Newson and Gaffy
[2016] FCCA 3397
•23 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEWSON & GAFFY | [2016] FCCA 3397 |
| Catchwords: FAMILY LAW – Property – proceeds of litigation held in fund of the Supreme Court of Victoria – interim application – whether property for the purposes of s.79 of the Act. |
| Legislation: Family Law Act 1975 (Cth), ss.4(1), 74, 75(2), 79, 117(2) Federal Circuit Court Rules 2001 (Cth), r.11.03(4) |
| Holmes & Holmes [1988] FamCA 3 Kennon v Spry [2008] HCA 56 Levy v State of Victoria (1997) 146 ALR 248 Marlowe-Dawson & Dawson (No.2) (2014) Fam LR 568 Williams & Williams (1984) 9 Fam LR 789 |
| Applicant: | MR NEWSON |
| Respondent: | MS GAFFY |
| File Number: | MLC 4868 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 24 October 2016 |
| Date of Last Submission: | 4 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Hannan |
| Solicitors for the Applicant: | Pearsons Lawyers |
| Counsel for the Respondent: | Mr P. Matta |
| Solicitors for the Respondent: Counsel for the Intervener: | Septimus Jones & Lee Dr Ingelby |
ORDERS
The husband’s application filed 17 October 2016 for an interim property order including spousal maintenance be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Newson & Gaffy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4868 of 2016
| MR NEWSON |
Applicant
And
| MS GAFFY |
Respondent
REASONS FOR JUDGMENT
Background
The applicant husband brings an application pursuant to s.79 of the Family Law Act 1975 (Cth) (“the Act”) for an interim partial property settlement of $100,000 for litigation expenses that the husband’s solicitor estimates will be incurred in continuing this claim. Alternatively, the husband seeks to categorise the payment he seeks as costs pursuant to s.117 of the Act, or as maintenance pursuant to
ss.72 and 74 of the Act. The husband also seeks spousal maintenance in the sum of $540 per week.
The husband asserts that the property pool includes a property in Property T and funds held on behalf of the wife in funds controlled by the Senior Master of the Supreme Court of Victoria (“funds in Court”).
Statement of Issues
The primary issue in contention is whether money in a fund administered by the Senior Master in the Supreme Court of Victoria can be classified as “matrimonial property” within the terms of s.4(1) of the Act and for the purposes of s.79 of the Act.
A secondary issue is whether the husband is entitled to an order altering property interests under s.79 of the Act, or an order for spousal maintenance pursuant to ss.72 or 74 of the Act.
The parties were married for eighteen years, separating in February 2016. There is one child of the marriage, X (“the child”), aged fifteen years who lives with the husband. The husband is employed as a (occupation omitted) and earns approximately $500 per week, excluding means tested Centrelink entitlements and child support. The husband asserts that his total weekly expenses are $1,139, leaving a deficit of $639 per week. The wife relies on interest from funds in the sum of $1,348,850.59 administered by the Senior Master of the Supreme Court of Victoria, in the sum of approximately $82,000 per annum. The wife deposes to a weekly income of $1,574 per week and expenses of $2,217 per week.
The funds held in Court originate from Orders made by the County Court of Victoria on 26 September 2005, whereby the wife was awarded a lump sum payment of $1,521,607 plus costs as damages for a personal injury suffered during the birth of the child. The non-superannuation property pool is assessed by the husband as $2,074,977 and by the wife as $1,811,780.
There is some disagreement between the parties as to the expenses claimed in the financial statement. The applicant asserts that the wife erroneously included expenses relating to the child, which affects the wife’s capacity to pay spousal maintenance to the detriment of the husband.
The Evidence
The applicant relied upon the following material:
a)an initiating Application filed on 30 May 2016;
b)an amended initiating Application filed 17 October 2016;
c)affidavits of the Husband filed on 30 May 2016 and 17 October 2016;
d)financial Statement of the Husband filed on 30 May 2016;
e)amended Application filed on 21 October 2016; and
f)an affidavit of Ms S filed on 21 October 2016.
The Respondent relied upon the following material:
a)a response to Initiating Application filed on 15 July 2016;
b)an affidavit of the wife filed on 15 July 2016;
c)a financial statement of the wife filed 15 July 2016;
d)an affidavit of the wife’s Litigation Guardian filed on 15 July 2016; and
e)an affidavit of the wife’s solicitor filed on 15 July 2016.
The Intervener relied upon the following material:
a)application filed on 18 October 2016;
b)affidavit of Ms M filed on 18 October 2016; and
c)written submissions filed 27 October 2016 and 15 November 2016.
Role of the Intervener
The principles for determining whether a party is entitled to appear as an intervener in any given proceedings are set out in Levy v State of Victoria (1997) 146 ALR 248 at 259, where Brennan CJ noted:
[w]here a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene.
Ms M, solicitor to the Senior Master applied for an order pursuant to s.92 of the Act and r.11.03(4) of the Federal Circuit Court Rules 2001 (Cth) for leave to intervene, limited to the purposes of making submissions and adducing evidence as to the legal status of monies held for the benefit of the wife at the direction of the Senior Master. Leave was granted to intervene, oral submissions were made and orders were made for the Intervener to file and serve a list of authorities and any brief submissions by 4pm on 28 October 2016. Written submissions were filed by the Limited Intervener on
27 October 2016 and 15 November 2016.
Relevant Legislation
Rule 15.09 of the Supreme Court (General Civil Procedure) Rules 2015 (Cth) (‘Supreme Court Rules’) provides that:
15.09 Execution against money in court
(1) This Rule applies where—
(a) a person under disability is required by a judgment to pay money;
(b)money stands in court to the credit of that person or that person has a beneficial interest in money or funds in court; and
(c)under these Rules, the Court may, on the application of the person entitled to enforce the judgment, order that the money in court or so much of the money as is sufficient to satisfy the judgment be paid to that person or, as the case may be, make an order imposing a charge on the beneficial interest of the person under disability in the money or funds in court to secure the payment of the sum due under the judgment.
(2)In determining whether to make an order for payment or an order imposing a charge, as the case may be, the Court shall have regard to—
(a)the fact that the person liable under the judgment is a person under disability;
(b)the purpose for which payment of the money or funds into court was made; and
(c)the purpose for which the money or funds are held.
(3)In this Rule—
judgment includes order;
funds in court has the same meaning as it has in Rule 73.01.
The Parties’ Submissions in Relation to the Status of Funds Held in the Supreme Court Fund
The applicant submits that money in the fund administered by the Senior Master in the Supreme Court of Victoria is capable of being defined as “property” for the purposes of s.79 of the Act. It is submitted that the fund cannot be separated into its component parts and that it is to be distributed by reference to an assessment of the matters in s.79(4) of the Act. The applicant relies on the Full Court of the Family Court decision of Holmes & Holmes [1988] Fam CA3 in support of these submissions.
The applicant submits that he is entitled to a distribution pursuant to s.79(4) on the basis of his contribution as a homemaker, parent and as a full time carer for the wife for a period of two years. It is submitted that the husband’s contribution increased markedly upon the injury acquired by the wife, whereby the husband assumed responsibility for the care of the child to the relationship. It is further submitted that there should be an adjustment in respect of s.75(2) factors due to the disparity in the income of the parties, the minimal child support paid by the wife, and the husband’s care of the child.
The husband further submits that he has established a need for spousal maintenance as articulated in s.72 of the Act by reason of: having full time care for the child; his age and modest income; and his financial and physical support of the child. It is submitted by the husband that the wife has the capacity to pay interim spousal maintenance in the sum of $540 per week.
The Limited Intervener submits that the monies held by the Supreme Court to the benefit of the wife should not be available to the husband. The Intervener argues that the decision of Holmes & Holmes is either wrong, or alternatively, has been effectively distinguished and overtaken by the High Court decision of Kennon v Spry [2008] HCA 56. The Intervener argues that in order for a right to be characterised as a property right, it must entitle the holder of the right to an enforceable remedy. It is put that the wife’s relationship to the money in the fund could not be characterised as an existing legal and equitable interest of the parties to the property and therefore could not form part of the identification of those interests as required in Stanford & Stanford [2012] HCA 52 at [37].
The wife adopts the submissions of the Limited Intervener in respect of the monies held by the Supreme Court. It is submitted by her that the source of power alleged by the husband, namely ss.74 and 79 is not available for this reason. In the absence of the trust monies being classified as “property” within the meaning of s.4(1), it is not appropriate to make an order under s.117(2A) where there are no other assets of any real value.
Relevant Authorities
The husband relies on the decision of the Full Court of the Family Court in Williams & Williams (1984) 9 Fam LR 789 (“Williams & Williams”) where the Court found that a fund held in the Supreme Court on behalf of a respondent husband was “property” within the meaning of s.79 of the Act, and fell within the exercise of the Court’s discretion. Fogarty J notes at 79387 that:
Dealing with that first submission of counsel for the husband, it seems clear to me that the fund is “property”. It falls within sec. 79, and it is a question of the exercise of discretion as to how one would deal with that fund, and in the exercise of that discretion no doubt a significant factor, but not the only factor, to take into account is the history and origin of the fund with which the Court is concerned.
Williams & Williams was affirmed by the Full Court of the Family Court in Holmes & Holmes [1988] Fam CA3 (“Holmes & Holmes”), where the Court determined that funds held by the Supreme Court of Victoria were “property”, and thus were within the meaning of s.79. The Court noted at [66]:
We conclude that it is his property in that sense. It was awarded to the husband by way of settlement of his Supreme Court action. For reasons of policy the Victorian legislature has determined that the money should not be paid direct to him but into Court to be administered on his behalf. We think it is in the nature of a trust of a special kind aimed at protecting the husband and society against the misuse of that fund. It is really the property of the husband, but the use of it has been made by the legislation subject to an impediment. The Senior Master has, in effect, been appointed as a manager for the time being of the fund, with wide powers. It is a case where the trustee, the trust fund and the only beneficiary are clearly defined, but that the beneficiary cannot call for the transfer of the corpus to him without an order of the Court…
The recent Family Court decision of Marlowe-Dawson & Dawson (No.2) (2014) Fam LR 568 confirmed that funds paid into Court to be invested by the Senior Master on behalf of a successful claimant in a personal injuries action are property for the purpose of s.79 of the Act. The Court notes at [51] that:
(b) funds paid into Court to be invested by the Senior Master on behalf of a successful claimant in a personal injuries action were held to be property (Holmes & Holmes (1988) FLC 91-944; see also Williams & Williams (1984) FLC 91-541)…
Consideration
The husband’s application for an interim distribution from the funds held on the wife's behalf by the Supreme Court of Victoria raises particularly difficult legal issues.
The nub of the submission made by Counsel for the Intervener was as follows:[1]
[1] Transcript of proceedings, p.26 [5]- [15]
DR INGLEBY: …Your Honour, it’s an interim hearing. I am content for you to make a finding on the basis of legal argument that the wife’s interest is not property within the meanings of – within the meaning of section 4(1) of the Property Law Act. And I seek that you make that finding on the basis that the wife has no enforceable right to the fund, and that no property analogy can be drawn between the position of a beneficiary, or a member of a class of beneficiaries, and property rights, because the wife’s position is completely different from that of Mr Ashton or Dr Spry. She is not the appointor and she has no power which can be controlled by the exercise of your Honour’s injunctive jurisdiction. She simply has the right to make an application and for that application to be determined and reviewed through appeal processes. That’s all she has got.
HIS HONOUR: Anything further?
DR INGLEBY: No, your Honour.
In the course of earlier discussion, Counsel for the Intervener submitted that the decision of the Full Court in Holmes & Holmes was not binding authority by virtue of it acting upon concessions being made by Counsel then appearing for the husband. The concession referred to by Counsel for the Intervener is set out at [57] of the decision in Holmes & Holmes which states as follows:
At the outset of his argument Mr North made a number of concessions. He agreed that the Senior Master was a trustee and that in ordinary circumstances property held on a bare trust for a person would be the “property” of that person within section 79. He submitted however that the situation here was analogous to that of the rights of a beneficiary under a discretionary trust which he submitted would not be the “property” of that person.
Whilst no particular passage was referred to, it appears that the following passage from the judgement of French CJ in Kennon v Spry (2008) 238 CLR 366 at [64] – [66] is relied upon:
64.The word “property” in s 79 is to be read as part of the collocation “property of the parties to the marriage". It is to be read widely and conformably with the purposes of the Family Law Act. In the case of a non-exhaustive discretionary trust with an open class of beneficiaries, there is no obligation to apply the assets or income of the trust to anyone. Their application may serve a wide range of purposes. In the present case, prior to the 1998 Instrument those purposes could have included the maintenance or enrichment of Mrs Spry.
65.Where property is held under such a trust by a party to a marriage and the property has been acquired by or through the efforts of that party or his or her spouse, whether before or during the marriage, it does not, in my opinion, necessarily lose its character as “property of the parties to the marriage" because the party has declared a trust of which he or she is trustee and can, under the terms of that trust, give the property away to other family or extended family members at his or her discretion.
66.For so long as Dr Spry retained the legal title to the Trust fund coupled with the power to appoint the whole of the fund to his wife and her equitable right, it remained, in my opinion, property of the parties to the marriage for the purposes of the power conferred on the Family Court by s 79. The assets would have been unarguably property of the marriage absent subjection to the Trust.
In Holmes & Holmes, the Full Court conducted a detailed review of the legislative scheme underpinning the operation of the Supreme Court fund as it then operated. It was not submitted before me that that review was incorrect or that a substantially different scheme now applied. At [63] the court stated, after having noted that the purpose of the scheme must deal with a serious social issue that arises generally where people have suffered serious injuries often as a result of motor vehicle accidents:
[63]In those circumstances the purpose of the legislative scheme is clear. It enables a disinterested but experienced third-party as trustee to administer the award with a wide but controlled discretion as to the investment of the fund and the payment out of monies to or on behalf of the plaintiff from time to time as is thought appropriate consistently with the interests of that person and the community. In addition it gives to the Court the wider power to direct the payment out of part or all of the capital sum if the circumstances are appropriate and (as Order 15 rule 9 demonstrates) a discretion to meet judgements by third parties in circumstances which the Court considers appropriate.
[64]It appears to us the scheme is not intended to take away property of the plaintiff but to provide for its management....
[65]Those views were specifically adopted by the Full Court in Keays' case, supra at p 80,247. We think that it is a mistaken approach to attempt to “squeeze” the trust in this case into one or other of the more generally known categories of trusts. It is a matter of interpreting the legislation to determine the question whether this fund is "”property” within the Family Law Act.
The nature of the Senior Master’s role is not akin to that of the trustee in Spry’s case. The trust in Spry’s case was a discretionary trust where no beneficiary had any more than a mere hope or expectation of a distribution that would benefit them. In this case the wife is the only person who has the benefit of the monies which are held on her behalf by the Senior Master who exercises his power subject to the legislative scheme under which he operates. For those reasons, the conclusion the Full Court reached that the monies held in the fund are matrimonial property (as set out in [30] above) is not incorrect and I respectfully adopt the reasoning of the Full Court. The concession made by Counsel in that case does not appear to have been determinative of the central finding by the Full Court.
The correctness of the Full Court’s approach is confirmed when one has regard to [89] of Spry’s case, where the plurality of Gummow J and Hayne J make the point that the notion of what constitutes property may depend on the statutory context in which the word is used. Their Honours said (with footnotes omitted):
The phrase in par (ca) " with respect to the property of the parties to the marriage or either of them" should be read in a fashion which advances rather than constrains the subject, scope and purpose of the legislation. In particular, as statements by this Court illustrate, the term “property” is not a term of art with one specific and precise meaning. It is always necessary to pay close attention to any statutory context in which the term is used. In particular it is, of course, necessary to have regard to the subject matter, scope and purpose of the relevant statute."
In my view, the decision of Kennon v Spry does not undermine the finding in Holmes & Holmes that the wife's interest in the funds held by the Supreme Court are property as defined by s.4(1) of the Act and as referred to in s.79 of the Act. Further, the fact that no order was made against the equivalent fund in Williams & Williams does not undermine the finding that of the Full Court that the monies in the fund were property for the purpose of s.4 of the Act. The Full Court still considered the monies in the fund for the purposes of determining matters under s.79 and s.72 of the Act. In that case, the primary Judge’s orders had the effect of increasing the fund from $15,000 to $30,000. [2]
[2] Williams & Williams at 79388
IS IT APPROPRIATE TO MAKE AN INTERIM PROPERTY ORDER IN FAVOUR OF THE APPLICANT
The wife is represented by a litigation guardian, Ms E. Ms E has sworn an affidavit which refers to, amongst other things, the assets of the husband and wife at [21]. The affidavit lists the significant assets as a house in Property T with an estimated value of $450,000; funds held in the Supreme Court Common Fund No.2 said to be held on trust on the wife's behalf by the Senior Master's Office, those funds being in the sum of $459,853.59; funds held in the Supreme Court Common Fund No.3 similarly held on trust by the Senior Master's Office in the sum of $888,997.90. The balance of the assets are the husband and wife's 11 and 12 year old cars and the husband’s superannuation in the sum of $56,704.
At [22], Ms E deposes:
as a result of a medical negligence claim (regarding Ms Gaffy’s stroke) settled in 2005, Ms Gaffy received the settlement sum of $1,521,607.46. Pursuant to an Order made in the County Court of Victoria on 22 September 2005 those funds were transferred to the Senior Master of the Supreme Court (“the SMO") to be held for her benefit (" Ms Gaffy’s funds" ).
It was said that the Property T property was purchased using the wife's funds and that the property is held on trust on the wife's behalf in accordance with the declaration of trust signed prior to settlement date of the purchase of the property. The names recorded on the certificate of title are two lawyers. It was said at [27] of the affidavit of Ms E:
a)that the total amount held on trust by the Senior Master's Office is in the sum of $1,348,581.49;
b)the funds were paid into the court to compensate the wife as a result of a brain injury suffered by her as a result of medical negligence during the birth of the child of the marriage; and
c)the funds are intended to support the wife in living with her disability and are intended to sustain her needs for the remainder of her life, as she does not have the ability to engage in income earning work;
d)that the amount of $459,853.59 is invested in Common Fund No.2, which fund is invested in government or semi-government securities, this money is said to be "on call” and can be accessed at short notice without detriment to the beneficiary;
e)the amount of $888,997.90 is invested in Common Fund No.3 for the beneficiary.
This is said to be another pooled fund that allows beneficiaries to maximise returns over a longer period and protects their investments from erosion by inflation. It said that these funds are intended to be invested over the long term and are not immediately accessible for use.
Ms E deposes that the Senior Master's Office has advised her that the funds in court are expected to meet the wife’s care needs for the remainder of her life and are not intended to be used for any purpose other than meeting of those needs.
The funds in court have been also used to fund the child's attendance at (omitted) School, which fees to date equate to $48,569.75. Child Support is also paid from funds in court in the sum of $7.93 per week.
Ms E also deposes that the wife receives a weekly allowance from funds in court of $400 per week.
Ms E refers to a neuropsychological report of Dr K dated 18 May 2016 annexed to the affidavit of Ms E (“E-1”) that due to the wife's ongoing cognitive difficulties, it is unlikely that she would be able to seek, obtain and maintain paid employment.
The husband has sworn an affidavit dated 26 May 2016, in which he sets out the general background of the matter including that:
a)he is employed on a casual basis as a (occupation omitted) working about 15 to 20 hours per week;
b)that he receives a low income of approximately $500 per week and Newstart allowance of $40 per week;
c)that he has made contributions during the marriage in purchasing with the wife a property in (omitted), which was subsequently sold;
d)that he stayed at home following the birth of the child to look after the wife and child for approximately 2 years during which time the family lived on government benefits and were obliged to defer mortgage payments and draw on superannuation entitlements;
e)that he has attended to the majority of household tasks and to looking after the child.
In relation to the claim for spousal maintenance, he deposes that:
a)he is in a precarious financial position; and
b)that he does not receive a steady earned income and that if he was forced to rely on the Newstart allowance, he would not be able to continue to pay rent and meet living expenses and that he and his child would have nowhere to live.
He seeks spousal maintenance in the sum of $540 per week with such sum based on the difference between his weekly expenses expended to empower support his child, himself and his income.
CONCLUSION IN RELATION TO THE APPLICATION FOR INTERIM RELIEF
The difficulty with the orders sought by the husband is that he is seeking that the Court make an order on an interim basis that the husband has an interest in the property by virtue of the operation of s.79 of the Act. That involves a determination of whether the husband has an entitlement to any of the monies which are held in the fund. Clearly, it is not axiomatic that because the parties were married there will be an adjustment of property interests.[3]
[3] See Stanford v Stanford [2012] HCA 52 at [35].
If an order was made that the wife pay an amount of by way of a partial settlement of the husband ’s property claim The Senior Master would then be required to determine whether to make an order in the pursuant to an application under r.15.9 of the Supreme Court Rules (VIC). Given that the husband has no apparent capacity to repay those monies back in the event that the Court was to find at a final hearing that he had no entitlement to an adjustment in his favour from those funds the Senior Master would no doubt be concerned that the fund may be depleted. The question of whether the monies are paid out of the fund in favour of the husband whether or not by order of this Court, or the Family Court, are a matter within the discretion of the Senior Master. The difficulty of enforcing orders made by the Court in Holmes & Holmes was noted in that decision.[4]
[4] Supra at [72]
At final hearing I will have to consider the matters set out under s.79(4) and s.75(2) of the Act. No doubt the argument will be put on behalf of the wife that the husband has made little or no contribution to the monies held in Supreme Court fund. I will have to consider the proper characterisation of the monies held in the fund and the purpose of the award of damages made in favour of the wife. I appreciate that the reference in s.79 is not limited to “matrimonial property” and the fact that the husband has made little contribution to the fund does not mean that it should not be considered as property of the parties of the marriage in this application. While not directly analogous, I note that lottery winnings after separation and divorce and inheritances have also been considered as property to parties of the marriage.[5]
[5] see Richard Chisholm, Suzanne Christie and Julie Kearney, Annotated Family Law Legislation (Lexis Nexis Butterworths, 3rd Ed, 2015) at [79.65]; Marriage of Carter (1981) 7 Fam LR 162; In the Marriage of Jones (1990) 19 Fam LR 19
At present, the husband has no right to the monies in the fund and whether or not any final order is made in his favour is a matter that will be determined at final hearing. In order for me to make an order for an interim property settlement I would be required to find that the husband has an entitlement to part of the fund. I have regard to Harris & Harris[6] in relation to the matters to be considered in exercising the power to make an interim order. In summary those matters are:
(i)the exercise of the power should be confined to where the circumstances are compelling and generally the parties are better served by there being on final hearing;
(ii)it is an exercise of the s.79 power and therefore must be exercised within those parameters having regard to the material available at the time; and
(iii)it is likely to be an imprecise exercise and must be exercised conservatively. The Court must be satisfied that there will be adequate property remaining after the order is made to meet the legitimate expectations of both parties or that the order made is capable of being reversed or adjusted if it subsequently considered necessary to do so.
[6] In the Marriage of Harris (1993) 113 FLR 472
In this case there is a real concern that the interim orders sought may affect the wife’s legitimate expectations to have the benefit of the fund for the rest of her life to maintain her, due to her disability. There is also a concern that the order could not be reversed or adjusted.
Likewise, in respect of the claim for spousal maintenance, at present the evidence does not support a finding that the wife has any capacity to pay spousal maintenance, whether in the sum sought or otherwise, without recourse to the funds held in the Supreme Court. An order that the wife pay spousal maintenance would necessitate an application to the Supreme Court. Similar issues would arise as to whether it was appropriate for that Court to approve the payments pending any final determination by this Court in relation to the husband’s entitlement to money held in the fund.
I decline to make an interim order for the payment of a sum in respect of costs pursuant to s. 117(2) of the Act for the same reasons.
In relation to the quantum of costs sought by the husband, although the quantum of the sum sought was not challenged by the wife or the Intervener, I would require a detailed breakdown of the costs claimed if I was to make an order in respect of them. The claimed costs of initiating proceedings; preparing a reasonably brief affidavit; and appearing at a first return of the matter (with Counsel briefed) was $22,709.78.[7] This appears to be about three times the applicable scale fee.
[7] Affidavit of Ms S dated 21 October 2016 [5].
This matter is listed for final hearing on 16 March 2016 and in those circumstances it is inappropriate for the Court to make interim orders of the kind sought for the reasons outlined above.
The determination of what, if any, orders may be made that may be made in favour of the husband, taking into account the matters under (in particular) s.75(2)(d) and ss.79(2) and (4) of the Act await final hearing.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 23 December 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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