Notaras & Notaras
[2021] FamCA 527
•20 July 2021
FAMILY COURT OF AUSTRALIA
Notaras & Notaras [2021] FamCA 527
File number(s): SYC 2434 of 2021 Judgment of: ALTOBELLI J Date of judgment: 20 July 2021 Catchwords: FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – exclusive occupation – where one party has been the sole income earner since separation – whether the parties remain separated under one roof living with the children of the relationship – capacity to engage in employment in a COVID-19 affected economy – assessment of need – spousal maintenance ordered – costs reserved. Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 72, 74 and 75
Cases cited: Naylen & Naylen [2021] FamCA 392 Number of paragraphs: 39 Date of last submission/s: 28 June 2021 Date of hearing: 28 June 2021 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Unified Lawyers Counsel for the First Respondent: Mr Coleman SC Solicitor for the First Respondent: Lionheart Lawyers The Second Respondent: No appearance Solicitor for the Second Respondent James Papas Solicitors ORDERS
SYC 2434 of 2021 BETWEEN: MR NOTARAS
Applicant
AND: MS NOTARAS
First Respondent
MR WINGATE
Second Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
20 JULY 2021
THE COURT ORDERS THAT:
1.The wife’s application insofar as it relates to exclusive occupation of the property at B Street, Suburb C NSW ("the Suburb C Property") is dismissed.
2.The wife’s application insofar as it seeks an interim distribution of funds is dismissed.
3.By way of interim spousal maintenance, the Respondent husband pay to the Applicant wife the sum of $421 per week to be paid to an account nominated by the wife with the first payment to be made 14 days from the date of this order.
4.Until further order, the husband be solely responsible, to the exclusion of the wife, for all costs associated with the Suburb C Property, including but not limited to mortgage repayments, council rates, insurances and utility bills.
5.Until further order, the wife be restrained from withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd.
6.On a without admissions basis and until further order, both parties be restrained from denigrating or harassing the other.
7.Each party’s costs of the interim applications before me be reserved.
8.The matter be referred back to the Docket Registrar for further case management.
IT IS NOTED THAT:
The husband agreed to meet the repayments referred to in order 4 herein.Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Notaras & Notaras has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders made in competing interlocutory applications in the course of substantive property and maintenance proceedings.
BACKGROUND
The Applicant wife and First Respondent husband are both 49 years old. They commenced cohabitation and married in 1996. They separated, albeit under the same roof, in 2020, the wife asserting that separation occurred in June 2020 and the husband asserting that separation occurred in November 2020. Nothing turns on the date of separation for present purposes. The parties continue to live in what was their family home together with their three children aged 20, 18 and 16. The parties have competing property applications. Notably, there is a Second Respondent in this matter, Mr Wingate. Mr Wingate is the director of various corporate entities that, the wife asserts, hold property of the marriage. At the commencement of the hearing counsel advised me that the Second Respondent would not be participating in the present interim dispute. This accords with the nature of the interim issues before me and the matter therefore proceeded on that basis.
It is common ground, and in any event patently obvious from the evidence of both parties, that the business, D Pty Ltd ACN …, carried on by the husband through corporate entities has been the main source of income for the family throughout most of the parties’ relationship and, currently, is the only source of income. It is common ground that there is nearly $450,000 standing to the credit of a controlled monies account held for the benefit of the parties. This represents the proceeds of the sale of property.
The following relevant orders remain in effect, pursuant to the orders made by Registrar Turner on 19 April 2021:
5. That except as provided by these Orders, the funds in the controlled monies account from time to time shall not be disbursed unless the Applicant and the First Respondent agree in writing, pending further order of the Court.
6. That pending further order neither the Applicant nor the First Respondent shall encumber or further encumber the property at B Street Suburb C NSW without the prior written consent of the other party or further order.
7. That, except to carry on the usual course of business, the Husband is both personally and in his capacity as director or secretary of D Pty Ltd ACN …, F Pty Ltd ACN …, and G Pty Ltd ACN … (“the Entities”) is restrained by injunction from doing any of the following:
a. sell, transfer, assign, encumber or alienate his shares and/or interest of any nature whatsoever in the Entities;
b. sell, transfer, assign, encumber or alienate any asset owned by the Entities;
c. issue any new shareholding in any of the Entities;
d. issue any new unitholding in any of the Entities; and/or
e. appoint a new director or secretary to any of the Entities.
8. That except as otherwise agreed in writing neither party may draw upon any loan account and bank account of D Pty Ltd except in the ordinary course of business and/or in the ordinary course of meeting the reasonable expenses of the Applicant, the First Respondent and the children of the spouse parties, and in this regard the First Respondent shall continue to cause the mortgage, rates and outgoings of the Suburb C property to be paid from the said bank account pending further order.
COMPETING INTERLOCUTORY APPLICATIONS
For present purposes, the competing interlocutory applications are as follows. The orders sought by the Applicant wife are contained in the Amended Application filed 24 May 2021. Doing the best the Court can to understand her claim, she sought orders 5 – 10 inclusive, in the following terms:
5. That the Wife have the sole use and occupation of the former matrimonial home situate at and known as B Street, Suburb C NSW ("the Suburb C Property")
6. That, within 7 days from the date of these Orders the Husband move out of the Suburb C Property.
7. That the Husband pay all instalments pursuant to the mortgage secured on the Suburb C Property and all rates, taxes and outgoings of the Suburb C Property as and when they fall due.
8. That neither party encumber or further encumber the Suburb C Property without the prior written consent of the other party or further order.
9. That by way of Interim Spousal maintenance, the Husband pay to the wife the sum of $2,500 per week to be paid to an account nominated by the Applicant Wife with the first payment to be made 14 days from the date of this order.
l0, That the Husband, in his capacity as Director do all that is required and sign all documents necessary so as to cause the amount of $75,000 to be released within 7 days from the date of these Orders to the Wife as directed by her in writing from the funds held by D Pty Ltd ACN …, which funds are to be used for the payment of legal fees and costs associated with these proceedings,
The orders sought by the Respondent husband are set out in his Response to the Application in a Case dated 11 June 2021. Doing the best the Court can to understand his claim, he sought orders 1 – 7 inclusive, in the following terms:
1. Order 8 of the Orders made 19 April 2021 be discharged.
2. Within seven (7) days of these Orders, and pursuant to s 79(6) of the Family Law Act 1975, both parties shall receive the sum of $150,000 from the controlled monies account managed by Lionheart Lawyers (BSB: …, Account No.: …) ('controlled moneys account').
3. The husband shall be solely responsible, to the exclusion of the wife, for all costs associated the Suburb C property, including but not limited to mortgage repayments, council rates, insurances and utility bills.
4. The wife be hereby restrained from:
4.1. Withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd; and
4.2. Using any secondary credit card that she has on the applicant's credit cards.
5. The husband is hereby restrained from:
5.1. Withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd for personal expenses;
5.2. Withdrawing, transferring or otherwise accessing any funds from any account held by D Pty Ltd except in the ordinary course of business.
6. The wife's interim application be otherwise dismissed.
7. Costs.
THE EVIDENCE BEFORE THE COURT
In support of her case, the wife sought to rely on the following documents:
(a)Her Further Amended Initiating Application filed 24 May 2021;
(b)Her Affidavit filed 25 June 2021 and corresponding Exhibit bundle;
(c)Her Financial Statement filed 6 April 2021;
(d)An Undertaking as to Disclosure filed 23 June 2021;
(e)A Court Book filed 25 June 2021; and
(f)A Case Outline document filed 27 June 2021.
In support of his case, the husband sought to rely on the following documents:
(a)His Amended Response to Initiating Application filed 11 June 2021;
(b)His Financial Statement filed 15 June 2021;
(c)His Affidavit filed 11 June 2021 and corresponding Exhibit bundle;
(d)Affidavit of Ms H filed 17 June 2021;
(e)A Court Book emailed to Chambers on 28 June 2021 and marked by the Court as exhibit R1; and
(f)A Case Outline document filed 25 June 2021.
THE ISSUES
Having regard to the above, the issues for the Court to decide are as follows:
·Exclusive occupation of the family home in Sydney;
·Spousal maintenance including payment of all expenses relating to the home;
·Interim financial provision for legal costs;
·Interim financial provision for unspecified purposes;
·Various injunctions; and
·Costs.
UNCONTESTED MATTERS
There is common ground evident from the competing proposals. Whilst the wife seeks to exclude the husband from the former matrimonial home, the husband does not seek to exclude the wife, and therefore her continued presence in the home is not in issue. Additionally, the husband agrees that he will pay all costs associated with the family home, including but not limited to mortgage payments, council rates, insurances and utility bills.
Additionally, there are matters that are either not in dispute, or which the Court for present purposes only is prepared to accept as matters of fact. These matters include:
·The company which operates the business does not own any significant assets save for a cash reserve. It does not own equipment, as this is hired for each individual job.
·In the husband’s Affidavit he deposes to the cash reserve being approximately $110,000 as at 11 June 2021. He concedes that on 31 July 2020 the cash reserve was $350,000.
·At paragraph 56 of the husband’s Affidavit he deposes: ‘I will receive $220,000 from the final invoice from the job I have recently completed.’ Even though it is apparent that the company will in fact receive the sum stated, the language used by the husband makes it clear that he considers that he controls the company and regards the money as his own.
·The business has funded all of the living expenses of the family. In recent times there has simply been no other source of income other than that of the husband, through the company. At paragraph 16 of his Affidavit he correctly deposes that he pays all expenses including the youngest child’s schooling costs.
·The husband expects that his income for the financial year ended 30 June 2021 will be $225,000 gross. The husband deposes at paragraph 71 of his Affidavit that he is struggling to keep up with all the expenses of the family and he has been using the company’s cash reserve to do so. At paragraph 75 he deposes that he also pays the day-to-day expenses such as food, petrol and expenses for the children.
·There are two credit cards which seem to be primarily used to meet family expenses including health insurance, food and groceries, motor vehicle expenses, family leisure expenses, laptops and phones for the children. The wife has access to one of these. The credit cards are repaid through the company trading account.
·At no point in the husband’s Affidavit does he suggest, implicitly or explicitly, that he will not continue to meet the expenses that he already meets.
·The wife has not been employed since 2000.
·The husband, based on advice given to him by his accountant, is concerned about Division 7A taxation liabilities potentially arising out of company funds being used to meet personal expenses. The concern, however, seems to have arisen at the time of separation. In other words, there is no evidence to suggest that if there is a Division 7A issue, it is a recent one.
OBJECTIONS
Senior counsel for the husband raised a number of objections in relation to the wife’s evidence. The Court has had the benefit of considering all of the material in order to better understand the objections. The objections are dismissed. All of the material objected to is relevant either directly to the issues before the Court, or by way of background. There remain issues as to the weight to be accorded to such evidence. Section 135 of the Evidence Act 1995 (Cth) is not activated. The Court does not consider that the evidence in question either has the potential to, or in fact is, unfairly prejudicial to the husband, misleading or confusing, or will result in undue waste of time.
EXCLUSIVE OCCUPATION OF THE HOME
The Court dismisses the wife’s application in this regard.
In Naylen & Naylen [2021] FamCA 392, McEvoy J recently summarised the relevant principles to be applied in granting the injunctive relief sought as follows:
[28] In Sieling v Sieling (1979) FLC 90-627 , 78,264, a case where the Full Court was concerned with an ex parte order which had been made restraining the husband from selling or further encumbering the matrimonial home and from dealing with certain other property, Evatt CJ and Marshall SJ (with Asche SJ concurring) made the following observations as to the use of the s 114(1) injunction power:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest. It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim. There must be circumstances arising out of the martial relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.
[29] The principles to be applied in making an order for sole use and occupancy of the former matrimonial home pursuant to s 114(1) of the Act are to be understood in light of the observations about the general nature of the s 114(1) injunction power in Sieling v Sieling . These principles have been the subject of frequent exposition in the Full Court and application by primary judges. They may be summarised as follows:
(a) the Court may make such an order as it thinks proper: Davis & Davis (1976) FLC 90-062 , 75,309 (Evatt CJ, Pawley and Ellis JJ);
(b) there are no words of limitation in s 114(1) other than the requirement that the grant of an injunction must be “proper”. A grant of an injunction is unlikely to be proper unless there is an appropriate factual basis supporting it: S & S [2002] FamCA 59 , [40] (Kay, Holden and Monteith JJ);
(c) an injunction that prohibits a person from living in their own home is of such gravity that it ought only be granted in restricted and exceptional circumstances: S & S, [38];
(d) it would be unlikely that the mere existence of tension in the home, short of evidence of unacceptable conduct, would lead the Court to grant an exclusion order: S & S, [41];
(e) the Court does not need to make a finding that the situation in the former matrimonial home is “intolerable” or “impossible”, it must simply be satisfied that it would not be reasonable or sensible or practicable to expect both parties to continue to reside in the premises together: Rowe & Rowe (1980) FLC 90-895 , 75,639–75,640 (Evatt CJ), 75,644 (Pawley SJ), (cf Wood SJ at 75,643); Davis & Davis (1983) FLC 91-319 , 78,170 (Baker J, with whom Evatt CJ and Underhill J agreed);
(f) the matters which should be considered include the means and needs of the parties, including the availability of alternative accommodation and the suitability of that accommodation along with the financial circumstances of the parties, the needs and welfare of any children, the hardship to either party if an exclusion order is made or not made, and, where relevant, the conduct of one of the parties justifying an exclusion order: Davis & Davis (1976), 75,309; Rowe & Rowe, 75,640 (Evatt CJ), 75,644 (Pawley SJ);
(g) the test for making an order for exclusive occupation is an objective one, Rowe & Rowe, 75,644 (Pawley SJ);
(h) the question is what in all the circumstances of the case is fair, just and reasonable, and if it be fair, just and reasonable that one of the parties be excluded from the former matrimonial home, then that is what ought to happen: Walker v Walker (1978) 1 WLR 533 , 536–537, cited with approval in Rowe & Rowe, 75,638–75,639 (Evatt CJ), 75,642 (Wood SJ) (albeit that his Honour appears to have referred mistakenly to Phillips v Phillips (1973) 1 WLR 615 , in circumstances where it may be inferred that, like Evatt CJ, he meant to refer to Geoffrey Lane LJ in Walker v Walker );
(i) the Court will consider the accommodation available to both parties and the hardship to which each will be exposed if an order is granted or refused, and will then consider if it is sensible to expect the parties to remain living in the premises together: Bassett and Bassett [1975] Fam. Law 76 , 87, cited with approval in Rowe & Rowe, 75,639 (Evatt CJ), 75,642 (Wood SJ);
(j) while the decision ought not be made merely on the balance of convenience: Davis & Davis (1976), 75,309, in practice the case will often rest on what the balance of convenience requires, and in cases of intense marital disharmony, frequently coupled with assaults by one party upon the other, the Court may require little persuasion to take the view that the balance of convenience requires that one party have the sole occupation of the home: Dean & Dean (1977) FLC 90-213 , 76,097 (Wood J), referring to Davis & Davis (1976);
(k) it should only be compelling circumstances which would justify the making of such an injunction (in effect, excluding a party from the former matrimonial home) against a party who is not to blame for the breakdown of the marriage, or who, of the two partners, is demonstrably the less responsible for what has happened: Dean & Dean, 76,098.
[30] In Fedele & Fedele (1986) FLC 91-744 , 75,431, the Full Court (Fogarty, Murray and Nygh JJ) emphasised that these principles should properly be treated as guidelines to assist in the exercise of the important discretion given under s 114(1), and that they should not be seen as laying down any fixed list of criteria which must be established for the application to be successful. A judge must exercise his or her own discretion in the matter, informed by the Court’s previous consideration of the issues.
The difficulties confronting the wife in seeking exclusive occupation will become apparent in the light of the principles set out. The wife deposes to family violence which is strenuously denied by the husband. Even in the absence of such denials, and without in any way minimising how the wife experiences life in the home with the husband, the allegations create a strong impression of tension in the home, on an ongoing basis, but not much more than that.
The wife asks the Court, in effect, to infer that the level of conflict in the home is having an adverse impact on the mental health of one of the children. The Court declines to draw that inference. The most recent medical evidence relating to this child is dated 10 April 2021 and is inconsistent with the wife’s assertion.
No evidence is led about alternative accommodation for the husband, the cost of the same, and the potential impact of this cost on the family finances which are entirely dependent on him. No reason is advanced as to why an order for both parties not to denigrate each other would not be adequately protective.
The evidence is clear. The house is large. Both the husband, the wife and three children have their own sleeping areas. It may well be less than ideal for the husband and wife to be separated but living under the same roof, but the evidence does not go as far as justifying the draconian remedy of excluding the husband. The balance of convenience does not favour the making of such an order. The Court will, however, of its own motion, and on a without admissions basis, order both parties not to harass or denigrate each other, pending further order.
THE SPOUSAL MAINTENANCE APPLICATION
Orders 7 and 9 of the orders sought by the wife will be treated as applications for spousal maintenance. In order 7, the wife proposes that the husband pay all mortgage instalments, or rates taxes and outgoing on the home, as and when they fall due. The evidence of both the wife and husband is that the husband has been doing so, and continues to do so. No assertion is made by the wife that he has threatened to cease making these payments. Order 3 proposed by the husband is an order to this effect. Order 3 will be made in the terms proposed by the husband. It is by no means clear to the Court why this issue was pressed at the interim hearing, rather than the order simply having been consented to.
Order 9 proposed by the wife is that by way of interim spousal maintenance the husband pay the sum of $2,500 per week. The husband opposes this but acknowledges that the wife’s personal costs total $421 per week, and that her costs including those of the children have been just over $2,000 per week.
The law in relation to spousal maintenance is set out in ss 72, 74 and 75 of the Family Law Act 1975. These sections are well-known to the parties, and their legal representatives, and thus will not be set out.
The Court is comfortably satisfied that the wife is unable to support herself. Even the husband acknowledges that she has not worked for 21 years. To somehow suggest that a mother who has not had the benefit of a high level of education or skills training, and has been out of the paid workforce for over two decades, can simply return to work in a COVID-19 pandemic affected economy is, with respect, absurd. The wife has no income and is entirely dependent on the financial provision of the husband, which he has consistently provided. Indeed, on a close examination of his evidence, there is hardly any suggestion that he will discontinue the current level of financial provision for his family, including the wife. Nonetheless, in a technical sense, she is unable to support herself from her own resources and earning capacity, and is entirely dependent on the husband.
What are the reasonable needs of the wife?
These are set out in the Financial Statement of the wife filed on 6 April 2021. At Part G of the same she deposes to total expenses of $2,092. At Part F she deposes that the total expenses paid by others for her benefit totals $2,560 per week. There is, prima facie, a shortfall of $468, but on closer examination, $32 of this relates to rates and levies, which are paid by the husband. Also in this Part, the wife deposes that the expenses are paid either by the husband, or the company. Strangely, in Part E, the wife does not disclose the income of her adult children even though it is clear from the evidence that they are engaged in at least part-time work. Nothing turns on this. At Part N of her Financial Statement, she deposes that of the $2,060 referred to in item 32, $421 is specifically referable to her. Prima facie, there is nothing unreasonable about a claim to $421 per week for her needs.
It is by no means clear, however, how the wife formulated her claim for spousal maintenance in the sum of $2,500 per week. The evidence indicates that her personal needs are $421 per week. Her claim as presently formulated can go no higher. Indeed, one would have thought that for as long as the husband continues to make provision for the household and family as he has to date, the wife’s claim could not go any higher. If the Court has wrongly interpreted the husband’s evidence, or if the Court has correctly interpreted the husband’s evidence but he decreases the payments made for the benefit of the household and family, then this Court would willingly revisit the quantum of the wife’s needs.
Does the husband have capacity to pay to the wife $421 per week?
The wife contends that the husband does have capacity, but the husband contends that he does not, and he does so in the context of the payments that he already makes for the benefit of the household and the family. The Court finds that the husband does have the capacity to pay to the wife $421 per week. The Court accepts the submission made by counsel for the wife that the husband’s level of income is determined by reference to the expenses that he needs to meet. He is in sole control of all of the company’s assets and income, a matter acknowledged by himself in his Affidavit. On receipt of the outstanding invoice of $200,000, the company’s cash reserve will be substantial. The husband deposed to needing to maintain at least $300,000 in the cash reserve account so that he has the ability to tender for new jobs, and meet the expenses of those jobs. Notwithstanding this, he also deposes to having work for the rest of the year and it is hard to see how $421 per week will have a tangible impact on the cash reserve account given the income of the company as disclosed in the financial statements produced by the husband. Moreover, the balance sheet of the husband is sound, particularly with the addition of the $200,000.
Pending further order, the Court will order the husband to pay spousal maintenance to the wife in the sum of $421 per week.
INTERIM FINANCIAL PROVISION FOR COSTS
Order 10 sought by the wife was that the husband, in his capacity as director of the company, cause the sum of $75,000 to be released from the company funds to be used by her for the payment of legal fees and costs associated with these proceedings. The Court declines to make this order.
The wife’s evidence about this was both minimalistic and confusing. Her Financial Statement makes no reference to legal costs whatsoever, especially any amount owing. In her Affidavit she acknowledges that as recently as 19 April 2021 both she and the husband received $50,000, $30,000 of which was towards legal costs. At paragraph 28 of her Affidavit she deposes to seeking $45,000 for the purpose of legal expenses, presumably future legal expenses, but this is by no means clear. There is no explanation as to how the sum was quantified. Perhaps the most confusing aspect of the wife’s claim is the absence of any explanation as to why the funds should come out of the company, rather than the funds kept in the controlled monies account.
There are multiple sources of power which would have enabled the Court to properly consider the wife’s application, but no submissions were made in this regard and as noted above, there was a stunning paucity of evidence.
Hypothetically, it would have been a formidable challenge for the wife to convince the Court that any order for interim costs or other interim financial provision should come out of the company the income of which is providing the personal and living expenses of the family, as opposed to the moneys in the controlled monies account. The wife’s application in this respect is dismissed.
INTERIM FINANCIAL PROVISION
Order 2 proposed by the husband was that pursuant to s 79(6) of the Act both parties receive the sum of $150,000 from the controlled monies account. No submission was made about this issue. The order is proposed in an application filed after 19 April 2021, when the parties agreed to interim financial provision for both of them, from the controlled monies account. The husband’s Affidavit does not explicitly disclose the purpose of this payment. It could, however, be implied from the totality of his evidence that it would be applied towards working capital and cash flow of the company and thus, indirectly, living expenses of the family.
The evidence is insufficient for the Court to make the order proposed by the husband. It is curious indeed, however, that both parties are suggesting that they need interim financial provision in different ways, and yet they have a fund they could apply for this purpose without the Court’s intervention, and by consent. If the need is genuine, they should consider that fund, rather than troubling the Court.
VARIOUS INJUNCTIONS
In order 1 of the orders sought by the husband, he proposes that order 8 made 19 April 2021 be discharged. This order states:
8. That except as otherwise agreed in writing neither party may draw upon any loan account and bank account of D Pty Ltd except in the ordinary course of business and/or in the ordinary course of meeting the reasonable expenses of the Applicant, the First Respondent and the children of the spouse parties, and in this regard the First Respondent shall continue to cause the mortgage, rates and outgoings of the Suburb C property to be paid from the said bank account pending further order.
It is unclear why the husband wanted the Court to discharge this order. One possible explanation is that the husband proposes that proposed order 5 be substituted for the order above that is sought to be discharged. In order 5 he proposes that he be restrained from accessing any company funds for personal expenses. The Court declines to make both orders 1 and 5 proposed by the husband. Order 8 made on 19 April 2021 is a sensible restriction to impose pending final order. Order 5 is totally inconsistent with the husband’s evidence about his willingness to continue to pay personal expenses of the family from the only source available, directly or indirectly, and that is by accessing company funds. If these payments can be structured so as to minimise, or eliminate, possible Division 7A issues, that is entirely appropriate, but not in a fashion that adversely impacts on the level of support being provided by the husband.
In order 4 sought by the husband, he sought an injunction restraining the wife from withdrawing, transferring, or otherwise accessing any funds from any account held by the company, and using any secondary credit card that she has on the Applicant’s credit cards. On the one hand, this restriction would be reasonable provided the husband continued to meet all of the living expenses referred to in the wife’s Financial Statement, as discussed above. On that basis, the wife would have no need to access funds from the company accounts.
The source of the husband’s concern seems to be paragraph 84 of his Affidavit where he deposes to the wife drawing down $500 per week from the trading account in cash. The wife agrees in her Affidavit that she commenced withdrawing this amount in about June 2020. She also deposes to using the money to meet day-to-day expenses for the children and herself. From the Court’s perspective, when the totality of the evidence is considered, it is possible that the $500 per week (which is not disclosed in the wife’s Financial Statement) represents the shortfall in the wife’s personal living expenses. Given that the wife’s need for spousal maintenance has been assessed in this case, and an order made, the restriction proposed by the husband is appropriate. Order 4.1 will be made.
Order 4.2 is more problematic, however. It is clear that the wife has used this credit card account to meet the living expenses which she claims are not paid by the husband. If the husband meets all of the family living expenses as he seems to suggest in his Affidavit, then there will be no need for the wife to use this credit card. However, the Court accepts that the precise boundaries between what the family needs, and what the husband pays, is not clear and in the circumstances it would be best not to restrict the wife’s use of the credit card if the sole purpose is for meeting any shortfall between reasonable family needs and expenses, and available financial provision from the husband. Accordingly order 4.2 will not be made.
FUTURE CONDUCT OF THE MATTER
This matter will be referred back to the Docket Registrar for further case management. It is by no means a complex case. It is prudent that the parties endeavour to settle the matter without the need for further judicial intervention.
COSTS
The Court’s inclination is to reserve the costs of both parties. Should either party wish to agitate this issue they should communicate with my Associate within seven days so that directions may be made in relation to same.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 20 July 2021
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