Nicoll and Nicoll
[2016] FCCA 2703
•6 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NICOLL & NICOLL | [2016] FCCA 2703 |
| Catchwords: FAMILY LAW – Interim spousal maintenance – issues of non-disclosure. |
| Legislation: Family Law Act 1975, ss.72, 74, 75, 80 |
| Cases cited: Black & Kellner (1992) FLC 92-287 |
| Applicant: | MS NICOLL |
| Respondent: | MR NICOLL |
| File Number: | WOC 1254 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 22 August 2016 |
| Date of Last Submission: | 22 August 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 6 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cook |
| Solicitors for the Applicant: | Kells The Lawyers |
| Solicitors for the Respondent: | Etheringtons Solicitors |
ORDERS
THE COURT ORDERS BY CONSENT THAT:
Forthwith from the date of these Orders, the Applicant and Respondent do all acts and sign all documents to effect the sale of the property known as and situated at Property M in the State of New South Wales ("the Property M property") and for that purpose the following shall apply:
(a)The property be listed for sale by private treaty with real estate agent (omitted) of (omitted) ("the real estate agent") and at a reserve price as agreed between the Applicant and Respondent failing agreement within 7 days, as nominated by the then President of the Real Estate Institute of NSW at the request of the Applicant and Respondent or either of them.
(b)The Applicant and Respondent cooperate in every way with the real estate agent and in relation to the marketing of the Property M property for sale including making the keys readily available, allowing inspection of the property at all times reasonably requested by the real estate agent and ensuring the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(c)The Applicant and Respondent shall retain Kells the Lawyers as the conveyancer to act on the sale of the Property M property and both parties shall so all acts and things and sign all such documents to cause the issue of a Contract for Sale of Land for the Property M property and any other document required to effect the sale of the Property M property;
(d)The proceeds of sale of the Property M property shall be paid in the following manner and priority:
(i)In payment of agent's commission and advertising expenses and legal expenses of the sale.
(ii)In payment of any monies due and owing to the mortgagee (omitted) Bank.
(iii)In payment into an agreed Controlled Monies Account, pending further order of the Court.
In the event the Property M property does not sell within two (2) months from the date of its listing in accordance with Order 1, that the parties forthwith do all acts and things and sign all necessary documents to cause the Property M property to be placed on the market for sale by public auction, and for that purpose the following shall apply:
(a)The property be listed for sale public auction with real estate agent (omitted) of (omitted) ("the real estate agent") and at a reserve price as agreed between the Applicant and Respondent failing agreement within 7 days, as nominated by the then President of the Real Estate Institute of NSW at the request of the Applicant and Respondent or either of them.
(b)The Applicant and Respondent cooperate in every way with the real estate agent and in relation to the marketing of the Property M property for sale including making the keys readily available, allowing inspection of the property at all times reasonably requested by the real estate agent and ensuring the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(c)The Applicant and Respondent shall retain Kells the Lawyers as the conveyancer to act on the sale of the Property M property and both parties shall so all acts and things and sign all such documents to cause the issue of a Contract for Sale of Land for the Property M property and any other document required to effect the sale of the Property M property;
(d)The proceeds of sale of the Property M property shall be paid in the following manner and priority:
(i)In payment of agent's commission and advertising expenses and legal expenses of the sale.
(ii)In payment of any monies due and owing to the mortgagee (omitted) Bank.
(iii)In payment into an agreed Controlled Monies Account, pending further order of the Court.
Pending the implementation of the sale referred to in Order 1 or 2 as applicable, the Respondent be restrained by injunction from transferring, selling, encumbering or otherwise adversely dealing with the Property M property.
Pending further order, the Respondent Husband continue to pay the costs associated with the Audi (omitted) motor vehicle, with such costs being loan repayments, registration and insurance.
THE COURT FURTHER ORDERS THAT:
Pending further order, the Respondent Husband pay to the Applicant Wife the amount of $1,500 per week by way of spouse maintenance, with such payment to commence in 7 days from the date of these Orders and to be paid into the Applicant Wife’s nominated bank account.
Pending further order, the Respondent Husband pay health insurance for the parties and the children.
The matter be adjourned to 10 October 2016 at 2.00pm for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Nicoll & Nicoll is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1254 of 2015
| MS NICOLL |
Applicant
And
| MR NICOLL |
Respondent
REASONS FOR JUDGMENT
The orders that the Applicant Wife seeks are set out in her case outline prepared by her Counsel, Mr Cook, and dated 19 August 2016. Those orders reflect the interim orders set out in her amended application filed 19 August 2016 and an application in a case filed 31 May 2016. The case outline refers to the affidavits that the Wife relied on in the present application, with the exception that her affidavit filed 19 August 2016, which was clearly out of time, was not read in her case.
The orders sought by the Respondent Husband are contained in a minute of order that was provided by his solicitor. There is also a previous outline of submissions dated 13 May 2016, which refers to the various documents that the Husband relies on. With the leave of the Court, the Husband was permitted to file further submissions in response, and this bundle, as it included further documents sought to be introduced into evidence, was received by the Court on 26 August 2016. Given that new material was introduced by the Husband, the Wife was permitted to make submissions in reply, and these were received 2 September.
The procedure adopted in this case was somewhat unorthodox. The matter initially came before me on a very busy day. The Respondent Husband sought but was denied an adjournment, and that was based on the very long litigation history of this case. Brief submissions were made by Counsel on behalf of the Wife. He relied on some written submissions provided to the Court on that day. In the circumstances, the Court accordingly gave the Husband a few days to provide written submissions in response, but he provided new material, including Business Activity Statements, tax returns and a profit and loss.
The Court adopts and incorporates into these reasons the brief chronology that is contained in the Applicant Wife’s case outline document. The relevant background facts are adequately set out therein:
| DATE | EVENT |
| (omitted) 1970 | Husband born – currently aged 46 years |
| (omitted) 1979 | Mother born – currently aged 36 years |
| (omitted) 2000 | Y born – currently aged 15 years |
| (omitted) 2002 – (omitted) 2003 | Parties meet and commence dating |
| March 2003 | Husband sets up (omitted) business known as (omitted) and purchases commercial premises for $130,000 borrowing the full amount |
| Late 2003 | Parties purchase property at Property C for $890,000 (using net proceeds of sale of the Wife's property at (omitted) owned by her prior to marriage) |
| December 2003 | Husband commences providing the Wife with an allowance of $500 per week to pay for gas, electricity, telephone, food, clothing, children's expenses, medical expenses, fuel, car maintenance, presents, rates and new baby requirements. Wife accrues significant credit card debt to fund the shortfall on the family's living expenses. |
| (omitted) 2004 | X born – currently aged 12 years |
| (omitted) 2005 | Parties marry |
| Early December 2015 | Wife is contacted by Barnados Australia and advised she should remove herself and the children from the Renwick property to avoid FACS taking action due to complaints made by four health professionals and the children's school about the children's exposure to domestic violence and excessive discipline tactics exhibited by the Husband. |
| 22 December 2015 | Wife files Initiating Application in the Federal Circuit Court at Wollongong. Receives listing date for 5 April 2016 |
| 28 January 2016 | Wife files Application for Review re listing date. Matter is brought forward to 1 March 2016. |
| February 2016 | Husband reduces Wife's allowance from $650 per week to $525 per week |
| (omitted) 2016 | Z born – currently aged 6 months |
| 1 March 2016 | Matter is mentioned before Judge Altobelli. Husband appears represented by Frontier Law Group. Orders are made. |
| 15 March 2016 | Husband is required (in accordance with Orders dated 1/3/16) to file his Response, Affidavit and Financial Statement. These documents are still yet to be filed. |
All that was pressed at the interim application was for the payment of spouse maintenance on an interim basis together with a number of ancillary orders of a financial nature. The Wife sought and the Husband consented to an order for the sale of the property at Property M; this order will be made by consent.
The Court adopts some of the specific orders proposed by the Wife because of their particularity but only on the basis that the sale proceeds be placed in trust pending agreement or further determination about the allocation of the net sale proceeds.
The Wife seeks an order for periodic maintenance in the sum of $1500 per week. The Husband seeks an order for $400 per week, provided that this amount is reduced by the amount of child support as assessed by the Child Support Agency once the Wife applies for and obtains an assessment. It is common ground that the Wife has not yet made such an application. The Wife seeks an order that the Husband pay to (omitted) the sum of $8239.60. The Husband appears to oppose this.
The Wife seeks an order that the Husband pay the ongoing monthly payments on her Audi (omitted) motor vehicle as and when they fall due, together with registration and insurance. The Husband agrees to this. He also agrees that the Wife should retain possession and use of the said vehicle. The Wife seeks an order that the Husband pay the ongoing school and tuition fees for the girls at (omitted) School and for their son at (omitted) School at (omitted) as and when they fall due. The Husband proposes that he make only the payments to (omitted) School.
He proposes, instead of the girls attending (omitted) School, that they attend (omitted) School and he will pay the school fees as and when they fall due using a personal loan.
The Wife seeks an order – and the Husband seems to agree – that he pay the private health insurance fees for the parties and the children. The point of difference appears to be that the Wife wants the Husband to pay a policy that covers her as well as the children, whereas he proposes to include the children on his health insurance cover.
On behalf of the Husband a concession was made, quite properly the Court acknowledges, that the Wife is in need of maintenance, being unable to support herself adequately. The focus of attention thus turns to the reasonableness of the Wife’s claim and whether the Husband has the capacity to pay maintenance based on the Wife’s needs.
The applicable law is found in ss.72, 74 ,75 and 80 of the Family Law Act 1975:
72.Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
74.Power of court in spousal maintenance proceedings
(1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
(2) If:
(a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b) either of the following subparagraphs apply to a party to the marriage:
(i) when the application was made, the party was a bankrupt;
(ii) after the application was made but before the proceedings are finally determined, the party became a bankrupt; and
(c) the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the bankruptcy trustee as a party to the proceedings.
(3) If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
(4) The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.
(5) If:
(a) an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b) either of the following subparagraphs apply to a party to the marriage (the debtor party):
(i) when the application was made, the party was a debtor subject to a personal insolvency agreement; or
(ii) after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and
(c) the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d) the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the trustee of the agreement as a party to the proceedings.
(6) If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.
(7) The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.
(8) For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:
(a) the application is withdrawn or dismissed; or
(b) an order (other than an interim order) is made as a result of the application.
75.Matters to be taken into consideration in relation to spousal maintenance
(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4) In this section:
“party”means a party to the marriage concerned.
80.General powers of court
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
(ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e) appoint or remove trustees;
(f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
(2) The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
(3) The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
(4) If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.
(5) If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.
(6) Subsections (4) and (5) do not limit paragraph (1)(d).
This is a case where the Wife makes allegations about non-disclosure addressed to the Husband. The law about non-disclosure in family law financial matters is well-known. There are numerous Full Courts’ decision, including Weir & Weir (1993) FLC 92-338, Black & Kellner (1992) FLC 92-287, Oriolo & Oriolo (1985) FLC 91-653 and a number of others, all of which emphasise the importance of proper disclosure in financial matters before the Court and the very wide latitude given to the Court in circumstances where it is found that financial disclosure has been wanting.
I start by considering the significance, if any, of the Wife’s failure to apply for and obtain an assessment for child support. What becomes clear from her amended financial statement sworn and filed 17 May this year is that her total expenditure of $1770 includes expenditure of $1432.50 which is exclusively attributable to her children. Indeed, on a very strict and technical application of the Wife’s needs, on her own financial statement, this would not exceed $337.50.
However, the Court is satisfied, on a review of the relevant provisions of the Act referred to above, that the Wife can claim maintenance for herself, taking into account her expenses, having regard to the need that she has to provide for the parties’ children. However, once a child support assessment has issued, that amount must be taken into account, subject, of course, to it being paid. It is the Court’s view that the Wife should apply for child support through the Agency as soon as possible.
She should be on notice in the clearest possible terms that the Court will not likely consider an application for child support in a further amended application unless she has first sought an assessment and pursued the remedies available to her under that legislative scheme. The Court records its view that the Wife has hitherto proceeded on an unsatisfactory basis by not seeking child support to date. Nonetheless, the Court is mindful of the fact that some of the orders that the Husband himself proposes are in the nature of provision for the children.
The focus of the present application really turns to the Husband’s financial circumstances and in particular whether he has the capacity to make the payment that the Wife proposes. Section 72 makes it clear that his liability to maintain his wife is only to the extent that he is reasonably able to do so. The obligation on the Husband to disclose his financial circumstances involves putting all the metaphorical cards on the table face-up.
It is not the role of either the Wife, her legal representatives or, indeed, the Court to trawl through the evidentiary materials advanced in this case in a quasi-Pythonesque search for the Holy Grail of the truth. It is his responsibility to do so. It would not be understatement to say that during the recent history of this litigation, the Wife’s most persistent complaint about the Husband has been in relation to financial disclosure. He has not assisted himself one little bit by failing to make timely disclosure and by changing his solicitors at a critical stage of the proceedings.
His disclosure has clearly been tardy. He has filed multiple financial statements. He relies on a number of unfiled financial statements. He has certainly made the Court’s task – let alone the Wife’s task – much more difficult. The Wife’s case is that, and in reality it is not expressed by her as such, but that she and the children have not been able to retain the standard of living that they enjoyed when they were an intact family.
The Husband’s business back then, as a (omitted), seems to have provided to this family a comfortable standard of living that included, for example, nice cars and private schools for the children. The evidence before the Court suggests that for quite some time after separation, the Husband was able to continue this but he has progressively reduced the amount of cash that was made available to the Wife. In many respects, even the Husband does not cavil with what I will describe as this case theory, but what he says is that it is no longer sustainable and that he is paying what he can now afford.
What is plainly apparent to the Court having spent several hours examining the financial affairs of this family both from the Wife’s perspective and the Husband’s perspective, is that whatever their past lifestyle, they are now living beyond their means. This fact is recognised by both of them in their agreement to sell the Property M property. In addition, it is reflected in the Husband’s attempt to refinance one of his motor vehicle leases to reduce his monthly commitments, but it is not the Court’s job, in dealing with this application, to make value judgments about the lifestyle of families.
The question is; does the Husband have the capacity to pay the maintenance sought by the Wife, given that her needs have been established to the satisfaction of the Court? The Husband is a self-employed (occupation omitted). A rather extraordinary fact in this case is that since 3 May 2016 he has sworn four separate financial statements on 3 May 2016, 9 May 2016, 18 August 2016 and 26 August 2016. I will incorporate into these oral reasons for judgment a brief spreadsheet that I have prepared to compare certain items in his financial statements.
| Date | Rental income | Business income | Total liabilities | Item 21 Rent/Mortgage | Item 23 Mortgage | Item 29 | Item 32 Part N expenses | Item 45 Super |
| 3/5/16 | 550 | 1,481 | 670,900 | 410 (omitted) | NIL | NIL | 935 | 47,000 |
| 9/5/16 | 550 | 1,481 | 670,900 | 410 (omitted) | NIL | NIL | 936 | 47,000 |
| 18/8/16 | 550 | 1,481 | 558,177 | 630 (omitted) rent | 453 (omitted) (Property M) | 142 | 890 | 88,000 |
| 26/8/16 | 440 (-110) | 1,929 (+448) | 572,528 (-98,372 from 3/5/16) (+14,357 from 18/8/16) | 630 (omitted) rent | 453 (omitted) | 142 | 397 (-539 from 3/5/16) | 88,000 (+41,000 from 9/5/16) |
There are a number of curious anomalies. Inexplicably, between 18 and 26 August 2016, his rental income declined from 550 to 440 dollars. Whereas his business income in his first three financial statements was sworn to be $1,481 per week, in his last statement it was sworn to be $1,929 per week: an increase of $448. In his first two financial statements his total liabilities were sworn to be $670,900. By 18 August 2016, however, it had declined to $558,177, but then eight days later on 26 August 2016, it had increased to $572,528.
Between 3 May 2016 and 26 August 2016, the Husband’s total liabilities sworn by him declined by $98,372. This is somewhat inconsistent and very difficult to reconcile with his assertion that he redrew 160,000 on 4 May 2016 on the (omitted) mortgage. The payments for rent and mortgage at items 21 and 23 of the financial statements are simply impossible to reconcile. In his first two financial statements he made no reference at all to the (omitted) personal loan, but in the last two statements, suddenly there is this expenditure of $142 per week. At item 32 of his financial statements the Husband deposes as to his Part N expenses. In the first two statements these expenses amount to $936. By 18 August 2016 it is $890, and by 26 August 2016 it is down to $397. His part N expenses declined therefore by $539 per week between his first and his last financial statement, but all within six months. Another unexplained but significant change is that in his first two financial statements he discloses superannuation with a value of $47,000, but by 18 August 2016 it increases to $88,000.
The Husband produced BAS statements. His total sales between 1 July 2015 and 30 June 2016 is disclosed to be $182,795. He discloses total purchases in the period of $89,472. What is not clear to the Court is when exactly the BAS statements were prepared. If the BAS statements were prepared in the normal course, it is significant to note that the Husband had these BAS statements for a considerable period of time before he produced them in his submissions following the interim hearing. For present purposes the focus of the Wife’s complaint is that what the BAS statement describes as purchases for what might loosely be described as business expenses, and what the other financial documents refer to as business expenses are, in fact, completely lacking in transparency, and thus it is not possible to discern what the Husband’s actual income is. There is clear substance to the Wife’s complaint, and thus, for example, it is not possible to discern from the Husband’s own evidence as to whether the (omitted) personal loan was always a personal expenditure or was at some time a business expenditure. The fact is that the Husband is in sole control of his business, and he decides whether expenditure is funded through the business or personally.
What the Wife submits is the reality of the Husband’s financial circumstances is this: that he has total flexibility via his business to treat income and expenses as either having the character of personal or business. The Court agrees with her submissions in this regard. The Court cannot be satisfied on the Husband’s own evidence that he has properly disclosed his income and expenses. Indeed, there is cause to be concerned about the accuracy of his disclosed liabilities as well as his asset situation, including superannuation. In these circumstances the well-known authorities indicate that the Court can adopt a robust approach and must conclude that the Husband does have the capacity to pay the maintenance sought by the Wife.
The Wife seeks an order for periodic maintenance in the sum of $1500 per week. She has established her case in this regard. An interim order will be made. The first payment is due in seven days and is to be paid into the Wife’s nominated bank account. The Wife’s claim for a lump sum payable to (omitted) has, however, not been made out, and the Court is not, in any event, prepared to prioritise a lump sum over periodical payments in circumstances where there is an agreement that the Property M property be sold and thus that there be a fund out of which any lump sum payable to a third party can be paid. The Wife claims, and the Husband agrees, that he continue to pay the monthly payments on the (omitted) motor vehicle together with registration and insurance. An order will be made to that effect.
The Wife claims that the Husband should pay all of the school tuition fees, but the Husband offers to pay only for his son. One wonders whether the Husband ought not to reconsider his decision to prefer to one child over the other. In any event, the difficulty that the Court has is that, whilst it is satisfied that the Husband can pay the $1500 per week that I have just ordered, it cannot be comfortably be satisfied that his capacity goes beyond that such that school fees can be paid. Accordingly, the Court does not consider it to be in a position to order anything about school fees.
The Wife seeks that the Husband pay health insurance for the entire family, consisting of the children and herself, but he proposes to pay only for the children. It is hard to understand why the costs should be different, but, putting that aside, his obligation to maintain his wife is clear, and, accordingly, she also should be insured.
The parties have agreed to sell the Property M property, and the orders proposed by the Wife in terms of the mechanics of sale will be adopted.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 6 December 2016
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Equity & Trusts
Legal Concepts
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Injunction
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Costs
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Remedies
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Consent
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