrar’s Duty List at 10.00am on 19 September 2019.  

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 August 2019.

Associate: 

Date: 1 August 2019