Nathan and Weston (No 2)

[2021] FamCA 189

FAMILY COURT OF AUSTRALIA

NATHAN & WESTON (NO. 2) [2021] FamCA 189

FAMILY LAW – SPOUSAL MAINTENANCE – Application to suspend or discharge de facto spousal maintenance order pursuant to s 90SI – Consideration of s 90SF factors – Where applicant fails to make out ground to enliven jurisdiction to suspend or discharge order – Application dismissed

Family Law Act 1975 (Cth) ss 81, 90SF(3), 90SI

Nathan & Weston [2020] FamCA 541

APPLICANT: Mr Weston

RESPONDENT: Ms Nathan

FILE NUMBER: ADC 3285 of 2018

DATE DELIVERED: 12 April 2021

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 12 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McQuade of Counsel

SOLICITOR FOR THE APPLICANT: Jordan & Fowler Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wilson of Counsel

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

1. That on or before 26 April 2021 the applicant do pay to the respondent all arrears due and owing pursuant to the terms of paragraph 6(a) of the order of Berman J of 27 September 2018 up to and inclusive of 26 April 2021 and thereafter comply with the said order until further order in accordance with the terms of paragraph 8 of the substantive order made herein on 20 July 2020.

2. That the application in a case filed herein on 18 September 2020 and the response thereto filed herein on 13 October 2020 be otherwise dismissed save as to the question of costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nathan & Weston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3285 of 2018

Mr Weston

Applicant

And

Ms Nathan

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 September 2020 the applicant de facto husband (hereinafter referred to as ‘the applicant’) filed an application in a case seeking the suspension or discharge of an interim spousal maintenance order made by Justice Berman on 27 September 2018.

2. Paragraph 6(a) of the order made by His Honour on that date was in the following terms:

   (6)      That the father shall pay:-

   (a)Interim spousal maintenance in the sum of EIGHT HUNDRED AND FIFTY DOLLARS ($850) per week in addition to any Child Support Assessment in respect of the children;

3. On 10 December 2018 the proceedings between the parties were placed in the list of matters awaiting trial allocation, with the trial in relation to both parenting and property settlement issues commencing on 9 November 2019.

4. Reasons for judgment were delivered on parenting and property issues on 9 July 2020.[1] Final parenting orders were made on that day. Final orders for settlement of property, in terms drafted by the parties’ Counsel in accordance with the reasons, were made on 20 July 2020 (‘the final property settlement order’).

   [1]Nathan & Weston [2020] FamCA 541

5. Pursuant to paragraph 1 of the final property settlement orders, the applicant was to pay the respondent de facto wife (hereinafter referred to as ‘the respondent’) the sum of $2,258,829 by 27 August 2020 (‘the judgment sum’).

6. Paragraph 8 of the said order provides that the spousal maintenance order referred to in paragraphs 1 and 2 hereof will be discharged upon the applicant paying to the respondent the judgment sum.

7. On 4 August 2020 the applicant filed a notice of appeal against both the final property and parenting orders.

8. The applicant also filed an application in a case on 24 August 2020 seeking a stay of the final property and parenting orders.

9. On 27 August 2020 consent orders were made inter alia staying the operation of paragraphs 1, 2, 3, 4, 5, 6 and 9 of the final property settlement orders and providing for the applicant to pay into the respondent’s solicitor's trust account the sum of $1,000,000 on 27 August 2020 by way of partial property settlement (‘the interim sum’).

Current application for determination

1. The applicant seeks the following order:

   That paragraph 6(a) of the Order of Hon. Justice Berman made on 27/9/18 be suspended or discharged.

2. In response[2] to the application in a case referred to in paragraph 1 hereof the respondent sought the following orders:

   1.The Application in a Case filed by the applicant/de facto husband on 18 September 2020 (sealed 23 September 2020) be dismissed.

   2.The applicant/de facto husband pay to the respondent/de facto wife arrears of spousal maintenance in the sum of $1,700.

   3.The applicant/de facto husband pay the respondent/de facto wife’s costs of and incidental to this application.

   4.Such further or other orders as this Honourable Court deems appropriate.

   [2] Response to application in a case filed 13 October 2020

Relevant legislation

1. This application must be determined in accordance with the provisions of section 90SI of the Family Law Act 1975 (‘the Act’) contained in Part VIIIAB Division 2 of the Act and headed “Modification of maintenance orders”.

2. The relevant provisions of section 90SI are as follows:

   (1)If there is in force an order with respect to the maintenance of a party to a de facto relationship in accordance with this Division:

   (a)      made by the court; or

   (b)made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;

   the court may:

   (c)      discharge the order if there is any just cause for so doing; or

   (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; or

   (e)revive wholly or in part an order suspended under paragraph (d); or

   (f)subject to subsection (3), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

   (2)      The court's jurisdiction under subsection (1) may be exercised:

   (a)in any case — in proceedings with respect to the maintenance of a party to the de facto relationship in accordance with this Division; or

   …

   (3)The court must 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 (including the person entering into a stable and continuing de facto relationship); or

   (ii)the circumstances of the person liable to make payments under the order have so changed; or

   …

   as to justify its so doing; or

   (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)in a case where the order was made by consent — that the amount ordered to be paid is not proper or adequate; or

   (d)      that:

   (i)material facts were withheld from the court that made the order, or from a court that varied the order; or

   (ii)material evidence previously given before such a court was false.

   (4)In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

   (5)The court must 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)In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made by a party to the de facto relationship…, to:

   (a)      the other party; or

   (b)      any other person for the benefit of the other party.

   (7)An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

   (8)If, as provided by subsection (7), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date, being money that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.

   (9)If, as provided by subsection (7), an order discharging an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

   (10)For the purposes of this section, the court must have regard to the provisions of section 90SF.

   (11)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.

Evidence of the applicant

1. The applicant relied on evidence contained in his affidavit filed on 18 September 2020.

2. After deposing to his age, the age of the respondent and the history of the relationship he further deposed to:

   ·the date of separation being 23 April 2018;

   ·the respondent commencing proceedings on 13 August 2018;

   ·neither party working at that time;

   ·having significant cash assets at that time, largely comprising AUD 1,275,000 invested in the United States;

   ·making financial provision at that time for the respondent out of capital;

   ·the order made by Berman J on 27 September 2018;

   ·paying the interim spousal maintenance from capital from the date of the order until the date of trial in September 2019 in the total sum of $42,500;

   ·making the interim spousal maintenance payments from capital from the conclusion of trial until 18 September 2020 in the further amount of $46,000;

   ·receiving loan repayments from Mr BX at the rate of $4,500 per month at the time the order was made and to the loan now being repaid in full;

   ·having appealed the judgment of the Court with respect to both financial and parenting matters;

   ·to the appeals pending;

   ·to the terms of the consent order of 27 August 2020 by way of partial property settlement;

   ·the sum of $1 million pursuant to that order being paid from capital;

   ·withdrawing AUD 50,000 from the BZ Brokers account in the United States on 12 September 2019, a further AUD 1 million on 18 December 2019 and a further AUD 255,000 on 19 December 2019 from the same account;

   ·to the current balance of the BZ Brokers account standing at AUD 1,672;

   ·having $237,973 in four Australian bank accounts;

   ·$222,449 of that sum being in an ANZ on-line saver account;

   ·being required to pay $25,000 in reduction of outstanding solicitors and Counsel fees within a few day of 18 September 2020;

   ·continuing to live on capital;

   ·not being employed;

   ·working on the Suburb H farm property;

   ·working towards developing the property as a hospitality business;

   ·the farm not being profitable but providing him with accommodation, the use of a motor vehicle and some other expenses;

   ·the W Trust making a loss of $75,729 in the 2019 financial year and a loss of $12,081 in the 2020 financial year;

   ·the W Trust making a further loss of $35,247 between 1 July 2020 and 11 September 2020;

   ·having assets of a combined value at 18 September 2020 of $2,620,000 excluding superannuation interests;

   ·$2,500,000 of that total being comprised of the Suburb H farm property;

   ·superannuation interests both in Australia and the United States totalling $564,499 as at 18 September 2020 with $554,275 of those entitlements comprising superannuation in the United States;

   ·paying child support to the respondent at an assessed rate of $255 per month;

   ·paying assessed child support since the trial in the sum of approximately $10,000 in addition to various school, equipment and extracurricular expenses for the children;

   ·having purchased iPads for each of the children;

   ·estimating that the respondent would have savings in the order of approximately $900,000; and

   ·the respondent working.

3. In his financial statement filed with the application in a case he deposed to:

   ·total average weekly income of $600;

   ·total weekly personal expenditure in the sum of $1,639;

   ·total property owned by him in the sum of $2,857,973;

   ·total superannuation entitlements in the sum of $564,499;

   ·total liabilities of $25,000; and

   ·the Suburb H farm property, the farm plant and equipment and the motor vehicle 1 all being owned by the W Trust but included in the total value of property owned by him.

4. At the time Berman J made the spousal maintenance order on 27 September 2018, the evidence as to the applicant’s financial circumstances was contained in his financial statement filed on 7 September 2018.

5. In that statement he deposed to:

   ·total average weekly income of E$880;

   ·total weekly personal expenditure in the sum of E$1,780;

   ·total property owned by him in the sum of E$4,246,200;

   ·total gross value of superannuation entitlements in the sum of E$550,000; and

   ·“NIL” liabilities.

6. His income at that time of $800 per week comprised loan repayments from Mr BX.

7. His expenses included $850 per week by way of spousal maintenance and child support together with assessed child support in the estimated amount of $100.

Submissions on behalf of the applicant

1. At the hearing of this application on 12 November 2020 it was submitted by Counsel for the applicant that:

   ·the applicant’s appeal had been tentatively set for hearing on 15 February 2021;

   ·the final order for settlement of property contemplated the judgment sum being paid in full on or before 27 August 2020;

   ·it was not contemplated that the property settlement sum would be paid by instalments;

   ·the capital payment to the respondent on 27 August 2020 by way of partial property settlement was substantial and its payment cannot be disregarded, especially in circumstances where the appeal will be heard in early 2021;

   ·when the interim order was made in 2018 all of the parties assets were held by the applicant;

   ·payment of the interim sum significantly altered the financial position of each of the parties;

   ·the application relates to payment to the respondent of spousal maintenance over a comparatively short time period;

   ·the circumstances for both parties are now fundamentally different to the circumstances that applied at the time of the making of the interim spousal maintenance order;

   ·the amount of the capital sum passing to the respondent on 27 August 2020 gives the respondent the ability to support herself entirely until the appeal is determined;

   ·any orders now made for spousal maintenance ought to reflect the change in the parties circumstances; and

   ·if the Court is not inclined to discharge the order the rate of spousal maintenance should be reduced taking into account the substantial part‑payment of property settlement by the applicant.

2. The application before the Court was for the relevant order to be discharged or suspended[3] rather than varied.[4]

   [3]Family Law Act 1975 (Cth) ss 90SI(1)(c)‑(d)

   [4]Family Law Act 1975 (Cth) s 90SI(1)(f)

Evidence of the respondent

1. In the affidavit filed by the respondent on 13 October 2020 she deposed to:

   ·being 50 years old;

   ·vacating the Suburb H property with the parties’ children at the time of separation on 19 April 2018;

   ·the parties’ children X and Y being aged 10 years and 7 years respectively;

   ·the children living primarily with her pursuant to the orders of 9 July 2020;

   ·the applicant being 45 years old;

   ·the applicant continuing to reside at the Suburb H property;

   ·the respondent not working outside of the home at the time of separation, being engaged in fulltime parenting and homemaking duties;

   ·being financially supported by the applicant;

   ·commencing living with the applicant’s step-aunt Ms C upon separation;

   ·commencing to share rented accommodation with Ms C in March 2019;

   ·final orders made by the Court on 9 July 2020 including permission for her to relocate the children’s principal place of residence to State of L in the United States;

   ·the final order for settlement of property made 20 July 2020 requiring payment to her in the sum of $2,258,829 on or before 27 August 2020;

   ·the interim spousal maintenance order made 27 September 2018 discharging upon that payment;

   ·the applicant’s stay application with respect to both parenting and financial orders being compromised;

   ·the respondent agreeing to remain in Australia with the children pending the determination of the appeal with respect to parenting orders;

   ·agreeing to receive an interim payment of $1 million by way of partial property settlement;

   ·there having been little to no change in either of the parties circumstances since the making of the spousal maintenance order on 27 September 2018;

   ·being engaged in casual part-time employment;

   ·to having accepted the sum of $1 million by way of partial property settlement in lieu of the full amount of $2,258,829;

   ·to agreeing not to return to the United States immediately;

   ·commencing working on a casual part-time basis in 2019 in two separate positions, one position being an assistant at a school earning $318 gross per week for 38 weeks and the second being an assistant at CM Business working three to four days per month earning approximately $2,300 gross per annum;

   ·her employment at the CM Business being impacted by COVID-19 restrictions;

   ·continuing to live with Ms C;

   ·her share of the rent being $500 per week;

   ·needing to move into new rented accommodation in January 2021 without Ms C;

   ·her living expenses exceeding her income from paid employment by about $1,500 per week without the spousal maintenance payment;

   ·the applicant being “haphazard and unreliable” with the payment of spousal maintenance;

   ·the applicant having failed to pay spousal maintenance for the weeks commencing 2 and 9 October 2020;

   ·not having the capacity to earn more than she presently does;

   ·last having worked in paid employment in marketing/the publishing industry in 2012 in the United States;

   ·being unable to commit to long-term employment in Adelaide as she intends relocating to the United States with the children if the applicant’s appeal is unsuccessful;

   ·being forced to support herself from her partial property settlement if the spousal maintenance order is discharged or suspended;

   ·having intended to move with the children to State of L in the Unites States pursuant to the parenting order made in this Court;

   ·her family living in State of L and to her intending to take over her parents’ property management business;

   ·to the business having the capacity to give her a source of income and flexible work arrangements;

   ·intending to use her property settlement funds to relocate and re-establish herself financially including the purchase of a permanent home for the children and herself;

   ·the applicant having the capacity to earn income but choosing not to do so; and

   ·the applicant earning over USD 1 million annually during a career in the banking industry in the United States.

1. The respondent also filed a financial statement on 13 October 2020. She deposed to:

   ·total weekly income, including the sum of $850 the subject of this application, in the sum of $1,182;

   ·weekly expenditure in the sum of $1,840;

   ·total property in the sum of $924,266 comprising funds at bank in the sum of $909,266 together with $15,000 in her solicitor’s trust account.

   ·no superannuation;

   ·liabilities of $11,629 comprising outstanding legal fees;

   ·the applicant paying $56 per week by way of child support for X and Y; and

   ·weekly expenses for the children and herself as set out in Part N of the financial statement in the sum of  $1,313 comprising $711 for herself and $602 for the children.

Submissions on behalf of the respondent

1. Counsel for the respondent submitted that:

   ·despite having obtained casual, part-time employment in two separate positions since the spousal maintenance order was made, the respondent’s living expenses continue to significantly exceed her income;

   ·pending the determination of the applicant’s appeal against the final property and parenting orders, the respondent does not have the capacity to earn more than she currently earns given her primary care of the children, the lack of job opportunities in the M Region and the uncertainty about her future living arrangements;

   ·that the only substantive change in circumstances since the maintenance order was made is her receipt of the interim sum of $1 million pursuant to the consent order made on 27 August 2020;

   ·in the event the maintenance order is discharged or suspended, the respondent will be forced to support herself from that interim sum, which she intended to use to relocate and re-establish herself in the United States of America;

   ·that the respondent should not be required to draw on the interim sum when she continues to be unable to support herself adequately;

   ·the receipt of the interim sum is not sufficient to warrant a suspension of the maintenance order or to demonstrate there is just cause to discharge it;

   ·the order for spousal maintenance has been met at all times by the applicant from capital;

   ·there is no evidence before the Court to suggest the applicant has made any attempt to secure employment; and

   ·the respondent should not be required to support herself from the interim payment in circumstances where the applicant has failed to exercise his significantly higher income earning capacity.

2. At the time the order for spousal maintenance was made on 27 September 2018 the applicant deposed to being a company director, with his only sources of income being $800 per week by way of loan repayments from a relative and $80 per week by way of bank interest.

3. He had not been in paid employment at that time for over three and a half years. He had last been employed with V Company in the United States in January 2015.

4. At the time the order was made the applicant deposed to owning property with a total estimated value of a little under $4.3 million,[5] and to the respondent owing property with a total value of $900.[6]

   [5] Financial statement filed 7 September 2018 – Part B, Item C

   [6] Financial statement filed 13 August 2018 – Part B, Item C

5. In the financial statement filed by the applicant on 18 September 2020 he deposed in Part B, Item C to owing property valued at $2,857,973. That property includes property owned by the W Trust, as did the property owned by the applicant as deposed by him in his earlier financial statement filed 7 September 2018.

6. In the applicant’s same financial statement he deposed to total liabilities comprising legal fees in the sum of $25,000 with the respondent deposing to liabilities in the sum of $11,629.

7. The applicant’s superannuation entitlements at 18 September 2020 totalled $564,499[7] compared to $550,000 deposed to in Part B, Item D of his financial statement filed 7 September 2018. The respondent deposed to having no superannuation entitlements in both financial statement filed by her to which I have referred.

   [7] Financial statement filed 18 September 2020 – Part B, Item D

8. In the respondent’s financial statement filed 13 October 2020 she deposed to owning property with a total value of $9,240,266. This amount included $908,967 remaining from the partial property settlement funds as well as $15,000 standing to her credit in her solicitors’ trust account.

9. I am satisfied that the circumstances of the respondent for whose benefit the order was made and the circumstances of the person liable to make payments under the order have both changed.[8]

   [8]Family Law Act 1975 (Cth) s. 90SI(3)(a)(i) – (ii)

10. The question the Court must consider however is whether there is any just cause for discharging the order made on 27 September 2018[9] or decreasing the amount ordered to be paid on being satisfied that the changed circumstances of each of the parties to which I have referred are so changed as to justify such a course of action.

    [9]Family Law Act 1975 (Cth) s. 90SI(1)(c)

11. In determining that question the Court must have regard to the provisions of section 90SF of the Act.

12. The applicant is 45 years of age, the respondent 50 years of age and there is no evidence before the Court to suggest a change in the parties’ state of health since the finding in paragraph 433 of my reasons delivered on 9 July 2020 to the effect that there was no evidence to suggest either party suffers ill health.

13. The applicant left his employment in City R in January 2015.

14. He had for many years earned income in excess of USD 1 million annually.

15. He has not been in paid employment since that time.

16. In paragraph 464 of reasons delivered on 9 July 2020 I referred to the physical and mental capacity of the applicant for appropriate gainful employment in the following terms:

    Although the Respondent suffered a significant alcohol addiction for many years during the relationship to which I have already referred at length, his evidence was that by the time of trial he was not taking any medication or receiving treatment for alcohol dependence, that he only consumed alcohol on a social basis and never when the children were with him. He further deposed to looking for opportunities and that he expected to have some form of employment or self-employment income in the future. Further, he expected the farming property at Suburb H to become profitable.

17. In his affidavit in support of this application filed 18 September 2020 the applicant did not depose to any physical or mental incapacity for appropriate gainful employment. He did not adduce any evidence as to attempts to obtain appropriate gainful employment notwithstanding the evidence to which I referred in my earlier reasons.

18. At the time of the filing of this application the applicant’s income had reduced from an estimated $880 per week to $600 per week, a reduction of $280.

19. As at 7 September 2018 the applicant deposed in his financial statement to his weekly expenditure exceeding his income by $900. In his financial statement filed 18 September 2020 he deposed to weekly expenditure exceeding income by $1039.

20. There was no appreciable change to the applicant’s finances with respect to income earned and expenses incurred on a weekly basis.

21. As at 7 September 2018 the applicant deposed to investments and funds in bank totalling $1,139,200 and monies owning to him by way of loans totalling $225,000.

22. His evidence at trial in 2019 was that $150,000 had already been repaid to him and evidence in his affidavit filed in support of this application is to the effect that the $75,000 owed to him by Mr BX has also been repaid.

23. As at 18 September 2020 the applicant deposed in his financial statement to cash resources of $222,959, a difference of $916,241 from 7 September 2018.

24. On 7 September 2018 the applicant deposed to the property at G Street, Suburb H, South Australia owed by the W Trust having an estimated value of $2,727,000, with the same property being attributed a value of $2,570,014 as at the financial statement filed 18 September 2020.

25. He deposed in paragraph 14 of his affidavit filed 18 September 2020 to losses being made on that farming property in the sum of $75,729 in the 2019 financial year and $12,081 in the 2020 financial year, as well as a loss for the period 1 July 2020 to 11 September 2020 of $35,247.

26. In the same paragraph he deposed to continuing to live on capital and to not being employed but working on the Suburb H farm towards developing it as a hospitality business.

27. The value of property owned by the applicant has reduced since the order for spousal maintenance was made on 27 September 2018, with such reduction being accounted for by repayment of outstanding loans and the payment to the respondent of funds to satisfy the order for partial settlement of property.

28. The respondent’s only income as deposed to in her financial statement filed 13 August 2018 was $850 per week paid to her by the applicant. Her weekly expenses at that time were said to total $1,520.

29. In her financial statement filed 13 October 2020 she deposed to weekly income of $1,182 comprising $850 per week by way of spousal maintenance, $56 per week by way of child support and wages from her two sources of employment totalling $276. She deposed to total weekly expenses for herself and the children of $1,840.

30. At the time of trial in 2019 and continuing the respondent has been employed at a school and also at the CM Business.

31. I am satisfied that she has engaged in appropriate gainful employment taking into account that at the time of separation in April 2018 she had been out of the paid workforce for over six years and that she was and continues to be the primary caregiver of the parties’ two young children.

32. The property owned by her has increased significantly from $900 as deposed by her on 13 August 2018 to $924,266 as deposed by her on 13 October 2020. The increase is solely accounted for by the partial property settlement payment to her.

33. The parenting orders of 9 July 2020 provide for the children to spend time with their father each alternate weekend from Friday evening to Sunday evening, as well as for an evening meal on a Tuesday and for certain times during school holiday periods depending on whether the children are living in Australia or in the United States. The children otherwise live with the mother. X is aged 11 and Y is eight years old.

34. In the applicant’s financial statement filed 18 September 2020 he deposed to weekly expenses for the children in the sum of $255.

35. In her financial statement filed 13 October 2020 the respondent deposed to average weekly expenses for the children of $602. That amount included an estimate of $257 for holiday expenses which expenses are not deemed necessary. I find the reasonable weekly expenses for the children in the respondent’s care to be $345.

36. In the respondent’s financial statement filed 3 August 2018 she deposed to estimated weekly expenses for the children in the sum of $497 which also included an allowance of $257 per week for holidays. For the same reason I am satisfied that reasonable weekly expenses at that time should be allowed at $240 per week.

37. In the applicant’s financial statement filed 7 September 2018 no amount was specified as weekly expenses for the children in circumstances where the children were spending very limited time with him.

38. I am satisfied that the applicant’s expenses for the children have increased slightly as a result of them spending a greater period of time with him on a regular basis.

39. The applicant did not specify in his financial statement filed 7 September 2018 to the commitments necessary to enable him to support himself and the children. In the respondent’s financial statement filed 13 August 2019 she deposed to a weekly expenses amount of $1,020. This sum included an estimated amount of $385 per week for holidays which I find should be deducted therefrom.

40. I am satisfied that all of the expenses claimed by the respondent in 2018, 2019 and 2020 (save as to holidays) for the purpose of supporting herself and the children as well as the expenses claimed by the applicant in 2020 as expenses necessary to maintain himself and the children are reasonable in the case of both parties.

41. Neither party have a responsibility to support any other person and neither party are eligible for any Commonwealth pension, allowance or benefit or any superannuation entitlements.

42. The applicant remains living on a property in the M Region worth in excess of $2 million. The respondent is living in modest rented accommodation and has done so at all times since separation.

43. The children live with each of their parents at the times specified in the final parenting order in accommodation that provides a reasonable standard of living both for them and for their parents.

44. I do not consider the provisions of section 90SF(3)(h) to (m) to be relevant to this application.

45. The order made on 20 July 2020 by way of final property settlement as between the parties provided for the respondent to retain a motor vehicle, her furniture and effects, any savings she had and her modest superannuation entitlement. Those assets were of extremely modest value. The order however primarily provided for a payment to the respondent of $2,258,829 on or before 27 August 2020.

46. As set out previously herein, the respondent has only received the sum of $1 million pending determination of the applicant’s appeal against both parenting and property settlement orders. It is the payment of the sum of $1 million to the respondent that has been the primary reason for the reduction in the value of the assets held by him.

47. I do not consider the provision of section 90SF(3)(o) or (p) relevant to these considerations.

48. In paragraph 16 of the applicant’s affidavit filed 18 September 2020 he deposes to paying child support to the respondent as assessed at a rate of $255 per month and to having paid some further modest expenses for the children relating to school fees, sports fees, ballet and choir fees, pony riding fees and medical expenses. In his financial statement filed on the same day he deposed to having a NIL child support liability.

49. In the respondent’s affidavit filed 13 October 2020 she deposed in paragraph 17 to receiving child support in the sum of $56 per week which evidence was replicated in her financial statement filed on the same date.

50. I declined to make any adjustment in favour of the respondent on account of the issue of future child support in paragraph 465 of my reasons delivered on 9 July 2020. I am mindful however that the current amount of child support being paid by the applicant is modest and means that it is the respondent who is carrying the major financial responsibility for the parties’ children.

51. If the order for spousal maintenance made by Berman J on 27 September 2018 was suspended or discharged it would result in the respondent being required to utilise funds paid to her by the applicant by way of partial property settlement (pursuant to the order of 27 August 2020) to provide for her own daily living expenses and the majority of the living expenses of the children.

Conclusion

1. The circumstances of this matter are unusual.

2. The order was an interim order for spousal maintenance.

3. The final order for settlement of property provided for a discharge of that order forthwith upon payment to the respondent of the judgment sum by the applicant.

4. That sum, being $2,258,829, was due to be paid to the respondent some five and a half weeks after the date of the final order and some two days prior to the date on which the respondent was to be at liberty to relocate the parties’ children X and Y’s residence to the United States of America.

5. On 14 August 2020, some thirteen days prior to the date on which payment of the judgment sum was due, the applicant filed an application in a case seeking to stay the terms of the order. That application was resolved by consent with an order on 27 August 2020 staying the relevant terms of the parenting order made on 9 July 2020, the order for settlement of property made on 20 July 2020 and providing for payment of the partial property settlement of $1 million that same day, 27 August 2020.

6. The nub of the argument on the part of the applicant is that his income and financial circumstances have diminished and that the respondent’s financial circumstances have changed dramatically such that she has a substantial capital sum available to her to draw upon for the living expenses for herself and the children.

7. It is the position of the respondent that she is relying upon those funds to establish herself with the children in the United States should the applicant be unsuccessful in the appeal, and that she should not be required to utilise them for day‑to‑day living expenses.

8. It was argued on behalf of the applicant that the period of time during which the applicant would not be paying spousal maintenance was relatively minor taking into account that the appeal was to be listed for hearing in April 2021.

9. The evidence of the respondent as referred to in paragraph 23 of these reasons was that by the time of the hearing on 12 November 2020 the applicant had already failed to pay the $850 per week by way of spousal maintenance for the weeks commencing 2 and 9 October 2020.

10. I am not satisfied that there is any just cause for discharging or suspending the order for spousal maintenance made in these proceedings by the Honourable Justice Berman on 27 September 2018.

11. There is no doubt the parties circumstances have changed as I have described. Nevertheless, the applicant did not take the opportunity to adduce any evidence as to efforts or attempts to obtain any appropriate gainful employment or indeed improve his financial situation at all in the period between giving evidence in the trial in September 2019 and filing this application in September 2020.

12. It is entirely a matter for the applicant as to whether he takes such steps but the financial circumstances of the applicant at the time of the hearing of this application had changed from those at the time of trial as a result of decisions made and actions taken by him. These decisions have delayed the ending of financial relations between the parties pursuant to section 81 of the Family Law Act 1975, as intended by the Court in the decision of 20 July 2020.

13. It was entirely open for the applicant to appeal against the orders of the Court and it may be that he will be successful in his appeal. Nevertheless, I find that the actions taken by the applicant should not result in the respondent being required to rely on funds received by her in part‑settlement of the Court’s judgment at first instance.

14. As I said earlier in these reasons the applicant’s weekly income and expenses have not significantly altered between the commencement of the proceedings in 2018 and the financial statements filed prior to trial in 2019.

15. Justice Berman’s order of 27 September 2018 was not expressed to be a consent order with respect to any of its provisions. In the event that it was a consent order, I also take into account the provisions of section 90SI(3)(c).

16. I am unable to find that the amount ordered to be paid was not proper or adequate or that material facts were withheld from the Court that made the order, or from a Court that varied the order, or material evidence previously given before such a Court was false.[10]

    [10]Family Law Act 1975 (Cth) ss. 90SI (3)(c), (d)(i) – (ii)

17. For those reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 12 April 2021.

Associate:

Date: 12 April 2021