Parsons & Parsons
[2023] FedCFamC1F 382
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Parsons & Parsons [2023] FedCFamC1F 382
File number(s): SYC 2144 of 2023 Judgment of: SCHONELL J Date of judgment: 16 May 2023 Catchwords: FAMILY LAW – FINANCIAL – Interim orders – Spousal maintenance – Where the wife sought for the husband to pay her interim spousal maintenance and for the husband to make payments for the mortgage and various utilities – Where the husband sought to dismiss the wife’s application – Where the wife has the full time care of the parties’ three children and has reduced her work hours – Where the husband submitted that he does not have capacity to make the payments sought by the wife – Where the Court finds that the husband does not have capacity to make the mortgage repayments – Orders made for the husband to pay spousal maintenance as well as for the utilities. Legislation: Family Law Act 1975 (Cth) ss 72, 75
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Atwill and Atwill (1981) FLC 91-107; [1981] FamCA 72
Bevan & Bevan (1995) 92-600; [1993] FamCA 95
Briese and Briese (1986) FLC 91-713; [1985] FamCA 23
Kannis & Kannis [2002] FamCA 1150
Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32
Oriolo & Oriolo (1985) FLC 91-653; [1985] FamCA 54
Redman and Redman (1987) FLC 91-805; [1987] FamCA 2
Rowan and Rowan (1977) FLC 90-310
St John v St John (1979) 6 Fam LN N14
Stacy and Stacy (1977) FLC 90-324
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Wilson and Wilson (1989) FLC 92-033; [1989] FamCA 34
Division: Division 1 First Instance Number of paragraphs: 70 Date of hearing: 11 May 2023 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: Horton Rhodes Legal Counsel for the Respondent: Mr Macpherson Solicitor for the Respondent: Bridges Lawyers ORDERS
SYC 2144 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PARSONS
Applicant
AND: MR PARSONS
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
16 MAY 2023
THE COURT ORDERS THAT:
1.The respondent husband (“the husband”) pay to the applicant wife (“the wife”) the sum of $1,334.65 per week with the first payment to be made within 24 hours of these orders and each seven (7) days thereafter to a bank account nominated by the wife.
2.The husband pay the electricity, council rates, water charges and insurances for the property at B Street, Suburb C as and when they fall due.
3.All interim applications for financial orders and disclosure are dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parsons & Parsons has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings brought by the applicant wife (“the wife”) where she seeks that the respondent husband (“the husband”) pay her interim spousal maintenance, make payments in relation to various mortgages secured over the former matrimonial home and make payment of utilities. In addition, she seeks two lump sum payments and orders as to disclosure. The husband seeks a dismissal of the wife’s application and orders by way of disclosure.
The wife relied upon the following documents:
(1)Initiating Application filed 28 March 2023;
(2)Affidavit of wife filed 28 March 2023;
(3)Financial Statement filed 28 March 2023;
(4)Case Outline document; and
(5)A tender bundle of documents.
The husband for his part relied upon the following documents:
(1)Response to Initiating Application filed 14 April 2023;
(2)Affidavit of husband filed 14 April 2023;
(3)Financial Statement filed 14 April 2023;
(4)Genuine Steps document filed 14 April 2023;
(5)Notice of Child Abuse, Family Violence of Risk filed 14 April 2023;
(6)Section 60I Certificate filed 14 April 2023;
(7)Case Outline document; and
(8)A tender bundle of documents.
As is too often the case in both interlocutory and final applications the parties expect the Court to have regard to hundreds of pages of documents contained in tender bundles in circumstances where but a few are ultimately relied upon at the hearing. This application is a salutary example. The wife’s tender bundle ran to some 257 page of which the Court was taken to two pages. In the case of the husband it ran to 283 pages and not a single document was referred to in submissions.
The wife seeks interim orders as recorded in her Initiating Application as follows:
2. That pursuant to Section 74 of the Family Law Act 1975 (Cth), the Husband do all things necessary to:
2 .1 Pay to the Wife the sum of $1,334.65 per week with the first payment to be made within 24 hours of these Orders and each 7 days thereafter to a bank account nominated by the Wife;
2.2 Pay for the mortgage instalment payments for the following loans secured by mortgage to the National Australia Bank Limited (“NAB”) over the property at [B Street, Suburb C] in the State of New Sought Wales being the property comprised in Folio Identifier […] (“the [Suburb C] property”) owned by the parties as and when they fall due:
d. NAB loan number 1, BSB […], account number […56];
e. NAB loan number 2, BSB […] account number […49];
f. NAB loan number 3, BSB […] account number […65].
2.3 Pay for the electricity, Council rates and water charges and insurances for the property at [B Street, Suburb C] as and when the fall due.
3. That within 28 days the Husband pay to the Wife the sum of $50,000 with the nature of this payment to be characterised by the trial judge.
4. That within 28 days the Husband pay to the Wife’s mother [Ms D] the sum of $123,280 in satisfaction of the loan from the parties to the Wife’s mother for school fees between January 2019 and December 2022 and it is noted that the solicitor for the Wife’s mother sent the parties a letter of demand dated 10 March 2023.
5. That within 2 days the Husband provide to the Wife the documents and information requested by correspondence from the Wife’s lawyer to the Husband’s lawyer on 27 February 2023 and 3 March 2023.
The husband for his part sought the following interim orders as set out in his Response:
19. That the [wife’s] Orders 1 to 7 of her Initiating Application filed on 29 March 2023, be dismissed.
20. That the [wife] pay the [husband’s] costs of and incidental to these proceedings.
…
21. That the [wife] provide to the [husband’s] legal representatives within 14 days of the date on which Orders are made, the following documents:-
(a) For any trusts in which she has an interest as a beneficiary, class of beneficiary or appointor;
(b) A copy of the financial statements for the most recent three financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns; and
(c) A copy of the trust deed and any amending trust deed.
22. That the [wife] provide to the [husband’s] legal representatives within 14 days of the date on which Orders are made, the following documents:-
(a) A list of all bank accounts of which she is a signatory or authorised to operate including the BSB, account number, account name and address from 1 July 2011 to date; and
(b) Bank statements for the accounts referred to in sub-order (a) of this Order from 1 July 2022 to date.
BACKGROUND
Both the husband and the wife are currently 36 years of age. They commenced cohabitation in or about 2008, married in 2013 and separated on 18 September 2022.
There are three children of the marriage who are aged 8, 7 and 3 years. They are in the primary care of the wife and spend at present limited time with the husband.
During the course of the parties’ relationship they have purchased and sold a number of properties. It is not in dispute that the wife has been the recipient of sums of money from her family. The E Family Trust has provided her with funds to enable the purchase of various pieces of real estate in 2017, 2020 and 2022.
In 2022, the parties purchased the Suburb C property. Secured against the title is a mortgage to National Australia Bank of $3,100,000.
The husband says that the mortgage payments on the home are to soon increase. In that respect, he says:
48. …When the three loans were drawn down with the National Australia Bank, they were granted on the basis that there were two incomes coming into the household. Now there is only one income. I applied for a moratorium on the payments for a period of three months from February to May 2023 for this very reason. The then current payments were approximately $13,000 per month. Of the three loans, one for $1.45 million (account no [...65]) is currently fixed at an interest rate of 1.99% that will expire on 20 July 2023 and revert to an interest rate of 5.75%. As a result, from 20 July 2023, this means that the repayments on all three loans will come close to $20,000 per month. …
The wife during the course of the marriage has been the children’s primary carer and has been in various forms of employment. In her affidavit, the wife says:
19. The children exhibited symptoms of dysregulated behaviour upon [the husband] leaving on 18 September 2022 and upon his gradual re-emergence into their lives after 16 October 2022. All of the boys have become more emotionally dependent on me for affection and emotional reassurance, particularly reassurance that I will not leave them. [Z] has a negative emotional reaction and cries and screams when he is separated from me. The only other person apart from me that [Z] does not struggle with separating from is my mother.
…
21. [X] and [Y] have become increasingly emotionally reliant on me for daily comfort. On 20 March 2023, [F School] called me to collect [Y] from school as he claimed to be sick. I collected [Y] and as soon as we arrived home at [Suburb C] he appeared content. When I asked him if he was really sick, or feigning illness, he said to me “I just want to be with you Mummy” and he admitted that he falsely told his teacher that he was ill to enable him to spend the day at home with me.
22. [X] has regular nightmares and wakes up shaking and in sweats. He has told me that his nightmares centre around me abandoning him which is his biggest fear. [X] needs constant reassurance from me and regular affection from me to assure him that I will not leave him.
23. My daily weekday routine with the children is:
23.1. I wake the children at around 6:30am, prepare breakfast, prepare [X] and [Y]’s school lunch/snacks and get all of the children dressed and groomed;
23.2. I drive the children to [F School].
23.3. [Z] and I usually spend the morning baking, reading (I read to him and teach him letters and words), creating art or going to the park. On Fridays [Z] has a [sports] lesson at midday.
23.4. I collect [X] and [Y] with [Z].
23.5. After school I either take the children for a beach swim, supervise them swimming in our home pool, organise a park outing or ice-cream trip and or facilitate a play date with afternoon tea.
23.6. On Tuesdays and Thursdays between 3.30pm and 4.30pm, [Y] attends [G Centre]. On Wednesday, sometimes [X] has a [sports] lesson. The children’s current activities are restricted to the activities [the husband] has agreed to pay for.
23.7. I assist [X] and [Y] with their school homework and reading.
23.8. I prepared dinner and we all eat together.
23.9. I bathe the children and put them to bed, often by reading a story to each of them and soothing them to sleep.
…
25. Since [the husband] left the family, I have had to devote more my time to emotionally comforting the children and caring for them. This resulted in me reducing my work days from 4 days to 1 day per week and my annual salary reduced from $133,936 to $22,862.59 per annum. …
The husband for his part gives evidence that at the commencement of cohabitation he was working as a professional with a government agency. In 2012, he took a position as a senior consultant with H Company. He became an equity partner in 2022. In that respect, the husband says the following in his affidavit:
44. As at the date of separation, I only had and continue to have one source of income, that being my drawings as an equity partner at [H Company] in the sum of $424,000 gross per annum, the details of which are set out in paragraph 45 of this Affidavit. …
45. [In] 2022, I was made an equity partner at [H Company] earning a targeted drawings of $424,000 per annum. I say targeted because I earn my drawings as follows:-
(a) The sum of $424,000 is a gross figure;
(b) I will not receive the entire amount during this financial year as up to 20% of the total gross income is at risk;
(c)I will have to pay income tax on the figure I actually receive of about $200,000
(d) The figure of $424,000 gross is adjustable because it is dependent on my performance;
(e) I received a gross figure of $171,000 between 1 July 2022 and 31 December 2022 in drawings;
(f) The sum of $80,000 income tax is payable on the gross figure of $171,000; and
(g) Out of my income comes compulsory insurance payments amounting to $4,670 per annum.
…
46. I do not have the capacity nor the financial resources sought by [the wife] in the Interim Orders in her Initiating Application. My disclosed income is based on 80% of my projected drawings for this financial year. In this regard, I refer to paragraph 45(b) of this Affidavit. My income is E$6,523 per week and my outgoings are E$7,630 per week.
…
The wife says that in February 2023 the husband ceased making mortgage payments and stopped payments for her direct benefit, making payments only in relation to electricity, water and the home entertainment package. She says that he pays school fees and some other expenses for the children as well as child support.
The exact pool of assets for division at this stage is unclear.
The wife for her part by reference to the summary in her Financial Statement says that her net assets and superannuation have a value of $2,895,919.
The husband for his part by reference to the summary in his Financial Statement says that his net assets and superannuation have a negative value of $1,555,221.
To date the wife has spent $125,790 on legal fees while the husband has spent $65,288.
It is difficult to escape the conclusion that each are engaging in an expensive game of legal brinkmanship. The financial statements and affidavits reveal there is fertile ground for these parties to spend at least twice the amount already spent unless they step back and start acting rationally and reasonably. The trend apparent from the litigation to this point suggests that is unlikely.
WIFE’S SUBMISSIONS
The wife’s counsel submitted that the wife is unable to support herself from her income and because of her responsibilities to care for the parties’ three children. He submitted that the husband has the capacity to meet the orders for interim spousal maintenance and mortgage payments but conceded he could not make out a case at this stage for payment of the lump sums.
Counsel for the wife spent some significant time addressing what was said to be a significant failure by the husband to make disclosure of monies that he received from his employer totalling approximately $93,000 on 26 April 2023, which was immediately prior to the matter being in Court on 27 April 2023 (Exhibit 3). Disclosure of those payments did not occur until the morning of the hearing.
The wife’s counsel submitted that the bank statements forming part of Exhibit 3 reveal that in the face of the wife’s application seeking that he make various payments, the husband elected to make a payment to his lawyers in preference to making a payment to the support of his former spouse. His submission was that sum would have covered about five months of the payments that the wife seeks. The submission did not identify what was to happen once that fund was exhausted.
The wife’s counsel also submitted by reference to the husband’s Financial Statement that there was no evidence of any deduction from his bank statements for a payment of superannuation of $480 per week and a repayment to the partner capital loan account of $120 per week. He submitted that the incurring of an expense of $323 per week for rental of a motor vehicle was unnecessary and the payment of school fees of $692 a week were all items of expenditure that could be cut back should the husband wish to do so.
In that respect, the wife made plain in her affidavit that she was not opposed to the children being removed from their current private school, particularly where the husband says that the school fees are in the sum of approximately $692 per week. In that regard, the husband made the most extraordinary assertion in his Case Outline as follows:
•The wife threatens to withdraw the two eldest children from [F School] where three generations of [Parsons] sons were educated. The wife’s brother and other family members were also educated there. The wife is using emotional and manipulative control to have her own and to extract punishment of the husband.
(Husband’s Case Outline, page 7)
I regard that as nothing other than a highly inflammatory assertion that should not have been made.
The wife’s counsel submitted that the evidence reveals that the husband has been less than transparent as to his income and that he has, contrary to what he says, the capacity to meet the orders the wife seeks.
HUSBAND’S SUBMISSION
The husband’s counsel submits that these parties have always been reliant upon the help of the wife’s extended family and are living beyond their means. Up until separation the parties were living on two full time incomes, running one household and had the benefit of additional support in that the wife’s mother was loaning them monies to pay the school fees. There is some force to this submission.
Counsel for the husband submitted that the wife has a capacity to earn about $134,000, being the income that she earnt prior to reducing her income at about the time of separation. He, however, properly conceded that even if she earnt that income, she would not be able to meet the mortgage payments which are currently about $13,000 per month but will by mid-July be about $20,000 per month.
The husband’s counsel submitted that the husband does not have the capacity to meet any of the payments that the wife seeks and referred to the husband’s Financial Statement and the matters relied upon in his Case Outline.
In relation to the contentions advanced by the wife as to non-disclosure of the funds received in April 2023, counsel submitted that the husband did not know that he had received the funds when the matter was at Court on 27 April 2023. He contended that the husband receives no prior notice when these amounts are to be paid. He, however, conceded somewhat meekly that the husband should have disclosed the documents earlier.
Counsel for the husband made no submission in relation to the matters submitted by the wife’s counsel as to the items of expenditure in his client’s Financial Statement for which it was contended there was either no evidence to support the payment by reference to the disclosed bank statements, or that they could be reduced or eliminated.
Counsel for the husband stated that the parties could not afford to keep the home and that it needed to be sold. This was a curious submission in circumstances where I explicitly asked each party at the commencement of the hearing whether each sought an order for its sale and was told that they did not.
INTERIM SPOUSAL MAINTENANCE
The wife seeks orders for interim spousal maintenance in the terms referred to earlier.
These are interim proceedings and there has been no cross-examination. Each of the parties’ affidavits make a series of broad sweeping allegations against the other including allegations that there has been a failure to provide full and frank disclosure. There are numerous factual controversies which, within the circumscribed nature of these proceedings, I am simply unable to resolve. I am left to determine the matter on the basis of the undisputed facts and with the guidance of the relevant authorities to which I will refer in these reasons.
The Full Court in Bevan & Bevan (1995) 92-600 identified the requisite elements necessary to the making of a spousal maintenance order. The applicant for relief bears the onus of establishing that they are unable to support themselves adequately by reason of the matters set out in s 72 of the Family Law Act 1975 (Cth) (“the Act”), including having regard to any relevant matter referred to in s 75(2).
There is no liability to pay spousal maintenance unless the need of the applicant is first established. If the applicant cannot establish an inability (which will not be inferred) to support themselves, then an order for maintenance cannot and will not be made (see Rowan and Rowan (1977) FLC 90-310 and Stacy and Stacy (1977) FLC 90-324).
Determination of the question of whether an applicant for spousal maintenance can support themselves adequately is not to be determined by reference to any fixed or absolute standard but by reference to the matters referred to in s 75(2) of the Act (see Mitchell and Mitchell (1995) FLC 92-601 at 81,995). In Atwill and Atwill (1981) FLC 91-107, Nygh J at 76,792 held:
“Adequately” imports relativity. Subsistence may be adequate for some applicants but not for others. It must be viewed in the light of para. (g) of sec. 75(2) “a standard of living that is in all the circumstances reasonable” …
While in Wilson and Wilson (1989) FLC 92-033, their Honours held at 77,453:
… A standard of living that in all the circumstances is reasonable for the party claiming maintenance is not necessarily the same standard as that enjoyed by the party who is ordered to pay maintenance. … Similarly, the standard of living that in all the circumstances is reasonable for the wife in this case, is not necessarily the same standard as that enjoyed during cohabitation. …
In Redman and Redman (1987) FLC 91-805, the Full Court observed at 76,081:
… 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) FLC 190-505; (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 10 last for an indefinite period and can only be varied under sec. 83.
The wife works in a part time capacity earning approximately $431.15 net per week from such employment. She has currently the full time care of the parties’ three children and I am satisfied that she has wound back her employment to be able to care for them. In that respect, there was no challenge to the evidence adduced by the wife referred to earlier as to the effect of the parties’ separation on the children, nor any submission that it was improper that she devote her time to their care.
It is clear that the wife’s family have in the past provided to her significant sums of money over the course of the relationship. However, the wife says in her affidavit:
37. The current appointor of the [E Family Trust] is my mother, and the directors of the trustee corporation are my mother and [Mr J]. Neither my mother, nor the [E Family Trust] will lend me any further funds. I am not currently a beneficiary of the [E Family Trust].
There was no submission that suggested that I should not accept the wife’s evidence on this issue.
The husband contends that the wife has re-partnered and refers to various transfers of funds. I am not in a position to make a finding that the wife has re-partnered or that the person who is said to be her partner is a source of funds to meet the wife’s needs.
The husband says that the wife’s mother and family are a source of funds to meet the wife’s needs. I have addressed this earlier where the wife says she no longer receives such support. They are not people who otherwise relieve the husband of his obligations to support the wife in the event that she establishes that she is unable to support herself.
The wife sets out in Part N of her Financial Statement that her weekly needs for her own support total $1,626 per week. There was no criticism as to the reasonableness or otherwise of the wife’s expenses. In those circumstances, therefore, given the nature of these proceedings and the absence of any challenge to the expenses, I find her weekly needs, by reference to both Part N and Part G of her Financial Statement, are reflected in the amounts sought by her.
I am satisfied by reason of the wife’s care and support of the parties’ children and her current level of employment that she is unable to meet her weekly needs.
The husband contends that he has insufficient income to meet the mortgage payments and spousal maintenance as sought by the wife.
As to the husband’s capacity to meet her needs, the wife relied upon the failure by the husband to disclose the receipt of approximately $93,000 until the morning of the hearing. I am satisfied that the husband has not diligently complied with his duty of disclosure and there is great force in the submission that he simply chose to make a payment to his lawyers in preference to making a payment to the support of his former spouse.
The wife’s counsel during the course of submissions identified from the husband’s Financial Statement that there was no evidence of any deduction from his bank statements for a payment of superannuation of $480 per week and a repayment to the partner capital loan account of $120 per week. He further made submissions that the incurring of an expense of $323 per week for rental of a motor vehicle and the payment of school fees of $692 a week were all items of expenditure that could be cut back should the husband wish to do so. There is merit to this submission.
There is an issue as to the husband’s net income. The wife says it is $4,884.70 per week (wife’s affidavit, paragraph 4). The husband’s evidence as referred to earlier in these reasons and referenced in his Financial Statement is that his net income per week is $4,022 per week. I accept this does not bring to account the 20 per cent referred to in his affidavit at paragraph 45. I am satisfied that the difference is more one of timing than how much is actually available. The wife did not put into issue the husband’s more detailed explanation as opposed to her simplified calculation.
By reference to her Financial Statement and the orders she seeks, the amounts sought on a weekly basis excluding mortgage payments totals $1,722.65. I am satisfied that the husband has the capacity to meet the amount the wife seeks by way of periodic spousal maintenance in the sum of $1,334.65 as well as the electricity, council rates, water charges and insurances for the home. This is less than what he was proposing to pay in November 2022.
The wife, however, also seeks orders that the husband pay the mortgage on the home. The husband’s evidence is that by mid-July the mortgage payments will be approximately $20,000 per month. The wife took no issue with this assertion.
The current mortgage payments are $13,000 per month or approximately $3,000 per week. Thus, the total of all of the amounts that the wife seeks is presently $4,722.65 per week. According to the husband by mid-July they will be approximately $20,000 per month, which would put the total of all the amounts the wife seeks at $6,338 per week.
This is more than the husband’s income even on the wife’s case. The wife bears the onus to establish that the husband has the capacity to meet the order that he pay the mortgage. For the above reasons, she has failed to discharge that onus.
I accept the husband’s counsel’s submission that these parties were until separation reliant upon the help of the wife’s extended family and on two full time incomes to meet their living expenses.
That situation no longer prevails. The wife’s income has reduced significantly, the parties are maintaining two households, there is no longer the financial support there once was from the wife’s mother, and mortgage payments will have increased from approximately $13,000 to $20,000 a month by mid-July 2023.
I am not satisfied that the husband has the capacity to make the mortgage payments that the wife seeks.
LUMP SUM AMOUNTS
In circumstances where the wife’s counsel conceded that he could not point to a fund out of which the lump sum amounts could be met, he properly conceded that such an order could not be made.
This was a proper concession. That part of the wife’s application will be dismissed.
DISCLOSURE
No submissions were put to me either orally or in writing in relation to the orders seeking disclosure, save to say that each party’s affidavit contended failings as to disclosure on the part of the other party.
Disclosure issues are the bane of this Court. It consumes a disproportionate amount of Court time and a significant part of the parties’ legal fees often for little obvious benefit.
The authorities make plain that a party to financial proceedings is required to make a full and frank disclosure (see Oriolo & Oriolo (1985) FLC 91-653; Weir and Weir (1993) FLC 92-338 (“Weir”)). The case law is reinforced by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The duty of disclosure is absolute. It is a continuing obligation throughout the litigation and until the point of judgment. It does not relate simply to documents but includes information pertinent to all relevant and material facts.
Justice Hutley observed in St John v St John (1979) 6 Fam LN N14:
… faced with the party whose affairs were tangled and who did not give the assistance within his power to disentangle them the trial Judge in my opinion was well entitled to simply take the view that it lies upon that party to devise means to comply with the order. If the burden is impossible, he cannot complain as he is the author of his own misfortune.
In Kannis & Kannis [2002] FamCA 1150, the Full Court underscored the relevance and consequence of a failure to disclose:
51.Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude that the asset pool is greater than demonstrated. In those circumstances it might be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.
A failure to disclose goes to the very heart of the Court’s obligation to make a determination that is just and equitable. In Briese and Briese (1986) FLC 91-713 at 75,180–75,181, Smithers J determined:
… A person in the position of the husband in the present case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. …
… in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. … full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion. …
… There is an obligation on each party to act so as to provide a basis upon which the two of them are in a position to resolve the case by agreement, or proceed to a hearing, as expeditiously as may reasonably be done.
In Weir, the Full Court stated at 79,593 that:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
I am confident that the parties understand their obligation to disclose. As much is made clear by the affidavit they attest to on the front page of the Financial Statement they have each sworn. If it is established that there has been non-disclosure, then the jurisprudence makes clear the consequences.
In circumstances where no submissions were made, I do not propose to make either of the orders that the parties seek.
CONCLUSION
I am satisfied that the husband has the capacity to meet the amount the wife seeks by way of periodic spousal maintenance in the sum of $1,334.65 and the electricity, council rates, water charges and insurances for the home.
I am not satisfied that the husband has a capacity to meet the mortgage payments.
I will make orders accordingly.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 16 May 2023