Miller & Miller

[2007] FamCA 423

FAMILY COURT OF AUSTRALIA

MILLER & MILLER [2007] FamCA 423

FAMILY LAW - SPOUSAL MAINTENANCE - Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Miller

RESPONDENT: Mrs Miller

FILE NUMBER: SYF 2805 of 2005

DATE DELIVERED: 11 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 December 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson, SC

SOLICITOR FOR THE APPLICANT: Newnhams Lawyers

COUNSEL FOR THE RESPONDENT: Mr Baran

SOLICITOR FOR THE RESPONDENT: Dorrough Smart

Orders

1. The order of Judicial Registrar Loughnan made 27 October 2005 be varied so that, pending further order, and from the date of this order, the husband pay to the wife by way of spousal maintenance the sum of $1,550.00 per week.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2805 of 2005

Mr Miller

Applicant

And

Mrs Miller

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By way of application in a case filed 27 October 2005 the husband applied for a review of orders made by Judicial Registrar Loughnan for spousal maintenance.  The Judicial Registrar made an interim spousal maintenance order in the wife’s favour in the sum of $1,700 per week.  That application had initially also sought a review of an order for interim costs.  The husband had filed a notice of discontinuance in respect of that part of the application.

2. This is a marriage of some 20 years duration.  There are two children of the marriage, a son born in November 1992 (aged 14) and a daughter born in October 1995 (aged 11). 

3. There are also two other adult children of the wife living in her household.  They are twin sons born in May 1979. 

WIFE’S APPLICATION FOR AN ADJOURNMENT

1. At the commencement of the proceedings the wife made an application that this matter be adjourned. The basis of the application was that O’Ryan J was reserved on issues relating to child support. An urgent interim order had been made for $600 per week. It was put to me from the bar table that this urgent order had been made by a Judicial Registrar for the support of the children. There was a disagreement as to whether or not that order had been made under Section 139 of the Child Support (Assessment) Act or whether or not it had been made under Section 66Q Family Law Act. Counsel for the wife asserted that it had been made under Section 66Q. Given that the two children of the marriage are children to whom the Child Support (Assessment) Act applies, the provisions of Section 66E Family Law Act would seem to prohibit any order being made under Section 66Q.

2. There is some suggestion that, if the order was made under Section 139 Child Support (Assessment) Act that no assessment had been applied for at that time and therefore an urgent order would have been not validly made. I am told that these matters have been argued before O’Ryan J and that at the time that I heard this matter the decision on those matters were outstanding. The husband has been paying the sum of $481 per week in accordance with the amount on the most recent assessment.

3. Counsel for the wife submitted that I was unable to hear the spousal maintenance application because I will not be able to make any determination under Section 75(2)(d)(ii) and (na) as to what the husband’s liability is to pay child support.

4. The Full Court in Stein (2000) FLC 93-004 made it clear that Section 75(2)(d) was of no great relevance when assessing, in a child maintenance application, the amount that the wife might need to receive by way of support for children.

5. In relation to the issue of the husband’s capacity to pay, as I understand the wife’s case more generally, the wife asserts that the husband is a man of considerable financial means.  It is unlikely, on the case that the wife wishes to present, that I would be unable to determine a spousal maintenance application because I did not know whether or not the husband was responsible for paying $600 per week to the wife or $481 per week to the wife by way of support for the two children.  Accordingly I dismissed the wife’s application for an adjournment of the hearing of the spousal maintenance application.

MATERIAL RELIED UPON

1. The wife read four affidavits in her case which were:-

   9.1.An affidavit sworn by the wife 2 September 2005;

   9.2.An affidavit sworn by the wife on 16 February 2006, now filed 3 May 2007;

   9.3.An affidavit sworn by the wife on 20 June 2006 (the June affidavit);

   9.4.An affidavit sworn by the wife on 1 December 2006 (the December affidavit).

2. The husband relied upon affidavits sworn on 4 August 2005; 29 August 2005; 9 September 2005; a further amended financial statement dated 17 October 2005 and an affidavit of Mr K sworn 16 December 2005. 

3. The husband also relied upon certain paragraphs of an affidavit sworn by the wife on 9 June 2005 in his own case.  Those paragraphs were 423; 591; 592; 783; 818; 953; 1106 and paragraphs 1208 to 1241. 

4. The wife’s financial statement sworn 20 June 2006 and filed 21 June 2006 was also referred to. 

THE RELEVANT LAW

1. Section 74 Family Law Act allows the Court, in proceedings in respect of maintenance for a party to a marriage, to make such order as it considers proper for the provision of spouse’s maintenance.

2. Section 80(h) provides that an order can be made pending the disposal of proceedings or until further order.

3. Section 72 of the Family Law Act requires me to:-

   Firstly consider whether or not the wife has need based on an inability to support herself adequately and thereafter to assess the husband’s capacity to pay.

4. The onus is on the wife to establish need before there is any inquiry into the husband’s capacity to pay.

5. Nygh J, in Ashton and Ashton (1982) FLC 91-285 commented, at a time before the Child Support (Assessment) Act, that:-

   An application for interim maintenance is a creature whose exact nature has not been adequately defined, but as I understand it, differs only from an application for permanent maintenance in that the order which is sought is an order until further order.

6. Section 75(1) requires the court must take into account only the matters referred to in Section 75(2).

7. Counsel for the wife referred to a case of Jyopar as being a case “in the late 70s or early 80s” determined by Nygh J.  Jyopar was a decision in 1986 by Justice Treyvaud who was dealing with a Section 77 application.  The authorities that Counsel for the husband probably had in mind were Ashton (above) and Pritchard (1982) FLC 91-286.

8. In Paradine (1981) FLC 91-956; [1981] FLR 125 a wife had made an application for child maintenance in relation to one child. The wife filed evidence in a Statement of Financial Circumstances as to the weekly expenses of her household. Besides herself there were two members of her household. A child who had left school and was working and the child who was the subject of the child maintenance application. Apart from school fees the wife led no evidence as to exactly what part of the household expenses related to the child who was the subject of the application.

9. In Paradine the Full Court Simpson SJ (with whom Yuill J agreed; Gun J dissenting) said:

   ...in the absence of evidence of even the most general nature giving some estimate of the needs of the subject child, apart from educational expenses, I do not consider that it was open to [the trial judge] to extrapolate the expenses of the child from the wife’s Statement of Financial Circumstances which sets out the joint expenses of the wife and the two children of the marriage for the year ended 30 June 1979...  There was an onus on the wife to at least give evidence to the effect that the current household expenses equalled or exceeded the expenditure set out in her Statement of Financial Circumstances and that it was reasonable to attribute one third, or some other proportion thereof, to the relevant child.....accordingly, [the wife] failed to put forward sufficient evidence to enable the trial Judge to properly draw an inference in relation to the balance of the expenses associated with the child....the only course open is to allow the appeal....

10. Counsel for the husband asserted that Gun J had agreed with Simpson on this point but in fact he had dissented.  At page 76,458 Gun J said:-

    Counsel for the husband submitted that an applicant for maintenance must say how much is needed for the support of the child in respect of whom the order is sought and that no such evidence had been given by affidavit or orally. It was, he submitted, not open to the court to take the wife's figures as to her expenses in her Statement of Financial Circumstances and simply divide them by three, i.e. the number of the persons living in the household. One way to deal with the matter would have been for the wife to file a short affidavit some weeks before the hearing giving some brief particulars as to the current cost of keeping G. In the absence of such an affidavit, an appropriate question or two should have been asked in evidence-in-chief as to how much it cost the wife to keep G. Not a single question was asked. Counsel for the husband further submitted that there was no indication in her Honour's judgment as to how she arrived at the figure of $45 per week and that the onus was on the wife to establish some connection between her expenses and the amount required to support the child.

11. Gun J then examined the wife’s financial statement and analysed what parts of it related to reasonable support of the child.  On his analysis he felt that it was not unreasonable, as the trial judge had done, to attribute one third of the cost of particular items to the child in that case (see his analysis at pages 130 – 132, 7 Fam LR).

12. In Paradine, Justice Gun undertook a detailed analysis of the wife’s Statement of Financial Circumstances to try and draw reasonable inferences in relation to the child’s expenses.  He was dissenting when he did this.  Justices Simpson and Yuill more robustly found that that was a matter of the production of evidence as opposed to a process of guestamating by the trial judge.

13. In Mee & Ferguson (1986) FLC 91-716 the Full Court referred to the essential first step of ascertaining in financial terms the needs of a child in question when dealing with a child maintenance application and commented:-

    Very often in maintenance cases this aspect is neglected and very imprecise evidence is given, a problem referred to by the Full Court in Paradine and Paradine (1981) FLC 91-056; (1981) 7 Fam LR 125. Often it seems to be assumed that by inference or intuition courts are able to form a view without actual evidence.

    ....it must be emphasised that evidence must be called on this issue.

14. Redman and Redman (1987) FLC 91-805 was a Full Court decision decided again before the introduction of the Child Support (Assessment) Act. In this case the Full Court dealt with a matter where the wife had filed an application for urgent spouse and child maintenance. She had provided to the Court figures relating to the general costs of the household. The trial judge had made findings that the combined cost of the household was in the region of about $400 per week. The trial judge held that as the wife’s expenses had not been separated out from the children’s expenses, no order would be made in relation to child maintenance. The husband was ordered to pay $400 per week for the wife alone. The husband appealed, arguing that the trial judge’s order was on its face “$400 per herself and the children”. It was argued that the trial judge should have considered the financial needs of the wife separately from the financial needs of the children and made separate orders under each heading.

15. At page 76,081 the Full Court said:-

    The wife was seeking maintenance in respect of herself and the children.  She presented evidence relating to the expenses of the joint household and her Honour’s findings as to this expenditure were not challenged on appeal.....on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”, Williamson and Williams (1978) FLC 90-505....per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of Section 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under s.83.

16. The Full Court held that in applications for interim maintenance the Court has a greater degree of flexibility than it has in applications for maintenance intended to last for an indefinite period.  In Redman, as in this case, any order for interim maintenance is intended to be reconsidered at a final hearing when final orders to alter the parties’ property are made.

17. The Court also made the point that a strict line cannot always be drawn between the costs referrable to the custodial parent and referrable to the children (a point previously made by Yuill J in Paradine). 

18. The Full Court, however, was of the view that the trial judge could and should have made some allocation in respect of the maintenance of the wife and the children.  The Full Court found on the material that had been placed before the court there was some basis for concluding what the wife’s needs were that were referrable to the children.  Having found that evidence existed, the Full Court upheld the appeal saying that her Honour could and should have made some allocation in respect of the maintenance of the wife and of the children. They re-exercised their discretion producing the same weekly amount to be paid by the husband to the wife but breaking it into an order for spousal maintenance and an order for child maintenance.  The Full Court made the point that this dissection is “of great importance where child maintenance alone is being asked for” (the emphasis is the Full Court’s emphasis).  

19. The Full Court in Redman made the point that if an applicant is seeking money for both herself and for children on an interim basis, then a presentation of evidence relating to joint household expenses might be approached with a slightly broader brush.  The Full Court in Redman said that in interim applications involving dual applications for spousal maintenance and maintenance in relation to the support of children:-

    ...a strict line between costs referrable to the custodial parent and those referrable to the children cannot always be drawn with clarity.  Some expenditure relating to the household as a whole, such as the provision of housing, electricity, fuel, transport, and possibly food and groceries, cannot be strictly divided.  When an application is made which covers both the custodial parent and the children, those expenses can with some justification be allocated under either heading....in such a case it will be difficult to stipulate with any precision how the maintenance should be allocated or to challenge any such allocation if it is made....if the matter is likely to be reviewed in the near future, there may be no need for a full and detailed examination of the issues.

20. In summary therefore, although Redman is to some degree a license for a more broad brushed approach in a hearing for interim maintenance than in a hearing for a final maintenance order, the court is still bound to consider an application for spousal maintenance under Section 74 as an application which is distinct from any application that the court deals with in relation to an order for the support of children. If it is possible, the court should make a dissection and that a global order covering both the wife and children should be avoided, if possible.

21. The Child Support (Assessment) Act was introduced in October 1989.

22. In Wilson (1989) FLC 92-033, Nygh with whom Strauss J agreed, stated at 77,454:-

    An application for interim maintenance, which term I prefer to the older term of ''pending suit'', is based in principle on the same considerations as an application for maintenance which is intended to apply for an indefinite period. The major difference is that on an application for interim maintenance the court conducts ''not as final or exhaustive a hearing as would be the case if one were hearing the matter finally'': Williamson and Williamson (1978) FLC ¶90-505 at p. 77,650; 4 Fam. L.R. 355 at p. 359 per Fogarty J. It follows that the trial Judge has considerable discretion and the appellate tribunal would be much more reluctant to interfere than would be the case with an order for indefinite maintenance: Redman and Redman (1987) FLC ¶91-805; 11 Fam. L.R. 411.

23. In Stein v Stein (2000) FLC 93-004 the Full Court dealt with an order by a trial judge that the judge pay the wife interim spousal maintenance of $1,500 per week pending the determination of the wife’s application for property settlement. The trial judge had found that there was a short fall between what the wife was receiving by way of child support payments under a child support assessment and the amount of money that she was actually spending in respect of the children. The trial judge had, relying on Section 75(2)(d) FLA awarded a component of spousal maintenance on the basis that the wife needed that money to add to what she was getting from the husband for child support in order to be able to fulfil commitments that she had to maintain the children.

24. The important point arising out of Stein (so far as this case is concerned) is the fact that the wife in Stein, as in this case, did not seek a departure order in respect of the child support assessment.

25. At page 87,126 the Full Court in Stein refers to an appeal in the matter of Vaughton where that Full Court commented:-

    ...it may have been more appropriate, given the wife’s evidence of her major expenditure for the two children, that the claim for lump sum maintenance should have been for the children as well as the wife.  But the claim has never been formulated in that way and we can only deal with his Honour’s rejection of the claim that proceeded before him.

26. Even though there may be some doubt about the validity of the current child support assessment, it was open to the wife to obtain an assessment and in the event she was dissatisfied with that assessment it was open to the wife under Section 115(c) Child Support (Assessment) Act (as it then was) to have made an application pursuant to Section 116 of the Act for an order varying upwards the child support assessment. The wife made no such application in the matter before me. I am consequently dealing only with a spousal maintenance application.

27. In Stein, the Full Court concluded as follows:-

    44.  It must be borne in mind that the proceedings before the trial Judge were proceedings for spousal maintenance. There were no proceedings before the trial Judge for departure from administrative assessment of child support, although it may be reasonable to speculate that if such proceedings had been brought an order might properly have been made which would have visited the entire costs of supporting the children upon the husband. 

    45.  The obligation under the child support legislation is that parents share equitably in the support of their children. That legislation requires that consideration be given to the proper needs of the children and the income- earning capacity, property and financial resources of each of the parents. The wife had no ready access to any source of funds nor any earning capacity which she could utilise to provide for the children's support. The husband had access to vast amounts of wealth. 

    46.  In this case the findings as to the husband's wealth were such that it would be almost inevitable that, at least on an interim basis, the husband would be called upon to bear the entire cost of meeting the reasonable needs of the children. However, there was no child support application before his Honour. 

    47.  In determining the quantum of spousal maintenance, his Honour was obliged to take into account under s 75(2)(na) not only child support which a parent is providing, but child support which a parent might be liable to provide in the future. 

    48. Section 75(2) serves many masters. It contains matters to be considered in both s 74 (spousal maintenance) and s 79 (alteration of property) proceedings. It contains matters relevant to the capacity of the payer to make maintenance payments, and to the needs of the payee to receive them. It contains matters which are relevant to comparing the situation of the parties when deciding what an appropriate adjustment of property interests should be. But its provisions must be read as ancillary to the power being exercised in each case. The maintenance power is to be found within the confines of ss 72 and 74, the property power within the confines of s 79 sub-ss (1) and (2).

    49.  It seems to us that in the context of an application for spousal maintenance the consideration in s 75(2)(d) of

    ``the commitments of each of the parties that are necessary to enable the party to support... a child... that the party has a duty to maintain''

    has greater significance in determining the capacity of a payer to provide support rather than in determining the extent to which the other party requires support. In a maintenance case if, for example, a husband is called upon to pay maintenance for his wife, the Court must determine his capacity to pay that maintenance having regard to his obligation to support his children. The level of support that the wife needs for herself is not dependent upon the level of support she must give to others. In a property case however, the extent to which a division of property may be seen as being appropriate might only properly be measured by examining all the demands that each spouse has to meet. 

    50.  By way of example, s 66M makes it clear that a step-parent does not have a duty to maintain step-children, other than in the circumstances which the Court is required to take into account under s 66M. It would not be a proper application of s 75(2)(d) to create a liability of a father to support his step-children via the device of a maintenance application by his estranged wife on the basis that she has a duty to maintain her children and that she requires the provision of maintenance for herself so that she can in turn support her children. 

    51. Whilst the legislation permits the Court in exercising its s 74 power to take into account only the various matters set out in s 75(2), the legislation gives little guide as to the manner in which they are to be so taken into account. The power exercised under s 74 is to make such order as the Court considers proper for the provision of maintenance of a party to a marriage. This is not to be confused with the power of the Court to make orders for the maintenance of children or step-children under the provisions of Part VII of the Act nor for the provision of child support under the Child Support (Assessment) Act.

    52. There is, however, an overlap between the various sections. In order to avoid ``double dipping'', s 117 of the Child Support (Assessment) Act enables the Court to take into account in proceedings for a departure order:

    ``any payments... made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent... to the carer entitled to child support... for the benefit of the child.''

    As already indicated, s 75(2)(na) enables the Court, in determining an application for spousal maintenance, to take into account any child support that has been provided, is being provided or might be liable to be provided in the future. 

    53. Each relevant area of legislation requires different considerations. The obligation to maintain children under Part VII of the Family Law Act is, like the obligation to provide child support under the Child Support (Assessment) Act, an obligation which has priority over all commitments of a parent other than commitments necessary to enable the parent to support himself or herself or any other child or other person that parent has a duty to maintain and is not of a lower priority than a duty of a parent to maintain any other child or any other person.

    54. Child maintenance is to be determined having regard to the matters set out in ss 66J and 66K of the Family Law Act, whilst child support is governed generally by the provisions of the Child Support (Assessment) Act, and in respect of any application for departure from administrative assessment, by the provisions of s 117. The matters to be taken into account under both Part VII of the Family Law Act and under the relevant sections of the Child Support (Assessment) Act are not identical to matters to be given consideration in respect of claims for spousal maintenance.

    55. Spousal maintenance is ultimately governed by the provisions of ss 72 and 74, namely there being no right to spousal maintenance unless there is a capacity to meet it and an inability by the claimant to meet the claimant's own self-support.

    56.  In this case, the wife's duty to maintain her own children was only a duty to make an equitable contribution towards their support. The extent of that equitable contribution had not been evaluated by the trial Judge but could probably be said to have been non-existent having regard to the vast amount of wealth available to the husband. On that analysis, even if it was appropriate for the trial Judge to have taken into account the commitments of the wife necessary to enable the wife to support her children, it could not be said that the expenditure of monies on the children by the wife over and above the monies she would be able to obtain by way of appropriate assessment of child support could be seen as necessary expenditure by the wife. It certainly could not be seen as an element of her self-support. 

    57.  In our view, we must conclude that his Honour erred when taking into account what his Honour described as ``the obligation to maintain the children pursuant to s 75(2)(d)''. In one sense the wife had no obligation to support the children because that obligation could be clearly met by an application for departure from administrative assessment of child support. In another sense, even if she had an obligation to maintain those children, the fact that she was meeting that obligation could not be said to be a necessary element of the amount of support she needed for herself. 

THE WIFE’S NEEDS

1. Counsel for the wife conceded that there was no dissection between the expenses of the children and the expenses of the wife in the affidavit material that has been filed.  That material is extensive. 

2. Given the volume of material the wife has filed in these proceedings to date it is notable that she has not attempted to address the basic problem raised by Counsel for the husband, namely that there had been no attempt to dissect expenses incurred by the wife in respect of the four children. 

3. The wife’s position seemed to be that I would have to do the best I can with the information that has been provided.  Counsel for the wife submitted that I would want to look very carefully at the June 2006 and December 2006 affidavits. 

4. When I challenged Counsel for the wife as to what I should do with the voluminous evidence that had been filed without any attempt to to dissect expenses as between the wife on the one hand and the children of this marriage and the children of her previous marriage on the other hand, Counsel for the wife submitted that I “would probably deduct a third in respect of the children”.  Counsel for the wife conceded that there was no science in that estimate but simply said that I should take into account where the wife lives, the lifestyle that she has had, the lifestyle to which she has been accustomed, all of which could be described as “luxurious”. 

5. The wife is not employed.  She has not been employed for a considerable period of time.  I accept that she has a limited earning capacity. 

6. The wife has the full time care of the two children.  It seemed to be an agreed fact that the wife had full time care of the children and that the husband was not at the time of the hearing having significant or substantial time with the children.

Dissection of expenses for the wife alone

1. The preparation of the wife’s material for this hearing has been less than adequate.  As Counsel for the husband pointed out, the matter proceeded before me solely on the basis of an interim spousal maintenance application.  There was no application for the variation of any child support assessment on the basis that it would be just and equitable to increase an assessment.  There was no application for adult child maintenance for step children.  There was a clear onus on the wife to provide as much evidence to the court as possible as to her estimate as to the cost of keeping herself.  No attempt has been made in the evidence to carry out that dissection. 

2. Part N of the financial statement sworn by the wife on 20 June 2006 was not completed.  The instruction for that section is “complete and attach this page only if the application is for orders for maintenance for yourself, the other party or your children or child support for financial enforcement”. 

3. Item 60 asks the deponent to set out average weekly expenses “for you”, “for children (if applicable)” and “other adults if applicable”. 

4. The wife makes no attempt to apportion her expensed between herself and the children.

The June and December affidavits

1. Counsel for the wife submitted that I could draw from the affidavits filed by the wife that she expends “every six months or so”, “at least” some “$40 to 50,000 every six months” and that when figures were rounded that equated to about $4 - 5,000 a month.  Note that the monthly figure submitted does not follow mathematically.

2. Counsel for the wife provided the court with no summary of any of the material. 

3. It was originally submitted by Counsel for the wife that this analysis would give a weekly figure of about $1,700 per week (again that does not mathematically follow).

4. When pressed in relation to his mathematical calculations, Counsel for the wife agreed that what he had put as an analysis of his evidence equated to somewhere between $1,923 per week and $1,538 per week (being $50,000 ¸ 26 and $40,000 ¸ 26 respectively). 

5. Unfortunately when the material referred to by Counsel for the wife is studied his analysis was wanting.  Counsel for the wife’s submissions contained a mistaken assumption about what was in the wife’s two most recent affidavits.  This meant that some of the discussion during submissions was misguided.  For example I put to Counsel for the wife that on the lower figure of $1,538 per week, if you ascribe one third to the children as he suggested then you would get back to approximately $1,000 per week by way of spousal maintenance. 

6. An analysis of the information in the June and December affidavits can be tabulated as follows:-

   The June Affidavit (Table 1)

Mid February to mid June 2006 = 4 months	Per week
Groceries	9,686.33	559.25
Clothes, presents, etc	8,600.66	496.57
Petrol, milk, newspapers, car maintenance	2,807.74	162.10
Books, etc	852.04	49.19
Household, replacements, general maintenance	2,170.55	125.32
Tickets, parking, etc	866.82	50.04
Family entertainment, magazines, subscriptions	3,260.90	188.27
Uniforms, sport subscriptions for the children, tutor for the daughter	2,711.69	156.56
Chemist, medical receipts (excluding Medicare), etc	3,944.84	227.76
Phones – mobile	1,583.00	91.39
Hair & beauty	1,196.45	69.07
Miscellaneous (including gardening; cleaning; dry cleaning; babysitting; vet/pet; etc.	8,907.96	514.31
Utility expenses (including Energy Australia; Telstra; Foxtel; gas and Medibank)	4,224.75	243.92
50,813.73	2933.75

The December affidavit (Table 2)

Mid June to mid November 2006 = 5 months	Per week
Groceries	16,109.56	744.09
Clothes, presents, etc	4,308.71	199.01
Petrol, milk, newspapers/magazines, etc	2,389.54	110.37
Books	561.46	25.93
Household replacements, general maintenance & hardware	1,552.53	71.71
Tickets, parking, Etag	1,129.19	52.15
Family entertainment	1,639.35	75.72
Uniforms, sport costs, tutoring for the son and daughter, school extra expenses	4,343.80	200.63
Chemist, medical receipts (excluding Medicare)	5,539.00	255.84
Phones – mobile	603.00	27.85
Hair & beauty	881.84	40.73
Miscellaneous (including gardening; house cleaning; dry cleaning; babysitting; vet/pet, etc	3,876.79	179.06
Utility expenses (including Energy Australia; Telstra; Foxtel; gas and Medibank)	6,182.37	285.55
Gift – charity/fund raising	359.75	16.61
Postage	430.51	19.88
Family entertainment – ‘eating out’	2,440.66	112.73
Photos	32.95	1.52
Computer/printer expenses	131.78	6.08
Flowers	144.50	6.67
Relationships Australia	215.00	9.93
52,872.29	2442.06

1. On the expenditure on the June affidavit it is said by the wife to be “for the children and myself” except for the expenditure on uniforms, sport, subscriptions for the children and a tutor for the daughter.  I refer below to what the expression “for the children and myself” might mean. 

2. Again, all the expenditure in the December affidavit is said by the wife to be “for the children and myself” except for the expenditure with Relationships Australia which is solely for the wife and expenditure for uniforms, sport costs, tutoring for the son and daughter, school extra expenses which are solely for the children.  The wife says the figures in her December affidavit have dropped because she does not have the access to financial resources to maintain her standard of living. 

3. Counsel for the wife relied upon part of exhibit B which appeared to be a transaction record from an automatic banking machine of the Commonwealth Bank.  It did not identify the wife as the holder of the relevant account but the document was tendered on that basis and no objection was taken to its tender.  It shows that as at 1 December 2006 the available balance in this savings account was $584.54. 

4. Counsel for the wife submitted that I should be satisfied that the wife has successfully spent all the money that she has received from the husband on a periodic basis.  It was submitted that there was no credible evidence that she has been splurging money.  Under the existing orders that is a sum in excess of $2,100 per week (including child support).  This submission is said to be supported by part of exhibit B which shows the wife’s current balance at $584.54. 

5. The wife has no assets available to her which she can liquidate. 

6. I am told that the wife has incurred $700,000 in legal expenses in respect of the substantive hearings in relation to financial and children’s matters.

R property

1. The wife currently occupies a property known as R.  It has 14 rooms.  The wife lives in R property rent free.  The registered owner is either the husband’s parents or an associated entity.  Part of the wife’s expenditure relates to the upkeep of that property.  The wife asserts that she has a duty to maintain the property because she has an equitable interest in the property.  There is no evidence before me that would indicate that the wife does have an equitable interest in this property. 

2. The wife is living at R property and has lived there for some time, so it is understandable that she wishes to maintain it in a reasonable condition. 

3. Counsel for the husband says that the wife should be required to do some of the cleaning and gardening.  Counsel for the wife points out how large the property is and the fact that that was not part of what the wife had to do whilst the parties lived together.

4. Counsel for the husband sought and obtained a concession from counsel for the wife that there was no swimming pool at the R property (this was relevant to one of the statements she had made in her affidavit sworn 9 June 2005 – which was put into evidence by counsel for the husband) where the wife had claimed an expense for swimming pool.  Counsel for the wife from the bar table justified that on the basis that her future occupancy of that property at the time the affidavit was sworn was not known and she was making an allowance for a future contingency. 

Lifestyle

1. In the affidavit of the wife sworn 9 June 2005, she maintained that she enjoyed a very high standard of living from 1992 to June 2005 (paragraph 1241).  She lists a series of expenses at paragraphs 1208 through to 1240.  The total that she arrived at is $16,202 per week.  Some of those expenses included clothing, shoes and accessories of $1,000 per week; cleaning a pool (that did not exist) at $300 per week; and entertaining and eating out of $1,000 a week.

2. Counsel for the wife did not read the wife’s affidavit sworn 9 June 2005 in the wife’s case.  Consequently information in that affidavit detailing some of the examples of lifestyle expenditure that the parties had during the marriage is not evidence which is before me.

3. There is some evidence relating to lifestyle matters in the wife’s affidavit sworn 2 September 2005 including:-

   68.1.The parties lived in properties by the companies with which the husband has an association during the marriage including properties at V, B. W and S (see paragraphs 4, 6 and 10);

   68.2.The parties drove company motor vehicles (see paragraphs 4 and 6);

   68.3.The wife received many presents from the husband and the husband gave presents to her two adult sons and paid for various activities and holidays that they all shared (paragraph 5);

   68.4.On 31 May 1993 the wife was gifted a 1956 Porsche;

   68.5.The husband and companies with whom he was associated fully supported the twins from about the age of 9 (paragraph 16).  This included paying for the twins to go to J College at H as boarders and a school excursion to Indonesia in 1994 (paragraph 11);

   68.6.The parties in December 1994 holidayed with the children in the United States (paragraph 14);

   68.7.$15,000 was spent on a 21^st birthday party for the twins which was held at Lunar Park (funded from the property the wife sold);

   68.8.The parties lived in England in 2001 and 2002.  The parties went on a variety of expensive holidays from that base.  The cost was funded by the Miller Group of Companies (see paragraph 23).

4. Counsel for the husband relies upon various passages in the wife’s affidavit sworn 9 June 2005 which paint a picture of the wife’s ability during the marriage to obtain funds from the husband for ordinary living as one of great difficulty for her (at paragraph 423 she says “he was the sole financial provider for the household”).

5. Paragraph 953 she says “can you give me money to order a pizza? ---No”. 

6. At paragraph 591 she says in 1995 she was provided with $500 per week for housekeeping.  Other paragraphs that refer to difficulty with obtaining money for living expenses during the marriage are 783 and 818 and 1106. 

7. Counsel for the wife did not attempt to rely upon the June 2005 affidavit in the hearing before me.  He confirmed that the wife no longer asserted a need of $16,202 per week.

8. The passages referred to by Counsel for the husband do not necessarily mean that the wife’s evidence in relation to lifestyle is inaccurate.  The fact that the wife says the husband did not reliably pay her housekeeping money and otherwise tightly controlled her purse strings does not necessarily mean that monies which the husband controlled were not used for the parties to live a more than average lifestyle.

9. The wife says she has not had sufficient monies to take the children away on a holiday during their Christmas vacation or other vacation since separation, either interstate or overseas. 

10. The wife says she does not have the money to commence dental work which she says the children require.

11. Counsel for the wife submitted that I should make some further adjustment for unexpected contingencies such as money for gardening and higher electricity bills.

12. The wife drives a Mercedes Benz which I am told is currently unregistered.

13. Counsel for the wife made the submission that there is nothing in her husband’s affidavit to the effect that when he was married to the wife they did not live at R property, they did not have the sort of cars that she has, or that they did not go on holidays from time to time. 

The twins

1. The twins are 28 years old and live in a flat on the R property.

2. Counsel for the husband referred to paragraph 31 of the wife’s affidavit sworn 1 December 2006.  The wife says:

   Over the period, since October 2006, my twin sons, […] and […], do contribute approximately $100 per week to the household in lieu of rent, and as a contribution towards to household expenses of food, etc.

3. From this evidence I find that the wife’s figure for food on a weekly basis includes payment by her for the food for the two adult children as well as for the two children of the marriage and herself.  The only evidence of what “etc” might mean is contained in two pieces of evidence.  The first is a reference made in annexure T of the wife’s affidavit of 2 September 2005.  That annexure is a quotation for cleaning services.  It includes a statement that part of those services include the cleaning of a separate flat which on the evidence is where the twins reside.

4. There is another invoice, part of annexure I to the mother’s affidavit of 2 September 2006, which shows five meals being brought at a dinner that the mother went to at D.  I infer that those meals include the meals of the adult children. 

5. Counsel for the wife submitted that I accept that there is no substantial evidence that the wife’s expenses were being spent on her two children from a previous relationship. 

6. The wife throughout her material refers to expenditure “for the children and myself”.  This is a expression regularly used in the affidavits of 20 June 2006 and 1 December 2006.

7. Although it is not entirely clear, I find on balance, a reasonable interpretation of that phrase should be seen as referring to the wife and the two children of the marriage, the son and daughter, other than for food, general maintenance and family entertainment. 

8. Counsel for the husband said that there were three defects in the wife’s evidence:-

   86.1.Expenses include expenses of persons other than the applicant;

   86.2.Many of the expenses appear excessive;

   86.3.The wife does not attempt in any reasonable way in her evidence to summarise what she anticipates her need to be moving forward.

9. Counsel for the husband submits that it is a fatal flaw in the wife’s case not to have at any stage in the voluminous material which she has filed attempted to carry out this exercise in circumstances where five people live in the wife’s household (herself, her two adult children and the children of this marriage who are covered by the Child Support (Assessment) Act).

10. Counsel for the husband submitted that if I cannot dissect the expenses between the wife and the children I cannot guess at them in some general percentage way (as I was invited to by counsel for the wife).  It would be an error of law for me to make such an arbitrary allocation. 

11. Counsel for the husband submits that the mother’s evidence should be treated with caution and treated conservatively.  That submission is in part based on the contents of an affidavit which she swore in June 2005.  Material in that affidavit is very different from the material that she now puts to the court.

12. Counsel for the husband referred to various inconsistencies in the wife’s affidavit of June 2005 where the wife had asserted that her expenses were $16,202 per week (including pool cleaning $300).  I was asked how could I form a reliable view about the wife’s evidence given that Counsel for the wife accepted that the wife’s earlier sworn estimates were “excessive”.

A broader approach to the wife’s needs

1. Counsel for the husband went through the wife’s affidavit of September 2005 which is the first affidavit she actually relied upon.  He pointed to wild swings in relation to various expenditures.  Counsel for the husband made submissions in respect of the evidence contained in the affidavit of 2 September 2005.  He pointed to inconsistent evidence in relation to groceries (April $216; June $786; July $975).  The calculations detailed by Counsel for the husband in submissions were not specifically challenged by Counsel for the wife.  Counsel submitted that the expenses arising out of the September 2005 affidavit worked out to be $1,380 per week. 

2. Counsel for the husband says that if I am against him in respect of his primary submission and I took a broad brush approach, I would also not assess the wife’s need at more than $850 ($1,380 - $500).  The $500 taken off relates to the expenses of the children.  Counsel for the husband also submitted that a further $100 per week should be deducted because the wife was receiving that sum from the twins each week. 

3. I think however it is more appropriate to attempt to analyse the more recent information provided by the wife in respect of her expenses.

4. Some analysis of the figures in the wife’s most recent affidavit is possible (although I acknowledge the process is somewhat painful) if the following assumptions are made:-

   94.1.The costs of “uniforms, sport costs, tutoring for the son and daughter, school etc expenses” is not a cost of the wife.

   94.2.That the adult children as well as the children of the marriage share in expenses for groceries, general maintenance and family entertainment and accordingly those expenses should be divided by five. 

   94.3.The expense for photos and the costs of Relationships Australia should be only the wife’s expense.

   94.4.The balance of the expenses are shared equally between the wife and the two children and accordingly those expenses should be divided by three. 

   In my view these assumptions are safe, as it is likely that on some of the expenses the wife’s consumption is higher than any of the children and her consumption is unlikely on any of the expenses to be lower than any of the children. 

5. The following table provides the result of this analysis:-

   TABLE 3

   The December affidavit

Mid June to mid November 2006 = 5 months	Expenses for 5 months	Household per week	Wife per week
Groceries	16,109.56	744.09	148.81
Clothes, presents, etc	4,308.71	199.01	66.33
Petrol, milk, newspapers/magazines, etc	2,389.54	110.37	36.79
Books	561.46	25.93	8.64
Household replacements, general maintenance & hardware	1,552.53	71.71	14.34
Tickets, parking, Etag	1,129.19	52.15	17.38
Family entertainment	1,639.35	75.72	15.14
Uniforms, sport costs, tutoring for the son and daughter, school extra expenses	4,343.80	200.63	0.00
Chemist, medical receipts (excluding Medicare)	5,539.00	255.84	85.28
Phones – mobile	603.00	27.85	9.28
Hair & beauty	881.84	40.73	13.57
Miscellaneous (including gardening; house cleaning; dry cleaning; babysitting; vet/pet, etc	3,876.79	179.06	59.68
Utility expenses (including Energy Australia; Telstra; Foxtel; gas and Medibank)	6,182.37	285.55	95.18
Gift – charity/fund raising	359.75	16.61	5.53
Postage	430.51	19.88	6.62
Family entertainment – ‘eating out’	2,440.66	112.73	37.57
Photos	32.95	1.52	1.52
Computer/printer expenses	131.78	6.08	2.02
Flowers	144.50	6.67	2.22
Relationships Australia	215.00	9.93	9.93
52,872.29	2442.06	635.83

1. It is likely that had the wife undertook the exercise which she should have undertaken, the result would have been that a number of the items that I have divided by three might have produced a figure that was more in the wife’s favour. 

2. The husband in a further amended financial statement sworn 17 October 2005 set out the following list of personal expenses (at page 9) for himself.

   TABLE 4

1.	Food	$180.00
2.	House repairs	50.00
3.	Gas	20.00
4.	Electricity	100.00
5.	Telephone	60.00
6.	Petrol	100.00
7.	Motor vehicle maintenance	300.00
8.	Clothing and shoes	50.00
9.	Medical, dental and optical	100.00
10.	Entertainment/hobbies	100.00
11.	Holidays	300.00
12.	Chemist/pharmaceuticals	40.00
13.	Repairs/furniture and appliances	50.00
14.	Drycleaning	20.00
15.	Books and magazines	50.00
16.	Gifts	20.00
17.	Work lunches	50.00
18.	Lunches and dinners with children (husband’s expense only)	60.00
19.	Accountant’s expenses	50.00
20.	Estimated legal costs	200.00
21.	Foxtel	25.00
22.	Car club memberships	20.00
23.	Social dinners other than with the children	80.00
Total	$2025.00

1. When comparing the inferences I have drawn, from the wife’s evidence about her personal expenditure with the husband’s evidence as to his personal expenditure (ie comparing Table 1 and Table 2), the following result emerges:-

   TABLE 5

Mid June to mid November 2006 = 5 months	Wife per week	Item number on husband’s personal expenses	Husband’s per week
Groceries	148.81	1	180.00
Clothes, presents, etc	66.33	8 & 16	70.00
Petrol, milk, newspapers/magazines, etc	36.79	6	100.00
Books	8.64	15	50.00
Household replacements, general maintenance & hardware	14.34	2, 7 & 13	400.00
Tickets, parking, Etag	17.38	0.00
Family entertainment	15.14	10, 11 & 22	420.00
Uniforms, sport costs, tutoring for the son and daughter, school extra expenses	0.00	0.00
Chemist, medical receipts (excluding Medicare)	85.28	9 & 12	140.00
Phones – mobile	9.28	5	60.00
Hair & beauty	13.57	0.00
Miscellaneous (including gardening; house cleaning; dry cleaning; babysitting; vet/pet, etc	59.68	14	20.00
Utility expenses (including Energy Australia; Telstra; Foxtel; gas and Medibank)	95.18	3, 4 & 21	145.00
Gift – charity/fund raising	5.53	0.00
Postage	6.62	0.00
Family entertainment – ‘eating out’	37.57	17, 18 & 23	190.00
Photos	1.52	0.00
Computer/printer expenses	2.02	0.00
Flowers	2.22	0.00
Relationships Australia	9.93	0.00
635.83	1775.00

1. As can be seen from the above analysis on the assumptions I have made to date, the husband’s significantly outspends the wife in weekly personal expenditure.  The wife has given evidence about issues relating to lifestyle (see above).  These tables provide some indication as to the lack of adjustment for lifestyle. 

2. If the wife was to be allowed the same amount as the husband claims for his personal expenses in areas where his personal expenses exceeds that of the wife, then the following result would be achieved:-

   TABLE 6

Mid June to mid November 2006 = 5 months	Wife per week	Husband’s per week
Groceries	180.00	180.00
Clothes, presents, etc	70.00	70.00
Petrol, milk, newspapers/magazines, etc	400.00	400.00
Books	50.00	50.00
Household replacements, general maintenance & hardware	100.00	100.00
Tickets, parking, Etag	17.38	0.00
Family entertainment	420.00	420.00
Uniforms, sport costs, tutoring for the son and daughter, school extra expenses	0.00	0.00
Chemist, medical receipts (excluding Medicare)	140.00	140.00
Phones – mobile	60.00	60.00
Hair & beauty	13.57	0.00
Miscellaneous (including gardening; house cleaning; dry cleaning; babysitting; vet/pet, etc	20.00	20.00
Utility expenses (including Energy Australia; Telstra; Foxtel; gas and Medibank)	145.00	145.00
Gift – charity/fund raising	5.53	0.00
Postage	6.62	0.00
Family entertainment – ‘eating out’	190.00	190.00
Photos	1.52	0.00
Computer/printer expenses	2.02	0.00
Flowers	2.22	0.00
Relationships Australia	9.93	0.00
1833.79	1775.00

1. The lack of dissection of expenses and what the authorities say about that, means I cannot give the wife the same contingency as the husband is given for all his expenses.  I think however given the history and the evidence that I have in relation to lifestyle of the parties during the marriage it is appropriate for me to give the wife the same contingency as the husband allows himself for some areas of expenditure.  Those areas of expenditure include house repairs (table 4 item 2), motor vehicle maintenance (table 4 item 7), entertainment/hobbies (table 4 item 10), holidays (table 4 item 11), repairs/furniture and appliances (table 4 item 13), books and magazines (table 4 item 15), lunches and dinners with children (table 4 item 18) and social dinners (table 4 item 23).  When the wife is allowed the same amount as the husband in relation to those areas of expenditure then the following is the result::-

   TABLE 5

Wife per week	Item number from table 4
Groceries	148.81
Clothes, presents, etc	66.33
Petrol, milk, newspapers/magazines, etc	36.79
Books	50.00	15
Household replacements, general maintenance & hardware	400.00	2, 7 & 13
Tickets, parking, Etag	17.38
Family entertainment (now including holidays)	400.00	10 & 11
Uniforms, sport costs, tutoring for the son and daughter, school extra expenses	0.00
Chemist, medical receipts (excluding Medicare)	85.28
Phones – mobile	9.28
Hair & beauty	13.57
Miscellaneous (including gardening; house cleaning; dry cleaning; babysitting; vet/pet, etc	59.68
Utility expenses (including Energy Australia; Telstra; Foxtel; gas and Medibank)	95.18
Gift – charity/fund raising	5.53
Postage	6.62
Family entertainment – ‘eating out’	140.00	18 & 23
Photos	1.52
Computer/printer expenses	2.02
Flowers	2.22
Relationships Australia	9.93
1550.14

CONCLUSION IN RELATION TO WIFE’S NEEDS

1. I do not accept that the wife’s needs should be reduced by $100 per week because of the amount the wife receives from the twins each week.  I have, in table 3, reduced the wife’s expenses by $356 per week (148.81 + 14.34 + 15.14 x 2). 

2. I conclude based on my analysis which has culminated in the summary contained in table 7 that the material before me enables me to say that the wife has a need of at least $1,550 per week. 

HUSBAND’S CAPACITY TO PAY

1. Counsel says that the husband’s evidence in relation to his capacity to pay is as follows:-

   From my client’s income he has deposed that he has a gross income of $4,833 a week. He pays tax of $1,595, leaving $3,238.  He meets three mortgages that total $1,885 per week.  They’re particularised in the financial statement, leaving a balance at that point of $1,353.  If he meets the child support as per the disputed assessment at $481 per week, it leaves at that point $872.  Insurance and registration for his own motor vehicle was $95 per week.  Health insurance he pays for the family covering all and sundry is $50 per week.  That leaves a balance of $727 per week from which he must be seen as having some capacity to contribute to his own day to day upkeep.  From that he proposes to volunteer to the wife an amount of $400 per week.

2. In relation to the husband’s capacity to pay, the wife submitted that part of exhibit B showed that the husband’s source of funds for the payment of legal fees was D Company and M Company.  Part of exhibit B also shows Mrs Miller, the husband’s mother wrote a cheque for $100,000 for interim costs in this case. 

3. I was informed that the husband had incurred in excess of $400,000 in legal costs in this case.  The wife tendered as part of exhibit B a memorandum of the husband’s costs as at 19 October 2006 which was in the sum of $316,991.  The source of funds was said to be “the husband’s income borrowings from D Company and M Company and sale of assets”.

4. He said that the payments that are evidenced in exhibit B are inconsistent with the thrust of the husband’s financial statement and inconsistent with the evidence of Mr K. 

5. Given the amount of money spent on this case to date, it is curious that the wife would present before me as the major plank of evidence in relation to the husband’s alleged wealth, articles from the BRW (annexure “B” to wife’s affidavit sworn 20 June 2006; Annexure “A” to wife’s affidavit sworn 1 December 2006).  These hearsay statements asserted that the husband’s father increased his personal wealth by May 2006 from $170 million to $250 million and that the husband remains involved in the corporate activities on the property side.  It is not disputed that X Company as at August 2006 was one of Australia’s top 500 publicly listed companies (holding a position at 179).  No indication has been given as to why in this case no cogent evidence is presented to me by the wife that would support her assertion as to the alleged wealth of the husband, in his personal capacity.  

6. Mr K at paragraph 16 of his affidavit deposes to the fact that on his analysis the husband has negative disposable income of $7,181 per month.

7. It is the wife’s case that the husband in fact has available to him income from his employer which is the family company.  It is further asserted that the father has available to him what is asserted to be a very large amount of funds from M Pty Ltd and from his parents.  It is said on this basis that he has a large capacity to meet any order that is made by this court.

8. Counsel for the wife made the point that the husband had no evidence that he has actually taken out a formal loan for his legal fees or for the amounts that he has paid by way of interim costs order; for the amounts he has paid on a periodic basis since October 2005 (about $2,200 a week) and for the $2,815 a week the husband says he pays for his personal expenses and for the children when with him (in addition to chid support).  There is no evidence that he is paying any interest on borrowings.  There is no documentation and no mortgage.  The husband’s further amended financial statement sworn 17 October 2005 indicated at that time there was a personal debt of $528,120 to M Company.  The same document however had D Company Pty Ltd owing the husband $680,445 and P Trust owing the husband $10,692.

9. The wife’s evidence is that the husband made payments in the five months between mid June and mid November 2006 to the wife of a sum totalling $52,900 (subject to a deduction of $3,453.55). The wife’s evidence in her earlier affidavit is that subject to another minor deduction the husband has substantially complied with the order of the Judicial Registrar and the (disputed) responsibility which he has in respect of the payment for child support. That is, the husband has demonstrated that he has been able to obtain funds from somewhere to meet this expenditure.

10. The expenditure referred to by Mr K in his affidavit which places the husband in a negative position on a weekly basis substantially relates to payments by the husband on mortgages on properties which are negatively geared. 

11. I am asked to draw the inference from this, that the husband has available to him significant sums of money from his parents and their corporations, and on an interim basis, I am prepared to do so.

12. I find that the husband has a current capacity to make a periodic payment of $1,550 per week.

CONCLUSION

1. Counsel for the wife dismissed Stein’s case by saying “this is a case which is very different because there are actual figures put up to your Honour”.  As these reasons demonstrate, that submission is disingenuous. 

2. Counsel for the husband argues that the wife’s application cannot succeed as a matter of law and that the order made by the Judicial Registrar should be dismissed from the date on which it was made.  Whilst that submission is unsuccessful, the order I am able to make on the evidence is less than that made by the Judicial Registrar.  The ramification of back dating my order would be that a significant debt would then be payable by the wife to the husband as a result of monies that he has paid since the order was originally made. 

3. The effect of the review is that I am hearing the matter de novo.  I have a discretion not to interfere with monies already paid and I do not think it is appropriate in this case to create a debt for the wife by retrospectively interfering with the effect of the Judicial Registrar’s order to date.

4. I find that a proper periodic order for spousal maintenance from the date of this order and pending further order is $1,550 per week. 

APPLICATION FOR COSTS IN RELATION TO THE PART OF THE CASE BEFORE ME THAT WAS COVERED BY THE HUSBAND’S NOTICE OF DISCONTINUANCE

1. On 28 November 2006 the solicitor for the husband filed a Notice of Discontinuance, discontinuing the part of the husband’s application for review of the Judicial Registrar’s orders which was filed 27 October 2005 in so far as it related to interim costs. 

2. Counsel for the wife made an application for the costs she unnecessarily incurred in preparing to meet that application. Rule 10.11(4) of the Family Law Rules provides the wife may apply for costs. The application is founded on the power contained in section 117 of the Act. Counsel for the wife relied upon the husband’s conduct (117(2A)(c)) and the fact that they were highly successful in resisting the review (117(2A)(e)).

3. Part of exhibit B is a cheque from M Pty Ltd for $100,000 dated 27 November 2006.  I was told from the bar table that that cheque is signed by the husband’s mother. 

4. Under s.117(2A)(g) Counsel for the wife relied on the fact that the cheque paying the remainder of the costs was only drawn 4 days before the matter came for hearing before me.

5. Counsel for the husband did not seriously suggest that a costs order should not be made arising out of the circumstances around the filing of the notice of discontinuance.  He submitted however that the application before me had to be looked at in its entirety and I should not make an order for costs without considering any costs application that flowed from the decision I made in respect of the spousal maintenance application.  Alternatively counsel for the husband submitted that any costs order in relation to the notice of discontinuance should be limited to only material that was prepare that exclusively related to the interim costs issue.  That is, there should not be an order for costs in relation to material that was prepared with the dual purpose of supporting both the application for spousal maintenance and the application for interim costs.

6. I accept counsel for the husband’s submission that any order for costs in relation to the part of the matter concluded by the husband filing a notice of discontinuance should await determination of any costs application made arising from the spousal maintenance application. 

I certify that the preceding one hundred and twenty five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  11 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MILLER & MILLER