MCGUIRE & MCGUIRE

[2018] FamCA 197

FAMILY COURT OF AUSTRALIA

MCGUIRE & MCGUIRE [2018] FamCA 197

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where Husband seeks order for sale of the parties property – inadequate disclosure – application dismissed - Where the Husband seeks orders for litigation funding – requirements of section 117(2A) not satisfied - where the Husband seeks orders for a partial property distribution – where the Husband has failed to establish that it is in the interests of justice for such a payment to be made.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the Wife seeks periodic and lump sum spousal maintenance – Where the Court finds the Wife is unable to support herself adequately for the purposes of section 72 of the Family Law Act 1975 (Cth) – Extent of the capacity of the Husband to meet such an order – Where the Husband is able to draw down on capital – Order made for the Wife to receive periodic spousal maintenance – Where a lump sum is required to meet arrears of mortgage – order for lump sum maintenance made.

Evidence Act 1995 (Cth) ss 140.Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 80, 114, 117
Family Law Rules 2004 (Cth) rr 13.01, 13.04, sch 1

Briese and Briese (1986) FLC 91-713
Brown & Brown (2007) FLC 93-316
Cachia v Hanes (1994) 1 CLR 403
Davidson and Davidson (No 2) (1994) FLC 92-469
Edgar & Strofield [2016] FamCAFC 93
Esdale & Schenk (2012) 46 Fam LR 547
Graf-Salzmann and Graf [2015] FCWA 68
Hall v Hall (2016) 332 ALR 1
Livesey and Jenkins (1985) 1 All ER 106
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Martin & Martin and Ors [2013] FamCA 222
Medlow & Medlow (2016) FLC 93-692
Menotti and Lamb [2014] FamCA 518
Philips & Samuels [2017] FamCA 125
Re G: Children’s Schooling (2000) FLC 93-025
Selena and Montez and Ors [2017] FamCA 583
S & S [2002] FamCA 59
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466
Vautin & Vautin (1998) FLC 92-827

APPLICANT: Mr McGuire

RESPONDENT: Ms McGuire

FILE NUMBER: SYC 4703 of 2016

DATE DELIVERED: 29 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 19 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mahoney

SOLICITOR FOR THE APPLICANT: Dowson Turco

SOLICITOR FOR THE RESPONDENT: Mr Kerr

Orders pending further order

(1)  The Husband is to pay to the Wife, by way of periodic spousal maintenance, the sum of $271 per week with the first payment to be made seven (7) days from the date of these Orders and weekly thereafter.

(2)  The payments made pursuant to order 1 are to continue for a period of 113 weeks or until final hearing, whichever is the earlier.

(3)  By way of lump sum spousal maintenance the Husband is, within 30 days, to pay the Commonwealth Bank of Australia the sum of $21,106.76 being the arrears of the mortgage payable in respect to the former matrimonial home situated at F Street, Suburb M, more particularly described as the property with Folio Identifier …/… (the Suburb M Property).

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 McGuire & McGuire 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 SYDNEY

FILE NUMBER: SYC 4703 of 2016

Mr McGuire

Applicant

And

Ms McGuire

Respondent

REASONS FOR JUDGMENT

Introduction

1.This matter concerns an application by the Husband for interim orders for the sale of the former matrimonial home, for a partial distribution of property and for a litigation funding order to be made. The Wife opposes the application and seeks orders for her to have exclusive use of the former matrimonial home and for periodic spousal maintenance as well as lump sum spousal maintenance in respect to arrears owing on the mortgage secured against the former matrimonial home.

Background

2.The Wife was born in 1970 and the Husband was born in 1971. In February 1999 the parties commence living together and in March 2002 the parties married.

3.The parties have four children;

a.B born in 2003;

b.C born in 2005;

c.D born in 2007;

d.E born in 2007.

4.In August 2015 the parties entered plans to demolish the former matrimonial home and rebuild a new home. They extended their mortgage in order to fund the extensions.

5.The parties separated on a final basis on or about 5 December 2015.

6.In January 2016 the Husband entered into a relationship with his current partner. The Husband resides with his current partner when he is in Brisbane. The Husband contributes to the rent on the Brisbane property.

7.In July 2016 the parties entered into negotiations with the Commonwealth Bank of Australia with a view to seeking an accommodation in circumstances where they were experiencing financial difficulty subsequent to their separation. Agreement was reached for the parties to commence paying interest only payments in respect to their mortgage. Those payments were approximately $4000 per month. Since August 2016 the Wife has paid fifty percent of the interest only mortgage payment of $500 per week other than during a period of unemployment in May and June 2017 during which time the Wife paid the sum of $100 per month. In the period from August 2016 until approximately March 2017 the Husband also paid the sum of approximately $500 per week in respect to the mortgage. In approximately March 2017 the Husband moved from the former matrimonial home and ceased making those payments.

8.In February 2017, a child support assessment was made with the Husband commencing to make child support payments directly to the Wife. In August 2017 child support payments commenced being collected by the child support agency.

Applications

The Husband’s application

9.The Husband seeks the following orders;

The Allambie Heights Property

1.That the Applicant Husband (the Applicant) and Respondent Wife (the Respondent) (and together the Parties) shall do all acts and things and sign all necessary documents to effect the sale of the property situated at [F Street, Suburb M], more particularly described as the property with Folio Identifier … /… (the [Suburb M] Property) and for that purpose the following shall apply:

(a)The [Suburb M] Property shall be listed for sale by auction with such real estate agent as agreed between the Parties, and failing agreement, within 14 days from the date of these Orders, the real estate agent shall be as nominated by the then President of the Real Estate Institute of New South Wales at the request of the Parties or either of them.

(b)The Parties shall execute all documents requested by the auctioneer for sale of the [Suburb M] Property by auction.

(c)The reserve price for the [Suburb M] Property shall be such amount as agreed between the Parties and failing agreement being reached between the Parties 21 days prior to the auction, then the reserve price should be nominated by the auctioneer.

(d)The Parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses, and if one of the Parties pays all of the expenses, then that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the Parties.

(e)The Parties shall give such instructions as are necessary to a lawyer to prepare a Contract of Sale and provide it to the auctioneer prior to the auction, no later than the date sought by the auctioneer.

(f)The Parties agree to cooperate in every way with the auctioneer in relation to the sale by auction, including allowing inspection of the [Suburb M] Property at all times reasonably requested by the auctioneer and ensuring that the [Suburb M] Property is clean, neat and in good order at the time of any inspection and on the day of auction.

(g)That the Parties attend the auction and negotiate with the highest bidder or any other interested party in the event of the reserve price not being reached, for the purpose of executing a Contract of Sale.

(h)The sale price of the [Suburb M] Property shall be any amount in excess of the reserve price, but in the event that the reserve price is not reached, then the sale of the [Suburb M] Property shall be at such amount as agreed between the Parties and failing agreement, any offer received after the auction to buy the [Suburb M] Property at a price of at least 90% of the reserve price shall be accepted by the Parties.

(i)That the proceeds of sale for the [Suburb M] Property shall be paid in the following manner and priority:

(i)To discharge the mortgage held with the Commonwealth Bank of Australia number …24.

(ii)To any other encumbrance affecting the [Suburb M] Property including rates, taxes and other reasonable expenses.

(iii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale of the [Suburb M] Property.

(iv)To payment of legal costs and outlays relating to the sale of the [Suburb M] Property.

(v)To payments of any expenses to be reimbursed under the preceding paragraph (d).

(vi)The balance to be placed into the Law Practice Trust Account of Dowson Turco Lawyers Pty Ltd pending the final determination of this matter.

2.In the event the [Suburb M] Property is not sold at the end of the auction pursuant to the preceding Order, or within 14 days after the date of the first auction by further negotiation, then the Applicant and Respondent shall cause a further auction of the [Suburb M] Property to be held within four months after the date of the first auction, and for that purpose, the sub-provisions of the immediately preceding Order shall apply in relation to the sale and disbursement of sale proceeds.

Litigation Funding

3.Pursuant to Section 117(2) of the Family Law Act 1975 (Cth) the Applicant and the Respondent shall direct and authorise Dowson Turco Lawyers Pty Ltd to release a portion of the funds held in accordance with Order 1(i)(vi) from their Law Practice Trust Account, as follows:

(a)Within 30 days of the completion of the sale of the [Suburb M] Property, the amount of $150,000 be paid on behalf of the Parties to the Lawyers for the Respondent by way of litigation funding; and

(b)Within 30 days of the completion of the sale of the [Suburb M] Property, the amount of $150,000 be paid on behalf of the Parties to the Lawyers for the Applicant by way of litigation funding.

Interim Property Settlement

4.That pursuant to Section 80(1)(h) of the Family Law Act 1975 (Cth), the Applicant and the Respondent shall direct and authorise Dowson Turco Lawyers Pty Ltd to release a portion of the funds held in accordance with Order 1(i)(vi) from their Law Practice Trust Account, as follows:

(a)Within 30 days of the completion of the sale of the [Suburb M] Property, the amount of $50,000 be paid on behalf of the Parties to the Applicant by way of interim property settlement; and

(b)Within 30 days of the completion of the sale of the [Suburb M] Property, the amount of $50,000 be paid on behalf of the Parties to the Respondent by way of interim property settlement.

Spousal Maintenance

5.That the Applicant’s application with regard to Spousal Maintenance be dismissed.

The Wife’s application

10.The Wife seeks the following orders;

1.That the Wife have exclusive use of the property known as [F Street, Suburb M], NSW, … (“the home”) and that the Wife:-

1.1Keep the home in a reasonable state of maintenance and repair; and

1.2Pay the sum of $500 per week in mortgage payments.

2.The Husband pay the following pending further order:-

2.1Mortgage payments on the home of $500 per week;

2.2Maintain an appropriate level of house insurance on the home;

2.3All such amounts to cause the children to retain their current private health insurance;

2.4All council rates;

2.5Any amount required in urgent medical treatment for any of the children; and

2.6Spousal maintenance directly to the Wife in the sum of $700 weekly.

3.That the Husband firstly cause to be paid from any sums he receives in any way whatsoever from [his employer] or its agents consequent upon the termination of his employment, accrued leave, or any sums other than his regular weekly wage, all of the arrears on the mortgage loan ($23,527.19 as at 12 May 2018) and arrears of council rates.

4.In the event that the Court orders sale of the home, then upon completion of sale of the home:-

4.1Orders 2.1, 2.1, 2.4, 2.6 and 3 shall be suspended;

4.2The Husband pay from any funds payable to the Husband by way of partial property settlement:-

4.2.1All arrears on the mortgage loan ($23,527.19 as at 12 May 2018); and

4.2.2Any outstanding council rates.

4.3The Husband pay directly to the Wife Spousal Maintenance in the sum of $1,400 weekly.

Documents relied upon

11.The Wife relied upon the following documents:

1.   Response filed 15 September 2016

2.   Financial Statement of the Wife filed 12 February 2018

3.   Affidavit of the Wife filed 12 February 2018.

4.   Affidavit of the Wife tendered in Court dated 19 February 2018.

5.   The following portions of the Husband’s Affidavits:-

5.1Husband’s Affidavit of 27 July 2016 (paragraphs 75 & 76) - (as quoted in paragraph 14 of Wife’s Affidavit of 12 February 2018); and

5.2Husband’s Affidavit of 25 October 2016 (para 65) - (as quoted in paragraph 17 of Wife’s Affidavit of 12 February 2018).

12.The Husband relied upon:

1.Minute of orders sought by the Husband filed 23 January 2018

2.Affidavit of the Husband filed 23 January 2018

3.The Husband’s case outline document (exhibit H4).

Summary of arguments

The Husband

13.The Husband provided the following summary of argument in respect to the orders that he is seeking;

1. The Court has a wide discretion to make interim property orders pursuant to s.79( 1)of the Act, provided that such orders are ultimately just and equitable in the circumstances. As stated by the Full Court in Strahan v Strahan [2011] FamCAFC 126, the Court must balance the risks of unduly limiting the final orders that can be made against circumstances said to show that it is just and equitable to make interim orders.

2. It is submitted that in assessing whether interim orders are appropriate, the Court must consider the usual matters required by s.79. That is, a preliminary consideration of the pool, contributions, s.75(2) factors and whether the orders are just and equitable is required. Given the interim nature of the proceedings, the Court must consider any disputed facts and the impact of the orders on the final orders sought by the parties.

3.     In the circumstances of this case, there is no substantial dispute as to identification of the pool of assets. It is an agreed fact that the former matrimonial home is the primary asset of the marriage. There is no dispute on the evidence that the mortgage encumbering the former matrimonial home is not currently being serviced.

4.     It is submitted that the following matters, in summary, would lead to the Court concluding that an interim order for sale of the former matrimonial home is appropriate in the circumstances of this case:

a.   The former matrimonial home is encumbered by mortgage that is not currently being paid.

b.   The payment arrangement with respect to the mortgage is due to expire in March 2018 at which time the parties will be required to meet interest only payments.

c.   The financial statements filed by the parties demonstrate that neither of them have the available financial resources to meet the costs of mortgage.

d.   The Husband is required to meet the costs of rental accommodation to rehouse following separation.

e.   The Husband is compliant with the child support assessment in place.

f.    The former matrimonial home is the only asset available from which liquid assets can be obtained.

g.   Both parties depose to being unable to meet their legal fees.

h.   The Wife fails to demonstrate the capacity to refinance and/or meet ongoing mortgage payments on the former matrimonial home on either an interim or final basis or accordingly the Court could reasonably conclude that the former matrimonial home will inevitably be sold in these proceedings.

5.   The orders proposed by the Husband do not render either parties final orders application nugatory. The sale of the former matrimonial home will in fact quantify the pool available for division whilst preserving the equity and avoiding increasing debt. The partial property distribution proposed by the Husband will also allow each party access to funds to meet their ongoing day to day costs whilst these proceedings progress through to final hearing.

6. The Husband resists the spousal maintenance application of the Wife and it is submitted that the Wife has failed to meet the onus of establishing the matters set out in s.72 of the Act.

7.   Firstly, it is submitted that the Wife fails to establish that she is unable to support herself adequately. Relevantly:

(a)The Wife is in employment.

(b)The Wife is residing in the former matrimonial home at present and is not meeting the costs of the mortgage at present.

(c)The Husband is compliance with the current child support assessment.

(d)The Wife's inconsistent evidence on the financial benefits of her housing a boarder at her home.

8.   Secondly, it is submitted that the Wife fails to establish that the Husband has the capacity to meet an order for spousal maintenance. Relevantly:

a.The Husband has filed a Financial Statement demonstrating that his liabilities are greater than his income week to week.

b.The Wife appears to assert in her case that the Husband is unreasonably applying his income to the children's education costs. It is submitted that this is an inappropriate criticism of the Husband having regard to the joint enrolment of the children in private schooling at St Josephs and the consistent evidence to the Court of the children's ongoing developmental being promoted at their school.

The Wife

14.The Wife provided a summary of argument in support of her application for spousal maintenance which was as follows;

1. In respect to Section 75(2)(a) the Wife contended that both parties are 47 years of age. Health not an issue.

2.   In respect to Section 75(2)(b) the Wife contended The Husband has been earning $330,000 to $345,000 per annum, including bonus (Husband’s Affidavit para 22). On 26 February 2018 he will commence employment on $325,000 p/a, plus superannuation, which if 9.5% = $29,250, therefore total of $354,250. The Husband made no mention in his Affidavit affirmed on 23 January 2018 of the letter of offer to him by [X Loans] of 16 January 2018. He affirmed (at para 49) “I do not see any likely improvement to my financial position in the foreseeable future” yet he signed the letter of offer, six days after affirming his Affidavit, to commence new employment (if my calculations are correct, his income inclusive of superannuation) for gross of $354,250. It is clear that he had been in negotiations for that income before that letter was written and that is knowledge was other than attested.

a.   The Wife has earned, in her three full-time jobs since 2016:- $967, $918 and $990 net per week. Such income is commensurate with her skills and ability. It is submitted that the Husband’s expenses are not as great, or should not be as great, as he has affirmed. The Wife referred to her contentions in respect to the Husband’s means as set out below.

3.   In respect to Section 75(2)(c) the Wife contended each party has care and control of the four children of the marriage – per Orders made 30 November 2017 (pages 2, 3 & 4 hereof).

4.   In respect to Section 75(2)(d) the Wife contended accommodation for the Wife and children is a matter of significant financial burden for the Wife. She seeks that the Husband pay $500 p/w towards the mortgage plus further to assist her to care for the children, or in the alternative that the house is sold in the interim, then a further sum to assist her to pay rent. The Husband’s commitments are not, or should not be considered to be, as great as he claims. The Wife referred to her contentions as to the Husband’s means as set out below.

5.   In respect to Section 75(2)(e) the Wife contended the Husband totally financially supported the Wife and family for 13 years from when she left paid work while pregnant with the first child of the marriage. He co-signed a mortgage for $1.1M in 2015 and it is submitted that his obligations to pay that mortgage continue and that, by doing so, he will be supporting the Wife and children in necessary accommodation.

6.   In respect to Section 75(2)(g) the Wife contended it is reasonable that the Wife and children continue to live in the newly built former matrimonial home, or pending the Orders of this Court, rental accommodation nearby that will cost approximately $1,200 p/w (Wife Affidavit para 26).

7.   In respect to Section 75(2)(j) the Wife contended the Husband has far higher actual earnings and earning capacity than the Wife and this is partly due to the role that the Wife paid in placing her career on hold for 13 years whilst she was a full-time homemaker and parent.

8.   In respect to Section 75(2)(k) the Wife contended that her earning capacity has been adversely affected by both the duration and nature of the marriage partnership.

9.   In respect to Section 75(2)(m)the Wife contended it is unclear whether the Husband lives with his partner [Ms G] whilst living in Brisbane, whether he pays her $300 p/w and, if he does, how that effects her financial circumstances. The Husband has not provided any evidence of her financial circumstances. The Wife is letting someone stay in the home for nothing at the moment, however, he assists with maintenance around the home (Wife Affidavit para 10).

10. In respect to Section 75(2)(na) the Wife contended the Husband pays $576 p/w Child Support.

11. In respect to Section 75(2)(o)the Wife contended that reference should be made to the Husband’s means as set out below;

15.In terms of the Husband’s means, the Wife submitted that the Husband’s means are greater than, or should be held to be greater than, as he has attested, by virtue of removal or reduction of the following of his claimed expenses

1.   $300 p/w. From 26 February 2018 the Husband’s will be working at “Place of Work” “…, Sydney” (Wife’s Affidavit Annexure A Clauses 1.1 and 7) for 37.5 hours per week between 8.30am and 5.30pm Monday to Friday (Clause 6.1). So rent in Brisbane will no longer be necessary.

2.   It is unclear from the Husband’s evidence why and to whom he pays “Rent contribution for Brisbane property”. With respect to his partner, [Ms G], the Husband says “We do not live together.” (his Affidavit para 16). At any rate, $300 p/w, for living in Brisbane half of the time equates to $600 p/w and is excessive for one man.

3.   $130 p/w “Novated lease” seems to be the same amount of $130 referred to in clause 28 of his Financial Statement of “… Fleetplus Novated Lease”. The Wife has asked the Husband to collect that vehicle and it can be sold (Wife para 23).

4.   $175 p/w. Child Support has been reduced by this amount. Compare Husband para 25 to Wife para 29.

5.   $1,422 p/w ($73,944 p/a) [School G] school fees for elder two children. With respect to this expense:-

5.1 If the Husband’s evidence is complete and honest, then sending two children to this school is financially irresponsible, as it is beyond his capacity to pay.

5.2 It is even further beyond the Husband’s capacity to pay for the two younger children to attend in 2019.

5.3 The children go to that school against the Wife’s wishes and as a result of the Husband’s unilateral decision (Wife’s Affidavit paras 13 – 20).

5.4 Husband’s lawyer said on 4 October 2016 that [B], and all children, will be going to a public school after 2016 (Wife para 16)

5.5 Then Husband affirmed three weeks later that both [B] and [C] will be going to there in 2017 (Wife para 17)

5.6 Then in June 2017 he enrolled the twins there (Wife para 20)

5.7 Either the Husband is financially incompetent or there is more to this than he is disclosing to the Wife and the Court. It is extremely hard to believe the former as he is a senior [manager] working as … (Husband’s Financial Statement Clause 3 and Wife’s Affidavit Annexure H) and is just about to commence employment as “…” (Wife’s Annexure A Pre-amble and Clauses 4 and 5).

5.8 The Wife is not privy to the actual arrangements between the Husband and his parents. She speculates that they may have agreed with the Husband to pay the private school fees, as they did with their daughter’s children and as the Husband told the Wife they would (Wife para 13).

5.9 The Husband affirmed on 25 October 2016 that he intends to pay from his proceeds of sale of the home (Wife para 17). That is, that [School G fees] will be paid from capital, not weekly expenditure.

5.10     It may be that the change of mind by the Husband as to how to account for the fees with respect to one, then two, now four children attending there has the desired effect of making it appear that he cannot pay either his $500 per week mortgage contribution or Spousal Maintenance directly to the Wife.

5.11     At any rate, due to the fact that he is either going to pay the fees from sale of the home, or because the fees are now been met by his parents and the (claimed) loan is not now repayable, then it is inappropriate that the Husband be entitled to claim the sum of $1,422 as a weekly expense.

5.12     In the alternative, the Wife’s need for Spousal Maintenance should take priority over the Husband’s unilateral and financially irresponsible decision regarding the private school fees.

Consideration

Order for the sale of Property

16.Although not expressly stated in the Husband’s application, the proposed order for the sale of the property enlivens consideration of the Court’s power under section 114 of the Family Law Act 1975 (Cth) (“the Act) to make suchorder or grant such injunction as it considers proper in relation to thepropertyof the parties; Philips & Samuels [2017] FamCA 125 (8 March 2017) at [65].

17.In Martin & Martin and Ors [2013] FamCA 222 (9 April 2013) Cronin J said:

Section 114 of the Family Law Act 1975 (Cth) (“the Act”) enables the Court to provide a discretionary remedy. The fundamental principle is that an order should only be made if it is proper.

18.In that context Cronin J noted that:

In considering the discretionary relief, it is well understood in the commercial world that parties seeking the relief of the court through an equitable remedy must come with clean hands (Black Uhlans Incorporated v New South Wales Crime Commission and Ors [2002] NSWSC 1060)

1. In a similar context, in Menotti and Lamb [2014] FamCA 518 at [9], Cronin J observed that the Court is required to exercise its discretion to make an order under section 114 of the Act if the Court is satisfied that it is “proper and just to do so”. In determining whether that is the case, his honour drew an analogy to the requirements of equity noting that “if the applicant comes to equity seeking justice, he or she must come with clean hands.”

2. An important aspect of coming to court with “clean hands” in respect to Family Law proceedings is complying with the obligation of disclosure. That obligation exists both at common law and pursuant to statute.

3. In Briese and Briese (1986) FLC 91-713 (“Briese”) Smithers J applied the House of Lords decision in Livesey and Jenkins (1985) 1 All ER 106 in determining that:

   In financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that the full and frank disclosure was required as a matter of principle in light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involves the exercise of a discretion.

   (emphasis added)

4. His Honour further stated:

   In my view it is fundamental to the whole operation of the Act in financial cases that there is an obligation of the nature to which I have referred. Livesy v Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need to make full and frank disclosure by the parties.

   (emphasis added)

5. In his affidavit dated 23 January 2018, at paragraph 22, the Husband stated that:

   My base salary is $245,000 per annum, I also receive a bonus which ranges each year from $85,000-$100,000. This equates to an approximately gross weekly income of $5531.

6. The Husband did not disclose in his affidavit of 23 January 2018 that, on 7 December 2017, he received a discretionary bonus of $100,000. He was clearly in a position to have done so. This information was disclosed to the Wife in a letter from the Husband’s solicitor to the Wife’s solicitors dated 14 February 2018 (annexure B to the Wife’s affidavit sworn 19 of February 2018). That disclosure came after the parties had filed the material upon which they sought to rely in these proceedings.

   25.Counsel for the Husband contended that while the Husband’s affidavit sworn on 23 January 2018 did not disclose the bonus payment received on 7 December 2017, the Husband’s financial statement nonetheless revealed that he received an amount by way of a bonus from his employment which calculated to “$962 per week.” I note that this is equivalent to a bonus payment of $50,024.

   26.Counsel for the Husband explained the Husband’s conduct as follows:

   What you will then see, your Honour, when you look at my client’s financial statement that was filed on 23 January 2018 – at part D section 14, is that my client quite clearly discloses being in receipt of a bonus benefit from his employment. He has done as he is required to do by way of the Family Law Rules in completing a financial statement to apportion that bonus income received on a weekly basis – which is what he is required to do to complete this document. And he quite clearly tells your Honour that he is receiving a bonus. He has apportioned that properly over a weekly period.

   27.As noted by Smithers J in Briese, “mere compliance with rules of court or practice directions does not alter the basic principle of the need to make full and frank disclosure.” Moreover disclosing a net figure, equivalent to $50,024, in circumstances where a separate expenditure amount in respect to taxation paid is declared, suggests that the gross payment received was $50,024 and not $100,000 as was the case.

   28.In any event, the rules make it quite clear that the Husband was under an obligation to disclose all relevant information which, in my view, necessarily includes the payment he received, the taxation he paid and the date that he received it.

   29.Rule 13.01 (1) of the Family Law Rules 2014 (“the rules”) relevantly provides that:

   “…each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.”

   30.Rule 13.04(a) confirms that the parties obligation to make a “full and frank disclosure” of the parties financial circumstances includes disclosing “the parties earnings.” In this case there can be no doubt that the bonus received by the Husband constituted part of his earnings and should have been unambiguously disclosed in his affidavit dated 23 January 2018 and his financial statement also dated 23 January 2018.

   31.It is regrettable that the disclosure was made after both the Husband and the Wife had filed the affidavits that they were relying on these proceedings.

   32.Clause 6 of Part 1 of Schedule 1 of the  Rules relevantly provides;

   (6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:

   (i) the duty to make full and  frank disclosure of all material facts, documents and other information relevant to the dispute.

   Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part). (emphasis added)

   33.The fact that the obligation of disclosure exists as a duty to the court as well as the other party is significant. It is also significant that the obligation is in respect to the disclosure of “information relevant to the dispute” not simply one that attaches to the production of documents.

   34.The dispute in this matter concerns whether the court should make orders for the sale of the former matrimonial home. Such an order would have significant consequences for the Wife. The basis of the Husband’s contention is that the parties are unable to sustain a mortgage in respect to the former matrimonial home which, as at the 23 January 2018, the Husband identified as being $1,097,907. It was not disputed that the mortgage payments are approximately $4000 per month in accordance with an agreement between the parties and their financial provider. This amount has been agreed upon on the basis that that it represents the interest only portion of the loan.

   35.The Husband contends that the interest only arrangement has been agreed to, by the Commonwealth Bank, only until March 2018. In support of that contention the Husband attaches to his affidavit a letter from the Commonwealth Bank dated 23 December 2018. However, annexure G to the affidavit of the Wife is a letter from the Commonwealth Bank dated 8 January 2018. By way of summary, the letter indicates that the Wife’s request for financial assistance had been accepted and that the bank was “pleased to help you manage your financial difficulty by offering you a temporary change to your repayments.”

   36.The issue before the court is to determine why, in circumstances where the Husband earns between $330,000-$345,000 per annum and the Wife is earning approximately $66,000 per annum, they are unable to meet their mortgage commitments in circumstances where the financial provider has been accommodating and has expressed a willingness to assist the parties in the circumstances of their current financial difficulties.

   37.The fact that the Husband received a lump sum bonus of $100,000 gross on 7 December 2017 is a very relevant fact to the courts consideration of this application. It should have been unambiguously disclosed.

   38.In that respect, the statement by counsel for the Husband that “there is no concession that my client received $100,000” is simply not good enough in terms of the Husband’s obligation of disclosure either at common law or under the rules of the court.

   39.Counsel for the Husband noted that the Husband sits in the taxation bracket of 48 cents in the dollar and stated that the Husband received “$52,000” which counsel for the Husband stated is the amount averaged out in specified as a weekly amount in paragraph 14 of the Husband’s financial statement. In fact the extrapolated amount is $50,024. While the difference is not material it indicates an unacceptable laxity on the part of the Husband in providing all relevant facts to the Court and the other party. That laxity arises from not disclosing the gross amount he received and the taxation he paid on the bonus.

   40.The Wife’s financial statement indicates that she all but has the capacity to meet a mortgage commitment of $4000 per month, interest only payments, providing that the arrears of approximately $21, 106.76, payable to the bank in respect to the former matrimonial home, is attended to. The fact that, on 7 December 2017 the Husband received a lump sum in excess of twice that sum is a very relevant factor that should have been disclosed in clear and unambiguous terms rather than the manner in which the Husband states he has disclosed it. That is, by way of specifying an amount of $962 in paragraph 14 of his financial statement.

   41.In summary the Husband had an obligation to disclose the gross amount he received, the date he received it, and the tax that he paid upon that amount. His failure to do so is a significant omission.

   42.It is also significant that the obligation of disclosure includes an obligation to disclose “any disposal of property” that may “affect, defeat or deplete a claim” (rule 13.04 (g)). Counsel for the Husband advised the court that the Husband has not disclosed how the funds he received on 7 December 2017 have been expended because the last bank statement that he received in respect to his Z Bank Account was dated 30 November 2017. The court was advised that the Husband receives those statements every three months and, accordingly, there was no statement available indicating how he had dispersed funds he received on 7 December 2017.

   43.Clearly the Husband and not the Wife, had access to the Husband’s bank records and only he was in a position to provide details of how he has disposed of the amount of $52,000 in the period from 7 December 2017 until the date of hearing, being 19 February 2018. Again, the obligation of disclosure is an obligation in respect to the disclosure of information not simply documentation.

   44.As noted by Walters J in Graf-Salzmann and Graf [2015] FCWA 68:

   …a judge is entitled to take a "robust view" in relation to findings regarding a party's financial position (including party's capacity to meet any proposed order) where that party has failed to make full and  frank disclosure of his /her financial position: see Chang v Su (2002) FLC 93-117 at [71] and [72] .

   45.In that respect the Wife should not be prejudiced by the Husband’s nondisclosure as to how he has applied the lump sum of $52,000 that he received on 7 December 2017. His failure to provide information to the Wife and the court as to how those funds have been expended is at his prejudice. In the absence of that information the court assumes he continues to have those funds available to meet a proposed order for maintenance as sought by the Wife.

   46.Accordingly, as result of the Husband’s failure to make full and frank disclosure of the bonus that he received on 7 December 2017 and how that net amount of $52,000 has been applied, I decline the Husband’s application for an order for the former matrimonial home to be sold.

   47.Had it been necessary to consider the balance of convenience I would have determined that the balance clearly favoured the Wife who receives a much smaller income than the Husband and would have been forced to leave the former matrimonial home, where she lives with the parties’ children when they are spending time with her. In those circumstances the Wife would be forced to find alternative accommodation including incurring relocation costs and meeting any bond requirement in respect to a rental property.

   48.As I do not make an order for the property to be sold it is unnecessary for me to consider orders 2 and 3 of the orders sought by the Husband because they are predicated on the assumption that an order will be made for the sale of the former matrimonial home and of the proceeds of sale held in a solicitor’s trust account. Nevertheless, for completeness I will deal with those issues.

   Application for a litigation funding order.

   49.As noted, order 3 sought by the Husband seeks a litigation funding order pursuant to section 117(2) of the Act. In Selena and Montez and Ors [2017] FamCA 583 ( “Selena & Montez”) at [73] – [84] I explained why I have doubt as to whether section 117 of the Act empowers the court to make a litigation funding order in respect to anticipated future costs as opposed to an order for security for costs.

   50.Essentially my reasoning was based upon the decision of Hayne J in Re JJT; Ex parte Victoria Legal Aid.[1] In that case his Honour noted the use of the phrase “as to” costs in section 117(2) “may well enable a broad range of orders to be made”.[2] His Honour, however, clarified that “the subject-matter of those orders must be ‘costs’: a power to make orders "as to" costs does not enable the court to make orders dealing with something other than costs”.[3]

   [1] (1998) 195 CLR 184.

   [2] Ibid at [92] at 219.

   [3] Ibid.

   51.Hayne J further explained that the intended operation of section 117 needs to be viewed in the context of the matters that the Court is required to have regard to in considering whether to make an order for one party to pay the costs of the other. In that respect his Honour said:

   Indeed, the list of matters set out in sub-s (2A) to which the Family Court is directed to have regard in making orders under s 117(2) indicates clearly that the subject-matter of the orders to be made under s 117(2) is the costs which a person may be ordered to pay another as indemnity for that other's liability for professional fees and out of pocket expenses reasonably incurred in the litigation, that is, "costs" as that expression is ordinarily understood in the law. [4]

   (emphasis added)

   [4] (1998) 195 CLR 184 at [98] at 220.

   52.The reference to costs being those which are “reasonably incurred” is significant in that in Cachia v Hanes,[5] Mason CJ, Brennan, Deane, Dawson and McHugh JJ said:

   It has not been doubted since 1278, when the Statute of Gloucester ((4) 6 Edw.I c.1.) introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. [6] (emphasis added)

   [5] (1994) 1 CLR 403.

   [6] Ibid at 410.

   53.The reasoning of Hayne J is entirely consistent with the wording of section 117(2A) of the act which mandates that the court “shall have regard to” the matters listed in paragraphs (a) through to (g) of that subsection. The section does not read, for instance “to the extent that it is possible the court shall have regard to.” While authorities are clear that in making an order for costs the court does not need to be satisfied of each and every matter referred to in paragraphs (a) through (g), the court is nonetheless directed to have regard to those matters. The use of the word “shall” indicates that it is a mandatory obligation. Clearly there are many matters that the court cannot have regard to until a matter, including an interim application, is finalised. This includes, significantly, whether a party has been wholly unsuccessful in that application.

   54.Nevertheless, as I acknowledged in Selena and Montez, I accept that my views are contrary to the weight of authority in the Family Court including full court authority to which I referred in that decision.

   55.Even accepting that section 117 of the Act empowers the court to make a litigation funding order in respect to future anticipated costs it remains necessary for the court to consider the application by having regard to those matters set out in section 117(2A)[7]. This is in the context where it is also necessary to pay proper regard to section 117(1). As stated by Murphy J in Esdale & Schenk,[8] “the Application must be judged by reference to the primary position that “each party shall bear his or her own costs.”

   [7]Esdale & Schenk (2012) 46 Fam LR 547 at [67]; see also Klearchos & Klearchos and Ors [2015] FamCAFC 217 at [85] – [91].

   [8] (2012) 46 Fam LR 547 at [67]; see also Klearchos & Klearchos and Ors [2015] FamCAFC 217 (17 November 2015) at [85] – [91].

   56.With respect to the case presented on behalf of the Husband, the court simply has not been provided with information that enables the court to give adequate consideration to those matters set out in section 117(2A) and, further, why, having regard to those matters the presumption set out in section 117(1) should be displaced.

   57.The Husband’s application for a litigation funding order is therefore dismissed.

   Interim property settlement

   58.In the case of parties to a marriage, the legislative foundation for an order for partial property distribution is sections 79 and 80(1)(h) of the Act. In combination, these sections confer power on the Court to make orders for interim property settlement. Section 80 is not, in itself, a source of jurisdiction for an order for the partial distribution of property to be made in the course of interim proceedings. Rather, the section is an “enabling provision” that provides various ways in which the general power in section 79 may be exercised in individual cases. In that respect, in Davidson and Davidson (No 2) (1994) FLC 92-469, the Full Court stated:

   Section 80(1) is limited by its introductory words, namely that “The court, in exercising its powers under this Part, may do any or all of the following ...”. That is, s. 80(1) is activated by the exercise by the court of some other of the powers in Part VIII.[9]    

   [9] Davidson and Davidson (No 2) (1994) FLC 92-469 at 80,874.

   59.It is clear that the power to make orders pursuant to section 79 can be exercised prior to final hearing including through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made.[10]

   [10] Gabel & Yardley (2008) FLC 93-386, cited in Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466 at 85,640;[2009] FamCAFC 166 at [113].

   60.However, as noted by Thackray J in Strahan.[11]

   …it is important to note that s 80(1) is couched in the permissive. Hence, although the Court must give consideration to the matters set out in s 79(4) when hearing an application for an interim payment, it has no obligation to make an interim order. The Court “may” do so if it considers that it should in the exercise of its discretion.

   [11] Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466; [2009] FamCAFC 166 at [223].

   61.In Strahan,[12] the Full Court held that there are two steps to considering an application for an order for partial property distribution prior to final hearing. The first step is to resolve whether to exercise the power before a final hearing. This is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke section 80(1)(h) of the Act to make an order for interim property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice.[13]

   [12] Ibid.

   [13] Ibid at [132].

   62.In approaching the determination of the first issue, the Full Court in Strahan said:

   In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.[14]

   [14] Ibid.

   63.It is clear that it is not necessary for an applicant seeking orders for the partial distribution of property, prior to final hearing, to show “compelling circumstances”. Nonetheless, in Stanford and Stanford,[15] which post-dates Strahan, the High Court held that consideration as to whether there should be an order for the adjustment of the parties’ legal and equitable interests in matrimonial property should not be commenced with the assumption “that one or other party has the right to have the property of the parties divided between them”.[16] This applies to an application for a partial distribution of property in interim proceedings as much as it does to an application for the adjustment of property at the final hearing of the matter.

   [15] Stanford v Stanford (2012) 247 CLR 108 at [40] at 121.

   [16] Ibid; see also Medlow & Medlow (2016) FLC 93-692 at 81,089; [2016] FamCAFC 34.

   64.In other words, an applicant for orders for the partial distribution of property, at a time prior to final hearing, carries the onus of satisfying the Court as to why it is in the interests of justice for such an order to be made, rather than for there to be a once and for all order made at final hearing.

   65.It is the case that the court takes a broad and even liberal view of a party’s reasons for seeking an interim distribution of property in circumstances where there is evidence that such a distribution would not adversely impact upon orders that the court can make at final hearing. However, in this case, no reasons have been advanced as to why it is in the interests of justice for such a payment to be made at this point in time as against the public interest of all matters in dispute being determined in a considered and orderly way at final hearing. In that respect at paragraph 28 of his affidavit dated 23 January 2018, the Husband attests that he is making payments in respect to a personal loan when he can afford to do so and that “the balance of funds are immediately repayable to [his] parents upon receipt of my property settlement.” In other words, there is no suggestion that the funds are immediately repayable or that he is facing a situation of urgency.

   66.Further, even if I had been satisfied that the interests of justice are such that an order for interim property distribution should be made I would not have been satisfied that the order sought by the Husband would not have potentially adversely impacted upon orders that the court might make at final hearing to achieve a just and equitable distribution of the marital property.

   67.In Medlow & Medlow; (2016) FLC 93-692 at 81,089; [2016] FamCAFC 34 the Court said:

   The onus was clearly upon [the applicant] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent]’s property claim. The onus was not on [the respondent] to adduce such evidence. [17]

   [17] (2016) FLC 93-692 at 81,090.

   68.In that respect the Husband contends that the parties’ total net assets are $1,782,374.82 and that their total liabilities are $1,258,534.18. The difference being $523,840.64. As noted, the Husband seeks orders for there to be two interim property distributions of $50,000 each to both of the parties. The distribution of $100,000 would represent approximately 20% of the parties identified that assets, according to the Husband’s calculations.

   69.It would represent substantially more than 20% if the parties continue upon the path that they seem to be locked into of committing a disproportionate amount of their resources to litigation. As indicated by the litigation funding order sought by the Husband, he anticipates that his future legal expenses will be $150,000. In circumstances where the Wife is seeking a property adjustment of 80% in her favour, the interim order sought by the Husband therefore has the potential to adversely impact upon the court’s ability to make an order as sought by the Wife in the event that she succeeded in her application.

   70.Accordingly, the Husband’s application for an interim distribution of matrimonial property is also dismissed

   Spousal Maintenance

   71.In Hall v Hall (2016) 332 ALR 1 (“Hall v Hall”), the High Court set out the relevant legislative requirements to apply in considering an application for interim spousal maintenance as follows:

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

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

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

   …

   9. Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).

   (Footnotes omitted)

   Issues

   72.The issues for determination in respect to a maintenance application are:

   i)Is the Wife unable to support herself adequately as contemplated by s 72(1) of the Act and if so, to what extent (i.e. the gateway requirement)?

   ii)What are the Wife’s reasonable needs?

   iii)What capacity does the Husband have to meet a spousal maintenance order, if such an order were to be made?

   iv)If (i) to (iii) favour an order for spousal maintenance being made, what order is reasonable having regard to s 75(2) of the Act?

   Evidentiary challenges in interim proceedings

   73.Making findings in respect to these issues can be difficult in interim proceedings. As the Full Court recently said in Edgar & Strofield [2016] FamCAFC 93 at [15]:

   …the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing...

   74.Nevertheless, despite these limits, as noted, in Hall v Hall, the High Court confirmed that an applicant seeking interim orders for spousal maintenance nonetheless carries the evidentiary burden as set out in s 140 of the Evidence Act 1995 (Cth).

   Consideration

   Is the gateway requirement of section 72(1) satisfied?

   75.In this matter it is not in dispute that the parties share the care and control of the children of the marriage who are under the age of 18 years.

   76.The Husband, however, disputes that this results in an inability of the Wife to support herself adequately. In that respect the Husband refers to the Wife’s financial statement dated February 2018 in which she states that her total average weekly income is $2015 and that her total expenditure is $1145. In other words, the Husband points to the Wife having income over and above her weekly expenditure.

   77.The Wife’s income, according to her financial statement consists of a total salary of $1264, family tax benefit of a $175 and child support payments of $576. However, section 75(3) provides that in exercising jurisdiction under section 74, the Court “shall disregard any entitlement of the party… to an income tested pension, allowance or benefit.” Therefore, in exercising jurisdiction to consider the Wife’s application for spousal maintenance, the Wife’s income is taken to be $1840. That is, the tax benefit is disregarded.

   78.The Wife’s financial statement indicates that her personal expenditure, as identified in part G of her financial statement totals $1 145. The Wife’s additional average weekly expenditure is identified in part N of her financial statement as totalling $516.

   79.In considering the Wife’s average weekly expenditure as identified in Part N, I accept the contention of counsel for the Husband that it is inappropriate to include, in the Part N schedule of expenses, an amount of $50 for gardening and lawn mowing. This is in circumstances where, at paragraph 10 of her affidavit, dated 12 February 2018, the Wife states that she does not require a financial contribution from a gentleman who is boarding at her property because he is “contributing to the maintenance of the outdoor, mowing the grass on a regular basis, trimming trees, working on improvement of a drainage system in the back garden, composting, fertilisation, level and regrowth of grass in the back garden.”

   80.Accordingly, it is appropriate, in my view, to reduce the average weekly expenditure identified by the Wife in part N of her financial statement by $50. The reduced amount is $466.

   81.By combining the adjusted amount in Part N with the amount in Part G of the Wife’s financial statement, the adjusted expenses of the Wife total $1611.00. As pointed out by counsel for the Husband, this is still less than the amount of income that the Wife receives.

   82.However, the Wife has identified, at paragraph 21 of her financial statement, that she is paying $500 per week in mortgage repayments. It was agreed that the Husband ceased making an equivalent contribution to the mortgage, in or about March 2017, when he moved out of the former matrimonial home. This leaves an ongoing shortfall in the interest only payments that the parties agreed to pay to their financial provider by $500 per week.

   83.In Brown & Brown (2007) FLC 93-316 at 81,455-56 the Full Court summarised the principles to be applied in determining whether a party has the capacity to support themselves adequately as follows:

   ·The word “adequately” is not to be determined according to any fixed or absolute standard.

   ·The idea that “adequate” means a subsistence level has been firmly rejected.

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

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

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

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

   84.Applying those principles, the concept of being able to support oneself adequately necessarily involves being in a position to ensure that the person is able to have a roof over their head.

   85.In order to satisfy the revised mortgage repayment arrangements it is therefore necessary for the Wife to find an additional $500 per week. It is appropriate, therefore, to add that amount to the Wife’s expenses as identified in part G of her financial statement. When that amount is added to the sum of $1611 the Wife’s total expenses are $2111. When the Wife’s total income of $1840 is deducted from that amount, there is a shortfall of $271 in respect to the amount required by the Wife to adequately support herself.

   What are the Wife’s reasonable needs?

   86.In considering whether the Wife is able to adequately support herself, pursuant to section 72 of the Act, I have referred to the expenses identified by the Wife in part G of her financial statement as well as the expenses identified in part N of her financial statement. I have removed from the schedule of items set out in Part N the amount of $50 in respect to gardening and lawn mowing. However, I have added to that amount the sum of $500 which, until approximately March 2017 the Husband had been paying by way of his contribution to the mortgage on the former matrimonial home.

   87.Accordingly, having regard to those matters which I have discussed above I determine that the Wife’s reasonable needs total $271.

   What capacity does the Husband have to meet a spousal maintenance order, if such an order was to be made?

   88.The Husband asserts that he does not have the capacity to meet a spousal maintenance order as sought by the Wife. In that respect, the Husband asserts that he receives an average income of $5531 however his expenses are $6638.50.

   89.On 7 December 2017 the Husband received an amount of $52,000, net, by way of a discretionary bonus payment from his employer. In the absence of the Husband providing information, as required by rule 13.04 (g) of how that amount has been depleted, the Wife is entitled to the benefit of an inference that the Husband is still in possession of that lump sum amount.

   90.As will be discussed below, on that basis, I am satisfied that the Husband has the capacity to pay an amount by way of lump sum maintenance in respect to the amount of $21,106.76 being the amount that is outstanding, as at 8 January 2018, in respect to the Commonwealth Bank mortgage over the parties former matrimonial home. This leaves a balance of $30,893.24 to satisfy an amount in respect to the award of weekly spousal maintenance.

   91.I am therefore satisfied that the Husband has the capacity to pay weekly maintenance to the Wife in the sum of $271 for a period of 113 weeks or until final hearing, whichever is the earlier.

   What order is reasonable having regard to section 75(2) of the Act?

   92.Section 75(2) provides that the matters to be taken into account in considering whether to make an order for spousal maintenance are:

   (a)      the age and state of health of each of the parties; and

   (b)      the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

   (c)      whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

   (d)      commitments of each of the parties that are necessary to enable the party to support:

   (i)       himself or herself; and

   (ii)a child or another person that the party has a duty to maintain; and

   (e)      the responsibilities of either party to support any other person; and

   (f)       subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

   (i)any law of the Commonwealth, of a State or Territory or of another country; or

   (ii)      any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

   and the rate of any such pension, allowance or benefit being paid to either party; and

   (g)      where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

   (h)      the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

   (ha)     the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

   (j)       the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

   (k)      the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

   (l)       the need to protect a party who wishes to continue that party’s role as a parent; and

   (m)     if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and

   (n) the terms of any order made or proposed to be made under section 79 in relation to:

   (i)       the property of the parties; or

   (ii)vested bankruptcy property in relation to a bankrupt party; and

   (naa)    the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)       a party to the marriage; or

   (ii)a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)     the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

   (o)      any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

   (p)      the terms of any financial agreement that is binding on the parties to the marriage; and

   (q)      the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

   93.In terms of section 75(2)(a) I note that the parties are both 47 years of age and are in good health.

   94.In terms of section 75(2)(b) the parties’ income, property and financial resources are set out in each of the parties’ Financial Statements filed in the proceedings.

   95.In terms of section 75(2)(c) it was not disputed that the parties share the responsibility for caring for their four children in accordance with orders made on 30 November 2017.

   96.In terms of section 75(2)(d), it is relevant that, since March 2017, the Wife has been solely responsible for attending to payment of the mortgage in respect to the parties former matrimonial home. She has been capable of doing this only to the extent of $500 per week. In approximately March 2017, the Husband ceased making a contribution to that mortgage after he moved out of the former matrimonial home and rented his own accommodation at the rental of approximately $900 per week in the suburb of Hunters Hill in Sydney. In addition, the Husband identifies that he pays rent in respect to a property in Brisbane in the sum of $300 per week. He spends time at that property on those occasions when he stays with his current partner. The Husband has not disclosed, in his financial statement, the income of his partner who resides in the Brisbane property.

   97.In terms of section 75(2)(e), it does not appear that, other than sharing in the care of the parties four children, that either of the parties is responsible for supporting any other person.

   98.In terms of section 75(2)(f) I note that s 75(3) requires me to disregard the entitlement of the Wife to receive the family tax benefit.

   99.I note that the Financial Statements of both of the parties sets out their respective superannuation entitlements. Both parties are at an age where it can reasonably be assumed that they will not access their superannuation entitlements for a number of years.

   100.In terms of section 75(2)(g) I have referred to the fact that the parties are entitled to enjoy a standard of living that is reasonable in all the circumstances. I have noted that the Husband rents accommodation in the Sydney suburb of Suburb P for the sum of $900 per week. I have noted that it is reasonable for the Wife to remain in accommodation that is suitable for herself and the four children pending resolution of this matter at final hearing.

   101.The respective expenses identified by the parties in their financial statements otherwise appear to be consistent with the parties enjoying a reasonable standard of living in the circumstances where, since separation they are now required to maintain separate households.

   102.In terms of section 75(2)(h) there is no evidence that the Wife intends to undertake an education course or training to update her skills.

   103.Section 75(2)(ha) is not a relevant consideration.

   104.In terms of section 75(2)(j), in these interim proceedings, it is not possible to explore the extent to which the Wife has contributed to the income earning capacity, property and financial resources of the Husband. This will clearly be a significant issue at the final hearing. Nevertheless, the Husband acknowledges that the Wife has, during the marriage, taken on the responsibility as the primary carer of the children and he was the primary income earner.

   105.In terms of section 75(2)(k) it is noted that the parties were married for a period of a little over 13 years. As previously noted, it is agreed that, during the course of the parties’ marriage, the Wife was primarily responsible for maintaining the home and caring for the children. It is reasonable to assume that, discharging this responsibility, has impacted upon the Wife’s earnings since separation as well as her future earning capacity.

   106.In terms of section 75(2)(l) I note that both parties have agreed to share responsibility for the care and support of their children.

   107.In terms of section 75(2)(m) it was acknowledged, during the course of the hearing, that the amount of $300 per week rent that the Husband pays in respect to rental accommodation in Brisbane, is in respect to accommodation which he shares with his current partner. As noted, the Husband’s financial statement did not provide details of that person’s income.

   108.In terms of section 75(2)(n) I have declined to make an order for a partial property distribution as sought by the Husband.

   109.In terms of section 75(2)(na) the Wife asserts that the Husband is paying $576 per week by way of child support. The Husband contends that he is paying the amount of $751.50 per week. In these interim proceedings it is not possible to determine which of the parties contentions is accurate. I note, however, that it was not suggested that the Husband is not complying with his child support obligations.

   110.In terms of section 75(2)(o) the Wife contends that the court should have regard to the fact that the Husband has entered into a new contract of employment where he will earn an amount of approximately $355,000 per annum. The Wife also contends that it is likely the Husband will receive a lump sum payment upon the expiry of his current contract of employment. I am not, in these interim proceedings, in a position to make a finding in respect to those matters. The findings I have made in respect to the Husband’s income are based on the contents of the Husband’s financial statement.

   111.The Wife also contends that the Husband’s parents are a significant financial resource for the Husband. I recognise that issue will be a substantial issue at final hearing however I am not, in these interim proceedings, in a position to make findings in respect to that contention by the Wife.

   112.The Wife contended that the court should also have regard to the fact that the Husband is incurring unnecessary expenses in requiring the children to attend private school during their high school years.

   113.Section 60CA requires the Court to consider the best interests of a child when deciding whether to make a particular parenting order, this includes orders relating to which school a child should attend.

   114.In Re G: Children’s Schooling (2000) FLC 93-025 at [66] the Full Court held that the object and principles in section 60B “are to be taken into account in the course of considering the relevant matters in s68F(2) which provide a check list to meeting the essential enquiry required by s65E.” Under the current Act, the relevant matters which were previously set out in section 68F(2) are now contained in section 60CC. Section 60CA now replaces section 65E.

   115.The information provided by the parties in respect to these interim proceedings does not address those matters and, accordingly, the court is unable to make a determination in respect to the children’s schooling.

   116.Sections 75(2)(p) and (q) are not relevant considerations.

   Evaluation of section 75(2) considerations

   117.Having regard to the section 75(2) considerations to which I have referred above, I am of the opinion that the differential in the parties’ earnings is the most relevant factor which justifies the Court making an interim spousal maintenance order. I am satisfied that the Wife’s earnings and earning capacity has been impacted by the duration of the parties marriage and the fact that, during the course of the parties marriage, she withdrew from the workforce in order to take responsibility as homemaker and as the primary carer of the parties children.

   118.As a result, the Wife’s future earning capacity has also been reduced as has been the Wife’s capacity to contribute to superannuation to assist in sustaining her in the years following her retirement.

   119.Accordingly I have determined that the Wife’s current circumstances are such that she is unable to support herself adequately and the Husband has a capacity to provide financial support to the Wife, at least to the amount that I have identified as being the Wife’s reasonable needs.

   Lump Sum Spousal Maintenance

   120.The Wife’s primary application in respect to lump sum spousal maintenance was for an order that she be paid the sum of $23,527.19 together with an amount in respect to the arrears of Council rates owed in respect to the former matrimonial home.

   121.Sub-section 80(1) of the Act relevantly provides:

   (1) The court, in exercising its powers under this Part, may do any or all of the following:

   (a) order payment of a lump sum, whether in one amount or by instalments;

   (b) order payment of a weekly, monthly, yearly or other periodic sum;

   …

   122.In Vautin & Vautin (1998) FLC 92-827, the Full Court said at 85,423-4:

   ...in the exercise of the power to order lump sum maintenance caution is usually appropriate because of the apparent finality of lump sum orders and the difficulties in making predictions into the future. However, it is a power, the exercise of which may be appropriate in particular cases. It may be ordered, amongst other reasons, to meet non-periodic expenditure for the maintenance of that person where there is an established need and a capacity to pay. It is not confined to cases of the capitalisation of periodic maintenance and/or where periodic maintenance is unlikely to be paid because of concerns about the capacity or willingness of the liable parent to pay... (emphasis added)

   123.In this matter, the Wife’s primary submission in respect to her need for a lump sum spousal maintenance order is to enable her to catch up with her payment obligations to the Commonwealth Bank in respect to an arrangement that the parties entered into whereby the bank granted an indulgence and agreed that the parties would pay the interest only component of their mortgage until March 2018.

   124.I have earlier referred to correspondence from the Commonwealth Bank indicating preparedness on the part of the bank to engage with the parties with a view to agreeing upon a mutually acceptable arrangement to assist the parties in circumstances where they are facing financial difficulty as result of their separation and consequent litigation. It stands to reason that the bank would be more accommodating in respect to negotiating future arrangements in circumstances where the agreement that the parties entered into is honoured and, specifically, arrears owing pursuant to that agreement are satisfied.

   125.In the circumstances, I am satisfied that it is appropriate to make an order requiring the Husband to pay the arrears owing to the Commonwealth Bank in respect to the parties mortgage on the former matrimonial home.

   126.However, I will not make the order as sought by the Wife requiring the Husband to pay to the Wife the amount of $23,527.19. The Wife contends that that figure is reflective of the amount that would be owed to the Commonwealth Bank as at 12 May 2018. Instead I propose to make an order requiring the Husband to pay the amount of $21,106.76, identified in the Wife’s affidavit as being the arrears on the mortgage owed as of 8 January 2018.

   127.The order I have made in respect to weekly periodic spousal maintenance has been made in circumstances where I have included, in the assessment of the Wife’s expenses, an amount of $42 as identified in paragraph 24 of the Wife’s Financial Statement, as being in respect to rates. I will not, in those circumstances, make an order for the lump sum payment of arrears of any Council rates.

   Exclusive occupation

   128.In this matter, the Husband has voluntarily moved out of the former matrimonial home and obtained his own accommodation. The Wife has been in sole occupation of the former matrimonial home since approximately March 2017. There has been no suggestion that the Husband has been unreasonably intrusive or otherwise acted inappropriately in respect to that situation continuing.

   129.In S & S [2002] FamCA 59 at [38-39] the Full Court (per Kay, Holden and Monteith JJ) considered relevant Australian and English authority and, consistent with that authority, agreed that an order for exclusive occupation “should be looked at with the greatest possible care” and, further, “must not be allowed to become a routine stepping-stone on the road to divorce”.

   130.There has been no evidence provided in these proceedings that justifies an order being made for exclusive occupation of the party’s former matrimonial home.

   Orders

   131.Accordingly, for the reasons set out above I make the orders as set out at the commencement of these Reasons for Judgment.

   I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 29 March 2018.

   Associate:

   Date: 29 March 2018.