Panders and Panders

[2011] FamCA 579

FAMILY COURT OF AUSTRALIA

PANDERS & PANDERS [2011] FamCA 579

FAMILY LAW – SPOUSAL MAINTENANCE - Interim
FAMILY LAW – CHILD SUPPORT – Departure

Child Support (Assessment) Act 1989 (Cth) Sections 116; 117
Family Law Act 1975 (Cth) Section 72.

APPLICANT: Ms Panders

RESPONDENT: Mr Panders

FILE NUMBER: SYC 4936 of 2010

DATE DELIVERED: 20 April 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 20 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Andrew Torok

Orders

1. That by way of spousal maintenance pursuant to section 72 of the Family Law Act 1975, the husband pay or cause to be paid to the wife the sum of $600 per week, the first payment to be made within seven (7) days from the date of this Order and there after weekly in advance by way of direct deposit into the Westpac …Account number … or such other account as may be nominated by the wife in writing from time to time.

1. That in addition to Order 2 herein, the husband pay or cause to be paid by way of spousal maintenance pursuant to section 72 of the Family Law Act 1975, on or before the date upon which those expenses fall due for payment (with such payments to be made directly to the issuer of such accounts or to the wife, as the wife may direct), the following:-

2.1In respect of the property situate at and known as B Street, Suburb C in the State of New South Wales (“the Suburb C property”):-

2.1.1All mortgage and other loan repayments in respect of all debts, liabilities and encumbrances secured over the Suburb C property as and when they fall due;

2.1.2All water rates, council rates and all other outgoings, including the electricity, gas, water, home landline telephone, Foxtel pay television service and broadband internet services;

2.1.3All insurances being:-

a)Home building insurance for the Suburb C property to its current market value at the time of effecting or renewing such insurance;

b)Contents insurance for the contents of the Suburb C property to an amount equivalent to the replacement value of same at the time of effecting or renewing such insurance;

2.2In respect of the 4WD motor vehicle registration number … (“the 4WD motor vehicle”):

2.2.1All repayments of any finance, lease payment or other debt or liability secured over or relating to the 4WD motor vehicle;

2.2.2All insurances including compulsory third party insurance and non-compulsory comprehensive property insurance, registration, maintenance and repairs of the 4WD motor vehicle.

2.3Private health insurance for the Wife and the children with CBHS at no lower than the level of private hospital and out of hospital insurance as was in place as at 1 January 2011.

1. That pending further order, the husband pay to the wife by way of child support for the children D born … 1995 and E born … 1997 (“the children”) the sum of $800 per week being the sum of $400 per child per week to be paid to the wife and as follows:

3.1Calculated as and from the date of these orders;

3.2First such payment to be made within 7 days of the date of these orders;

3.3Payments thereafter to be made by no later than the 7^th day of each calendar month;

3.4Payments are in advance monthly;

3.5Which amount is to be varied on and from 1 July in each year commencing 2012 in accordance with the variation in the Consumer Price Index (Sydney) as it stands on 30 June immediately preceding the date of variation as compared with the same index at the same date 12 months prior to that date.

1. That in addition to the period child support pursuant to Order 3 of these Orders, the husband pay or cause to be paid;

4.1within 14 days of receipt of account or invoices from a school attended by the children or either of them all school fees levied by such schools as from time to time they may attend;

4.2any medical, dental, orthodontic, hospital, optical, physiotherapy, podiatry, or other medical specialist fees or expenses in respect of the children which are not covered by Medicare and/or the children’s private health insurance policy.

1. That, by consent, the wife be granted sole and exclusive occupation of the Suburb C property, and the husband shall not enter upon the Suburb C property without the consent of the wife first being obtained, or further order of the Court.

1. That the wife be granted sole and exclusive use of the 4WD motor vehicle registration number ….

1. That the document entitled “Wife’s Proposed Minute of Order” is marked “Exhibit A” as attached hereto.

1. That, pending further order, Orders are made in accordance with paragraphs 1, 2, 3 and 4 of Exhibit A unless the parties agree to the contrary in writing.

1. That leave is granted to the parties to restore the proceedings to the list as soon as practicable in respect of the form of these orders.

Notation:

A.That for the purposes of Order 8 the husband does not consent to those orders and it is the husband’s contention that there is no step necessary for him to take to facilitate compliance with those orders.

IT IS NOTED that publication of this judgment under the pseudonym Panders & Panders is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4936 of 2010

Ms Panders

Applicant

And

Mr Panders

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interim financial orders.  The wife and husband are  42 and 48 although there seems to be some dispute about that.  The wife is engaged in home duties.  The husband, I understand, is employed as a professional.  He is engaged to marry Ms F.  She is due to deliver twins later this year.  The parties were married in 1990 and separated in March 2009 when the husband left the former matrimonial home.

2. The parties were divorced in about September 2010. They have two children, D born in 1995 and E who was born in 1997. They are 15 and 13 years of age. It is asserted that they have both been diagnosed with ADHD.  I understand that they attend G School.

3. When the matter was called on this morning I was told the issues between the parties were whether the husband paid 500 or 1000 dollars a week by way of interim spousal maintenance, and whether he paid outgoings other than the mortgage on the former matrimonial home. 

4. I was told that there was an agreement about interim costs, the wife being able to draw on a fund being a facility available, secured on the former matrimonial home up to $60,000. I was told that there is an administrative assessment of Child Support at $517 a week and that there is a dispute between the parties in relation to whether that assessment should be departed from to be $1000 a week.

5. The Initiating Application and the Response include a number of other issues. The other issues were not the subject of submissions before me.  One example would be exclusive occupation.

6. It may be I could infer that that’s a matter of agreement between the parties.  There is an order sought in relation to a motor vehicle.  It transpired in relation to the things that were said to be agreed that there was no agreement about the mechanism for the wife drawing on a home loan, but nevertheless no submissions were made as to how that could occur.  I have been provided with a minute of an order proposed on behalf of the wife and no submissions and nothing else in relation to the husband. 

7. We are now at five o’clock.  I was told on behalf of the wife that the matter was going to take 20 minutes. It took a lot longer than that, as often happens and here we are at the end of the day.  I have excused counsel for the wife from delivery of judgment.  The parties are here as are their solicitors.  So I will do my best with what I have. 

8. This is an interlocutory case.  The Court is permitted a level of flexibility in interim cases and just as well. 

9. In addition to the formal documents I have an additional minute whereby the wife seeks that the husband be restrained from causing the mortgage secured on a property at Suburb H being increased and that he do all things necessary to ensure that his partner doesn’t increase that mortgage.  The problem with that application is that a third party would be affected by that order. I have not been told that she has any notice of the application. That is not a matter I would deal with until she has been served. The husband is a trustee in effect for matrimonial assets and $200,000 of matrimonial assets is said to have gone into this property where it forms part of an equity of less than $200,000.  As I indicated during the course of submissions, an order could be made that he be required to give notice in the event that an attempt was made or going to be made to reduce the equity of that property, and the court would normally look favourably on such an application, subject to the impact on a third party, undertakings as to damages in relation to that and whatever submissions were made.  That is a matter perhaps for another day.

10. Next, I was provided with a minute, after I had retired to consider the matter, which addressed an issue that had been dealt with in the course of submissions, and I was told there was an agreement about provision from the husband’s solicitor to the wife’s solicitor of evidence in relation to a payment of as tax liability in the sum of $75,000.  Unfortunately, the minute went on to deal with the enforcement of orders for disclosure or discovery that had been made by a registrar, and no submissions had been made in relation to those issues except in a general way.  I have returned that document on the basis that it did not reflect an agreement between the parties. I might be wrong about that and if there is an agreement I’m happy to make those orders, otherwise not.  That will be a matter for another day. 

11. There are already aspects of this case that stretch the friendship in terms of natural justice. It is submitted on the wife’s side that some of the issue arose out of documents to which she only had access relatively recently.  Mr Torok for the husband has done his best in various ways to accommodate the wife’s case today, but there is a limit to what can be done in terms of fairness even on an interim basis.  As to the conduct of the matter, there are two affidavits the size of the Sydney White Pages telephone books.  All of that material was relied on by the wife.  Again, Mr Torok sought to assist the Court by limiting the material which I read to that which joined issue on critical pieces of evidence.  I don’t think any harm has been done by that but it demonstrates the problems that face the Court in dealing with an application such as this. 

12. Some things are agreed.  I can make an order that within seven days the solicitor for the husband provide to the solicitor for the wife evidence of a payment by the husband of about $275,000 to the Australian Taxation Office between two dates.  I can make an order with the consent of the husband that he will until further order pay as and when they fall due mortgage instalments in respect of the former matrimonial home at Suburb C.  I can make an order in respect of the husband paying the school fees for the boys.  The issue was raised about what that meant and I indicated to the parties, without complaint that fees claimed on invoice from the school would be an adequate definition.

13. Then I come to the form of orders sought on behalf of the wife.  Somebody has taken a few liberties with the definition and the order that I’m asked to make is:

    To each of the children’s school…

14. As I said I thought they went to the same school, but put that to one side.

    …within 14 days of receipt of accounts or invoices from the school, or from the wife, all school fees including but not limited to tuition fees, excursion fees, incidental sporting costs and the costs of all school books, school uniforms, extracurricular activities for each of the children in respect of their attendance at private school, boarding school, catholic or State school in Australia or abroad or such other school or schools as the wife may choose.

15. It is fair to say that those words go beyond any reasonable definition of school fees and seem to even extend into something about parental responsibility.  So again no submissions were made by either of the advocates in relation to that issue, and I will come back to the device that I referred to as far as the agreement goes and that is that the husband will pay on an invoice from the school attended by the children from time to time.  But obviously that must be a school that either the parents agree about or that the Court has identified.

16. That leaves spousal maintenance and child support. I can’t remember an occasion when I’ve made an order for interim child support departure on a contested application. No objection was taken to me undertaking that task today. The parties have agreed to non-agency payments in the form of school fees. The legislation generally excludes Courts from making decisions about child support but section 116 of the Child Support (Assessment) Act 1989 allows a Court to determine a child support departure application in circumstances where an assessment has issued and notwithstanding that the fact that internal and external review processes have not been undertaken or declined. The criteria are that there is a another case involving the payer and the payee before the court and it is satisfied that it would be in the interests of those parties that the Court exercise power in relation to the assessment. Here, sadly, there is no objection to me doing that. The parties fall outside the terms of the administrative scheme to the extent that the proper level of support for their children has not been limited to the formula result. The husband's income is many times, perhaps 20 times or more, greater than the cap income, that is the level at which the formula ceases to generate incremental liability increases. In that sense, if there is going to be a significant child support controversy, this is a matter that would likely come to a court. The problem with taking it on now is that it robs the parties of the flexibility of taking the matter back to the Child Support Registrar if there are minor issues about which they cannot reach an agreement. I have power to determine the issue; there is a provision in the legislation for an order pending further order and there is no objection to me doing it. On that basis I will do the best I can, although the legislation calls for findings about things that I cannot make findings about.

17. Turning first, then, to spousal maintenance, the dispute is about direct payments of outgoings and about the quantum of a cash payment.  The evidence is that the husband has something like $4000 per week spare after he meets his outgoings from the income he identifies in his Financial Statement.  Some of those outgoings are already contributing to the support of the wife.  The husband's case put on his behalf by his solicitor is, that is all very well, but times are changing. There are two foreshadowed consequences of the same event. The fact that the husband's fiancée is to give birth to their children in August means that on a date that does not appear in the evidence, she will cease paid employment. The husband says in his Financial Statement that her income is $2200 gross a week. The second consequence is the fact of expenses for the support of those children when they are born. I accept the validity of those matters, although in relation to the necessary expenses for the children, that is yet some time off. The parties have a Conciliation Conference in July 2011.  These are interim proceedings.  There is no evidence, of course, about those expenses now. They are not something that I can take into account in any meaningful way. As those expenses are incurred and evidenced it may well be that the husband can satisfy the wife about the disposition of at least part of the remainder of his income and that the parties will come to an agreement.  If not, the matter will have to come back to court. 

18. In relation to the loss of income of his partner, that issue is complicated by his evidence that she does not contribute to any of his expenses, and he does not contribute to her support. There is no evidence about what her support will involve. He currently pays all of the expenses related to the mortgage associated with their property at Suburb H. Therefore, although he says it is not so, he is already providing some support for his partner.  That being the husband's case, he has not met his obligations of disclosure. It transpires that his partner has an interest in real estate.  The argument will be that it is not the interest that the Westpac Bank identified, presumably on the basis of something said to them about an equity of about 500 and something thousand dollars in real estate in her hands, but her unresolved interest in property in the United Kingdom arising as a result of her relationship with somebody else. I gather that the financial consequences of the breakdown of that relationship have not been settled. There is no evidence about those proceedings, the stage they are at, the quantum of the interest or anything else. If the husband wants to rely on the need for his partner to be supported, then there is an obligation of disclosure.

19. In terms of the wife's evidence, she shows a substantial shortfall in her budget.  In fact, she has no income apart from the income that is provided from the husband.  So the question of what support she needs all arises in that regard.  The court is obliged to ignore any income tested benefits she receives, both in relation to the child support and spousal maintenance claims. The wife’s Financial Statement includes some double counting.  As I say, the court is permitted a broad brush approach on an interim basis.  That is because most problems can be addressed in the final property settlement. If the support is too great, there can be an argument in that regard in relation to contributions.  If the support is inadequate, then an adjustment can be made in relation to debts that have been incurred. Capital payments can be adjusted.

20. In a hearing on the papers I cannot make findings of fact on disputed issues of fact without evidence that supports one version of events or wholly supports another.  The evidence before me is largely made up of assertions by one party against representations made by the other. As to what the husband should pay, it is common ground that the husband provided a complete subsidy to the wife's household from the time of separation.  It is common ground that that support has been wound back of more recent times.  I was told something about why that had happened.  Some of the reasons had nothing to do with any assessment by the husband about what was proper.  The inference is available, of course, where that subsidy continued for a period, that he is seen to concede that the level of support was required.  Why would he provide the support if it was not necessary?  Why would he provide the support if it was not referable to the level or spending or the lifestyle enjoyed by the parties during the marriage? 

21. But that is not the end of the matter.  Spousal maintenance is a remedy available between parties, in this case to a marriage, whether the marriage is on foot or not. Where one party can establish that they cannot adequately support themselves from their own resources for any adequate reason, the other party can be called on to provide support to a reasonable extent.  In that regard, the wife has been out of paid employment, she says, since 1997. The husband is confident that the wife would be able to return to the employment that she had, I think, perhaps, as a legal secretary.  He says that he has provided support for her undertaking some courses.  The wife says she is not in a position to return to paid employment at this stage. 

1. These are interim proceedings.  There is nothing about the breakdown of a marriage that makes somebody better fitted for paid employment than he or she was during the marriage. It pleased the parties to have the wife out of paid employment from 1997 to 2009.  The fact of their separation does not make her more able to engage in paid employment, quite the contrary.  So as is often the case on an interim basis, the court would not, it seems to me, automatically assume that the wife is today going to be able to return to paid employment.  Just the fact of being out of the paid workforce can have an impact on capacity for paid employment. We do not live in times of full employment. There simply are not jobs for all of the people who have been out of the workforce. So it seems to me, for the purposes of today, one would accept the position that the wife has no income for an adequate reason.   

2. As to her needs, as I say, there is an issue about double counting, and it really depends on what approach is taken in respect of direct payments of outgoings.  The wife asks that the husband pay the mortgage payments, and that is agreed.  She asks for water and council rates and all other outgoings, including, but not limited to, electricity, gas, water, home landline telephone, Foxtel pay television service, broadband internet services and maintenance costs to maintain the Suburb C property in good order and condition.  She seeks all insurances; home insurance for the property to its current market value and contents insurance on a replacement basis.  In relation to the motor vehicle, she seeks any finance or lease payments or secure debts;  insurances, including compulsory third party insurance, non-compulsory third party insurance;  registration, maintenance and repairs.  She does not seek petrol, which is a significant cost.  And she seeks private health insurance for herself and the children. 

3. Minds would differ about this.  What I have done is, excluding maintenance costs, decided to make provision for the rates and the other outgoings nominated, electricity, gas, water, a land line telephone, Foxtel and broadband internet services, but not maintenance costs, the insurances for the property, any lease payments for the 4WD motor vehicle, insurances and registration, maintenance and repairs for the vehicle and the private health insurance.  Now, going to the wife's table of expenses, her expenses are $4051 including $2364 in living expenses.  Of those, only $773 relate to her, and she has fixed expenses.  Some of them are a doubling up, or most of them are a doubling up.  In fact, all of them are a doubling up of the items that I have already mentioned, except for the wife's payments on an insurance policy she owns over the life of the husband.

4. This is a case where, as Mr Campton says, the husband's income earning capacity is probably the most valuable asset of the marriage, so it is understandable why that would be a proper provision for the short term.  As to the $773, reference was made to some of the wife's expenses, such as gardening and cleaning.  For the purposes of my arithmetic, I have deleted any provision for gardening, any provision for cleaning and deleted any provision for clothing and shoes.  Now, that last step is not realistic, but just for the sake of the argument, I have done that.  Lest it be raised, the wife spends $130 a week on her own food.  The husband spends more on his own food, so there can be no complaint about that. Omitting those expenses reduces $773 to about $563.  Then there are the items that are doubled up, and they are gas, electricity, telephone, motor vehicle maintenance and internet and Foxtel. 

5. The way the form has been drawn, they are not disaggregated between the wife and the children in detail. There is nothing about the other expenses by way of category or nature.  The house repairs are a bit steep, but the husband has very significant house repairs on the property he purchased, so one takes those things into account.

6. I acknowledge that those calculations are somewhat artificial, for example in relation to clothing and shoes. I am satisfied that the wife evidences legitimate categories and quantum of expenses in excess of $600 a week. I propose to order that in addition to the things that I have identified, the husband pay $600 a week.

7. Turning then to child support, once you get over the jurisdictional hurdle, the Court must find that in the special circumstances of this case there is a ground under section 117(2) and then that it will be just and equitable (dealing with the issues between the parties) for there to be a departure and then that it would be otherwise proper for there to be a departure (dealing with the issues between the parties and the taxpayer).

8. As to grounds, there was brief discussion about this. Mr Torok for the husband thought that the case his client came to meet was on the basis that the children had special needs.  As I said to him, the husband has notice of the level of his own income.  s 117(2)(c) provides a ground where in the special circumstances of the case application in relation to the child for the provision of the Act in relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income earning capacity, property and financial resources of the child, because of the income, property and financial resources of either parent, because of the earning capacity of either parent.  That ground is established even if there is no special issue in relation to the children’s needs.

9. Turning to whether it would be just and equitable to depart. Section 117(4) of the Act says that the Court must have regard to the duties of a parent to maintain a child, the proper needs of a child, the income earning capacity, property, financial resources of the child, the income, property, financial resources of each parent who is a party to the proceedings, the earning capacity of each parent who is a party to the proceedings, the commitment of each parent who is a party to the proceedings that are necessary to enable the commitment to support himself or herself or any other person or other person or another person that that person has a duty to maintain, the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, any hardship that would be caused to the child or the carer by the refusal to make an order or to the liable parent or anybody else by the making or refusal to make an order and to the any resident child of the parent by refusal to make an order.

10. The husband’s income is in the high $900,000 per annum. He says that he is not sanguine about that in the future, as he approaches retirement. The only way is down for people in his trade.  I accept that, but I am making decisions about the circumstances as they apply today. There is a broad suggestion that the wife’s claims are exaggerated because with the expenses she says she is no longer paying the subsidy for her household by the husband must have been over $240,000.

11. This is a demeaning process. I am going through the household expenses of two people who are obviously highly intelligent and have managed their affairs without any judicial officers helping them with what they should spend on groceries up until now. Having said that, I don’t have much choice in doing it, and I must say in my own defence, I sought earlier today to see whether there might not be some practical solution to the matter.  I make no criticism at all of Mr Torok in that regard.  His client is entitled to have the matter determined by me, but as I say, it’s a demeaning process. 

12. As to the expenses claimed for the children - there is little criticism of the categories of expense for the children. Again there are certain fixed expenses and the parties aren’t agreed about those things.  It seems to me that of the things that the wife seeks I can make the order that I have referred to by consent, that is school fees being paid by the husband.  I am not going to make an order beyond that.  There were no significant submissions about it.  So, that leaves to the wife things that aren’t invoiced by the school that are related to their expenses.

13. To be bloody-minded about it, if the parents can’t, without embarrassing the children, keep them at their school, then they should take them out.  The child support legislation has a central tenet that children share in the financial circumstances of their parents.  That means they shouldn’t be embarrassed by a shortage of funds in one particular household.  That means they should be educated at a school to which the parents can afford to send them. The parties need to be careful to ensure that their antipathy to each other is made apparent to the boys arising out of something to do with school expenses, not having proper uniforms or whatever. In addition to school fees the wife seeks that the husband pay other expenses. I will make an order in relation to medical and so on expenses not covered by the private health insurance.

14. Then coming to the wife’s claimed recurrent child support, she says she spends a total of $1591 a week on the children, $160 of that is education expenses including fees and levies. I will ignore that. She wants to spend $180 a week on children’s activities. For the purposes of my calculation I will ignore that expense. Again, that is not realistic. She claims $100 per week for clothing and shoes.  I will ignore that and, again, that is not realistic.  She spends $425 a week on food.  I will reduce that by $100, just for the sake of the argument.  Those deductions remove $540 from the claimed amount bringing it back to about $1000. Then in the things that I think are double counted, there are medical expenses and there are, again, the Foxtel and internet expenses that I have directly ordered somewhere else.  That reduces the wife’s claimed expenditure to about $820. That is not a realistic figure because it is legitimate that there be children’s activities and it is legitimate that clothing and shoes are bought for the children.  However, each of the parties have responsibilities to share the expense of the children.

15. It seems to me that I need to be conservative about making an order where, unlike spousal maintenance, except for this case, it is rare that a court is asked to deal with child support on an interim basis. I do not have the flexibility of the Child Support Agency. The Registrar can make decisions without evidence. The Registrar can make inquiries without explaining them to the parties. There are not the obligations that apply to a Court. Having said that, it seems to me even on that very conservative basis, the expenses for the children, avoiding the double counting relating to the direct payments, would justify a departure to a liability of $800 a week - $400 per child.

16. As to the matters that haven’t been addressed in submissions, I will chance my arm in relation to some of them.

17. Because I was told the contested issues were the ones I identified above, I can assume then that it is not contested that the wife will retain exclusive occupation of the home and exclusive use of the 4WD motor vehicle.  I was told that the interim costs matter was resolved.

18. A self-enforcing order was sought by the wife in respect of the Suburb H property, to secure the husband’s financial obligations. She sought that it be sold and the equity be paid to the wife to enforce all of those obligations.  I am not going to make that order.  Now, it may be that when I was told that the only issues remaining were the ones that I was told about, that meant that this has been agreed.  I would be stunned if it was. There was no indication from Mr Torok that there was such an agreement. I am not going to make that order.

19. The wife seeks liberty to bring the matter back on interim costs.  She doesn’t need liberty.  Then the wife seeks an order about giving necessary consents and a 106A order, which are quite appropriate.

20. Because of the way the matter has been run, the time of day it is and the fact that counsel for the wife is not here, if the parties feel that an order I have made either doesn’t reflect the reasons I have given or is something that tramples on an agreement that the parties have come to or doesn’t make sense and could be expressed in a better way then, of course, they can bring the matter back before me by arrangement with my associate to remedy that situation.

21. There is a reference to the husband being responsible for income tax payments. The husband in turn says that the wife is not cooperating in the mechanism by which there were tax advantages in an income splitting arrangement. There is no opportunity to take submissions about such an order now but I would be willing to make an order subject to what the parties would say, in the terms sought by the wife that is that the husband will be responsible for the tax. However there could then be a reciprocal order that the wife not unreasonably withhold her consent or signature in relation to any mechanism associated with that income.  That is just something for the parties to think about. I will not make an order about that today.

22. Then there is an issue about interim costs. As I understand it, the wife wants to be limited to apply those funds to the purposes only of legal fees whereas the husband would be willing for her to use the funds for other purposes. How do I address that? It may be that the wife wants to ensure that the capital fund is not reduced to address her own living expenses.  That might be something that the parties would agree about. What I will do is make the orders as sought by the wife but add a provision “unless the parties agree to the contrary in writing” which would enable the wife to say to the husband, yes, all right, I might use $5000 or some other amount for a purpose other than legal fees.  The document titled “Wife’s proposed minute of order” is exhibit A.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 20 April 2011.

Associate:     

Date:              25 July 2011