Nsair and Gyaw & Anor

[2018] FamCA 418

FAMILY COURT OF AUSTRALIA

NSAIR & GYAW AND ANOR [2018] FamCA 418

FAMILY LAW – PROPERTY – Interim property – Where consideration of applicable principles – Where the wife seeks a distribution of funds to cover legal fees and reasonable living costs – Where the use of funds available to the husband is in dispute – Where the wife is the primary caregiver for the parties’ children – Where the wife is living at her parents’ home and is unemployed – Where the husband does not oppose a distribution of funds to the wife – Orders made for the wife to receive an interim distribution of funds to be characterised at final hearing. 

FAMILY LAW – PROPERTY – Spousal maintenance – Where consideration of applicable principles – Where the wife seeks periodic spousal maintenance – Where the wife has the care and control of the parties’ four children – Where one of the children is too young to attend school – Where the wife is unemployed and has no reasonable capacity to seek employment at present – Where the wife is unable to support herself – Where the husband’s capacity to pay is obscured by his lack of disclosure – Where the husband is in a significantly stronger financial position than the wife – Orders made for the husband to pay the wife spousal maintenance.

FAMILY LAW – PRACTICE AND PROCEDURE – Departure prohibition order –  Where the husband seeks that the restraint preventing him from leaving Australia be lifted so he can visit his sick father – Where the restraint was put in place to preserve the parties’ assets in circumstances where the husband’s use of joint funds is in question – Where it is appropriate for the prohibition to be lifted if the husband pays a security deposit and grants the wife power of attorney in relation to the sale of one of the parties’ properties – Where the wife seeks the husband’s businesses be valued – Where it is appropriate for a Registrar to deal with this issue – Orders made.

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79, 114

Bevan & Bevan (1995) FLC 92-600
Harris & Harris (1993) FLC 92-378
Maroney & Maroney [2009] FamCAFC 45
Nsair & Gyaw [2018] FamCA 303
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Nsair

RESPONDENT: Mr Gyaw

INTERVENOR: Mr O Gyaw

FILE NUMBER: PAC 59 of 2018

DATE DELIVERED: 8 June 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 20 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Haughton

SOLICITOR FOR THE APPLICANT: Soden Legal

SOLICITOR FOR THE FIRST RESPONDENT: Mr Vassili of Michael Vassili Barristers & Lawyers

SOLICITOR FOR THE SECOND RESPONDENT: Mr Ridley as agent for JN Legal

Orders

1. That the husband pay to the wife or as she may otherwise direct in writing the sum of $500.00 per week by way of interim spousal maintenance pending further order.

2. That the husband and wife do all things necessary to cause to be paid to the wife or as she may otherwise direct in writing the sum of $110,000.00 from the proceeds of sale of the property at K Street, Suburb L and that otherwise the balance of the proceeds then remaining be held by the wife’s solicitors in an interest bearing controlled monies account in trust for the parties pending further orders.

3. That the wife’s solicitors are at liberty to account to the wife or as she may otherwise direct in writing for the balance of funds presently held in their trust account.  

4. That upon the husband:

   (a)appointing the wife as his Attorney pursuant to a General Power of Attorney as prepared by the wife’s solicitors for all purposes of and incidental to the sale of the home at K Street, Suburb L and the wife thereafter having carriage of the said sale in her absolute discretion, and the husband is restrained from revoking the said Power of Attorney pending further order or agreement in writing between the parties; and

   (b)the husband paying to the wife’s solicitors the sum of $50,000.00 by way of security deposit to ensure his return to Australia should he depart the Commonwealth of Australia with such sum to be refunded to the husband promptly in the event of his return to Australia and the completion of these proceedings or such sum to be otherwise paid to the wife upon these proceedings being listed for undefended final hearing in the event that the husband does not return to Australia and properly engage in these proceedings;

   Then parties have leave to forthwith jointly approach the Court in chambers with a consent order discharging the Watch List Order made on 12 February 2018.

5. That, otherwise, proceedings be listed before a Registrar for appropriate directions so as to prepare the matter for a Financial Conciliation Conference.

6. That, otherwise, all interim applications be dismissed.

7. That the costs of both parties are reserved to final trial.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 59  of 2018

Ms Nsair

Applicant

And

Mr Gyaw

Respondent

And

Mr O Gyaw
Intervenor

REASONS FOR JUDGMENT

1. On 9 January 2018 the applicant wife commenced proceedings seeking final orders both as to parenting and, subject to leave being granted to commence out of time, orders for spouse maintenance and property adjustment as between herself and the respondent husband.

2. Notwithstanding that the proceedings have only recently been commenced they have a significant litigious history.

3. On 11 January 2018 orders were made on an ex parte basis restraining the husband from withdrawing any monies from any National Australia Bank (“NAB”) account held in his name solely or jointly with any other person.

4. On 12 February 2018 the wife by way of an Application in a Case sought various interim financial orders including interim spouse maintenance, interim property and injunctive relief as to the disposition of funds by the husband. The application was dependent on the wife seeking leave to commence property proceedings out of time.

5. Subsequently, on 12 February 2018 the Court made further orders on an ex parte basis restraining the husband from leaving or attempting to leave the Commonwealth of Australia pending further order.

6. The husband in his Response to the wife’s Initiating Application filed 27 February 2018 also sought final orders as to parenting and property adjustment.  As to property adjustment he, in summary, sought orders that the proceeds of sale of the property at K Street, Suburb L (“the Suburb L property”) be paid as to 70 per cent to the wife (such sum including any interim property payment to the wife) and 30 per cent to the husband.

7. On 7 March 2018 further orders were made (Nsair & Gyaw [2018] FamCA 303) on an ex parte basis including as follows:

   (2)Pursuant to r 14.04 of the Family Law Rules 2004 (Cth) the husband forthwith upon the service of this order on him permit the Applicant or her nominees, Mr F of G Lawyers (“the independent solicitor”), Mr H from J Locksmiths (“the safe expert”) and any law enforcement officer and security officer accompanying them to enter by any means necessary, the premises of B Pty Ltd at C Street, Suburb D NSW … including the basement and garage area of the premises to search and inspect the premises including the contents of any safe, vault or safe deposit boxes and thereafter to seize and remove any cash, gold or jewellery from the premises.

   (3)Forthwith upon service of these orders the husband provide to the independent solicitor all passwords or security codes and keys associated with the said vault(s) and safe(s) and security deposit boxes to enable the inspection of such items.

   (4)In the event the husband fails or refuses to provide access to open any safe, vault or safety deposit boxes, the safe expert is permitted to gain access to the safe and in the event that the safe expert is unable to do so at that time, then the independent solicitor is permitted to seize the safe, vault or safety deposit boxes from the premises and may engage a removalist to assist in the removal of such items.

   (5)The independent solicitor shall personally supervise and facilitate the execution of Orders 2 to 4 herein and in particular, shall:

   (a)attend at all times during the execution of the order at the business premises;

   (b)prepare a record of the execution of the order including a record of the items seized; and

   (c)maintain physical possession of the items seized pursuant to the orders pending further order of the Court and in the event of cash monies being seized, such funds are to be immediately deposited into the trust account of the wife’s solicitor;

   (6)The independent solicitor is restrained from releasing or allowing access to the seized items pending further order of the Court.

   (7)The Court requests that the Marshal of this Court and officers of the Federal Police and/or the New South Wales Police assist in the execution of these orders, including by accompanying the applicant or her nominee on the service and execution of the orders.

   (8)Leave is granted to either party or to any other person or entity affected by these orders to restore the matter to the list on giving 24 hours’ notice to the Court.

   (9)In the event that the Respondent husband fails or refuses to provide access to the premises at C Street, Suburb D NSW … including the basement and garage area of those premises, then the locksmith or safe expert and the independent solicitor is permitted to go and access such premises by such method as is reasonably available including forcefully gaining entry to such premises.

8. Pursuant to the above orders, the sum of about $40,000.00 in cash and some personalty was recovered from the husband’s premises.

9. On 19 March 2018 the wife filed an Amended Application in a Case seeking, in summary, relevantly the following orders:

   a)that the husband pay into the wife’s solicitors’ trust account the sum of $2 million to be held pending further order;

   b)that the husband pay to the wife by way of interim spouse maintenance $2,500.00 per week; and

   c)that the wife be appointed trustee for sale of the Suburb L property and the net proceeds of sale be paid as to $150,000.00 to the wife’s solicitors and the balance to be held in trust by the wife’s solicitors pending further order.

10. By consent, the wife was granted leave to commence property proceedings out of time on 20 March 2018.

11. Relevantly on 20 March 2018 further orders were made including as follows:

    (4)By consent and without admission and without prejudice to the Applicant wife or the Second Respondent, the Second Respondent [Mr O Gyaw] be and is hereby restrained by injunction from selling, transferring or further encumbering the property [P Street, Suburb M] NSW pending further order.

    (5)The costs of the Second Respondent today be reserved.

    …

    (9)The parties forthwith join in the sale of the property situated at [K Street, Suburb L] in the State of New South Wales being the whole of the land and all its improvements contained in Certificate of Title, Folio Identifier … (“the [Suburb L] Property”) on such terms and conditions as agreed between the parties and as failing agreement as ordered by the Court.

    (10)The parties have liberty to apply in relation to Order 9 on short notice.

    (11)The wife shall retain the … watch as held by [Mr F] the “Independent solicitor”.

    (12)The husband shall retain the … necklace and bracelet as held by the Independent solicitor.

    (13)The Independent solicitor will retain receipts and a money box until further agreement between the parties.

    (14)By consent, from monies presently retained by the wife’s solicitors in their trust account as a consequence of orders made on 7 March 2018, the wife be entitled to receive from those funds the sum of $5,000.00 to be paid to the wife or as she may otherwise direct in writing.

    (15)The Applicant wife file and serve an outline of written submissions in support of the orders sought by her in the context of the present interim applications by no later than Friday, 6 April 2018.

    (16)The Respondent husband file and serve written submissions in support of orders sought by him in the context of the interim applications by no later than Friday, 20 April 2018.

    (17)The wife file and serve any short submissions in reply by no later than Friday, 27 April 2018.

12. On 27 April 2018 an order was made as follows:

    That the time provided for the parties submissions as to the issues of interim spousal maintenance and interim property as provided for in Orders (16) and (17) made on 20 March 2018 be varied in that the respondent husband file submissions by no later than Friday 4 May 2018 and the wife file any further submission in reply by no later than 11 May 2018.

13. On 6 April 2018 the wife filed an Amended Initiating Application that, in summary, sought the following property orders:

    a)that the proceeds of sale of the Suburb L property be paid to the wife;

    b)that the husband do all things necessary to cause Gyaw Pty Ltd to sell the property at C Street, Suburb D and after sale costs and repayment of any monies owing to Mr Q Gyaw the balance then remaining be paid to the wife and from such funds she shall discharge the mortgage secured over the property at P Street, Suburb M (“the Suburb M property”);

    c)a declaration that the second respondent Mr O Gyaw holds the Suburb M property in trust for the husband and wife; and

    d)that the second respondent do all things necessary and all necessary documents to transfer the Suburb M property to the wife.

Context

1. The wife is aged 34 and the husband is aged 41.

2. The parties married in 2003 and initially separated in November 2011.

3. There are four children of the marriage aged 13, 12, eight and three. All primarily reside with the wife. The husband has spent no time with the children since October 2017.

4. The parties were divorced in August 2014 but the relationship continued with the youngest child born to the parties in 2015.

5. The wife does not work. She is engaged in the care of the children. She presently resides with the children in her parents’ home.

6. The wife relied on:

   a)her Financial Statement filed 16 March 2018; and

   b)her Affidavit filed 16 March 2018.

7. The husband relied on:

   a)his Financial Statement filed 27 February 2018; and

   b)his affidavit filed 27 February 2018.

8. The wife asserts that the parties separated for a short period in September 2011 but reconciled in January 2012 with final separation occurring in October 2017.

9. In 2005 the husband and his brother Mr Q commenced to trade in partnership as “B Pty Ltd”. The husband, otherwise, had some part time work.

Purchase of Suburb M

1. The first matrimonial home (the Suburb M property) was purchased in 2009 for $286,000.00. The parties provided funds towards the purchase and the balance was secured by a mortgage advance of about $239,000.00. As at May 2017 the wife says there was a mortgage of about $100,000.00 still owing on the property.

2. The Suburb M property was renovated over a period of years at, says the husband, considerable expense. Over the same period the wife was undertaking the primary care of the children.

The Suburb D units

1. In October 2013 the husband and his brother Mr Q incorporated Gyaw Pty Ltd (Exh “G”) (“the company”) as equal shareholders. The husband was the only Director and in 2013 set up the Gyaw Family Trust (“the Trust”) with the company as Trustee. In December 2013 the Trust purchased the properties at C Street, Suburb D for $553,000.00, the purchase price was funded in part by a mortgage advance of about $400,000.00. The husband says that the balance of funds came from the company and a $70,000.00 loan from Mr R.

2. The premises were used by the husband’s business. The properties are reflected in the 2016 financial statements for the Trust (Exh “H”).

Purchase of Suburb L

1. In May 2017 the parties purchased the Suburb L property for $1.31 million. The husband, it is asserted by the wife, represented to the NAB, the incoming mortgagee, that part of the purchase price was funded by way of a gift from his father Mr S Gyaw of $390,000.00 (Exh “K”). The husband, otherwise, asserted that further funds of $98,000.00 came from the company and a borrowing of $33,000.00 from his friend Mr T (“Mr T”) with a mortgage for the balance.

2. He further asserts that at this time, inconsistently with the terms of Exhibit “K”, he borrowed funds totalling $391,450.00 from Mr R pursuant to a documented loan agreement to complete the purchase of the Suburb L property with the advanced funds being paid as to $230,000.00 direct to his solicitors and $161,450.00 in cash to his joint account with his brother. The cash deposit is evidenced by Exhibit “L”.

3. At this time deposits to the joint Commonwealth Bank of Australia (“CBA”) account …88 operated by the husband and his brother, Mr Q, inexplicably totalled about $677,000.00 with subsequent withdrawals of $161,453.00, $230,000.00 and $285,015.00. 

Sale of Suburb D unit

1. The husband says that in May 2017 he caused the company to sell the factory unit at C Street, Suburb D for $530,000.00. Exhibit “L” evidences deposited funds totalling about $517,000.00 that it may be inferred are the proceeds of sale less selling costs. These funds were dissipated in two withdrawals within a few days.

2. The husband says he repaid Mr R $230,000.00 and paid $285,000.00 into an “offset account” from which mortgage payments for the Suburb L property were then deducted at the rate of $1,000.00 per week. Later $282,553.00 was paid into the company account on 26 July 2017 (Exh “P”) but the source of such funds is not clear. Funds were then drawn from the account, mostly by lump sum withdrawals so that by October only about $11,000.00 remained. The husband asserts that he paid Mr R $70,000.00. No lump sum evidencing that payment is evident (Exh “P”)

3. The husband’s brother Mr Q Gyaw was declared bankrupt on 31 August 2017 (Exh “N”).

Sale of U Street, Suburb V

1. The wife asserts that a further property at D6/101 U Street, Suburb V (Folio ID …) was sold by the company in July/August 2017 for $560,000.00 (Exhs “B” and “M”).  This property was not, it appears, a Trust asset but owned by the company as a corporate asset. The sale transfer was signed by the husband as Director of the company. The disposition of the sale funds are not known to the wife but the sum of $282,553.00 was paid into the company account on 26 July 2017.

Sale of Suburb M

1. In October 2017 the parties sold the Suburb M property, being the former matrimonial home, to the husband’s brother for an expressed consideration of $720,000.00. The purchase was funded by way of the incoming Westpac mortgage of about $575,000.00 and $146,000.00 paid in cash to the husband by his brother in October 2017.

2. After discharge of the mortgage of $153,699.00 the balance of funds of $566,300.00 was paid on settlement (Exh “C”). 

3. Funds from Westpac (the husband’s brother’s mortgage lender) of $420,172.00 were deposited to the husband’s CBA Account (…43) on 9 October 2017 (Exh “O”), bringing the balance of the account to $420,396.00. Subsequently, various deposits were paid into this account over a period of 15 days bringing the balance of the account to $616,132 as at 24 October 2017.

1. The whereabouts of the cash funds allegedly paid by the husband’s brother are not readily identified as on 24 October 2017 the husband commenced making various lump sum withdrawals from the CBA account leaving a balance of only $26,778.00 by 9 January 2018 (Exh “O”). 

2. The husband asserts that he applied the funds as follows:

   ·$223,099.00 to his business partner;

   ·$161,438.00 to Mr R;

   ·$33,000.00 to Mr T; and

   ·$20,637.00 for a religious divorce.

3. The balance of the $566,300.00 being $161,093.00 based on the husband’s evidence, was utilised by him in cash including, he says, paying $80,000.00 for kitchen renovations to the Suburb M property now allegedly owned by his brother. There remains about $121,000.00 unaccounted for.

4. The wife has no knowledge as to whether any payment for the property was, in fact, made. The husband’s brother has occupied this property since May 2017. The husband’s brother has been joined in these proceedings with the wife seeking that the transfer of Suburb M to him be set aside. The brother is at present restrained from dealing with the property.

5. The wife asserts that deposits totalling $516,199.00 to the husband’s bank account were, in fact, proceeds from the sale of the Suburb D property (C Street, Suburb D).

6. At the time of separation in October 2017 the husband was excluded from the home by the wife. She then vacated the property and moved with the children to her mother’s home. The home has remained vacant since that time with no mortgage payments being made.

The Pool

1. The wife says that the “matrimonial pool” of assets comprises:

   1.        The Suburb L property  $ 1,400,000.00E

   2.        Gyaw Family Trust

   (Gyaw Pty Ltd as trustee)

   incl. property C Street, Suburb D  $     500,000.00E

   3.        Husband’s interest in B Pty Ltd  $500,000.00E

   4.        Funds unaccounted for by the husband  $ 1,205,000.00

   5.        Proceeds sale of C Street, Suburb D  $     516,199.00

   6.        Proceeds of sale of Suburb M  $     680,000.00

   7.        Husband’s funds at bank  $            NK

   8.        Funds in her solicitors trust account  $      40,285.00

   9.        Personalty held by the Independent Solicitor          $        1,500.00E

   Liabilities:

   NAB Home Loan …53  $     399,454.00

   NAB Home Loan …47  $     446,415.00

   GE Finance Debt (Wife)  $        7,000.00

   Flexi Rent Debt (Wife)  $        2,000.00

2. There is, on the evidence thus far, significant factual issues that will have to await final trial.

3. The wife’s interim application ultimately, following submissions, was that payment be made to her of $150,000.00 by way of interim property and/or provision of costs, that she receive periodic spouse maintenance, that the husband’s application to discharge the order preventing his overseas travel be dismissed and that a single expert be appointed to value the husband’s business. 

4. The wife seeks to apply those capital funds to the purchase of a car for herself and the children, legal costs and school fees together with her living expenses as required. The provision to her is by way of interim property provision. The characterisation of the payment will be a matter for the trial judge.

5. The husband ultimately sought interim orders, in summary, that the wife receive $150,000.00 from the sale of the Suburb L property, that there be no spouse maintenance, that he be permitted to travel overseas on payment of a $50,000.00 security deposit and that there be no order for a single expert valuer.

Interim property

1. The principles as to applications for interim property provision are well settled, (Strahan & Strahan [2009] FamCAFC 166) and require a two-step process.

2. In Strahan (supra), the Full Court said:

   132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

3. Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.

4. Secondly, the Court is to have regard to relevant matters in s 79 of the Family Law Act 1975 (Cth) (“the Act”). It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so.

5. A detailed inquiry is not required, but there must be some assessment of s 79 factors.

6. In Strahan the Full Court went on to say:

   137. Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.

   138. The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final hearing.

   139. We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.

   140. As to the other matters being a position of relative financial strength on the part of the respondent to an application and the capacity of the respondent to meet his or her own litigation costs, there is no doubt that the financial circumstances of both parties are relevant at the substantive stage and may also be relevant at the procedural stage. Senior counsel for the Wife submitted that all of the matters discussed by the Full Court in Zschokke are self-evident and we accept that this is so in relation to at least two of the matters being the need for funds and the financial circumstances of both parties.

   141. As to the various matters discussed by Brereton J in Paris King Investments which we have discussed above, we do not propose to deal with all of what his Honour said, however we make the following observations about some of the matters. Obviously the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. Further, in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s “likely costs of the litigation” given that the need for funds to defray litigation costs and expenses is the circumstance propounded as to why it is appropriate that an order be made. We also accept that “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.

7. It is important to have regard to an overall caution. In Harris & Harris (1993) FLC 92-378, the Full Court said:

   As a generality, the interests of the parties and the Court are better served by there being one final hearing of s 79 proceedings.

8. In Strahan (supra), the Full Court said at [132]:

   … regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

9. It is now well settled that in property cases the Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then determine whether it is just and equitable to make a property settlement order.  Such a consideration should not be guided by an assumption that the parties’ rights to, or interests in, property are, or should be, different from those that then exist. The question is whether those rights and interests should be altered.

10. Yet in this matter both parties seek final adjustive orders as to property.

11. The financial history of this matter has, as best can be determined on the evidence, been discussed above. The wife has a strong contribution based entitlement and significant s 75(2) factors that weigh in her favour. The husband seeks that she receive 70 per cent of the proceeds of sale of the Suburb L property.

12. The equity in the Suburb L property appears to be about $600,000.00. The wife seeks a distribution of $150,000.00 to her, being only 25 per cent of the estimated equity, with the balance retained in trust pending the outcome of final hearing especially in the circumstances where the husband’s financial dealing are subject to some circumspection.

13. The husband is in a relatively strong position financially compared to that of the wife and she is in need of funds for legal expenses and other expenses as referred to above.

14. The wife is to receive an interim distribution of $5,000.00 and there will be about $35,000.00 left in her solicitor’s trust account that can be paid to her forthwith. She should receive a further $110,000.00 from the sale proceeds of the Suburb L property.

15. The husband does not oppose such a distribution to the wife with its characterisation reserved to final trial. It is proper that there be an interim distribution to the wife and that the characterisation of the same be reserved to final trial.

Spousal maintenance

1. Section 72 of the Act sets out the relevant provisions in relation to the right to spouse maintenance. The Court can make such order as it considers proper (s 74).

2. Section 72 provides that 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 a 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) of the Act.

3. In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said:

   As Nygh J said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order. Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.

4. There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle (see Bevan & Bevan (1995) FLC 92-600).

5. The relevant matters in s 75(2) need to be considered.

6. The wife is aged 34 and the husband is aged 41. Neither party asserts ill health

7. There are four children aged 13, 12, eight and three. All primarily reside with the wife. The husband has spent no time with the children since October 2017.

8. The wife does not work. She is engaged in the care of the children. She presently resides with the children in her parents’ home.

9. The husband controls the matrimonial income through his company and provides no financial disclosure as to the same. He has had significant funds pass through his hands that remain on the assertion of the wife unaccounted for or inappropriately applied.  He is in a superior financial position to that of the wife who relies mostly on government benefits and some child support.

10. The wife proposes to remain the primary carer of the children with the youngest not yet at school. Her working capacity, if any, is of little relevance.

11. The wife is unable to support herself adequately by reason of her care of the children, lack of employment skills and little opportunity to obtain work.

12. She asserts that her reasonable expenses are about $726.00 per week whilst living with her parents. She originally sought an order for $2,500.00 spousal maintenance per week but in submissions seeks only $1,500.00 per week on the basis that she should be able to enjoy a “higher standard of living” than she does at present.

13. The husband’s capacity to pay is clouded by his lack of financial disclosure particularly as to taxation returns for himself and financial statements for the entities in which he has an interest.  He has not set out his reasonable expenses other than what he asserts are fixed expenses. Exhibit “J” evidences a representation to a financial institution that his income is $174,000.00 per annum.

14. His own evidence is that he retains “cash money” from the sale of the Suburb M property of about $121,000.00. Otherwise, it is asserted by the wife that considerable funds have been received by the husband and not accounted for or misapplied.

15. In Maroney & Maroney [2009] FamCAFC 45 Coleman J said:

    [56] … The “capacity” to meet an order for interim spousal maintenance is not confined to income. Once a party, such as the wife in this case, establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.

16. Otherwise, the wife will have a not inconsiderable capital sum available to her. 

17. On the evidence as it is the husband has the capacity to meet a periodic order for interim spousal maintenance.

18. Doing the best on the evidence available it is proper that an order be made for the husband to pay by way of interim spouse maintenance in the sum of $500.00 per week.  An order will be made accordingly.

The husband’s travel

1. On 12 February 2018 the Court made orders on an ex parte basis restraining the husband from leaving or attempting to leave the Commonwealth of Australia pending further order. The orders were made under s 114 of the Act for the preservation of property in the context of the large sums of money passing through the husband’s hands which the wife asserts are unaccounted for.

2. The husband seeks that the restraint be removed so that he can attend upon his elderly father.

3. Should the husband depart overseas that would frustrate the agreed sale of the Suburb L property as he will not be present to sign necessary documents so as to progress the sale.

4. On the basis that he provides to the wife a general power of attorney to act on his behalf in relation to the sale so as to implement the consent orders for sale and leaves a security deposit of $50,000.00, as he proposes, but with the wife’s solicitors to ensure his return as soon as practicable the restraint should be lifted.

5. Orders will be made accordingly.

Single expert

1. The wife seeks an order that there be an “independent valuer” appointed to value the husband’s business interests in B Pty Ltd Industrial.

2. No particular expert is sought to be appointed nor are any experts or their qualifications and fee information put before the Court. The issue is one for a Registrar in preparing the matter for a Conciliation Conference in due course. Funds from the sale of the Suburb L property will be available to meet the costs of any expert appointed. 

3. Orders will be made accordingly.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 8 June 2018.

Associate: 

Date:  8 June 2018