Miles & Miles
[2023] FedCFamC1F 779
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Miles & Miles [2023] FedCFamC1F 779
File number(s): SYC 5669 of 2021 Judgment of: ALTOBELLI J Date of judgment: 14 September 2023 Catchwords: FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Previous interim orders for the wife’s rental to be met from a joint offset account – Where the offset account is now depleted – Husband’s application to vary previous spousal maintenance orders –Where the wife has not paid her taxation liability in circumstances where she made an undertaking to do so – It is ordered that the wife’s rental is to continue being met by joint funds, the husband’s application to vary spousal maintenance orders is dismissed and the wife is to meet her taxation liability. Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75, 83 Cases cited: AMP Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475; [1983] FCA 248
Bainbridge & Bainbridge [2016] FamCA 1049
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 588
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 16 August 2023 Place: Sydney Counsel for the Applicant: Ms Jones Solicitor for the Applicant: Super & Super Lawyers Counsel for the Respondent: Ms Seric Solicitor for the Respondent: Pickering Pendleton ORDERS
SYC 5669 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MILES
Applicant
AND: MR MILES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Pending further order, the Respondent husband (“the husband”) is to do all things necessary to cause to be paid the Applicant wife’s (“the wife”) rental payments in the amount of $2,200 per week out of or from the parties’ joint assets or assets controlled by the parties (or one of them but in respect of which they have beneficial ownership) as and when it is due with such payments to be characterised as spousal maintenance.
2.If the husband fails to comply with his obligations pursuant to any spousal maintenance order, then within 14 days of the husband’s failure to comply, the husband is to do all things necessary to cause his Motor Vehicle 1 to be listed for sale by public auction and the net proceeds of sale paid to the wife in satisfaction of maintenance both accrued and prospective to the date of any further order, and for the purpose of giving effect to this order:
(a)The wife is to nominate the auction house within seven days of default of order;
(b)The husband is to deliver Motor Vehicle 1, keys, registration and service books to the nominated auction house within 14 days of his failure to comply;
(c)Within 14 days of his failure to comply with the orders the husband shall do all acts and things and sign all documents necessary to procure a sale of Motor Vehicle 1 by the nominated auction house no later than 21 days following compliance with paragraph (b) above;
(d)The husband shall not less than 48 hours before the appointed auction date direct the auction house in writing (copying in the wife) to pay the net proceeds of sale of Motor Vehicle 1 to her nominated bank account within five business days of the wife nominating the auction house;
(e)The reserve price for the sale of Motor Vehicle 1 shall be as recommended by the auction house; and
(f)If Motor Vehicle 1 does not sell at the first auction and is passed in, Motor Vehicle 1 be relisted for the next auction, and the husband shall do all acts and things and sign all documents necessary to procure a sale of Motor Vehicle 1 by a further auction upon the same conditions as set out in these orders other than for the reserve price which shall be 95 per cent of the preceding auction reserve price, and this process of relisting Motor Vehicle 1 at further auctions but with a lower reserve of 5 per cent less each time shall be repeated until Motor Vehicle 1 is sold.
3.The husband be and is hereby restrained by injunction from encumbering, transferring or otherwise dealing with his interest in Motor Vehicle 1.
4.All other interim orders sought in the wife’s Application in a Proceeding filed 19 July 2023 and the husband’s Response to an Application in a Proceeding filed 4 August 2023 are otherwise dismissed.
THE COURT NOTES THAT:
A.These orders do not discharge prior spousal maintenance orders made on 6 September 2021 which remain in full force and effect as follows:
7. The husband pay to the wife or as she directs in writing the sum of $1,154 per week with payments to be made on the first Monday of each week commencing the first Monday after the date of Orders and with such payments to be made by way of spousal maintenance.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Miles & Miles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in an interim financial dispute between the applicant wife (“the wife”) and the respondent husband (“the husband”).
BACKGROUND
The substantive application involves both parenting and property issues. The wife is 43 years old and deposes to being unemployed. The husband is 46 years old and describes himself as a director of a media company. The parties have three children, Y who is 14 years old, X who is 12 years old and Z who is 10 years old (“the children”).
The parties began cohabitation in 2002 and were married in 2003 in Sydney. The parties separated on 25 August 2020 and their divorce was finalised in 2021. The wife commenced these proceedings on 6 August 2021.
The wife filed the current Application in a Proceeding on 19 July 2023 and sought urgency on the basis that she only had $244 remaining in her bank account and the joint account that was being used to pay her rent pursuant to previous orders had now depleted to $0. The husband filed his Response to an Application in a Proceeding on 4 August 2023 and the interim hearing proceeded on 16 August 2023.
This matter is listed for final hearing before me for six days commencing 8 April 2024. Thus, the orders made may only have a relatively short duration.
This is an interim application where each party makes competing allegations about financial non-disclosure and certain acts and omissions. No cross-examination was possible. No findings of credibility or fact are possible. The Court will have to do the best it can with the material placed before it by the parties. This may involve forming impressions from the evidence, but that, of course, is not the same as making findings. Each party bore the onus of proof in relation to the matters they put before the Court and the orders they sought.
COMPETING PROPOSALS
In her Application in a Proceeding, the wife sought the following relief (summarised):
(1)To be released from an undertaking she gave to the Court on 23 December 2022;
(2)An order by way of lump sum maintenance that the husband pay her taxation liability of $58,005.07;
(3)An order that the husband continue to pay by way of spousal maintenance $2,200 per week towards the wife’s rent;
(4)Orders for the sale of the husband’s Motor Vehicle 1 in the event that he fails to comply with the above orders; and
(5)A number of ancillary injunctions and orders.
A preliminary observation can be made in relation to the third item above. There is already an order to this effect and the need for a further order is unclear but will be reviewed at the conclusion of these reasons.
In the husband’s Response to an Application in a Proceeding he sought the following relief (summarised):
(1)The dismissal/discharge of a number of the maintenance orders made on 6 September 2021 and 15 July 2022;
(2)In the alternative to the above a variation of the orders for maintenance such that the husband pay to the wife $488 weekly;
(3)The wife pay her outstanding tax liability from funds presently held by her;
(4)The wife pay her rental out of funds presently held by her; and
(5)The wife pay his costs on an indemnity basis.
EVIDENCE BEFORE THE COURT
In support of her case, the wife relies upon the following documents:
(a)Application in a Proceeding filed 19 July 2023;
(b)Financial Statement filed 19 July 2023;
(c)Her affidavit filed 8 August 2023;
(d)Affidavit of Ms D filed 9 August 2023; and
(e)Case outline filed 11 August 2023.
In support of his case, the husband relies upon the following documents:
(a)Response to an Application in a Proceeding filed 4 August 2023;
(b)His affidavit filed 4 August 2023;
(c)His supplementary affidavit filed 15 August 2023;
(d)Amended Financial Statement filed 15 August 2023;
(e)Case outline filed 15 August 2023; and
(f)Minute of Order received 16 August 2023.
APPLICABLE LAW
Spousal maintenance is governed by s 72 of the Family Law Act 1975 (Cth) (“the Act”). In Hall v Hall (2016) 257 CLR 490 (“Hall v Hall”) at [3], the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, which provides:
72 Right of spouse to maintenance
(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).
As noted by the High Court in Hall v Hall, the Applicant carries the onus of satisfying the Court on the balance of probabilities that she has satisfied the gateway requirement of s 72(1) of the Act.
In Saxena v Saxena (2006) FLC 93-268, Coleman J explained at [39] that in determining whether to make an order for spousal maintenance, the Court should follow a four-step process, as follows:
(1)Can the applicant support themselves adequately?
(2)If not, what are the applicant’s reasonable needs?
(3)What capacity does the respondent have to meet those needs?
(4)What order is reasonable, having regard to s 75(2) of the Act?
The husband seeks a modification to spousal maintenance orders pursuant to s 83 of the Act. It relevantly provides:
83. (1)In proceedings with respect to the maintenance of a party to a marriage or of a child of a marriage, if there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of that party or child by the other party to the marriage-
(a) made by the court; or
(b)made by another court and registered in the first-mentioned court in accordance with the regulations, the court may-
(c)discharge the order if there is any just cause for so doing;
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e)revive wholly or in part an order suspended under paragraph (d); or
(f)subject to sub-section (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied-
(a)that, since the order was made or last varied-
(i)the circumstances of a person for whose benefit the order was made have so changed;
(ii)the circumstances of the person liable to make payments under the order have so changed; or
(iii)in the case of an order that is binding on a legal personal representative, the circumstances of the estate are such,
as to justify its so doing;
(b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; or
(c)that material facts were withheld from the court that made the order from a court that varied the order or material evidence previously before such a court was false.
(3)Sub-section (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to this Part.
(4)In satisfying itself for the purposes of paragraph (2) (b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Commonwealth Statistician.
(5)The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(6)An order decreasing the amount of a periodic sum payable under an order or discharging an order shall not be expressed to be retrospective to a date earlier than 12 months before the date of the application for the variation or discharge.
(7)For the purposes of this section, the court shall have regard to the provisions of sections 72, 75 and 76.
(8)The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
The wife seeks to be released from her undertaking made in Order 5(2) on 23 December 2022. In Bainbridge & Bainbridge [2016] FamCA 1049 at [16], Tree J provides a helpful summary of the current law governing applications to be released from an undertaking with specific reference to AMP Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475 as follows:
16. The following statements may be taken as uncontroversial:
•The court has a power to release a party from an interlocutory undertaking: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177-8; AMP Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475 at 489 per Smithers J; Marello & Marello [2011] FamCA 799 at [26] per Kent J;
•The onus is upon the party seeking to be released from the undertaking to show that the enforcement of the undertaking would be unjust: AMP Investments Pty Ltd v Trade Practices Commission (supra) at 510-11 per Fitzgerald J;
•New facts that were not reasonably contemplated at the time of the undertaking may not be sufficient to discharge that onus: ibid.
•Even an absence of new facts may not preclude the onus being satisfied if substantial detriment which an order is causing to one party constitutes injustice: ibid;
…
DISCUSSION OF ISSUES
On 23 December 2022 the wife gave an undertaking to the Court that she would use funds received by way of tax refund to meet any tax liabilities arising on a personal level. Based on the evidence that the parties placed before the Court it is clear that the tax liability relates to income that was, in substance, received by either the husband or the wife for the benefit of themselves and their family, derived from their business. The wife knew that a tax liability was imminent. It has to be paid, and the only source of payment is the same source that both the husband and the wife draw on for the purposes of the living expenses i.e. the income from their business. Their un-seemly squabble about who did what, and who was aware or not aware of what (all matters that the Court cannot adjudicate on in an interim hearing) has distracted them from the obvious – it is a tax liability that can only be met from the one source. In circumstances where the wife received the benefit of a tax refund late in 2022 and then in December 2022 gave the undertaking that she would pay her personal tax out of that amount, the onus was on her to demonstrate why she should be released from her undertaking. No cogent reason was given. The undertaking stands. The money in her possession was put aside for this very purpose. The tax should forthwith be paid out of the funds retained by the wife for this purpose. Orders 2 and 3 of the wife’s Application in a Proceeding are dismissed.
Order 8 made by consent on 15 July 2022 states as follows:
8.The wife shall obtain alternate rental premises with the sum of $2,200 per week with such sum to be met by the parties joint offset account number ending [#...62] and the parties shall do all acts and things necessary to facilitate the procuring of that rental premises including but not limited to payment of the rental bond and establishment of the direct debit from the joint offset account [#...62]. If the Wife wishes to seek a rental premises for a greater rental per week, she must meet the difference.
This Court does not interpret that order as either expressly or impliedly meaning that the obligation to pay for the wife’s rental ceases because the balance in the account nominated is exhausted. The fact is that the way in which the husband and the wife have structured their financial affairs is that all assets, including the business and the income derived from the business, is in reality theirs jointly. The post-separation reality for the parties may well be that the husband controls the business and its income, but that does not change the underlying reality of joint ownership. The order is, in its nature, an order for periodic spousal maintenance. The husband treats it as such in his Response to an Application in a Proceeding. There is thus no obvious need for the wife to have the benefit of a further order, which is in substance what she seeks in Order 4 in her Application in a Proceeding.
In hindsight, perhaps this order could have been drafted more clearly to reflect what the Court believes was the obvious intention of the parties which was that the wife’s rental be paid out of joint funds. This will be addressed in the orders that the Court makes in the present proceedings, to avoid future unnecessary proceedings.
The last orders sought by the wife, Order 5, is by way of enforcement. The need for this can only be determined after considering the husband’s Response to an Application in a Proceeding.
In the husband’s minute of interim orders relied on at the interim hearing he quite properly characterises the legal basis of his application as being s 83(1)(c) of the Act. He contends that there is “just cause” to discharge the orders that he refers to. He does not otherwise address s 83(2) of the Act. Based on the submissions made on the evidence relied on, the Court assumes that he relies on both his own, and the wife’s changed financial circumstances.
Insofar as the husband’s case is based on his own impecuniosity to continue to meet the obligations imposed by the orders, because of his changed circumstances, he has failed to discharge the onus of proof on him.
The high point of his case on this issue appears in the second last sentence at paragraph 49 of his affidavit filed 4 August 2023 in which he alludes to the possibility of insolvent trading which, he goes on to say in the last sentence, may lead to his salary decreasing. There is no evidence of any downturn in the business. His own evidence, however, is that in the most recent financial statements of the business, the 2021 financial year statements, the business entities controlled by him had in excess of $3.2 million of sales, generated a gross profit of $1.25 million, and a net profit of $862,000. The strong impression formed from the totality of the evidence is that he is solely in control of the business, its income, and how it is applied. The husband’s evidence at paragraph 75 of that affidavit demonstrates that the profits were allocated as to 75 per cent to him and 25 per cent to the wife. The strong inference to be drawn from the totality of the evidence is that the income of the business is in effect the income of the husband and the wife albeit controlled by the husband.
In his Financial Statement filed 15 August 2023 the husband asserts weekly income of $10,568, and weekly expenditure of $14,033. In this he claims weekly mortgage payments of $2,705 but it is not clear whether he implies that the mortgage payments come out of his salary, as opposed to the income of the business. The Commonwealth Bank statements indicate that the loan is repaid from a joint account. Whenever his account balance is approaching nil it is replenished by a transfer from one of the business accounts. His American Express bank statements show expenditure that is both personal and business, as do his Commonwealth Bank credit card statements. The husband is in financial control and it was incumbent on him to provide to the Court evidence not just about the financial circumstances of the business but his drawings therefrom.
At no point in his evidence does the husband explain why he needs two motor vehicles for his own use, a $120,000 Motor Vehicle 1, and a $90,000 Motor Vehicle 2.
The husband and the wife have a child Y, currently aged 14. Y lives with the wife, and spends time with the husband on alternate weekends. In his Financial Statement he asserts that he owes Y $200,000. The basis of this is undisclosed. At paragraph 71 of the husband’s affidavit he explains that he gave Y a position in the business, and that she is remunerated for this. How much she is remunerated, and the precise manner of this, is not disclosed. Having regard to the obvious issues of Y’s minority and capacity to enter into a loan with the husband, concerns about the transparency of the husband’s financial affairs emerge, consistent with the submissions made in the wife’s case. The wife contends that the husband in fact has the benefit of $2,600 each month from Y’s account. The onus was on him to explain this unusual arrangement. He did not do so.
The three children spend each alternate weekend from Friday after school until Monday before school with the husband as well as each weekend during school holidays, and he claims to incur weekly expenditure with them of $2,344, or $121,888 per annum. The Court recognises that his financial commitment to the children is substantial and includes private school fees as well as health expenses. It is likely that the expenses claimed for the children are accurate. He claims weekly expenses for himself of $1,589. None appear obviously excessive.
The husband’s credit card statements indicate a level of expenditure not reflected in his Financial Statement. The issue here is not necessarily his lifestyle, but the accuracy of his Financial Statement. The expenditure suggests income to meet those expenses has not been disclosed. The husband’s credit card statement of 16 December 2022 to 17 January 2023 shows an expenditure of $6,900.23, 18 January 2023 to 15 February 2023 shows an expenditure of $8,994.76 and 16 February 2023 to 16 March 2023 shows an expenditure of $8,759.79. This, of course, does not include the expenses made with the husband’s American Express Business Card.
The Court has fewer concerns about his claimed weekly expenditure than it does about the accuracy of his disclosed income. On one hypothesis, if the husband’s capacity is to access all of the current profit of the business, and if it is no less than that disclosed in the 2021 financial year statements, he has access to $16,576 each week. That is significantly greater than his claimed expenditure. The onus was on him to disclose his current actual income. Given his failure to do so, the Court is entitled to infer that it is no less than the amount that is disclosed.
Thus, insofar as the father’s application to discharge or vary the existing spousal maintenance orders is based on changes in his own financial circumstances, he has not satisfied the Court. The focus turns to asserted changes in the wife’s financial circumstances and whether these give rise to an exercise of discretion under s 83 of the Act in favour of the husband.
The material before the Court enables the Court to form two impressions about the wife’s financial circumstances, both of which are relevant to the husband’s case.
The first impression that is formed from the totality of the evidence is that the wife may have been less than enthusiastic or diligent about seeking the administration of the estate of her late mother. All of the documents before the Court suggest that she should receive the benefit of an estate comprising about $215,000 (gross before payment of legal fees) before the end of December 2023. Had she been more motivated and diligent, it is possible this money would already have been received. This is a significant change in her financial circumstances.
Perhaps surprisingly, no submission was made on her behalf to the effect that the inheritance was irrelevant, e.g. because she should not have to rely on a post-separation personal inheritance to meet her reasonable living expenses, some of which are funded from joint funds anyway. Indeed in her counsel’s submissions it was conceded (albeit in guarded terms) that the inheritance would, in effect, reduce her needs. The Court notes that and will assume that she will receive these funds by 31 December 2023, but is otherwise bound to apply the law to the facts as it finds them.
But what impact will that have on the spousal maintenance orders after 1 January 2024? Clearly the husband’s case was that the maintenance should either be reduced or cease entirely. The wife’s case was less clear. The passing suggestion in the wife’s counsel’s submissions that the parties might be able to agree to this once the inheritance was received is, with respect, unrealistic given the litigation track record of the parties. In order to avoid yet another interim application before the final hearing the Court will need to do the best it can in the circumstances. This issue will be discussed below in the context of the other issues raised.
The second strong impression formed is that, whether or not the wife is actually employed by Ms D (a finding of fact that the Court cannot make at this time), the wife’s commitment to that workplace demonstrates she has a capacity for employment on a part-time basis earning between $28.50 to $35 per hour. Based on the evidence of Ms D, the wife “helped out” about five days a fortnight. Doing the best the Court can, therefore, and assuming that the wife worked a seven hour day, and adopting a mid-range hourly figure of $31.75, the Court’s impression is that the wife could earn $1,111.25 each fortnight, or $555.63 weekly, in each case before tax.
The wife deposes to currently earning $1,842.73 weekly, but expenses of $5,400 weekly. This is a shortfall of $3,557.27, part of which is the rental of $2,290 per week which was once predominantly paid out of joint funds. The Court has ordered that these payments continue.
When her expenses are closely scrutinised the Court observes that she claims $1,504 weekly for herself, and $1,570 weekly for the children. In relation to the latter, the Court accepts that the weekly cost of the children exceeds the amount of child support the husband pays and thus it is not unreasonable for her to include this shortfall in the present context. While there are relatively minor factual differences between the husband and the wife’s evidence about the children’s expenditure, which cannot be resolved in this interim hearing, the Court is generally satisfied about the reasonableness of the children’s expenditure.
The focus turns to the reasonableness of the wife’s expenditure. Again, there are relatively minor factual differences between the husband and the wife’s evidence about whether he pays certain items of expenditure that she claims, which cannot be resolved in this interim hearing. The wife will receive the benefit of the doubt in this regard.
The wife’s claim to $300 per week for personal clothing is excessive. $100 per week will be allowed. The wife’s claim for $97 per week for massage/chiropractor is inconsistent with her own evidence about the free massages she receives. The sum of $104 per week for health and fitness is excessive under the circumstances and half that amount, $52 per week, will be allowed. None of the other expenses appear excessive in the circumstances of this case. The wife’s Part N reasonable expenditure will thus be reduced from $1,504 a week to $1,155 per week.
This means that her total weekly expenses amount to $3,445. The children’s expenses not covered by child support of $1,570 should reasonably be added to this. This thus makes her total reasonable expenditure $5,015 per week.
Currently, the wife receives the benefit of child support $688.73 a week, spousal maintenance of $1,154 weekly, until recently $2,200 weekly by way of rental (reinstated by the orders the Court will make), and has an income earning capacity of $555.63 weekly. This makes a total, assuming resumption of the weekly rental payments, and further assuming that her income earning capacity is realised, of $4,687.73 weekly. Her shortfall between income and expenses is $327.27 weekly on the assumption that the husband continues to pay spousal maintenance, the rental is paid out of joint funds, and the husband otherwise complies with all existing orders of the Court.
Thus, whilst in a technical sense there has been a change in the wife’s circumstances in that she has an earning capacity, this does not change the substantive need of the wife in circumstances where the Court is satisfied that the husband has capacity to pay. It must follow that the husband’s application is dismissed, subject only to the Court’s decision about the wife’s inheritance, below.
Little was said in submissions about how, precisely, the wife’s imminent inheritance should be factored into her needs and capacity to meet her own needs. Even if she received a net inheritance of $200,000, the fact is that she owes $400,000 to E Finance, $8,100 on her CBA MasterCard and $20,328 for outstanding legal fees. Her most recent Costs Notice indicates prospective legal costs of over $300,000. One would have thought that her inheritance is all but already spent.
Having regard to all of the evidence the Court is not satisfied that a variation of the existing maintenance orders is justified. However, the wife should perhaps seriously consider her prospects in a future application for interim costs, given the Court’s findings above.
The only outstanding issue is to revisit the wife’s application for enforcement by way of sale of Motor Vehicle 1 should the husband default in payment of his maintenance obligations. The Court is satisfied that he has, technically, already defaulted. He will have the opportunity to correct this. Order 5 in the wife’s Application in a Proceeding filed 20 July 2023 will be made broadly in the terms suggested by the wife, but in less descriptive terms, and more closely aligned to a failure to pay maintenance as ordered by the Court.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 14 September 2023
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