Quayle & Perceval - [2018] FamCA 664

FAMILY COURT OF AUSTRALIA

QUAYLE & PERCEVAL

[2018] FamCA 664

FAMILY LAW – PROPERTY – Where an interim property distribution is sought – Where spousal maintenance is sought – Where a departure from a Child Support Assessment is sought – Where adult child maintenance is sought –Where a dollar for dollar order is sought – Where the husband applied to reopen his case on the basis that he sought to adduce new evidence regarding his income and liabilities – Where the wife opposed that application – Where both parties were granted leave to adduce further evidence – Where neither party has complied with their obligation of disclosure – Where the husband earns a large salary – Where the husband has a large outstanding income tax debt – Where the wife has always been the primary carer for the parties’ children – Where the parties’ asset pool is small relative to their income – Where the Court declined to make orders for a departure from the Child Support Assessment on the grounds that there were no special circumstances – Orders made for $12,000 to be released to the wife to repay credit card liabilities – Dollar for dollar orders made pursuant to injunctive power of the Court – Orders for spousal maintenance made – Child support orders pursuant to s 124 of the Act made by consent.

Family Law Act 1975 (Cth) ss. 21, 34, 74, 79, 83, 114, 117
Child Support (Assessment) Act 1989 (Cth) ss. 116, 117, 124
Family Law Rules 2004 rr. 1.04, 4.15, 4.23, 13.01, 13.04, 19.05, 19.34

Acton & Burton [2015] FamCA 469
Atkins & Hunt And Ors (2018) 57 Fam LR 128
Bagala & Bagala (2009) FLC 98-043
Beck and Sliwka (1992) FLC 92-296
Breen v Breen (1990) 65 ALJR 195
Briese and Briese (1986) FLC 91-713
Cachia v Hanes (1994) 179 CLR 403
Child Support Registrar & Nixon (2007) 36 Fam LR
Duff and Duff (1977) FLC 90-217
English & English(1986) FLC 91-729
Esdale & Schenk (2012) 46 Fam LR 547
F & F (1989) FLC 92-031
Fitzgerald v Fish and Anor (2005) 33 Fam LR 123
Graf-Salzmann and Graf [2015] FCWA 68
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Harris and Harris (1993) FLC 92-378
Hogan & Hogan (1986) 10 Fam LR 681
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd[1983] 3 NSWLR 378
In the marriage of Farr (1976) FLC 90-133
In the marriage of Gyselman (1992) FLC 92-279
Jeeves & Jeeves (No 2) [2008] FamCA 1148
Jones v Skinner (1835) 5 LJ Ch 87
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531
Liatos & Liatos and Anor [2008] FamCAFC 111
Livesey and Jenkins (1985) 1 All ER 106
Luadaka & Luadaka (1998) FLC 92-830
Medlow & Medlow (2016) FLC 93-692
Mertens & Mertens [2016] FamCAFC 136
New Zealand Flax Investments Limited v Federal Commissioner of Taxation (1938) 61 CLR 179
R v Watson; Ex parte Armstrong [1976] 136 CLR 248
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Saxena and Saxena (2006) FLC 93-268
Selena and Montez and Ors [2017] FamCA 583
Seymour and Seymour [2011] FamCAFC 97
Shan & Prasad [2018] FamCAFC 12
Smith v Bar Association (No 2) (1992) 176 CLR 256
Stein v Stein (2000) FLC 93-004
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Tripp & Tripp [2013] FamCA 1107
Warwick and Cutler and Anor [2016] FamCA 934
Wenz v Archer (2008) 40 FamLR 212
Wilkie v Brown [2016] NSWCA 128
Yewen & Child Support Registrar [2014] FCCA 2399
Zau v Uong(No 2) [2015] FamCA 56
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT:

Ms Quayle

RESPONDENT:

Mr Perceval

FILE NUMBER:

SYC 2020 of 2014

DATE DELIVERED:

31 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

30 April 2018 and 22 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell SC

SOLICITOR FOR THE APPLICANT:

Quayle Legal Advisory

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Partial property distribution

Within 14 days of the date of the making of these orders, the husband pay or cause to be paid to the wife, by way of partial property distribution, the sum of $12,000 from the parties’ ANZ Bank Equity Manager Account (BSB …; Account Number #53).

Spousal maintenance

By way of periodic spouse maintenance, pursuant to s 74 of the Family Law Act 1975 (Cth), the husband shall pay to the wife cleared funds in the sum of $2,216 per week.
The husband shall pay, as and when same fall due and payable, all policy premiums to ensure that the wife remains listed on and covered by, at the present level, the family private health insurance scheme on which she is currently listed.

Section 114 order

Within seven (7) days of any future payment by or on behalf of the husband of any money in payment of accounts rendered by his solicitors, including in relation to expenses associated with the preparation of his case, the husband pay or cause to be paid the same sum of money to the wife’s solicitors.
Within 24 hours of the payment by or on behalf of the husband of any money referred to in order 4 above, the husband cause a memorandum stating the amount/s so paid to his solicitors to be forwarded to the wife’s solicitors.
The husband shall instruct his solicitors that any money paid to the husband’s solicitors, including on his behalf pursuant to order 4 above, shall be held in trust by the husband’s solicitors and not applied in payment to the husband's solicitors until such time as the same amount is paid by or on behalf of the husband to the wife’s solicitors.
The wife shall instruct her solicitors that any money paid to the wife’s solicitors by or on behalf of the husband, pursuant to order 4 above, is to be applied by the wife’s solicitors in payment of the costs and disbursements incurred by the wife in the conduct of these proceedings.

Child support

By consent, pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the husband pay the following for each child, X, born … 2003 and Y, born … 2003:
(a)All private school tuition fees and levies for each child at B School or such other private school as agreed between the parties, including all school excursion fees and levies shown on school accounts and other mandatory expenses associated with the children's attendance;
(b)All school uniforms, sporting equipment, extracurricular activities for each of the children and all other mandatory equipment/uniforms for the children's attendance at such school;
(c)All instalments at the present scale to the C Private Health Fund, including cover for private hospital, optical, physiotherapy, dental and orthodontic expenses in respect of the children and in addition, any medical, dental, hospital or orthodontic expenses incurred in respect of either of the children not recoverable from Medicare or the C Private Health Fund; and
(d)Tutor’s fees in the sum of $80 per week, to be paid directly to the tutor by the husband.
The wife’s application pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) is dismissed.

Adult Child Maintenance

The parties be granted liberty to apply in respect to the issue of adult child maintenance, upon the giving of 48 hours’ written notice to the Court and the other party.

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 Quayle & Perceval 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 SYDNEY

FILE NUMBER: SYC 2020 of 2014

Ms Quayle

Applicant

And

Mr Perceval

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application brought by the wife for interim property settlement, spousal maintenance, departure from a Child Support Assessment, adult child maintenance and an order that the husband pay her legal costs on a “dollar for dollar” basis.
The husband agrees to the making of orders for an interim property settlement, spousal maintenance, child support departure and adult child maintenance, but diverges from the wife’s application in respect to the quantum and manner of those payments.
The matter was heard on 30 April 2018. The husband subsequently sought leave to reopen that case by way of an Application in a Case filed on 7 June 2018. When that application was heard on 22 June 2018, orders were made granting leave to the husband to reopen the case. My reasons for doing so are set out below.

Background

The husband was born in 1965 and is currently 53 years of age.
The husband is currently employed as a consultant at Company D (“CD”) and has a target income for the current financial year of $1,303,400.
The wife was born in 1965 and is currently 53 years of age.
The wife is a self-employed professional and earns $1,108 per week, plus benefits, which equates to an annual income of approximately $57,000.
The parties were married in 1992 in the UK.
The parties moved to Australia in late 1999.
The parties separated on 6 April 2012.
A Divorce Order was made on 27 May 2014.
There are three children of the parties’ relationship, Mr Z, born in 1999 and currently aged 18 years and twins X and Y, born in 2003 and currently aged 15 years (“the children”).
The children reside with the wife. The amount of time that the children spend with the husband has been arranged informally between the parties in the period since their separation. The husband asserts that the children spend time with him, generally, on alternate weekends, one night each week and during school holidays. The wife does not agree that the children spend that amount of time with the husband. It is not possible to determine that issue in these proceedings.
In the period subsequent to separation, the parties reached an informal agreement regarding the husband’s financial support of the wife. However circumstances have arisen where the husband contends that the arrangement is no longer sustainable.
During their marriage, the parties established the E Trust. That trust held an interest in the consulting and advisory businesses F Pty Ltd and G Pty Ltd. The beneficiaries of the trust are the parties and H Pty Ltd, of which the husband is the sole director and both parties are shareholders. The trustee of the E Trust is Mr Z, Y & X Pty Limited, of which the husband is the sole director and shareholder.
The wife commenced property proceedings in this Court on 15 April 2015.

Applications

At the hearing, the wife sought the following orders, as contained in her Amended Application in a Case filed on 24 April 2018 and subsequently further amended at the hearing:
2. That within 14 days of the date of the making of these orders the husband pay or cause to be paid to the wife the sum of $12,000 with the categorisation of such sum to be adjourned to the final hearing of these proceedings.
…
Legal Costs - Dollar for Dollar Order
7. Within seven (7) days after any future payment by or on behalf of the husband of any money in payment of account rendered by his solicitors including in relation to expenses associated with the preparation of his case, the husband pay or cause to be paid the same sum of money to the solicitors for the wife.
8. Within 24 hours after the payment by or on behalf of the husband of any money referred to in order 6 [sic], the husband cause to be given to the wife's solicitors, a memorandum stating the amount or amounts so paid to the solicitors.
9. All money paid to the solicitors for the husband including on his behalf pursuant to order 6 [sic], shall be held in trust by the solicitors for the husband and not applied in payment to the husband's solicitors until such time as the same amount have been paid by or on behalf of the husband to the solicitors for the wife.
10. In the event that the payment referred to in order 6 [sic] is not made within seven (7) days thereafter, the husband is to direct his solicitors to pay 50 per cent of whatever is received (as referred to in order 8 and held by them in trust), to the solicitors for the wife.
11. The amount paid pursuant to these orders to the solicitors for the wife are to be applied by them in payment of the costs and disbursements incurred by the wife in the conduct of these proceedings.
12. The question of how the payments to the wife under orders 6 [sic] and 9 are to be treated at the final hearing shall be matters for determination by the trial judge.
Spouse maintenance
13. That pending further Order, and by way of periodic spouse maintenance pursuant to Section 74 of the Family Law Act 1975 (Cth), the husband shall pay to the wife by way of cleared funds, the sum of $5,500 per month.
14. The periodic spouse maintenance payable by the husband to the wife pursuant to Order 12 shall be paid as follows:
14.1 monthly, on or before the 11th day of each and commencing the first Monday following the date of these Orders; and
14.2 by way of electronic funds transfer into a bank account of the wife to be nominated by the wife and advised to the husband.
15. That pending further order, the husband pay or cause to be paid to a real estate agent of the wife's choosing, the applicable sum to cover the wife's rental accommodation up to and including the sum of $2,506 per week including any rental bond which may be applicable.
16. That pending further order the husband shall pay, as and when same fall due and payable the following:
16.1 all policy premiums to ensure that the wife remains listed and covered at the present level of insurance coverage on the family private health insurance on which the wife is currently listed;
16.2 all of the wife's out of pocket (or "gap") hospital, medical, optical, dental, surgical, physiotherapy and all other medical and health care costs where such costs are not covered from the private health insurance policy of the wife and/or Medicare.
Adult Child Maintenance
17. That pursuant to section 66L of the Family Law Act 1975 (Cth), the husband pay to the wife the sum of $1,816 per month by way of maintenance for the child, [Mr Z] born … 1999, the first payment to be made on the first Monday following the date of these orders and thereafter monthly, on or before the 11th day of each and month, until he completes his current university degree/diploma or ceases that course.
18. That pursuant to section 66L of the Family Law Act 1975 (Cth) the husband pay all tuition and course fees for the child, [Mr Z], in respect of his attendance at such university or education provider in which [Mr Z] is enrolled.
Child Support
19. That pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) there be a departure from the Administrative Assessment of Child Support dated 22 January 2018 by providing that the amount payable by [Mr Perceval] ("the husband") to [Ms Quayle] ("the wife") for each child, X born … 2003 and [Y] born … 2003 from the date of these orders be the sum of $500 per week per child, in the total amount of $4,333.33 per month, such payment to be made on the first Monday following the making of these orders and thereafter monthly on or before the 11th of each month to the wife's nominated bank account.
20. That pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth) the husband pay the following for each child, [X] born … 2003 and [Y] born … 2003:
20.1 All private school tuition fees and levies for each child at [B School] or such other private school as agreed between the parties including all school excursion fees and levies shown on school accounts and other mandatory expenses associated with the children's attendance;
20.2 All school uniforms, sporting equipment, extracurricular activities for each of the children and all other mandatory equipment/uniforms for the children's attendance at such school.
20.3 All instalments at the present scale to the [C] Private Health Fund including cover for private hospital, optical, physiotherapy, dental and orthodontic expenses in respect of the children and in addition to pay any medical, dental, hospital or orthodontic expenses incurred in respect of either of the children not recoverable from Medicare or the [C] Private Health Fund.
21. In the event that the wife meets at first instance any of the medical or other expenses or school expenses, the husband must reimburse the wife within seven (7) days of presentation of an invoice and proof of payment such reimbursement to be made by payment to the wife's nominated bank account
22. That the husband pay the wife's cost of and incidental to this Application.
The husband, on the other hand, seeks that the following orders contained in his Response to an Application in a Case filed on 27 April 2018:
1. The Application in a Case filed on 25 February 2018 be dismissed.
2. Pending further order the Husband pay to the Wife the sum of $417 per week ($1,807 per month) by way of spouse maintenance, payable to the Wife's ANZ Bank account, BSB … Account Number #09 with the first payment to be made on 11 May 2018 and on the 11th day of each month thereafter.
3. Pending further order, and by way of departure from the Child Support Assessment issued on 22 January 2018 in respect of the twin children [X] and [Y] born on … 2003, the Husband shall meet the following expenses on behalf of the children in addition to the Assessment (of $2,377.42 per month):
3.1 The private school fees, tuition fees and levies for the attendance by [X] and [Y] at [B] School;
3.2 All premiums due in respect of private health insurance for [X] and [Y] at the current rate of cover;
3.3 All out of pocket medical costs not able to be recovered from the private health insurance provider and/or Medicare including medical specialists, dentists, orthodontists, psychologists and optometrists and of prescribed medications; and
3.4 Tutor's fees in the sum of $80 per week for [X] and [Y], to be paid directly to the Tutor.
4. The parties forthwith do all acts and things and execute all documents necessary to close the ANZ Bank Equity Manager Account, BSB … Account Number #53 and to distribute the funds held therein as follows:
4.1 The sum of $63,299.83 to the Wife as she shall direct in writing; and
4.2 The balance thereafter to the Husband as he shall direct in writing.

Evidence

The wife relies on the following documents:
a)Financial Statement filed on 24 April 2018;
b)Her Affidavit filed on 28 February 2018; and
c)Her Affidavit filed on 24 April 2018.
The husband relies on the following documents:
a)Financial Statement filed on 27 April 2018;
b)His Affidavit filed on 27 April 2018; and
c)His Affidavit filed on 6 June 2018.

Permission to reopen case

As noted, on 22 June 2018, I gave leave to the husband to reopen his case. Having made that order, both parties confirmed that the evidence they had relied upon in the presentation of arguments concerning that matter would then become evidence in the proceedings.
The parties were in agreement that the principles to be considered in determining whether to reopen the case are set out in the decision of McMillan J in Zau v Uong(No 2) [2015] FamCA 56 at [11], where her Honour observed:
The principles governing the re-opening of a case and the admission of further evidence have been considered by the courts on many occasions. In Reid v Brett (2005) VSC 18, Habersberger J has summarised the relevant criteria governing the exercise of the court’s discretion in circumstances when the hearing had been concluded but judgment had not been delivered, circumstances not dissimilar to this case, as follows:
(a) the further evidence is so material that the interests of justice require its admission;
(b) the further evidence, if accepted, would most probably affect the result of the case;
(c) the further evidence could not by reasonable diligence have been discovered earlier; and
(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

The parties agreed with the following statement of the High Court in Smith v Bar Association (No 2) (1992) 176 CLR 256 at 32:
… different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. [References omitted].
In seeking to reopen his case, the husband contended, in his outline of submissions (Exhibit “F-5”), that:
(a) … the further evidence relating to the husband’s disposable income is so material that the interests of justice require its admission. It goes to the husband’s capacity to meet a maintenance order;
(b) … the further evidence, if accepted, would most probably affect the result of the case;
(c) further, the new evidence was not available to the husband at the time of the hearing;
(d) as Judgment had already been reserved and the husband acted with all due diligence to have the matter listed before [the Court], no real prejudice ensues to the wife by reason of the late admission of the further evidence.
In terms of the husband’s first contention, it was submitted that the husband’s disposable income has, since the initial hearing of this matter on 30 April 2018, been impacted by an agreement that he has reached with the Australian Taxation Office (“ATO”) to repay his outstanding taxation liability. I accept that the agreement was made in the period subsequent to 30 April 2018.
In terms of the husband’s second contention, I accept that the evidence of the husband’s agreement with the ATO has the potential to affect the result of the case. This is because it is potentially relevant to the husband’s capacity to pay spousal maintenance and child support.
In terms of the husband’s third contention, I accept that the terms of the husband’s agreement with the ATO had not been settled at the time of the hearing. However, it was the case that the husband was in the process of negotiating with the ATO prior to the hearing.
In terms of the husband’s fourth contention, it was submitted by Senior Counsel for the wife that she is prejudiced by the “lack of transparency in relation to the husband’s overall tax position”, including the husband’s motivation for entering into an agreement with the ATO to pay a higher amount, by way of monthly contributions, to repay his tax liability. In that context, it was contended that there is an absence of evidence as to whether, or why, the ATO rejected the husband’s earlier proposal to pay $10,000 per month in respect to the arrears. As I will discuss, both parties are prejudiced by the other’s lack of disclosure. The approach that I have taken is that the prejudice of non-disclosure will fall upon the party who has failed in their obligation.
As an additional matter, s 83 of the Family Law Act 1975 (Cth) (“the Act”) permits a party to apply for a modification of spousal maintenance orders where the circumstances of the liable party have changed. I also note that Rule 1.04 of the Family Law Rules 2004 (“the Rules”) provides that the main purpose of the Rules is “to ensure that each case is resolved in a just and timely manner at a cost of the parties and the court that is reasonable in the circumstances of the case”. In the circumstances of this case, there is little utility in declining to admit the fresh evidence proposed by the husband in circumstances where that may well result in a further application and the parties incurring additional expense.
Accordingly, for these reasons, I permitted the husband to reopen his case for the purpose of admitting fresh evidence. I similarly permitted the wife to present evidence in response to that adduced by the husband.

Obligation of disclosure

An important aspect of family law proceedings is a party’s obligation to comply with the obligation of disclosure. That obligation exists both at common law and pursuant to statute.
In Briese and Briese (1986) FLC 91-713 (“Briese”) at 75,182 Smithers J applied the House of Lords decision in Livesey and Jenkins (1985) 1 All ER 106 in determining that:
… in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that 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. [Emphasis added].
His Honour further stated at 75,181:
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties. [Emphasis added].
In terms of the parties’ statutory obligation of disclosure, Rule 13.01(1) of Rules relevantly provides that:
Subject to subrule (3), each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner. [Emphasis added].
Rule 13.04(1)(a) provides that:
(1) A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:
(a) the party's earnings, including income that is paid or assigned to another party, person or legal entity; …
Clause 6 of Part 1 of Schedule 1 of the Rules relevantly provides that:
(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:
…
(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute.
Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part). [Emphasis added].
The fact that the obligation of disclosure exists as a duty to the Court, as well as the other party, is significant. It is also significant that the obligation is in respect to the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents.
There are specific obligations of disclosure in cases involving applications for spousal maintenance. Rule 4.15 provides:
Evidence to be provided
(1) On the first court date and the hearing date of an Application for spousal or de facto maintenance, each party must bring to the court the following documents:
(a) a copy of the party’s taxation returns for the 3 most recent financial years;
(b) the party’s taxation assessments for the 3 most recent financial years;
(c) the party’s bank records for the period of 3 years ending on the date on which the application was filed;
(d) if the party receives wages or salary payments—the party’s payslips for the past 12 months;
(e) if the party owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and
(f) any other document relevant to determining the income, needs and financial resources of the party.
It is also significant that the obligation of disclosure includes an obligation to disclose “any disposal of property” that may “affect, defeat or deplete a claim”: Rule 13.04(1)(g).
As noted by Walters J in Graf-Salzmann and Graf [2015] FCWA 68 at 287:
… a judge is entitled to take a "robust view" in relation to findings regarding a party's financial position (including party's capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su (2002) FLC 93-117 at [71] and [72].
As I will discuss below, both parties have failed to comply with their obligations of disclosure. That has impacted upon my consideration of their respective contentions.

Partial property distribution

The wife seeks a partial property distribution to her in the sum of $12,000 in order to discharge a credit card debt in that amount.
In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”) at 85,645 to 85,646, the Full Court set out the two stages for determining an application for partial property settlement orders. The first stage is a “procedural step”, which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) of the Act to make an order for partial property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice. The second stage is the “substantive step”, where the provisions of s 79 of the Act must be considered and applied, but with limitations, given that it is not the final hearing.
In respect to the first stage, it was held by the Full Court in Strahan at 85,643, where their Honours quoted Wenz v Archer (2008) 40 FamLR 212, that a partial property distribution may be justified in circumstances where a party requires access to resources to meet debts. In this matter, it was not disputed that the wife’s application for $12,000 to be released to her, for the purposes of repaying her credit card liability, was legitimate and I determine that it is in the interests of justice to facilitate that occurring.
In respect to the second stage, it has been observed that, while the usual s 79 considerations apply to the second stage of the process, a detailed analysis of those considerations is not required in an interim hearing: Strahan at 85,646.
In Medlow & Medlow (2016) FLC 93-692 (“Medlow”) at 81,090, the Full Court said:
The onus was clearly upon [the applicant for relief] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent]’s property claim. The onus was not on the [respondent] to adduce such evidence.
While these are interim proceedings, the information before the Court satisfies me that the contributions of each of the parties, as considered against the criteria set out in s 79(4) of the Act, are such that, at final hearing, it is likely that orders will be made adjusting the parties’ interests in the matrimonial property such that the wife will receive a distribution substantially in excess of the amount of $12,000.
This was implicitly acknowledged by the husband, who, at the interim hearing, proposed that an order be made for 100 per cent of the funds held in the parties’ ANZ Bank Equity Manager Account (BSB …, Account Number #53) (“the joint account”), being some $97,386.79, to be transferred to the wife for the purpose of her funding both her legal fees and repaying her credit card debt of $12,000. The wife did not agree to such an order being made in lieu of her application for “dollar for dollar” costs. I will address that issue below.
While there was no agreement between the parties regarding the application of the totality of the funds held in the joint account, consistent with the authority of Medlow, I am satisfied that there is a source of funds which can be applied to release $12,000 to the wife. That distribution can be taken into consideration and, if necessary, properly adjusted, at final hearing. Specifically, I am satisfied that such a distribution to the wife will not impede the ability of the Court to do justice between the parties at a final hearing. An order will therefore be made for the wife to be paid an amount of $12,000 from the joint account, by way of partial property distribution.
It is to be noted that the wife has applied for an order whereby the categorisation of the sum “be adjourned to the final hearing of these proceedings”. I have observed that, in the family law jurisdiction, it is common practice for practitioners to seek such an order. Indeed, a similar order has also been sought in proposed order 12 of the orders sought by the wife.
The difficulty with such an order is, however, that it requests the judicial officer to delegate to perhaps another judicial officer, at a subsequent point in time, the task of categorising the basis upon which the order is made. This effectively prevents the opportunity for review by the party who is adversely impacted by any such order. To make such an order would be inconsistent with the obligation placed on a judicial officer to act judicially and, specifically, to act in accordance with the principles of procedural fairness.
In Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at [122] to [123], Hayden J cautioned that it was important for specialist courts not to lose touch with “traditions, standards and mores of the wider profession and judiciary”. The obligation on a judicial officer to provide reasons for the exercise of discretion is a fundamental legal principle. It is a principle that applies in interim proceedings as much as it does at a final hearing.
Accordingly, as noted, I have categorised the $12,000 payment to the wife as a partial property distribution and I do not defer that task to another judge at final hearing. The judge conducting the final hearing will, however, be in a position to have regard to that payment in determining a just and equitable distribution of the parties’ marital property.

Legal costs

The wife has sought what is commonly referred to as a “dollar for dollar” order. While the wife’s application did not identify the section of the Act upon which she relied to establish the basis for that relief, her application was presented on the basis that the Court was empowered to make such an order pursuant to s 117 of the Act. That section deals with the power to award costs.
At the hearing on 22 June 2018, Senior Counsel for the wife contended that a further basis for the making of such an order was s 114 of the Act. That section deals with the Court’s power to grant injunctions, including mandatory injunctions requiring a party to engage in a particular course of conduct.
While I respectfully recognise contrary authority of the Court, for reasons that I explain, it is my view that s 117 of the Act does not empower the Court to make a dollar for dollar costs order.

Scope of section 117 of the Act

Section 117 of the Act relevantly provides:
(1) Subject to subsection (2) and section 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance of that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
In Selena and Montez and Ors [2017] FamCA 583 (“Selena & Montez”) at [73] to [84], I explained why I am of the view that s 117 of the Act is not a source of power for the Court to make a litigation funding order in respect to anticipated future legal costs, as opposed to an order for security for costs.
In explaining that position, I noted the authority that is commonly relied upon as establishing s 117 as the basis for a litigation funding order is Zschokke & Zschokke (1996) FLC 92-693 (“Zschokke”) at 83-215. In that case, the Full Court extensively reviewed the power to make an interim costs order. Under the subheading “The position in light of existing authority” the Full Court said:
Accordingly, while the present state of the law remains somewhat unclear, it can be asserted with some confidence in light of Brennan J's comments in Breen that there is at least power under s 117(2) (the costs power) for the Court to make an order which seeks to ensure that one party should be able to prosecute pending matrimonial proceedings and that the other party should provide the first mentioned party with the funds required to do so. [Emphasis added].
It is, with respect, difficult to understand how their Honours gained such a sense of confidence from the decision of Brennan J in Breen v Breen (1990) 65 ALJR 195. In rejecting an application for special leave to appeal, Brennan J said at [48]:
It is unnecessary to determine whether the power to make the order falls under s 117(2) rather than under s 74 (as the decision in Wilson v Wilson (1989) FLC 92-033 suggests). Nor is it necessary to determine whether the order in the present case is to be characterised as an order as to costs or an order as to security for costs. [Emphasis added].
In Zschokke, the Full Court referred to the need, in some family law cases, to even out the litigation playing field. This is particularly so where one party, has access to superior financial resources and hence, capacity to fund their own litigation, while the other party is disadvantaged by a lack of access to financial resources. That is unquestionably a laudable objective, however, subsequent authorities confirm that this can be achieved without straining the language of s 117 of the Act.
In Zschokke at 83,216, the Full Court, quoting Harris and Harris (1993) FLC 92-378, was of the view that the power to make an interim order for the partial distribution of matrimonial property could only be exercised where “the circumstances presented at the time are compelling”. However, in Strahan, the Full Court determined that a party seeking an interim order for a partial property distribution, including for the purpose of meeting future litigation expenses, is no longer required to establish compelling circumstances. Indeed, in Esdale & Schenk (2012) 46 Fam LR 547 at [66] – [68], Murphy J referred to Strahan, in noting that it is now usual for a financially disadvantaged party to rely upon s 79 rather than s 117 of the Act as the power to obtain a lump sum interim property settlement order for the purposes of funding litigation.[1]
[1] See also Watts J in Atkins & Hunt And Ors (2018) 57 Fam LR 128 at [39]
In other words, in attempting to achieve the laudable objective of evening out the litigation playing field, in circumstances where one party has exclusive or predominant access to the property of the marriage, the Full Court in Zschokke adopt a construction of s 117 that, in my view, gives it an overly expansive operation, beyond its intended purpose.
Moreover, that construction is contrary to subsequent High Court authority. In Re JJT & Ors; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 219 (“Re JJT”), Hayne J noted that the use of the phrase “order as to costs” in s 117(2) of the Act “may well enable a broad range of orders to be made”. His Honour, however, clarified that proposition stating that:
The subject-matter of those orders must, however, be "costs": a power to make orders "as to" costs does not enable the court to make orders dealing with something other than costs.

Hayne J further explained that the intended operation of s 117 of the Act needs to be considered in the context of the matters to which the Court is required to have regard in considering whether to make an order for one party to pay the costs of the other. In that respect, his Honour said at 220:
Indeed, the list of matters set out in sub-s (2A) to which the Family Court is directed to have regard in making orders under s 117(2) indicates clearly that the subject-matter of the orders to be made under s 117(2) is the costs which a person may be ordered to pay another as indemnity for that other's liability for professional fees and out of pocket expenses reasonably incurred in the litigation, that is, "costs" as that expression is ordinarily understood in the law. [Emphasis added].
The reference to costs being those which are “reasonably incurred” is significant in that, in Cachia v Hanes (1994) 179 CLR 403 at 410, Mason CJ, Brennan, Deane, Dawson and McHugh JJ said:
It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. [Emphasis added].
In New Zealand Flax Investments Limited v Federal Commissioner of Taxation (1938) 61 CLR 179, the High Court considered when an expense could be said to have been “incurred” for the purpose of the Income Tax Assessment Act 1922. The High Court said:
To come within that provision there must be a loss or outgoing actually incurred. “Incurred” does not mean only defrayed, discharged, or borne, but rather it includes encountered, run into, or fallen upon. It is unsafe to attempt exhaustive definitions of a conception intended to have such a various or multifarious application. But it does not include a loss or expenditure which is no more than impending, threatened, or expected. [Emphasis added].
Anticipated future expenses, in respect to services that have not yet been provided, are “no more than impending, threatened or expected”. They have not been incurred as at the date that the order is sought pursuant to s 117 and, for that reason, it is my view that s 117 does not empower the Court to make a litigation funding order. It is it is to be noted that there has been no suggestion that an application has been made for an order for security for costs, in which case entirely different considerations would apply: Rules 19.05 of the Rules; Luadaka & Luadaka (1998) FLC 92-830.
The reasoning of Hayne J in Re JJT is entirely consistent with the wording of s 117(2A) of the Act which mandates that the Court “shall” have regard to the matters listed in paragraphs (a) through to (g) of that subsection. The section does not read, for instance “to the extent that it is possible the Court shall have regard to…” While the authorities are clear that in making an order for costs, the Court does not need to be satisfied of each and every matter referred to in paragraphs (a) through (g) (Fitzgerald v Fish and Anor (2005) 33 Fam LR 123 at [41]), it remains the case that the Court is nonetheless directed to have regard to those matters. Indeed, the use of the word “shall” indicates that it is a mandatory obligation. Clearly, there are many matters that the Court cannot have regard to until a matter, including an interim application, is finalised. This includes, significantly, whether a party has been wholly unsuccessful in that application and how they have conducted the litigation up to the point of the order being made.
In summary, while I recognise that existing Full Court authority is to the effect that the Court has power to make a litigation funding order pursuant to s 117 of the Act, for reasons that I have explained, it is my view that existing authority is inconsistent with the subsequent High Court decision of Re JJT. I nonetheless accept that I am bound by the existing authority of the Full Court and, accordingly it is necessary for me to determine whether s 117 of the Act empowers the Court to make the dollar for dollar order, as proposed in orders 7 to 12 of the wife’s application.

Dollar for dollar order

In Selena & Montez at [94] to [95] I said:
Finally, I would not have made an order for costs on a dollar for dollar basis as such costs would not be “certain and/or ascertainable” in accordance with the decision of the Full Court in Hogan & Hogan. In that case the Full Court held that the trial judge was in error in making an open ended order for the husband to pay the wife’s costs. In so deciding the Full Court stated:
Whilst recognising that the court has unlimited discretion in relation to costs, in our view, the whole tenor of the legislative provisions and the history of costs orders whether interim or final requires them to be either certain and/or ascertainable and any order must be just.
In my view the time at which the costs must be certain and/or ascertainable is the time at which the order is made. To decide otherwise would prevent review of any such order requiring the costs to be paid. An order for the payment of costs on a dollar for dollar basis is necessarily not certain and can only be ascertained by the occurrence of subsequent events which, in this case, are the payment of legal costs by the husband. [References omitted].
In Atkins & Hunt And Ors (2018) 57 Fam LR 128 (“Atkins & Hunt”) at 134, Watts J took a different view. His Honour stated:
In Hogan the Full Court overturned the trial judge’s order that the husband pay “the solicitor and own client costs and outlays of the wife’s solicitors… (including counsel’s fees) rendered by such from time to time to the wife”. This was an order which gave the wife’s lawyers an open cheque book, over which the husband had no control.
…
A dollar for dollar order is fundamentally different. The financially advantaged party can choose and control what amount he or she spends on their own legal costs. It is not uncommon that, once a dollar for dollar order is made, the playing field is somewhat levelled by the financially advantaged party simply choosing to represent themselves so they don’t have to fund their spouse’s case against them.
While the point of distinction drawn by his Honour between the facts of the case he was considering and those considered by the Full Court in Hogan & Hogan (1986) 10 Fam LR 681 is, with respect, unquestionably valid, it remains the case that a dollar for dollar order is neither certain, nor ascertainable, at the point in time that the order is made. This is significant because the absence of such certainty removes or, at least, significantly limits, the possibility of review. I will explain my reasons for arriving at that conclusion.
Section 21(2) of the Act confirms that the Family Court of Australia “is a superior court of record”.
In R v Watson; Ex parte Armstrong [1976] 136 CLR 248 at 257 to 258, Barwick CJ, Gibbs, Stephen and Mason JJ, in a joint judgment, confirmed that even in interlocutory proceedings, a judicial officer exercising discretion pursuant to the Act is required to act judicially. The High Court described the Trial Judge’s failure to do so, as indicating “a basic misconception” as to the position of the Court in proceedings involving the exercise of discretion under the Act.
Their Honours relevantly, at 257 to 258, stated:
No doubt [the judge] is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down (in such sections as ss. 43, 72, 75 and 79, whichever may be applicable). He must also follow the procedure provided by the law.
…
A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it. These remarks are not intended to fetter a judge of the Family Court in the exercise of a proper discretion or to insist upon the observance of unnecessary formality; they are designed to make it clear that a judge of the Family Court exercises judicial power and must discharge his duty judicially.
In Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd[1983] 3 NSWLR 378 at 386, Mahony JA stated that the obligation to give reasons is a normal incident of the exercise of judicial power. In that respect, His Honour said that while a judge exercising discretionary judgement “is not required to make an explicit finding in respect to each disputed piece of evidence”, a judge exercising such power is nonetheless required to give reasons “to indicate to the parties why the decision was made and allow them to exercise such rights as may be available to them in respect to it”.
To make an order for costs in circumstances where those costs are not quantified or quantifiable significantly limits the ability of the party who has been adversely impacted by such an order to challenge the order.
In that respect, in Wilkie v Brown [2016] NSWCA 128, Beazley P, with whom McColl JA and Gleeson JA agreed, applied, as a correct statement of principle, the decision Hamod v State of New South Wales and Anor[2011] NSWCA 375, where it was said, at [820]:
The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills) … The approach taken to estimate the costs to be ordered must be logical, fair and reasonable … [Original Emphasis].
A dollar for dollar order does not permit an evaluation as to whether the costs order is logical, fair or reasonable, and it deprives a party who is adversely impacted by such an order of the opportunity to review it on that basis. As a related matter, such an order does not permit the party who is liable to make such payments to seek an assessment of costs so ordered, in which case Rule 19.34(1) would apply. That rule provides:
Assessment principles
(1) A Registrar must not allow costs that, in the opinion of the Registrar:
(a) are not reasonably necessary for the attainment of justice; and
(b) are not proportionate to the issues in the case.
Accordingly, even if I am wrong in my determination that s 117 does not empower the Court to make a litigation funding order, I would have nonetheless determined that proposed orders 7 to 12 of the orders sought by the wife cannot be characterised as seeking a costs order pursuant to s 117 of the Act. Adopting the language of Hayne J in Re JJT it is an order dealing with something other than costs than have been incurred.
As noted by Watts J in Atkins & Hunt at [31], the basis upon which the wife sought a dollar for dollar order in that case was “that such an order would, to some extent, ‘level the playing field’”. Indeed, his Honour noted that such an order may well result in the applicant receiving no payment in respect to costs. In that respect, as noted above, his Honour stated, at [33]:
It is not uncommon that, once a dollar for dollar order is made, the playing field is somewhat levelled by the financially advantaged party simply choosing to represent themselves so they don’t have to fund their spouse’s case against them.
As I have discussed, the proposed dollar for dollar order does not specify an amount that is to be paid, nor does it identify a process for determining the amount by way of agreement or assessment. This is important because the absence of either of those criteria prevents the order being reviewed as a costs order, in order to determine that it is logical, fair and reasonable or, pursuant to Rule 19.34, that is it proportionate to the issues in the case.

Section 114 injunctive power

At the hearing on 23 June 2018, I invited submissions regarding the potential scope of s 114 of the Act. That section empowers the Court to grant injunctions. Specifically, I invited submissions as to whether s 114 empowers the Court to make orders in the nature of those sought in paragraphs 7 to 12 of the wife’s application.
Senior Counsel for the wife contended that s 114 of the Act bestowed such power upon the Court. Counsel for the husband did not address that issue, but it was clear that, on behalf of the husband, he opposed the making of such an order, irrespective of the power of the Court, in that regard.
In the case of F & F (1989) FLC 92-031 at 77,436, Lindenmayer J said:
I am of the opinion that so long as the Court is satisfied that the proceedings before it have their genesis in circumstances arising out of the marital relationship, the section constitutes a separate and independent grant of jurisdiction and power to the Court, and that it does not merely provide the machinery for enforcing rights, the existence of which must be found elsewhere in the statute, or in the common law. In short, this subsection gives the Court a whole new area of jurisdiction and power to make such order as it considers proper for regulating the conduct of the parties to a marriage in any circumstances which can fairly be said to arise out of the marital relationship.
Relevantly, in proceedings such as these, which arise “out of the marital relationship” (English & English(1986) FLC 91-729), s 114(1)(e) of the Act empowers the Court to:
(1) … make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…
(e) an injunction in relation to the property of a party to the marriage …
Section 4 of the Act, relevantly defines property in relation to the parties to a marriage or either of them as meaning “property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
The term “property” has been generally given a wide meaning. Lord Langdale MR in Jones v Skinner (1835) 5 LJ Ch 87 at page 90 stated that it is:
…the most comprehensive of all terms which can be used inasmuch as it is indicative and descriptive of every possible interest which the party can have.
This quote was cited with approval by the Full Court of this Court in Duff and Duff (1977) FLC 90-217, where it was held that at p 76,131:
…the Act is to be read and construed widely and liberally with words and expressions being given their ordinary meanings…
Cash in the hands of the husband including cash at Bank is unquestionably property and can be the subject of an order pursuant to section 114(1)(e) of the Act.
It is clear that s 114(1) of the Act empowers the Court to make orders in positive, as well as negative, terms, as in the case of mandatory injunctions: Mertens & Mertens [2016] FamCAFC 136 at [56]. Such an order is discretionary and must be considered proper: Jeeves & Jeeves (No 2) [2008] FamCA 1148 at [29]; Tripp & Tripp [2013] FamCA 1107 at [53]. The term “proper” means “reasonable and just in [the] circumstances”: In the Marriage of Farr (1976) FLC 90-133.
In this matter, Senior Counsel for the wife referred to considerations identified by Watts J in Atkins & Hunt at [46] as providing examples of where the Court might consider exercising its discretion to make a dollar for dollar order “as a last resort”. Those examples identified by Watts J are, as follows:
46.1. Where:
46.1.1. The party who apparently controls significant financial purse strings pleads impecuniosity; and
46.1.2. The financially disadvantaged party cannot point to any particular fund or asset that might be available to help assist that party fund their litigation; but
46.1.3. The financially advantaged party seems to be able to fund their litigation through personal exertion income or structures that they directly or indirectly control (see for example, Zadenev & Zadenev [2014] FamCA 693 and Ryder & Bonham);
46.2. Where a financially advantaged party is a minority shareholder in a company and/or a discretionary beneficiary in a trust and directors or trustees seem more than willing to declare dividends or make distributions to fund litigation for the financially advantaged party against the disadvantaged party;
46.3. Where a financially advantaged party has relatives or associates who are prepared to fund the litigation against the financially disadvantaged party in circumstances where the financially disadvantaged party does not have the same support from third parties (Hurford & Hurford [2016] FamCA 328).
While, for the reasons I have set out, I am of the view that s 117 of the Act does not provide a basis for making the dollar for dollar orders sought by the wife, I am nonetheless satisfied that such a power is found in s 114(1)(e) of the Act. I respectfully adopt the considerations identified by Watts J in Atkins & Hunt as providing useful guidance in respect to the exercise of discretion, pursuant to s 114 of the Act.
In opposing the making of a dollar for dollar order, Counsel for the husband contended that the wife is able to access the balance of the monies held in the parties’ joint account in the sum of approximately $96,000 to fund her legal fees. It is to the credit of the husband that he is prepared to consent to an order facilitating that occurring.
Senior Counsel for the wife, however, contends that making such an order would simply result in a situation where those funds are depleted prior to a final hearing leaving little, if any, property to be distributed. This is in circumstances where, despite the parties’ earning extremely high income, their pattern of expenditure and investment decisions have been such that they are now in a position where they effectively have no assets other than those monies held in the joint account and some superannuation.
In those circumstances, I accept the contention that it would be unfair to require the wife to expend a substantial portion of the little property that the parties have in their joint names on litigation expenses with the outcome that there would be little, if anything, to apportion at final hearing.
It is clear from the background of this matter that the husband controls “significant financial purse strings” in relation to the parties’ property and financial resources.
Further, it would seem that the husband has an ability to fund his litigation expenses through personal exertion income. In that respect, in his updated Affidavit filed on 6 June 2018, the husband confirms that his annual target income for the 2018 financial year will be $1,303,400. The fact that the husband has applied to reopen this matter, and has engaged Counsel to present argument to that effect, confirms the husband’s ability to fund his litigation.
A further consideration, in addition to those referred to by Watts J, is the consequence of each parties’ failure to comply with their obligations of disclosure. As I will discuss, each party has, in respect to the applications that they have made, failed to provide the disclosure that is required of them, pursuant to the Rules. The issue of non-disclosure is relevant to the wife’s application for a dollar for dollar order, in circumstances where it can be anticipated that a substantial component of the wife’s case will be a claim for ongoing spousal maintenance. In that respect, the husband’s non-disclosure of the basis upon which he has reached an agreement to pay his taxation liability to the ATO results in significant prejudice to the wife, most relevantly in terms of her determining his capacity to pay an appropriate amount of spousal maintenance.
Unless and until that inadequate disclosure is rectified, this matter will inevitably proceed to litigation, giving rise to the need for the wife to have access to funds in respect to her litigation expenses.
Before granting any injunction, it is important for the Court to have regard to the balance of convenience, in terms of the impact that it will have on each of the parties: Liatos & Liatos and Anor [2008] FamCAFC 111; Shan & Prasad [2018] FamCAFC 12. The effect of a dollar for dollar order was described by Watts J in Atkins & Hunt at 134, as enabling the party who is under the burden of the order to choose and control what amount he or she spends on their own legal costs.

In this matter, I accept that it may be the case that the wife may decide to expend a greater amount on her future litigation expenses than the husband will pay on her behalf by way of the dollar for dollar order. In that way, the husband would be disadvantaged to the extent that the wife determines to supplement the money she receives from the husband. However, that possibility needs to be seen in the context of the finding that I have made that the parties have no assets other than the amount of $96,000 in the joint account, to which I have referred. As will be discussed, I am further satisfied that the wife’s weekly expenses exceed her income. In other words, I have found that the wife lacks a source of funding for her litigation and, accordingly, her ability to out spend the husband on litigation will be limited.
In terms of any detriment that would be caused to the husband if a dollar for dollar order is made, I note that he will be able to control the amount of money that he is required to pay to the wife pursuant to that order by determining the amount of money that he is prepared to pay for his own litigation expenses.
Accordingly, I am satisfied that it is reasonable and just in the circumstances of this case to make a dollar for dollar order.
As the order will be made pursuant to s 114 of the Act, it is unnecessary to consider those matters set out in s 117(2A) of the Act.
It is to be noted that proposed orders 9 and 11 contained in the wife’s application are sought against the parties’ respective solicitors. I accept that s 34 of the Act empowers the Court, in appropriate cases, to make orders against a party’s legal representatives: Atkins & Hunt at [68].
However, the orders sought by the wife against the parties’ respective solicitors will, in my view, achieve no greater efficacy than if orders are made requiring the parties to provide relevant instructions to their legal representatives. On that basis, I do not propose making orders against the parties’ legal representatives.

Spousal maintenance

Section 72 of the Act provides:
Right of spouse to maintenance
(1) A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
In Saxena and Saxena (2006) FLC 93-268, Coleman J explained that in determining whether to make an order for spousal maintenance, the Court should follow a four step process, as follows:
a)Can the applicant support themselves adequately?
b)If not, what are the applicant’s reasonable needs?
c)What capacity does the respondent have to meet those needs?
d)What order is reasonable, having regard to s 75(2)?
Those matters are addressed in the following paragraphs.

The wife’s ability to support herself

In this matter, both parties acknowledge that, owing to her obligation to care for children who are under the age of 18 years, the wife is unable to support herself “adequately”, in terms of s 72(1) of the Act. In that respect, the husband concedes that an appropriate order in respect to spousal maintenance would be in the sum of $417 per week.
Accordingly, the focus will be upon the wife’s reasonable needs, whether the husband has the capacity to meet those needs and, if so, what orders are appropriate, having regard to the provisions of s 75(2) of the Act.

The wife’s reasonable needs

The wife’s reasonable needs are to be assessed according to the amount that the wife requires for her own support, as opposed to what she requires in order to support the children: Stein v Stein(2000) FLC 93-004.
In this matter, the wife has filed three Financial Statements. In relation to her two most recently filed Financial Statements, the wife has not provided evidence as to the basis upon which her average weekly expenses in Part N have increased from $798, as at 28 February 2018, to $2119 as at 24 April 2018. Further, the wife has not identified why, in her most recent Financial Statement, she includes a component in respect to her obligation to pay superannuation, which amount will presumably be ultimately applied for her benefit. The wife has also failed to provide details as to the basis upon which she claims a weekly obligation to repay loans totalling $165, as opposed to the $65 identified in her earlier Financial Statement.
The wife’s failure to provide evidence as to the basis for those relevant increases occurs in circumstances where the wife has not complied with her obligation of disclosure, pursuant to Rule 4.15. In that respect, Annexure “SEQ 2” to the wife’s Affidavit filed on 28 February 2018 attaches bank statements only in respect to the period 8 August 2016 to 7 October 2016. In other words, there is an absence of evidence enabling the husband to verify the items of expenditure newly claimed by the wife.
In her Financial Statement filed on 28 February 2018, the wife’s personal weekly expenditure is identified as being $798, together with the following additional amounts:
a)Income tax of $175.64;
b)Rental expenses of $2,200;
c)Life insurance premium estimate of $56.59;
d)Car insurance policy estimate of $22;
e)Motor vehicle registration estimate of $6.46;
f)Loan repayments estimate of $65; and
g)Credit card payments estimate of $115.
In her Financial Statement filed on 24 April 2018, the wife’s personal weekly expenditure is identified as being $2,119, together with the following additional amounts:
a)Income tax of $265.69;
b)Superannuation of $115.34;
c)Rental expenses of $2,200;
d)Life insurance premium of $56.59;
e)Car insurance policy estimate of $22;
f)Motor vehicle registration estimate of $6.46;
g)Furniture rental of $23.07;
h)Loan repayments estimate of $165; and
i)Credit card payments estimate of $115.
In the absence of evidence justifying the higher amount claimed in the wife’s subsequent Financial Statement filed on 24 April 2018, I respectfully agree with the contention of Counsel for the husband that it is appropriate to look only at those expenses set out in the wife’s Financial Statement filed on 28 February 2018.
In circumstances where I have made an order for a partial property distribution in the sum of $12,000 to the wife to enable her to meet her credit card expenses, it is necessary to reduce the expenses attributable to such repayments claimed by the wife in paragraph 30 of her Financial Statement filed on 28 February 2018 by $115.
Accordingly, I assess the wife’s needs as being a combination of those items set out in Part N of her Financial Statement, totalling $798, together with those items set out in Part G, less the amount of $115. This brings the revised total expenses to $3,324. I, therefore, assess the wife’s weekly needs to be in that amount.
However, the wife receives a gross weekly salary from her business of $1,108. That must be deducted from the wife’s weekly expenditure to identify the additional amount she requires by way of spousal maintenance to meet her weekly needs. The resulting difference between need and income is therefore $2,216.
It is to be noted that amount includes rent payable by the wife. Accordingly, I will not make a separate order in respect to rent.

Husband’s capacity to pay

The husband argues that he lacks the capacity to pay spousal maintenance to the wife over and above the amount of $417 per week.
By way of summary, the husband’s argument is that, despite receiving a high income, which he identifies at paragraph 8 of his Affidavit filed on 6 June 2018 as being a target income for the current financial year of $1,303,400, he is unable to pay the amount of spousal maintenance sought by the wife as a result of his outstanding taxation liability.
In that respect, it was not disputed that, as at the date of swearing his Affidavit filed on 27 April 2018, the husband’s outstanding taxation liability was $975,517.65, as set out at paragraph 58 of that document.
Paragraphs 58 to 61 of the husband’s Affidavit filed on 27 April 2018 state:
58. As I say earlier, I currently owe a liability to the Australian Taxation Office in the sum of $975,517.65 which includes the PAYG quarterly instalment due on 28 April 2018 …
59. I have been involved in discussions with the Australian Taxation Office for some time for the purpose of coming to an agreement on a repayment plan to reduce the liability I owe. In February 2017 I negotiated a payment plan that I would pay down the debt at the rate of $36,990.12 per month. Commencing on 1 August 2017, I began paying the sum of $40,000 per month in 2 payments of $13,000 and $27,000 which are paid on the 1st day of each month.
60. Although I have been meeting this monthly payment plan, I have been informed by my advisors at [CD] that the Australian Taxation Office are no longer agreeable to this arrangement moving forward as I am not keeping up to date with my quarterly instalments. The Australian Taxation Office has requested that I increase the level of my payments. I recently proposed the following arrangement to the Australian Taxation Office which I intend to implement as of 1 May 2018 as a way to address their concerns:
60.1 meet 100% of my current quarterly instalments which are detailed in the table at paragraph 38; and
60.2 pay the sum of $10,000 per month towards the outstanding debt for the first year, increasing this amount in May 2019.
61. On the basis of my new proposal, I will be paying a total of $663,442per annum in tax payments (average at $12,758 per week). I have not received any communication from the Australian taxation office as yet as to whether this arrangement is agreeable to them, or if I will have to increase the amounts I pay.
At the hearing on 30 April 2018, Senior Counsel for the wife noted that, according to the husband’s updated Financial Statement filed on 27 April 2018, he declares his income from his business partnership as $19,585 per week. Updated evidence of the husband’s tax liability repayments is found in both his Financial Statement filed 27 April 2018 and his Affidavit filed on 27 April 2018, however, there is a different figure provided in each of the documents referred to. The figure provided in the husband’s Financial Statement is the amount of $12,765. Accordingly, I will apply that figure in making the relevant calculations that I set out below.
After deducting the amount of $12,765 per week, which the husband attributes to his tax liability repayments, he is left with a balance of $6,820 per week in order to satisfy his personal commitments and weekly expenses.
Those items of personal expenditure were identified in the husband’s Financial Statement, as follows:
a)Rental payments of $1,423;
b)Group life insurance policy with CD of $324;
c)Health insurance policy of $195;
d)Salary continuance and personal accident insurance policy of $182;
e)Motor vehicle insurances of $46;
f)Motor vehicle registration of $15;
g)Hire purchase lease repayments on motor vehicle of $151;
h)Loan repayments in respect to business partnership of $292; and
i)Maintenance payments and child support of $2,400 ($1,430 to the wife, $419 to Mr Z and $551 to Y and X).
At Part N of his Financial Statement, the husband states that his “other expenditure” referable to himself is $828. Therefore, the husband’s total personal weekly expenditure, including his taxation liability repayments, is $18,621. Leaving aside taxation the additional expenditure is $5856.
The husband stated that his total weekly income is $19,632. Therefore, on the basis of those calculations, in addition to the amount of $1,430 that the husband is currently paying to the wife in respect to spousal maintenance, he has a surplus of income over expenditure of $1,011. This would give the husband capacity to pay a total amount of spousal maintenance of $2,441.
Leaving aside the issue of the husband’s taxation liability, the husband’s updated Affidavit filed on 6 June 2018, shows that during the current financial year the husband will receive a higher income than stated in his Financial Statement dated 27 April 2018. The 6 June Affidavit states that husband’s target income for the 2018 financial year will be $1,303,400, which is an equivalent to $25,065.38 per week. On the basis of that stated income, again leaving aside an asserted additional taxation liability, after deducting a weekly expense of $12,765 attributable to his taxation commitments, as referred to in his Financial Statement filed on 27 April 2018, the husband would have a surplus over expenditure of $12,300.38. This would enable the husband to comfortably pay the amount that I have identified as being the need of the wife.
However, in his Affidavit filed on 6 June 2018, the husband qualified his ability to pay maintenance as a result of a revised agreement with the ATO in respect to the payment of his taxation liability. As a result, the husband contends, at paragraph 17, that his repayment obligations for that liability will increase from $12,765 to $17,846 per week.
After that increased amount is deducted from the husband’s weekly income of $25,065.38, the husband receives a net income of $7,219.38 per week. After deducting the weekly expenses identified by the husband in his Financial Statement of $5,856, the husband has a surplus of income over expenditure (including the amount that he currently pays by way of spousal maintenance) of $1,363.38 per week. When that figure is added to the current spousal maintenance amount paid by the husband (which is identified in paragraph 31 of his Financial Statement as $1,430 per week), it is evident that, even if the husband’s argument is accepted in respect to impact of his agreement with the ATO, the husband still has a capacity to pay spousal maintenance of $2,793.38. Therefore, the husband is able to pay the amount of $2,216 to the wife, which is the amount that I have identified as her need over and above her income.
Moreover, in assessing the husband’s capacity to pay I note that while the husband has presented evidence of his revised agreement with the ATO, he has not provided evidence that the proposal, to which he refers at paragraph 60 of his Affidavit filed on 27 April 2018, was ever rejected by the ATO. That information is relevant in terms of Rule 13.01(1), to which I have earlier referred.
The husband has not shown that he has been compelled to pay, to the ATO, an amount over and above the $10,000 per month figure that he referred to in his Affidavit dated 27 April 2018. To the contrary, the basis for the revised payments described in the husband’s Affidavit filed on 6 June 2018 are set out in a proposal from CD to the ATO dated 30 April 2018 (Exhibit “W-3”). Under the heading “Proposed payment plan for ATO”, the final page of that letter confirms that the husband initiated the proposal that he pay $20,000 per month, as follows:
In order to start meeting his future quarterly PAYG instalments, [the husband] would like to propose a change in the current payment plan to ensure he meets all future quarterly PAYG instalment payments as well as pay down the current outstanding debt on the Integrated client account and Income Tax accounts.
This monthly payment plan would be as follows (to be split 50:50 across both the income tax account and integrated client account):

Dates of payment

Amount of payment per month

1 May 2018

$40,000

1 June 2018 – 1 July 2020

$20,000

1 August 2020 – 1 September 2021

$25,000

1 October 2021 – 1 December 2021

$30,000

The following paragraph of that letter then sets out the reason for the proposed graduated increase in payments, as follows:
… [The husband] is able to make this proposal as his partnership income from [CD] will increase to $1,300,000 from 1 May 2018 (which has been taken into account in his cash flow projection an associated increase in his quarterly PAYG tax). In addition, his spousal and child maintenance payment will reduce over time.
I respectfully agree with the submission of Senior Counsel for the wife that, in circumstances where the husband is earning, by community standards, an extremely high salary that would otherwise indicate an ability to pay spousal maintenance to meet the wife’s reasonable needs, the onus is upon him “to lay out all the facts” as to why he is not able to do so. This includes an onus to explain why he has departed from his foreshadowed offer of paying $10,000 per month in respect to arrears of tax and, further, why it was the case that he initiated the proposal to pay a higher amount, including $20,000 per month for the 2 year period commencing 1 June 2018. In failing to provide that information, the husband has not acted in a manner that is consistent with his ongoing obligation of disclosure, including his obligation to disclose “all material facts” to the dispute. That obligation is confirmed in Clause 6 of Part 1 of Schedule 1 of the Rules, to which I have earlier referred.
Senior Counsel for the wife contended that the husband has a further difficulty in that he has not explained why he has not paid monies to the ATO in accordance with his agreement with that body. At the hearing on 22 June 2018, Senior Counsel for the wife tendered a printout from of the husband’s online Tax Agent Portal (Exhibit “W-4”). That document shows that, on 1 May 2018, the husband paid a lump sum amount of $27,000 to the ATO, together with an additional lump sum amount of $13,000. This is in accordance with the amount contained in the husband’s proposal to the ATO dated 30 April 2018, to which I have referred (Exhibit “W-3”). The document also shows that the following payments have been made:
a)$3.07 on 1 May 2018;
b)$10,000 on 1 June 2018;
c)$95.11 on 15 June 2018;
d)$10,000 on 1 June 2018; and
e)$125.43 on 16 June 2018.
Senior Counsel for the wife contended that the information contained in that document shows that, prior to 16 June 2018, the husband had paid $20,000 per month to the ATO and not the amount of $17,800 per week, as referred to at paragraph 17 of his Affidavit. However, in the absence of data for the entire month, I am not in a position to conclude that the husband did not, at some stage between the date of hearing and the end of June 2018, make any additional payments to the ATO.
Nevertheless, it remains the case that the husband has a surplus of income over his expenditure that enables him to pay the amount of $2,216 that I have identified as being the wife’s need over and above her income. Moreover, the husband has failed to provide evidence detailing the circumstances in which, instead of paying off arrears owing to the ATO at the rate of $10,000 per month, he has now agreed to repay arrears at the rate of $20,000 per month. In those circumstances, the husband has not displaced his onus to explain why, despite his extremely high income, he is unable to meet the wife’s reasonable needs.
Accordingly, even accepting that the husband’s weekly expenditure over and above his taxation liability is $7,880 per week, as set out in his Affidavit filed on 6 June 2018, I am satisfied that the husband has the capacity to pay spousal maintenance to the wife to meet her reasonable weekly needs over and above her income, which I have identified to be $2,216.

What order is reasonable having regard to section 75(2) of the Act?

Section 75(2) of the Act provides that the matters to be taken into account in considering whether to make an order for spousal maintenance are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In terms of s 75(2)(a), I note that the parties are both 53 years of age and are in good health.
In terms of s 75(2)(b), the parties’ incomes, property and financial resources are set out in each of the parties’ Financial Statements and Affidavits. By way of summary, the husband earns an income of approximately $1.3 million per year and the wife receives an income, working as a self-employed professional, of approximately $57,000 per year.
In terms of s 75(2)(c), I have noted that there are three children of the parties’ relationship. The eldest child is aged 18 years and the younger two children are aged 15 years. The children reside with the wife and spend time with the husband. The amount of time that they spend with the husband is an issue in dispute. However, it is not disputed that the wife has been, and continues to be, the primary carer of the children.
In terms of s 75(2)(d) and (e), I have earlier referred to the parties’ respective needs, as reflected in the items of expenditure that I have identified. Other than the children, one of whom has reached the age of majority, the wife is not required to support another person. The husband also contributes to the support of the children, as detailed in his Financial Statement and at paragraph 21 of his Affidavit filed on 6 June 2018.
In terms of s 75(2)(f), in his Financial Statement, the husband identifies that he has superannuation in the sum of $735,582. In her Financial Statement, the wife indicates that she has a superannuation entitlement of $72,825. It is relevant that both parties are at an age where it can reasonably be assumed that they will not access their superannuation entitlements for a number of years.
In terms of s 75(2)(g), the parties are entitled to enjoy a standard of living that is reasonable in all the circumstances. It was not disputed that, despite benefiting from a very substantial income stream, the parties have also engaged in a lifestyle that involves a high level of expenditure. In the five years leading up to separation, the parties and the children lived in a five-bedroom home in Suburb J with a swimming pool. The parties employed a nanny and a cleaner. Prior to separation, the parties and the children travelled domestically and internationally for holidays. Counsel for the husband submitted that that level of expenditure is unsustainable. There is, with respect, substance to that submission.
Nevertheless, the order that I propose to make for the husband to pay ongoing spousal maintenance to the wife, for the period until this matter is listed for final hearing, will enable both parties to reside in reasonable accommodation and enjoy a comfortable standard of living in circumstances where, since separation, they are now required to maintain two separate households.
In that respect I note that the spousal maintenance of $2,216 per week is equivalent to a net income of $115,232 per annum. In addition the wife will continue to earn income in the sum of approximately $57,000 per annum and she will also receive child support payments form the husband who is also meeting the children’s private school fees and health insurance payments. By community standards this should enable the wife to enjoy a comfortable standard of living even having regards to her responsibilities as primary carer of the children.
In terms of s 75(2)(h), it was not contended that the wife requires funds to undertake an education course or training to update her skills.
Section 75(2)(ha) is not a relevant consideration.
In terms of s 75(2)(j), in these interim proceedings, it is not possible to explore the extent to which the wife has contributed to the income earning capacity, property and financial resources of the husband. This will clearly be a significant issue at the final hearing. Nevertheless, the husband acknowledges that the wife has, during the marriage, taken on the responsibility of primary carer for the children and that he was the primary income earner.
In terms of s 75(2)(k), it is noted that the parties were married in 1992 and separated on 6 April 2012, being a period of a little over 20 years. I have noted that the wife works as a self-employed professional. I have also noted that, during the course of the parties’ marriage, the wife was primarily responsible for maintaining the home and caring for the children. In these interim proceedings, it is not possible to determine the extent to which the wife’s responsibilities, in that regard, have impacted upon her earnings and future earning capacity. That is a matter that will require determination at final hearing.
In terms of s 75(2)(l), it is relevant that the wife’s responsibilities as the primary carer for the children are complicated by the fact that the children have a number of challenges. The wife’s evidence, in that regard, is summarised in the following paragraphs.
In 2011, Mr Z was diagnosed with severe reading problems and attended a speech pathology facility. In 2014, Mr Z was diagnosed with a visual perception disability called “Scotopic Sensitivity Syndrome” or “Irlen Syndrome”. As a result, reading and writing quickly is fatiguing and disorienting for Mr Z. In 2015, Mr Z’s Psychiatrist concluded that he struggles with dyslexia and low self-esteem. In 2017, on the advice of teachers at his school, Mr Z undertook an abridged version of the Higher School Certificate, which did not earn him an ATAR, but allows him to apply to attend University when he is 21 years old. As at 30 April 2018, Mr Z was enrolled in a personal training course.
Since June 2015, Mr Z has been under the care of Dr K, Psychiatrist at L Hospital for low mood and aggression problems. Mr Z has been physically aggressive towards his sisters, which their school counsellor wished to report to Department of Family and Community Services. He has previously been prescribed Prozac, but currently manages his mood with regular exercise and healthy eating.
X and Y have both suffered from various medical issues in the period subsequent to the parties’ separation.
When Y was nine years old, she was bullied at school, which was reported to the Police. In May/June 2017, Y was diagnosed with major depressive disorder, which manifested in low mood and persistent thoughts of the wife dying. Y is currently under the care of Dr M, Psychiatrist at L Hospital. Y is currently prescribed an anti-depressant. In June 2017, Y suffered from pneumonia and was bedridden and unable to attend school for many weeks. She also suffers from dysmenorrhea, or menstrual cramps. She has a condition which is currently being investigated and will possibly require surgery in 2018.
X has suffered from symptoms of anxiety since she was nine years old and has self-harmed on three occasions. X was assessed by Dr M on 15 August 2017 and diagnosed with severe obsessive compulsive disorder that had been trauma induced/exacerbated. She was prescribed an anti-psychotic drug, an anti-depressant and a drug for sedation. As with Y, X also suffers from dysmenorrhea (as well as menorrhagia) and has a condition which is currently being investigated and will possibly require surgery in 2018.
Assisting the children to deal with these challenges will require both the wife’s time and financial resources.
In terms of s 75(2)(m), the husband is in a new relationship, however, there is no suggestion that the husband is supporting his partner, indeed the father contends his new partner has been subsidising his travel. An unsatisfactory aspect of the husband’s Financial Statement filed on 27 April 2018 is that he has not identified the income of his new partner or, other than in respect to weekly rent and a contribution of $199 per week to utilities, the extent to which she may be in a position to make a contribution to any item of expenditure identified in Part N of that document and at paragraph 21 of his Affidavit filed on 6 June 2018.
In terms of s 75(2)(n), I have made an order for a partial property distribution in favour of the wife in the sum of $12,000. That is for the purpose of reducing a credit card debt.
In terms of s 75(2)(na), the husband has and continues to comply with his child support obligations, which, he notes in his Financial Statement, require him to pay the sum of $551 per week in respect to X and Y.
The parties have not, in these interim proceedings, referred to any additional matters that are relevant, in terms of s 75(2)(o).

Conclusion in respect to spousal maintenance

Having regard to the considerations set out in s 75(2) of the Act, to which I have referred, I am satisfied that it is appropriate to make an order for the husband to pay spousal maintenance to the wife in accordance with her reasonable needs, which I have determined to be in the sum of $2,216.

Child support

As previously noted, in proposed orders 18 and 20, the wife pleads for a child support departure order pursuant to s 117 of the Child Support (Assessment) Act 1989 (“the Child Support Act”), together with an order pursuant to s 124 of the Child Support Act in respect to the children’s private school fees, uniforms sporting equipment and extracurricular activities, as well as the payment of private health insurance and gap expenses.
In considering this application, it is necessary for the parties and the Court to appreciate the legislative context of the provisions to which I have referred. In Bagala & Bagala (2009) FLC 98-043, Riethmuller FM (as he then was) succinctly observed at [21]:
The objects and purpose of the Child Support Scheme are to provide an informal, inexpensive and timely avenue of review for disputing parties.
In Yewen & Child Support Registrar [2014] FCCA 2399, Judge Brown referred to the fact that there is now a detailed administrative framework to deal with child support applications, with limited involvement of the Court. His Honour analysed the legislative history regarding child support and stated:
[76] The rationale for the exclusion of the court, from the process of review, is readily explicable in light of the objects as outlined in section 4 of the Assessment Act. Court proceedings, regarding child support assessments, should be the exception rather than the rule. This is particularly so, since the inauguration of the external level of appeal, in child support matters, provided by the SSAT.
[77] The instigation of appeals to SSAT, in child support matters, was part of a wide ranging reform of the child support system inaugurated by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the “Reform Act”). The SSAT is intended to be a specialist tribunal, dealing with child support matters, in preference to a court such as this one.
….
[79] The important matter to note, in my view, is that departure applications are to be heard by the court in what are categorised as being limited circumstances, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair.
I respectfully agree with Judge Brown’s analysis of the legislative history and, in particular, his Honour’s conclusion that Court proceedings regarding Child Support Assessments should be the exception, rather than the rule. In Warwick and Cutler and Anor [2016] FamCA 934, I expressed the view that his Honour’s analysis is strengthened by the fact that, since the enactment of the Tribunals Amalgamation Act 2015 (Cth), this Court no longer has jurisdiction to hear appeals on questions of law in respect to child support.
In considering the wife’s application for a child departure order and an order pursuant to s 124 of the Child Support Act, as no issue was taken, I am assuming that the Child Support Registrar has been served with relevant papers in this matter, as required by Rule 4.23(1)(c): Child Support Registrar & Nixon (2007) 36 Fam LR at [47] – [48] and see s 145 of the Child Support Act 1989
Rule 4.26(2) provides, in respect to a child support departure application:
(2) On the first court date and the hearing date of the application, each party must bring to the court the following documents:
(a) a copy of the party's taxation returns for the 3 most recent financial years;
(b) the party's taxation assessments for the 3 most recent financial years;
(c) the party's bank records for the period of 3 years ending on the date on which the application was filed;
(d) if the party receives wages or salary payments--the party's payslips for the past 12 months;
(e) if the party owns or controls a business, either as sole trader, partnership or a company--the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and
(f) any other document relevant to determining the income, needs and financial resources of the party.
While the parties have provided certain documentation in respect to their income and expenditure, to which I have earlier referred, neither party has provided a copy of their taxation returns, taxation assessments or bank records for the past three years. As will be discussed, this presents difficulties in terms of considering the wife’s application for a child support departure order.
At the hearing, Counsel of the husband indicated that the husband consented to order 20, as sought in the wife’s application, being made.[2] That order will be made by consent.
[2] Transcript 30 April 2018 pages 20 – 21
In addition, as noted by Counsel for the husband, the husband has also agreed to meet the cost of a tutor for X and Y in the amount of $80 per week, to be paid directly to the tutor, as set out in paragraph 3.4 of the husband’s response.[3] That is to the husband’s credit, and I will also make an order to that effect.
[3] Transcript page 21
The dispute in respect to the issue of child support, therefore, became focused upon the wife’s application pursuant to s 117 of the Child Support Act, as set out in proposed order 19 of her application.
A precondition to considering an application for a child departure order is the Court being satisfied, in terms of s 116 of the Child Support Act, that the hearing of such an application is in the interests of both parties: Seymour and Seymour [2011] FamCAFC 97 at [84].
Senior Counsel for the wife contended that, given that the husband has agreed to orders being made pursuant to s 124 of the Child Support Act, the Court can assume that both parties agree that it is in their interests for the Court to consider the wife’s application. That submission, with respect, inappropriately takes advantage of the position of the husband, where he has shown goodwill in agreeing to orders being made pursuant to s 124 of the Child Support Act in respect to schooling costs, health insurance and medical expenses for X and Y. Nevertheless, for the purpose of considering this application, I will accept that the threshold requirement set out in s 116 of the Child Support Act has been satisfied.
Further, the wife needs to establish that “special circumstances” exist for the making of a departure order. In that respect, in In the marriage of Gyselman (1992) FLC 92-279 at 79,064 (“Gyselman”), the Full court noted:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery's case (p. 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p. 77,202 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
Senior Counsel for the wife contended that there are special circumstances in this case, as a result of the following:
a)The husband earns approximately $1.3 million per year and the wife earns approximately $57,000 per year;
b)The husband is currently required to pay the amount of $1,097.50 per fortnight according to the Child Support Assessment issued on 22 January 2018. That amount, it is contended, is considerably less than the actual costs associated with caring for the children, which are identified in the wife’s first Financial Statement as being, $1,044 per week. Accordingly, it was submitted that the Assessment does not address the proper needs of the children; and
c)The wife is the children’s primary carer and bears the majority of their expenses, while earning a substantially lower income than the husband.

There are two points to note in respect to those submissions.
Firstly, the Child Support Assessment of 22 January 2018 assesses the husband’s income as being $1,462,511 and the wife’s as $57,664. The wife’s income was, therefore, identified as being 2.28 per cent of the totality of the parties’ combined “child support income”, which is their total income less their “self support amount”. In other words, the disparity between the parties’ earnings was specifically considered by the Child Support Agency.
Secondly, the Child Support Assessment of 22 January 2018 notes that the cost of each child has been assessed, according to a formula, as being equivalent to $20,833 per child, per annum, totalling $41,666. That amount is less than the amount assessed by the wife in her Financial Statement filed on 24 April 2018, which was $1,068 per week for both Y and X, or $55,536 per year.
However, there are items of expenditure included in Part N of the wife’s Financial Statement, attributable to X and Y, that appear to be excessive. For instance, the wife calculates the weekly food bill for the children, over and above that of the rest of the household, as being $600 per week, which is equivalent to $31,200 per year. The wife calculates the cost of clothing and shoes to be $90 per week, or $4,680 per year. The wife calculates the cost of activities as being $80 per week, or $4,160 per year. This last item is specified in circumstances where the husband has agreed to meet the cost of extra-curricular activities associated with the children’s education.
The difficulty of making findings of an evidentiary nature in interim proceedings is well known. In Acton & Burton [2015] FamCA 469 at [26], which also involved an application for child support departure orders in the context of interim proceedings, Hogan J said:
The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them.
In circumstances where the wife has not complied with her obligations pursuant to Rule 4.26(2), it is not possible to be confident of the accuracy of her assertions in respect to the children’s expenses, as set out in her Financial Statement. In other words, I am not satisfied that the expenses that are incurred by the wife in respect to the children, over and above their education expenses, are greater than the amount determined in the Child Support Assessment dated 22 January 2018.
Accordingly, the wife has not, in terms of the requirements of s 117 of the Child Support Act, satisfied me that there are special circumstances justifying the making of a child support departure order in respect to the fortnightly amount that the husband is required to pay for the benefit of Y and X.
Finally, I note that in Beck and Sliwka (1992) FLC 92-296 at 79,262 (“Beck and Sliwka”), the Full Court stated that, in exercising its jurisdiction in respect to child support matters, the Court is, as one would expect, required to consider the facts of the individual case before the Court. However, the Full Court said that in determining such matters “… it seems not unreasonable to at least pay regard to the formula [applied by the Child Support Agency]”.
That statement has even greater relevance in light of the legislative reforms to which I have earlier referred. Those reforms show a clear intention, on the part of the Legislature, that, in the ordinary course, Child Support should be determined administratively and by applying the relevant statutory criteria.
In having regard to Beck and Sliwka, I note that Division 2 of Part 5 of the Child Support Act sets out relevant formulas that potentially apply to the facts of this case. I have not been addressed on the application of the relevant statutory formula. In those circumstances, even if I had been satisfied that, on the facts of this case, there are special circumstances that warrant a departure from the Child Support Assessment, in undertaking that task I would have been unable to properly consider whether there should or should not be a departure order and, if so, in what amount.

Adult child maintenance

At the hearing, the parties reached an agreement that, until further order, the husband would pay adult child maintenance in respect to Mr Z, as follows:
a)$1,166 per week;
b)$150 per week as pocket money; and
c)$253.53 per week for payment of Australian Institute of Fitness tuition fees.
The parties agreed to enter into a formal undertaking in respect to that matter.
The parties have liberty to apply if there is any difficulty in respect to that issue.

I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 31 August 2018.

Associate:

Date: 31 August 2018

Dates of payment	Amount of payment per month
1 May 2018	$40,000
1 June 2018 – 1 July 2020	$20,000
1 August 2020 – 1 September 2021	$25,000
1 October 2021 – 1 December 2021	$30,000