KHODR & KHODR

[2018] FamCA 702

FAMILY COURT OF AUSTRALIA

KHODR & KHODR [2018] FamCA 702

FAMILY LAW – CHILDREN – Interim hearing – Where the parents are in significant conflict – Where there are no allegations the children are at risk in either parent’s care – Where the oldest child is 18 – Where the middle child refuses to spend time with the father – Where the time spent with and attention paid to the children by the father prior to and post separation is in dispute – Where the paternal and maternal extended family are substantially involved in the dispute – Where the youngest child appears to have a positive relationship with both parents – Orders made for the middle child to spend time with the father as per her wishes and for the youngest child to spend gradually increasing time with the father.  

FAMILY LAW – SPOUSAL MAINTENACE – Interim hearing – Where the wife seeks lump sum and periodic spousal maintenance – Where the wife is unable to adequately support herself – Where the financial circumstances of the husband and the husband’s business are somewhat unclear – Where the husband has capacity to support the wife – Where the wife has not demonstrated why she could not seek part time work – Where the legal basis for lump sum spousal maintenance is unclear – Orders made for the husband to pay the wife periodic spousal maintenance of $500 per week.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D, 65DA, 72, 74, 75(2), 114
Income Tax Assessment Act 1936 (Cth) Div 7A

Brown and Brown (2007) FLC 93-316
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Clauson and Clauson (1995) FLC 92-595
Curnow & Curnow (unreported, Full Court of the Family Court of Australia, 28 April 1997)
Deiter & Deiter  [2011] FamCAFC 82
Eliades and Eliades (1981) FLC 91-022
Glover v Walters (1950) CLR 172
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
In the Marriage ofBevan (1995) FLC 92-600; (1993) 19 Fam LR 35
In the Marriage of Waugh (1999) 27 Fam LR 63
Jackson v Sterling Industries Ltd (1987) 162 CLR 612; 71 ALR 457
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
N & N (1997) FLC 92-782
Nutting and Nutting (1978) FLC 90-410
Robinson and Willis (1982) FLC 91-215

APPLICANT: Ms Khodr

RESPONDENT: Mr Khodr

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 2308 of 2017

DATE DELIVERED: 7 September 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 31 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Farah Lawyers

COUNSEL FOR THE RESPONDENT: Mr Morely

SOLICITOR FOR THE RESPONDENT: New South Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dodson of Legal Aid NSW Parramatta

Orders made 31 May 2018

1. That the Respondent continues to meet the repayment obligations on the loans that are currently encumbering the matrimonial home situated at B Street, Suburb C and the farm situated at D Street, Suburb E.

2. That the Respondent maintain the businesses trading as ‘F Pty Ltd’ and ‘G Pty Ltd’ as economically viable entities and not do any act or enter into any financial or business transaction that would cause the companies to be insolvent.

3. That until the sale of the properties the Respondent pay as they fall due all regular instalments in respect of the mortgage, council rates and water rates and insurance premiums  in respect of the properties situated at B Street, Suburb C and D Street, Suburb E and pay forthwith any arrears in respect of the said instalments.

4. That within 7 days of these orders, the husband pay all bills and utilities, expenses that are in arrears, in respect of B Street, Suburb C including but not limited to Council Rates, water rates, electricity and gas and insurances upon presentation to him in a timely manner of the accounts.

Parenting Orders pending further order

1. That by consent the child X born … 2002 shall spend time with the father in accordance with her wishes.

2. That the father shall be at liberty to send letters to X no more frequently than once per fortnight, and the mother shall ensure that any such communication is provided to X directly without interference.

3. That the child Y born … 2011 shall spend time with the father as follows: 

   (a)       during School Terms and during NSW School Holidays up until Term 1 2019:

   (i)each Wednesday from the conclusion of school (or otherwise 3pm) until 7.30pm;

   (ii)commencing on the date of these Orders and continuing for a period of 8 weeks, from 9am to 5pm Sunday;

   (iii)commencing at the expiration of Order (7)(a)(ii) above, and continuing for a period of 12 weeks, from 9am Saturday to 9am Sunday;

   (iv)commencing at the expiration of Order (7)(a)(iii) above and from 9am Saturday to 5pm Sunday, in each alternate weekend.

   (b)       during School Holidays, commencing in the Term 2 2019 school holidays:

   (i)in NSW short school holidays: from 3pm on the Friday either marking the last day of required school attendance, or immediately following the last day of required school attendance to 3pm the Friday immediately following;

   (ii)in the NSW Term 4 long school holidays: for 14 nights as agreed between the parents and failing agreement from 9am 1 January to 9am 15 January.

   (c)       during special occasions:

   (i)from 5pm the Saturday before Father’s Day to 5pm Father’s Day;

   (ii)from 2pm Christmas Eve to 2pm Christmas Day in each year ending in an even number;

   (iii)from 2pm Christmas Day to 2pm Boxing Day in each year ending in an odd number;

   (d)       such further and other time as agreed between the parties in writing.

4. The father’s time with Y shall be suspended on the following occasions, and Y shall spend such time with the mother:

   (a)       during School Holidays, commencing in the Term 2 2019 school holidays:

   (i)in NSW short school holidays: from 3pm on the middle Friday of the holiday period to 9am on the first day of school term;

   (ii)in the NSW Term 4 long school holidays: from 3pm on the last day of school attendance until 9am 1 January and from 9am 15 January to 9am on the first day of required school attendance in Term 1;

   (b)       during special occasions:

   (i)from 5pm the Saturday before Mother’s Day to 5pm Mother’s Day;

   (ii)from 2pm Christmas Day to 2pm Boxing Day in each year ending in an even number;

   (iii)from 2pm Christmas Eve to 2pm Christmas Day in each year ending in an odd number;

   (c)       such further and other time as agreed between the parties in writing.

5. That the father’s time with Y shall resume following School Holiday time on the first weekend of school term.

6. In the event that changeover does not coincide with the commencement or conclusion of school, changeover shall occur with Y being collected from the mother’s residential address by the father at the commencement of time and with the mother collecting Y from the father’s residential address at the conclusion of the father’s time with Y.

7. That the father is restrained from causing, allowing or permitting the child Y to be left in the sole care of the paternal grandparents.

8. That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent or members of the other parent’s family in the presence or hearing of the children.

9. That each of the parents is restrained by injunction from discussing these proceedings, or allegations made within these proceedings with the children or the contents of any material filed by the parents in proceedings with the children.

10. That within 14 days of the date of these Orders both parties shall do all things necessary to enrol in the course Keeping Kids in Mind and thereafter shall attend at such course as required by the course provider.

11. That within 14 days of the date of these Orders the father shall do all things necessary to enrol in a Triple P parenting course and thereafter shall attend at such course as required by the course provider.

12. That each parent shall give all consents, sign all documents and do all things necessary to ensure that the other parent can obtain the following from the children’s school(s)/after school care(s) at their own cost:

    (a)       a copy of all school reports, progress reports and photo order forms; and

    (b)       notification for activities that they may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend.

13. That the father shall be at liberty to attend at parent/teacher interviews for the children Y and X and shall be at liberty to attend at school activities that parents are ordinarily invited to attend in respect of Y only.

14. That in the event of any of the children suffering a medical emergency requiring medical attention while living with either parent:

    (a)       the other parent is to be notified as soon as practicable;

    (b)       the other parent is to be provided with the full details of the practitioner or medical facility upon which the child or children has attended as soon as practicable; and

    (c)       the medical practitioner or facility is to be advised that both parents have access to the children’s medical records and that information relating to the child or children is to be shared with the other parent upon request.

15. That each parent shall inform one another within 7 days in writing of their current residential address, at least one contact telephone number and nominated number for the purposes of facilitating telephone communication with the children and shall advise one another within 48 hours in writing should there be any change to said contact details noting that this order does not authorise either parent to personally attend, or cause any other person to attend, the other parent’s place of residence unless otherwise invited by the other parent or a member of the household.

16. That within 7 days of the date of these Orders both parents shall register with the service Our Family Wizard and download the Our Family Wizard App and shall communicate in respect of parenting issues through such service.           

Property Orders

1. That pending further order the husband pay to the wife the sum of $500 by way of weekly periodic spouse maintenance by transferring the said amount into the wife’s nominated bank account.  

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 Khodr & Khodr 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 2308 of 2017

Ms Khodr

Applicant

And

Mr Khodr

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Following the breakdown of the parties’ 19 year marriage in February 2017 Mr Khodr (“the father” or “the husband”) has spent limited time with his three children.

2. Ms Khodr (“the wife” or “the mother”) who has remained living in the former family home contends that the husband has not provided for her sufficiently since separation.

3. This judgment concerns proceedings brought by the father for interim parenting orders with respect to the parties’ youngest child who is now seven, and the wife’s application for orders in relation to interim maintenance and other matters concerned with the financial arrangements between the parties.

Background

1. The father who is 53 and the mother who is 42 began living together from the time of their marriage in 1998.  The parties are of Middle Eastern heritage, the father having been born in a country in that region and immigrating with his family to Australia as a young adult.

2. The father works as a tradesman in his own business in which the mother was previously also employed as a secretary.

3. Following their marriage the parties initially lived with the paternal grandparents.  They then purchased the former family home which is situated across the road from the paternal grandparents’ home.  The parties continued living with the paternal grandparents and the house they had purchased was leased.

4. The parties’ oldest child a daughter who is now 18 was born in 2000 and a second daughter (“the younger daughter”) who is now 16 was born in 2002.

5. In 2003 the father and his sister purchased a farm in a rural area (“the farm”) not far from Sydney as tenants in common.  There was some rudimentary accommodation at the farm and then a house was built at that location.

6. In 2008 the parties moved into the former family home with their two young daughters.

7. In 2011 the parties’ son (“the son”) was born.  He will very soon be seven years of age.

8. The mother was the primary carer for the children throughout the marriage.

9. In 2012 the family travelled to the father’s homeland for a holiday.  The mother contends that the father received a property in his name at this time and that the parties also bought a piece of land in that country.  I understand that the foreign ownership of property is a matter in issue between the parties though it is of no moment in these interim proceedings.

10. In 2015 the mother contends that she and the father purchased the interest of the father’s sister in the farm and took over her loan.  The mother says that she subsequently learned that the father failed to register the transfer.  As I understand it the father contests the mother’s version as to this event.  He remains as a registered proprietor who holds that property as a tenant in common with his sister who has not been joined to the proceedings.

11. In February 2017 the parties separated and the father left the family home and moved in to live with his parents.  Initially the father spent time with all of the children with the arrangements being made between the mother and the father’s nephew.

12. It is common ground between the parties that one of the ongoing causes of difficulty between them which contributed to their separation was a dispute between the mother about the involvement of the extended paternal family in the father’s business and the family’s life.

13. In about March 2017 there were some communications between the father and at least one of the daughters which indicate that the dispute involving the extended paternal family had begun to involve that daughter. This appears to have contributed to the father having a strained relationship with both daughters, and other than one occasion he has not spent time with either of them since this time.

14. In April 2017 the mother’s lawyer advised the father’s lawyer that the children did not want to see the father and that the father was not to attend the family home or police would be contacted.

15. In May 2017 the mother commenced these proceedings in the Federal Circuit Court seeking orders with respect to property only.  In his Response the father sought orders with respect to the children.

16. There was an incident at the younger daughter’s school in August 2017 when the father attended in an attempt to make contact with her. This incident appears to have added to the strain between the father and this daughter. 

17. Orders made in August 2017 formalised the arrangement whereby the children live with the mother.  The children were also to spend time with the father subject to their wishes or upon the recommendation of a family therapist.  The parties and children were also to participate in family therapy. 

18. The father had at least one appointment with the family therapist but the therapy which was to include the children in November 2017 did not occur.

19. On 9 November 2017 the proceedings were transferred to this court and the parties consented to an order that the father spend time with the son every Sunday for four hours.

20. The mother says that the son has been resistant to spending time with his father but she told the child that if he did not do so she would go to gaol.  Despite any alleged resistance the son has generally spent time with his father in accordance with the orders.

21. The mother alleges that from around January 2018 the son has complained about being taken to the homes of extended paternal family members and spending time with them during the time with his father and complains about members of the paternal family interrogating him about the mother, his sisters and their home circumstances.

22. On 12 February 2018 the parties and children attended upon a family consultant for the purposes of the Child Responsive Program.  It was clear to the family consultant that the daughters’ relationship with their father was very strained and that neither daughter indicated a willingness to repair that relationship at that time.  The family consultant was also of the view that all three children were clearly aware of and impacted by the conflict between their parents and were concerned about the mother’s distress.

23. Although the parenting application initially included the oldest daughter she has since turned 18 so the orders sought and this judgment only relate to the two minor children of the relationship.

24. On 27 February 2018 the mother filed an Amended Initiating Application seeking that on an interim basis she have sole parental responsibility for the younger daughter and the son (“the children”), that the younger daughter spend time with the father subject to that child’s wishes and that the amount of time the son spends with his father remain unchanged. The mother also seeks an order that the father be present at all times the son is in his care, that the father be restrained from leaving the son in the care of the paternal grandparents, that the parties be restrained from denigrating one another or discussing these proceedings with the children and that the father participate in a post separation parenting program. 

25. So far as parenting is concerned the father initially sought an order that the parents equally share parental responsibility for the children, that the children live with the mother and spend time with him each alternate weekend from 5 pm Friday to 7 pm Sunday, each Wednesday for three hours after school, for defined time during the school holidays and on special occasions and various other orders.  At the interim hearing the father agreed to an order that the younger daughter spend time with him in accordance with her wishes and adopted the proposal of the Independent Children’s Lawyer (“ICL”) in relation to the son.

26. The ICL seeks orders similar to the father’s proposal but with a graduated increase in the father’s time with the son leading to each alternate weekend after eight months and other orders. 

27. So far as the property matters are concerned, the father initially sought an order enabling him to collect personal items from the family home.  In the course of the proceedings he withdrew his application for that order and also consented to a number of orders proposed by the mother which were made on the day of the interim hearing. 

28. The only outstanding matters in relation to property which are dealt with in these Reasons are the orders sought by the mother that the father be restrained from dealing with some particular bank accounts, a claim for $1000 week for spouse maintenance and $25,000 as a lump sum for past spouse maintenance.

parenting orders -the law and discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

1. Pursuant to s65D(1), subject to certain sections a court may make such parenting order as it thinks proper.

2. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

3. Section 65DA provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further when making interim orders the presumption applies unless the court considers that it would not be appropriate.

4. There are a number of significant matters in dispute and the parents do not currently have a capacity to communicate with one another which would be necessary for them to exercise parental responsibility on an equal shared basis.  In these circumstances I do not consider that it would be appropriate to apply the presumption that it is in the best interests of the children for the parents to equally share parental responsibility.  

5. It had been the father’s application that an order for equal shared parental responsibility be made though he resiled from this in the course of the hearing and adopted the position of the ICL that there be no order for parental responsibility on an interim basis.  The mother had initially sought sole parental responsibility on an interim basis but did not press for that order at the interim hearing.

6. In Deiter & Deiter^[2], the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.

   [2] [2011] FamCAFC 82

7. Given the limited progress that has been made in both the parenting and property proceedings to date it is likely that the interim parenting arrangement under consideration will be in place at least for many months.

8. It is the mother’s proposal that the current arrangement under which the son spends time with his father for four hours each Sunday continue with the imposition of some additional restraints in the interim.  The proposal of the ICL adopted by the father is that the son’s time with his father gradually increase to include overnight time on alternate weekends and in block periods in the school holidays.

9. The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in s 60CC(2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.

3. Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[3] 

   [3] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

4. Each of the proposals of the parents will ensure that the son will receive the benefit of having a meaningful relationship with both of his parents as he will continue to live with his mother and spend time with his father each weekend or each alternate weekend.

5. I cannot find that the younger daughter will share a meaningful relationship with her father under the proposed orders as the time she is to spend with her father is subject to her wishes.  This is unfortunate as both parties appear to recognise that all of the children (including the older adult daughter) would receive a benefit from having a meaningful relationship with their father.  However, given the age of the younger daughter, the parties’ agreement that she is to spend time with her father in accordance with her wishes is practical and appropriate on an interim basis.

6. Neither of the parents suggest that there is a need to protect the children from the harm or risk of harm contemplated in s60CC(2).  That is, there is no contention that the children are physically or psychologically harmed from being subjected to or exposed to abuse neglect or family violence in the care of either parent.

7. Section 60CC(3) sets out additional considerations, a number of which are not appropriate or possible to be applied in this application.  I will refer to those which are relevant in these proceedings.

Views expressed by the child and any factors relevant to weight to be given to those views

1. When interviewed by the family consultant in February 2018 the younger daughter stated that she currently had no contact with the father by her own choice and also reported that she felt the father should have tried harder to contact her.  The daughter attributes ceasing contact with her father to a dispute she had with him in April 2017 in which she felt he had chosen one of his family members over her.  She said that if court orders were made for her to have contact with her father she would refuse.

2. Given the daughter’s age, significant weight should be attached to her views concerning her own contact with her father.  The proposal that her time with her father should be in accordance with her views does afford due weight to those views.

3. The son aged seven when interviewed was quite reluctant to disclose any information about his time at his father’s house other than to say that he misses his mother and sisters during that time.  Despite his age this child said that he couldn’t remember the question or didn’t understand when he was further asked about his relationship with his father and the time they spent together.

4. As I understand the mother’s case she seeks that some weight be attached to the son’s apparent reluctance to spend time with his father as she says this is consistent with the child’s reports of being pressured and manipulated in the paternal home and his expression of being unsafe and in danger there.

5. The family consultant expresses the view that the son’s ambivalence in discussing his relationship with his father may be indicative of a conflicted relationship with his father (consistent with the mother’s position) or may be indicative of this child’s awareness and concern regarding the mother’s distress.  This is not a matter that may be resolved in an interim hearing based on a Memorandum prepared by the family consultant arising from a limited assessment.

6. To the extent that the son’s ambivalence in discussing his father may be classified as an expression of a negative view towards spending time with him I do not attach weight to that expression of views given the child’s age, clear knowledge of the parental dispute and alignment of all of the other members of his household with the mother.

The nature of the relationship of the child with each of the child’s parents, and other persons

1. Given that both parents were involved in raising the children when their relationship was intact it can be assumed that the children have formed attachment relationships with each of the parents.

2. There is little doubt however that while the children appear to have a positive relationship with their mother the daughters’ relationships with their father appear to be very strained and neither daughter indicates a willingness to repair it at present.  The younger daughter did however indicate to the family consultant that she would like the father to demonstrate a willingness to initiate contact.  Giving her the option to engage with her father if she wishes at least provides an opportunity for relationship repair.

3. The father’s affidavit deposes to him having a close and loving relationship with his son which is unable to be developed more fully due to the limited nature of the time between the two under the current orders.

4. The mother expresses concern about the son being pressured and manipulated by the intervention of the father’s extended family and seeks orders to ensure that all time between the father and the son is spent together and “one on one”.

5. The father denies that anything untoward is occurring in his household.  I am unable to make any determination concerning this issue in this interim application. 

6. It seems likely that the father’s position that all children shared a close and loving relationship with their paternal grandparents prior to separation is correct especially given the close physical proximity between the two households.

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time with or communicate with the child

1. Since separation it appears that the mother has assumed all responsibility for making decisions about long-term issues in relation to the children. 

2. The father has been diligent since separation in seeking to spend time with and communicate with all of his children.  Initially in circumstances which are unable to be determined in this application the mother indicated that she would contact police in the event that the father attempted  to spend time with the children by attending the family home. 

3. Orders sought by the mother when she initiated the proceedings related to property and financial matters only and it is the father who first sought orders with respect to spending time with the children. 

4. After orders were made with the consent of the parties for the children to live with the mother and spend time with the father and for family therapy to commence the father participated in family therapy but that was unable to be advanced as the children were not made available to attend at subsequent sessions.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. The mother maintains the children while they are in her care almost full-time and the father has been paying child support since December 2017 in accordance with the assessment by the Child Support Agency.

2. There is some disagreement between the parties in relation to child support and other payments in relation to the children which is unable to be resolved in this application.

Likely effect of any change in the child’s circumstances

1. In the absence of any clear identification of risk posed by the father or in his household or any other matter which indicates that time with the father should be limited, I am of the view that is likely to be to the son’s advantage for his time with the father to continue to be extended over time.

2. The son has expressed an awareness of the parental conflict and his mother’s distress at the family separation and the prospect of spending time with his father.  It appears the child has been stressed by these matters and  it is also likely that he will continue to experience stress if the mother cannot shield him from her feelings and both parents cannot protect him from the family conflict.

3. Great weight is attached in the mother’s case to the child’s awareness of the level of the mother’s distress and the negative impact this is having upon the child.  It is primarily this factor that forms the basis for the mother’s opposition to the father’s application for increased time and that the additional conditions on that time be imposed.

4. I am of the view that the son should not be disadvantaged by having his relationship with his father continuing to be limited or imposing additional conditions on it to meet the needs of the mother in circumstances where there is no risk of harm clearly identified in the father’s household.

5. If the son is also experiencing pressure from interrogation by the paternal family and attempts to manipulate him the family consultant is of the view that it is likely he experiences this as distressing, confusing and disruptive to his relationship with each of his parents.  However, I cannot make any finding that this is occurring in the circumstances of this interim application.

6. It is incumbent upon each of the parents to shield and protect their children from their dispute and the involvement of others in the dispute.  So long as they are able to do this it is likely that the change in the son’s circumstances that will be brought about by him spending more significant time with his father will be beneficial for the child.

Practical difficulty and expense of a child spending time with and communicating with a parent

1. There is no practical difficulty or expense associated with an increase in the son’s time with his father.

2. There may be some practical difficulty associated with the mother’s proposed requirement that all of the child’s time with the father be spent in his physical presence.

Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. There is no evidence to suggest that either parent does not have the capacity to meet the son’s needs, though I have some concern about the mother’s capacity to recognise the importance to the child in having a developed relationship with his father.

Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the child and of either parent

1. These are not matters of significance in this interim application.  The child’s background and lifestyle enjoyed by his family including the culture and traditions of his heritage will not be affected regardless of which orders are made.

Family violence

1. There are no allegations of physical violence made by either parent and no suggestion that the children have been exposed to family violence in the care of either parent.

2. The mother makes allegations of psychological abuse which are unable to be determined on an interim basis.  She does not suggest however that these allegations are of a sufficient magnitude that suggest that the father or anyone in his household poses an unacceptable risk of harm to the son or the younger daughter.

3. The mother also alleges that the father made serious verbal threats including a threat to shoot her.  However she does not suggest that she believed that the father would carry out such a threat and despite having reported this matter to police on previous occasions police declined to take any further action.

Any other fact or circumstances the Court thinks relevant

1. It is in my view a relevant fact that each of the parties’ daughters expressed concern to the family consultant about the son spending time with the father.  The older daughter reported that she had concerns about the father’s difficulty in showing affection, that their older cousins are invited to the paternal home when the father is spending time with the son and that these cousins interrogate the son.

2. The younger daughter also expressed concerns about the son having ongoing contact with the father and claimed that the son had told her he did not feel safe in the father’s care and is left alone with the father.  She says her brother also reported that his paternal cousins and grandmother questioned him constantly about the mother and her family and confiscate his electronic devices until he responds to the questions.

3. As I understand it the mother seeks that I attach weight to the daughters’ views expressed to the family consultant about the son’s contact with the father.  The ICL and the father seek that little weight be attached to the daughters’ views in this regard.

4. I am of the view that it is inappropriate to attach weight to the daughters’ concerns.  Both of the daughters seem aligned with the mother and are aware that the mother holds the father responsible for her distress to which the children are exposed.  Given their age and that there may be a range of reasons why they would express these views attaching weight to them may result in the daughters being further embroiled in their parents’ dispute.

Conclusion-parenting

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred.  In my view, particular weight must be attached to the nature of the son’s relationship with his father in determining this application.  The mother has been unable to identify any particular risk in the father’s household. The further orders she seeks and her opposition to the further development of the child’s relationship with his father by increased time appear to be based upon meeting her own needs to limit her own distress rather than recognising the child’s need and right to a meaningful relationship with his father.

2. There are no other impediments to an increase in the time between the son such as practical matters and I am of the view that it is in the best interest of the son for his time with his father to increase as proposed by the ICL and adopted by the father. 

3. The proposed order with respect to the younger daughter’s time with her father to which the parties have consented is also in my view in her best interests.

4. I am also of the view that it is appropriate that there be no order for parental responsibility at this stage.

Spousal maintenance

1. The wife who initiated property settlement proceedings also seeks interim orders for spousal maintenance.  The orders sought by her are that the husband pay her $1,000 each week in spousal maintenance and make a single lump sum payment of $25,000 in past spouse maintenance.

2. The husband opposes the wife’s application for periodic and lump sum spousal maintenance.  Although he accepts that the wife needs some financial assistance and that he has a responsibility or obligation to pay it he says that this is satisfied by having consented to other orders sought by the wife in her interim application.

3. The orders to which the husband has consented are that he continue to make loan repayments secured by mortgages over the family home and the farm, that he maintain his businesses as economically viable entities and not do any act that would cause the companies to be insolvent, that he pay all regular instalments for rates, water rates and insurance premiums in relation to both properties and all bills and utilities expenses in relation to the family home.

4. It is the husband’s case that the wife has not established a need for spousal financial support beyond the payments to which he has agreed and that he does not have the capacity to provide any further financial support.

The Law and discussion

1. The purpose of interim spousal maintenance is to provide for the interim financial needs of the claimant pending resolution of the property settlement proceedings. The payment of such a claim depends upon two matters: the needs of the applicant and the capacity of the respondent to pay maintenance. 

2. As this is an interim application it is resolved on the basis of the undisputed facts.

The threshold requirements – is the Wife unable to support herself adequately?

1. The first of these matters, the need of the wife, arises from section 72 of the Act and has been described as “the threshold requirement”.

2. Section 72 of the Act provides as follows:

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

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

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

   (c) for any other adequate reason;

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

1. The test of ability to support one’s self in s 72(1) was interpreted in Eliades and Eliades[4] 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 …”

   [4] (1981) FLC 91-022 at 76,232. See also Clauson and Clauson (1995) FLC 92-595.

2. 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 and Nutting[5] 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.

   [5] (1978) FLC 90-410 at 77,094.

3. The Full Court agreed with this interpretation in In the Marriage ofBevan[6]. 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.

   [6] (1995) FLC 92-600; (1993) 19 Fam LR 35.

4. Section 72 sets out two of the specific matters that may affect a person’s ability to support herself adequately being having the care and control of a child or children under the age of 18 and having no capacity for employment. The section also refers to an inability to support oneself “for any other adequate reason”.

5. Mullane J in N & N[7] 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).”

   [7] (1997) FLC 92-782 at 84643.

6. The following s75(2) factors are relevant to the question of the wife being unable to support herself.

7. The husband is 53 and the wife is 42.  In the absence of any evidence to the contrary it can be assumed that each of the parties is in a good state of health. 

8. Currently the husband only is working.  The wife is currently not working and the only paid employment she has undertaken in the past 19 years was as a secretary in the husband’s business.  There is no evidence to suggest that the wife cannot be engaged in some employment due to any physical or mental incapacity. 

9. The parties between them own at least two pieces of real estate and the wife contends that there are other assets including real estate overseas that form part of the matrimonial property.  The wife also contends that the husband has access to financial resources through his companies which is disputed by the husband and is a matter to which I will return when considering capacity to pay.

10. The wife has the primary care and control of two minor children of the marriage and the husband pays child support as assessed by the Child Support Agency.  The parties’ third child who is an adult of 18 is a university student also dependent on the wife.

11. The husband operates a business as a tradesman and employs a number of people.  This business provided the financial resources necessary to support the husband and the family when the marriage was intact.  There is no evidence to suggest that the husband has any other responsibilities to support any other person.

12. The parties previously enjoyed a standard of living that included education of the children at private schools and a reasonably comfortable way of life.  When the marriage was intact it appears that the relationship was a traditional one in that the husband was the main breadwinner and the wife’s contribution was principally as that of homemaker and carer for the children.  It is not in dispute however that the wife also worked within the husband’s business and that her income from that employment was applied to advance the financial position of the family.  During the marriage the parties arranged their affairs in such a way that the wife could continue her principal role as parent.  This arrangement came to an end upon separation and the wife contends that all financial support for the family also ceased upon separation.  The wife is dependent upon a Centrelink benefit though this is not a matter to be taken into account as that benefit as I understand it is income tested.

13. In these circumstances the husband concedes that the wife is unable to support herself adequately by reason of having the care and control of the children of the marriage who are not 18 and given this concession and in light of the aforementioned matters I am satisfied that this has been established.

14. However, the husband contends that his liability to maintain the wife to the extent that he is reasonably able to do so is satisfied by him having agreed to the various orders for the payment of outgoings in respect of the home and the farm.  He also takes the position that the wife is capable of some employment. The husband contends that he has no capacity to provide financial support to the wife beyond the payments he has agreed to make.

Husband’s ability to pay

1. 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. 

2. 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.

3. In Curnow & Curnow[8] 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.

   [8] Unreported, Full Court of the Family Court of Australia, 28 April 1997.

4. As the husband concedes that he is capable of supporting the wife to some extent, I now must consider whether it is reasonable for him to do so as the wife seeks, that is beyond the payment of the various expenses in the orders to which he has consented. 

5. 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[9] 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.

   [9] (1982) FLC 91-215 at 77,157.

6. The Full Court in Brown and Brown[10] 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.

   [10] (2007) FLC 93-316.

7. Having regard to the principles espoused in Nutting & Nutting (supra) and In the Marriage of Bevan (supra) the wife is not entitled to be maintained by the husband to the same standard the parties enjoyed prior to separation but to a standard that is reasonable in the circumstances.

8. One of the difficulties in assessing the extent to which the husband is capable of supporting the wife and in determining a proper order to provide adequate support for the wife is that each of the party’s respective Financial Statements and affidavits are to some extent internally contradictory. There are also disputes concerning fundamental matters such as which party is currently responsible for various outgoings and expenses.

9. According to the husband’s Financial Statement his total average weekly income (made up almost entirely from his employment in his own business) is $1,332 while his total personal expenditure is $1,942 and $148 per week in expenses for the benefit of the children, being school fees. In Part N of his Financial Statement the husband provides a detailed breakdown of the $635 he spends in average weekly expenses.  Of this amount $225 relates to his own expenses, $110 per week is spent on food and household expenditure paid to his parents and $300 per week is paid for the children made up of education expenses ($250) and children’s activities ($50). The balance of his personal expenditure relates to income tax, two mortgages, rates and child support.  In my view none of these expenses could be described as extravagant or discretionary.

10. There is a dispute between the parties concerning the children’s education expenses as the wife also contends that she spends $100 per week in education expenses. There is also an inconsistency in the husband’s statements as to the amount he spends each week on these payments for education.  He refers to these expenses totalling $148 per week in Part H of his Financial Statement and $250 per week in Part N of the same document. It is not clear whether the parties contend that between them pay up to $350 per week for the children’s education but I proceed with the application on this basis.

11. If the husband’s Financial Statement were to be accepted on its face he does not have the capacity to pay all of his current expenses or to make those additional expenses he has now agreed to meet as his personal expenditure already exceeds his average weekly income by just over $600 per week.  For this reason I do not regard his Financial Statement as a particularly reliable document.

12. Although it is contended on behalf of the husband that he has no additional capacity to pay spousal maintenance beyond the household payments and expenses particularised in the orders made by consent, it must be taken that he does have some additional capacity as he has agreed to meet these additional expenses.

Husband’s access to financial resources

1. Although the husband deposes to currently having expenditure of almost $2,000 per week and has agreed to orders requiring him to pay additional outgoings in relation to his two properties he maintains that his average weekly income is $1,332 and that he has no financial resources. 

2. The wife contends that the husband has access to funds from his business and relies upon the financial accounts of the business in support of that contention.

3. The husband denies that his business provides an undisclosed financial resource to which he has access. 

4. Although in an interim hearing I am not able to make definitive findings as to whether the husband’s business provides a financial resource to which he has access and the extent of that resource if it is available to him, I must make an assessment of the broad contention advanced by the wife that the husband has access to undisclosed financial resources. 

5. The husband does not give a great deal of detail in his affidavit about his business except to say that he is a tradesman who conducts his business through a company.  He also has a second company which appears to have been involved in some way in the conduct of his business but ceased trading some years ago.  The husband is as I understand it the sole director and shareholder of his company.

6. In the husband’s Financial Questionnaire he describes himself as a sole trader and it is clear from his affidavit that he receives an income through his company made up of wages, a very small franked dividend, director’s fees and in some years a small car allowance.

7. In support of her contention that the husband has a financial resource available to him through his business the wife relies upon financial statements for that business. In particular, the financial statements for the year ended 30 June 2016 indicate a shareholder loan of $10,620.16 while for the year ended 30 June 2017 a shareholder loan of $116,908.03 is recorded. It is contended that this loan would be treated as a dividend in the hands of the husband and taxable pursuant to Division 7A of the Income Tax Assessment Act 1936 (Cth). The husband does not include any sum received from his company as a shareholder loan in his Financial Statement. The husband’s affidavit also does not disclose any sums he received from his company by way of a loan.

8. An examination of the financial statements of the husband’s company also reveals that although the company only made a small profit of just under $6,000. In the year ended 2017 $104,000 was paid in consultant’s fees. Nothing is known about the consultants to whom these fees were paid though it is difficult to imagine what they relate to having regard to the husband being engaged as a sole trader tradesman.   

9. It is also contended on behalf of the wife that in addition to the husband having received a significant shareholder loan his Financial Statement understates the income the husband earns from his business. The husband’s affidavit includes details of his income extracted from his tax returns and indicates that his annual income has more than doubled between 2010 when he earnt $40,224 and 2017 when he earnt $88,607 (according to the husband’s tax assessment, exhibit 10) or $93,130 (according to the husband’s affidavit).

10. In the husband’s Financial Statement filed 21 May 2018 he deposes to an average weekly income of $1,332.70 which is comprised (apart from a few dollars) of total salary or wages before tax of $1,325 per week.  This equates to an annual gross income of $68,900 which is $20,000 to $24,000 less than his declared income for purposes in the year ended 2017. 

11. If the husband’s taxable income for the year ending 2017 plus the shareholders loans for that year are added the husband would have had available to him just over $200,000 in that tax year.

12. It is contended on behalf of the husband that it would be a gross oversimplification to simply add the amount of the shareholder loan to the husband’s income and conclude that is money available to the husband on an ongoing basis. In support of the contention that the loan should not be treated in this way the financial statements of the husband’s company going back a further two years to 2014 were tendered. It was then suggested that modest shareholder loans were a constant feature of the company’s finances for a number of years and do not suggest that the husband had access to significant undisclosed funds. However, up until the year ended 30 June 2017 when the shareholder loan was just under $117,000 in the previous three years the amount of the loan had been $10,620, $34,157 and $39,596 respectively. It is submitted on behalf of the husband that the fluctuating amounts of these loans indicate that he has been fulfilling his obligation by repaying those loans from time to time and they should be treated as genuine loans and not dividend payments.

13. There is insufficient evidence from which I could make any positive finding as to the characterisation of these loans. However, in my view the significant increase amount of these loans from 2017, the year in which the parties separated and which are not declared in the husband’s Financial Statement together with the insufficiency of evidence that establishes how he is able to meet his own current expenses cause me to conclude that he has access to financial resources which have not been declared in these proceedings.  

Reasonableness of the wife’s claim

1. According to the wife’s Financial Statement her average weekly income is $608 and her total personal expenditure is just under $300.  In Part N of her Financial Statement the wife particularises only $275 in expenditure for herself each week while she specifies $890 per week in expenses relating to the children.  Although it is to be remembered that applications for spousal maintenance cannot be brought in substitution for child support the wife’s claim for spousal maintenance is in the context of her having the care of three dependent children.  The wife’s total weekly expenditure set out in Part N is not able to be met through her total average weekly income. 

2. In my view some of the wife’s expenses in Part N such as $70 each week on hairdressing and toiletries are somewhat excessive but otherwise there is little that could fall within this description.

3. I have regard to the foregoing including the husband’s concession and my finding that the wife is unable to support herself adequately by reason of having the care and control of two children of the marriage under 18 while being satisfied that she has some capacity for employment. For the reasons given I am of the view that the husband does have access to financial resources through his company structure and that it is reasonable for the husband to pay spousal maintenance of $500 per week. 

4. I am not satisfied that the claim of $1,000 per week is reasonable in circumstances where the wife has some capacity to earn an income and her failure to do so has not been explained. 

5. The wife also makes a claim for a lump sum of $25,000. Although there seemed to be some confusion about the legal basis for this claim in both the written Outline of Case and submissions ultimately it was submitted it is calculated on the basis that it should be backdated to when the claim for spouse maintenance was first made. In this regard the wife relies upon her Response to an Application in a Case filed on 8 November 2017 in which the claim for spouse maintenance was first made. However, at that stage the wife was also claiming a sum of $25,000 in addition to periodic spousal maintenance.

6. Although the submissions put on behalf of the wife were ultimately couched as backdated spousal maintenance, I have concerns about submissions made on that basis. There appeared to be significant confusion in submissions made on behalf of the wife by her counsel as to the nature and purpose of the order sought. In her written submissions the wife alternately characterised the $25,000 lump sum as an interim property settlement, an amount to be paid pursuant to a costs order and as lump sum backdated spousal maintenance.

7. The payment of the lump sum claim is also resisted by the husband on the basis that there is no available fund from which such a payment could be made. It is the husband’s contention that although this payment is sought as spouse maintenance in circumstances where there is no readily available asset, the court would be very cautious making such an order on this basis. The wife was not able to point to any specific fund or resource of the husband from which he could draw the $25,000 other than the general submission that the husband has sufficient resources and capacity through his businesses to pay outgoing spousal maintenance. 

8. In these circumstances, in order to require the husband to pay $25,000 in a lump sum consideration would need to be given to whether an asset could be sold or encumbered by way of loans to finance such a payment.

9. At some stages in oral submissions and having regard to the wife’s Outline of Case it appeared to be suggested that the order be made to fund the litigation or as an interim property order. Such an approach cannot be taken however, without considering the ultimate entitlement of both parties to the ultimate asset pool for distribution. As neither party made any submissions as to any interim property distribution and the asset pool has not yet been fully identified it is not possible to undertake an assessment of the parties’ interim property entitlements or appropriate to direct the sale of assets in these circumstances.

1. Accordingly, given my concerns about the foregoing features of the wife’s claim that the $25,000 is sought by way of backdated spousal maintenance and the wife’s inability to point to a fund from which the husband could draw such a sum, it is not appropriate to make an order for the husband to pay the wife $25,000 in a lump sum.

2. The wife also seeks an order that the husband “pay the wife’s and children’s private health insurance cover by re-instating the family cover with [a named insurer]”. The wife did not adduce any evidence in support of this claim and no submissions were put in relation to the matter except to suggest that it could either be considered a payment in the nature of spousal maintenance or a positive injunction on the basis that “it’s a protective order”.

3. As there is no evidence concerning any previous health insurance, the cost of such cover and the impact that would have on the husband’s capacity to pay if it were to be regarded as part of spouse maintenance there is no basis upon which this order could be made.

Restraints in relation to property

1. The wife also seeks an order that the husband be restrained by injunction from drawing down on any bank account, overdraft account or line of credit or otherwise generally increasing the indebtedness of the parties and specifies particular bank accounts to which the proposed order relates.

2. The injunction sought by the wife is opposed by the husband on the basis that at least one of the specified bank accounts is the main operating account for his business and that the effect of such an injunction would be that he would be unable to operate his business.  It is also contended on behalf of the husband that as he agreed to orders at the interim hearing requiring him to continue to maintain his business as an economically viable entity and not do any act or enter into any financial or business transaction to cause the company to be insolvent that there is no need for such an order.  So far as the other nominated bank accounts are concerned the husband also opposes the orders sought on the basis that there is no evidence at all of him reducing the amounts in those accounts or any basis upon which it could be concluded that there was a risk that he would do so.

The Law and Discussion

1. Section 114(3) of the Act provides that a court may grant an injunction “in any case in which it appears to the court to be just or convenient to do so”.

2. The Full Court in In the Marriage of Waugh[11] dealt with interlocutory injunctions under this section which had been made by a trial judge restraining the husband from dealing with property, rental income, trusts, business entities or ventures pending the determination of a property settlement between him and his former wife.  In granting leave to appeal and allowing the appeal against these injunctions, the Court set out the principles of law to be applied in such a case.

   [11] (1999) 27 FamLR 63

3. Firstly, it was noted [at 32] that “it is important to bear in mind that the jurisdiction to grant interlocutory injunctions under the Act is a statutory jurisdiction derived from s 114(3) and/or s 34(1) of the Act”. In this regard the Court considered the principles enunciated and explained by the High Court when considering a very similar grant of power to the Federal Court in Jackson v Sterling Industries Ltd[12].  In Waugh extracts from Deane J’s judgment in Jackson include when discussing the purpose of a Mareva injunction the following, [at 37]:

   It is to prevent a defendant from disposing of his actual assets (including claims and expectancies) so as to frustrate the process of the Court by depriving the plaintiff of the fruits of any judgment obtained in an action.

   [12] (1987) 162 CLR 612; 71 ALR 457

4. It was noted [at 53] in Waugh (supra) that the wife’s affidavit in support of her application in that case had many statements about her fears that the husband would deal with property under his control but there were no assertions that he had, in fact, disposed of anything or incurred any liability other than in the ordinary course of his business operations.

5. Another High Court case dealing with Mareva injunctions referred to in Waugh is Cardile v LED Builders Pty Ltd[13].  In Cardile the plurality referred to the observations of Dixon J in Glover v Walters[14] who referred to a Mareva injunction as a “drastic remedy” and said “its purpose is to preserve the status quo”.  In Cardile Kirby J (concurring with the result reached by the plurality) said “the plaintiff must establish a real risk of assets being disposed of”.

   [13] (1999) 198 CLR 380

   [14] (1950) CLR 172 at [175-6]

6. There is virtually no mention of these orders in the case outline filed on behalf of the wife except to note that the husband’s business account (which is one of the accounts sought to be restrained) had a balance of $150,793 at the time of separation. In oral submissions the wife’s counsel described the proposed restraining order as “orders with an attempt to preserve the asset pool as it’s known at this stage”.

7. Bank statements from some of the other accounts which are to be the subject of the restraining order sought by the wife were tendered on behalf of the husband. One of these accounts, is a business transaction account from which the husband in the course of his business as a tradesman pays the various suppliers of raw materials required in the carrying out of his business. This account is his trading account and it is submitted that preventing him from effectively operating that account would prevent him from operating his business. It is submitted that this would cause him to contravene the order he consented to on the day of the interim hearing that he would not do anything to cause the company to become insolvent.

8. More fundamentally it is contended by the husband in opposing the order that there is no evidence that the husband has done anything other than incur a liability in the ordinary course of his business. In relation to some of the other accounts sought to be restrained in the wife’s proposed order there is no evidence at all. 

9. As no evidence has been adduced in relation to two of the four accounts in respect of which the restraint is sought, and as the remaining two accounts are used by the husband in his business and there is no evidence to establish there is any risk of assets being disposed of there is in my view no basis upon which such an order can be made.

10. For the foregoing reasons I made the orders set out at the forefront of these Reasons.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 September 2018.

Legal Associate:

Date:  7 September 2018