Rafter and Rafter

FAMILY COURT OF AUSTRALIA

RAFTER & RAFTER

[2012] FamCA 611

FAMILY LAW – PROPERTY – Application by husband to set aside a consent property order – Whether case made out of impracticability of performance – Application dismissed

FAMILY LAW – SPOUSAL MAINTENANCE – Application by wife for spousal maintenance on final order basis – Need conceded – Husband argued lack of capacity to pay any spousal maintenance – Husband’s argument rejected – Order made for spousal maintenance for wife

FAMILY LAW – SPOUSAL MAINTENANCE – Application by wife for arrears of ordered interim spousal maintenance – Lump sum arrears ordered to be paid within 30 days

FAMILY LAW – PRACTICE AND PROCEDURE – COSTS OF SINGLE EXPERT – Past order made for appointment of single expert – Wife ordered to pay the costs of the single expert with the determination as to whether the husband should contribute to those costs and if so to what extent reserved to trial judge – Wife’s application for husband to pay or contribute to costs of single expert – Wife had sought appointment of the single expert – Husband had strongly opposed appointment of the single expert – Wife’s application dismissed – Effect is costs to be regarded as wife’s costs in the preparation of her own case – Wife’s application for costs of the proceedings yet to be determined – If wife succeeds in obtaining against husband an order for costs of the proceedings then any assessment of her costs would include consideration of whether it was reasonable for her to incur the costs of the expert as if a witness in her own case to be assessed in the usual way by a Registrar if not agreed

Family Law Act 1975 (Cth) s 72, s 74, s 75, s 77A(1), s 77A(2), s 79A(1)(b)
Family Law Rules 2004 r 1.12(2), r 1.12(3), r 15.44, r 15.47

Cawthorn v Cawthorn (1998) FLC 92-805
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Dwyer & McGuire (1993) FLC 92-420
Franklin and McLeod (1994) FLC 92-481
Hillcrown Pty Ltd v O’Brien [2011] QCA 129
In the Marriage of Lutzke (1979) 5 FamLR 533; FLC 90-714
In the Marriage of P & MP Vakil (1997) 21 FamLR 508
La Rocca & La Rocca (1991) FLC 92-222
Rohde & Rohde (1984) FLC 91-592
Sanger & Sanger [2011] FamCAFC 210
Starkey & Starkey (2010) FamCA 477
The Brisbane City Council Group Projects Pty Ltd (1979) 145 CLR 143

APPLICANT:

Ms Rafter

RESPONDENT:

Mr Rafter

FILE NUMBER:

BRC

9414

2008

DATE DELIVERED:

4 June 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

14 & 18 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Galloway

SOLICITORS FOR THE APPLICANT:

Rostron Carlyle Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Page SC
(14 November 2011)

SOLICITORS FOR THE RESPONDENT:

KL King & Associates
(14 November 2011)

THE RESPONDENT:

In person
(18 November 2011)

Orders

IT IS ORDERED

Consent property order

The husband’s application under s 79A(1)(b) of the Family Law Act 1975 (Cth) to set aside or vary the consent property order made on 14 November 2008 is dismissed.
The husband perform paragraphs 3c and 3d of the consent property order made 14 November 2008 by payment to the wife of $23,000 within 30 days from the date of this order.

Spousal maintenance

The husband pay to the wife $500 per week spousal maintenance weekly in advance from the date of this order, until such time as the Court (or the Federal Magistrates Court) varies or discharges this order or the parties in writing agree for its variation or discharge.

Interim spousal maintenance – arrears

The husband pay to the wife $41,250 arrears of interim spousal maintenance for the period 31 March 2010 until 17 November 2011 (calculated at $500 per week x 85 weeks $42,500 less $1250 paid) such payment to be made within 30 days from the date of this order.
The husband pay to the wife $14,250 arrears of spousal maintenance for the period 18 November 2011 to 3 June 2012 (calculated at $500 per week x 28.5 weeks – 199 days) such payment to be made within 30 days from the date of this order.

Costs of Mr C’s report

The wife’s application that the husband pay for or contribute to the costs of the report by V Consulting, as a single expert report, is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9414 of 2008

Ms Rafter

Applicant

And

Mr Rafter

Respondent

REASONS FOR JUDGMENT

Applications

Wife – spousal maintenance – future and backdated

Ms Rafter (the wife) seeks a final order that the husband pay her $1000 per week for spousal maintenance, backdated to 1 August 2009: amended initiating application filed 14 April 2010 (original filed 8 February 2010). The order sought is “open ended”, in that it does not specify any end date for her claim. During argument Mr Galloway of Counsel, for the wife, sought that the order be framed “until a court varies or discharges the order or the parties otherwise in writing agree”.

Wife – spousal maintenance – arrears

The wife seeks also an order for the payment of arrears of interim spousal maintenance ordered by Coates FM on 31 March 2010 that the husband pay the wife $500 per week interim spousal maintenance. The arrears at the time of the hearing were $41,250 (85 weeks at $500, $42,500, less $1250 paid). Payment of the arrears are sought within one month: wife’s reply filed 14 November 2011.
Mr Galloway of Counsel, for the wife, conceded, properly, that if I make the spousal maintenance order the wife seeks for $1000 per week, or any amount exceeding $500 per week, backdated to 1 August 2009, or any date preceding 31 March 2010, the wife’s application for arrears pursuant to the interim order would be subsumed and thus need not be addressed.

Husband – spousal maintenance – future/backdated and arrears

Mr Rafter (the husband) seeks the dismissal of the wife’s application for spousal maintenance: husband’s response filed 28 April 2010 (original filed 16 March 2010).
During argument, and by his material, the husband made clear also that he sought that all arrears in relation to the interim spousal maintenance order be discharged.

Husband – s 79A

The husband seeks an order that a consent property order made 14 November 2008 be set aside, or alternatively varied so that pars 3c and 3d be set aside, pursuant to s 79A(1) of the Family Law Act 1975 (Cth) (the Act) on the basis that “they no longer apply due to change in circumstances as a result of the loss of the [B Company] investment”: amended response filed 28 April 2010.
The wife seeks the dismissal of the husband’s application to set aside the consent property order and the alternative claim that it be varied so that pars 3c and 3d be set aside: wife’s reply filed 14 November 2011.

Wife - costs of single expert report

The wife seeks an order that the husband pay to the wife the costs of a single expert report prepared by Mr C of V Consulting dated 29 September 2011: wife’s minute of orders 7 November 2011.
Mr C’s report was sought by the wife and ordered by Principal Registrar Filippello on 10 August 2011 on the basis that the wife pay for the costs of the report with the determination as to whether the husband should contribute to those costs and if so to what extent reserved to the trial judge.
Mr C’s report was ordered for the purpose of assessing the husband’s financial position taking into account several financial documents and other filed material relevant to the issue of the husband’s capacity to pay spousal maintenance: see the Principal Registrar’s order 10 August 2011, par 1.

Costs of the proceedings

Each party seeks the costs of the proceedings against the other party.

Section 79A - Husband’s application to set aside or vary the consent property order made on 14 November 2008

It is convenient to commence with the husband’s application to set aside or vary the consent property order made on 14 November 2008.
The parties are aged 57 years (husband) and 54 years (wife).
They married in 1976, and separated on 17 May 2008, the marriage thus subsisting for about 32 years.
There are four children of the marriage, G 34 years, S 31 years, H 29 years and N 23 years.
All four children live independently. None is financially dependent on the parties.
The husband says, relevantly, that at the time the consent property order was made, and indeed at the date of the parties’ separation, he and the wife were insolvent, their debts exceeding their assets, caused by an extravagant lifestyle and living beyond their means.
The husband says that by way of the consent property order he gave to the wife “the assets”, meaning the then realisable assets, and he “took all the debt”.
The husband says that he did this generously, so that the wife could re-establish herself, she having, as he described, psychiatric and other disabilities, whereas he, as he then perceived, had the capacity to get on with his life and had a quite significant income earning capacity for his own future.
In “giving” the wife “the assets”, primarily the consent property order had effect that the wife would receive $80,000 being most of the net proceeds of sale of the parties’ former matrimonial home, and two further cash payments of $11,500 each to be paid on 31 July 2009 and 31 July 2010 respectively. These matters were the subject of par 3 of the consent property order, which provided:
Cash payments
3.That the [husband] make the following cash payments to the [wife]:
a.An initial payment of $40,000.00, which has already been paid to the [wife] and the [wife] acknowledges that she has received these funds;
b.A second payment of $40,000.00 immediately upon the date of these Orders;
c.A third payment of $11,500.00 to be made on 31 July 2009; and
d.A final payment of $11,500.00 to be made on 31 July 2010.
Otherwise, the consent property order provided for the husband and the wife to have and retain the chattels in their respective possession; the husband have the proceeds of any joint bank accounts (which it appears amounted to $12,000); each retain any superannuation entitlements accrued to them (which ultimately proved to be nil); the wife have the motor vehicle in her possession; the husband have the M Trust including his shareholding in “[E] No 1” and “[E] No 2” and any future rights associated with those shares whether as to income or capital; the husband have the Rafter Family Trust including the motor vehicle; the parties share some Qantas Frequent Flyer points; the husband be solely responsible for all liabilities in either the husband’s or the wife’s name and indemnify the wife in relation to any liabilities in either of their names; and other matters I need not specifically mention, save for pars 7, 8 and 9 of the consent property order relating to an investment in “B Company”. In this regard, I will set out pars 7, 8 and 9:
Proceeds of [B Company] investments
7.That the [wife] receive one half of the proceeds of the [B Company] investments net of tax made during the period from 2002 to 2008.
8.The proceeds of the [B Company] investments are to be calculated net of tax at the [husband’s] highest tax rate and determined by the [husband’s] accountant.
9.The proceeds determined in paragraph 8 (sic) are to be paid to the [wife] once the proceeds are realised, due to commence in 2012.
The husband’s case is that in September 2009 his world “crashed”, when [B Company] “collapsed”; and that he was solely reliant on [B Company] to be able to pay the two amounts of $11,500 the subject of pars 3c and 3d of the order.
Paragraphs pars 3a and 3b were performed.
The first observation I will make is that if [B Company] “crashed” in September 2009 that was after the husband was to pay to the wife the amount of $11,500 due on 31 July 2009. However, as will be seen, the husband’s true case is that B Company was placed into receivership in April 2009 and subsequently did not recover.
The husband’s case under s 79A expressly is under s79A(1)(b), which provides, relevantly:
SECTION 79A SETTING ASIDE OF ORDERS ALTERING PROPERTY INTERESTS
79A(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out;
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside. (emphasis added)
Although the husband’s case initially was for the whole of the consent property order to be set aside, after argument the husband sought only that it be varied so that pars 3c and 3d be set aside so that he may be relieved of making the two payments of $11,500.
In relation to the husband’s claim that it is impracticable for those subparagraphs to be carried out he relied upon a document styled Particulars of Claim insisted on by Mr Galloway of Counsel, for the wife, which on 14 November 2011 Mr Page SC, for the husband, provided, the document becoming ex 1 for convenient location in the material. Exhibit 1 (a handwritten document) provides thus by way of “Particulars” of the husband’s claim under s79A(1)(b):
At the time of the making of the order on 14 November 2008 the husband disclosed an investment in [B Company] and an ability to borrow on the security of such investment sufficient to meet the payments required to be made in paragraphs 3c and 3d.
In April 2009 [B Company] was placed in receivership and the ability of the husband to obtain repayments of capital and/or income on his investments was lost.
By reason of the receivership the husband lost his ability to borrow against the security of his investment in [B Company] or to receive any return of capital or income on his investment.
The receivership of [B Company] and its consequences were not reasonably foreseeable by the husband at the time of the making of the order on 14 November 2008.
The receivership of [B Company] and its consequences to the husband was not caused or contributed to by the husband and it is just and equitable that the order be varied. (emphasis added)
In light of this, I turn now to the meaning of impracticable within the meaning of and for the purpose of 79A(1)(b).

Section 79A(1)(b) – legal principles – authorities – impracticable –common law doctrine of frustration of assistance – but necessity to consider Parliament’s intent concerning s 79A(1)(b)

In Cawthorn v Cawthorn (1998) FLC 92-805 the Full Court, Ellis, Lindenmayer and Joske JJ considered favourably the view of Kay J in La Rocca & La Rocca (1991) FLC 92-222, extracted at 85,058-9, in which his Honour first (extracted at 85,058) referred to the different treatment or “dichotomy” in the Act of property and maintenance orders; secondly (extracted at 85,058-9) compared each of the (then) 4 bases under s 79A(1) which enliven the discretion to set aside or vary an order; and thirdly (extracted at 85,059) determined that “the concept of impracticability” is akin to the doctrine of frustration in contract, but that potential insolvency of one of the parties in the future or the commercial failure of one of the parties post the making of the orders which will lead to them not being capable of being fully implemented are not bases to set aside an order. Thus Kay J said (extracted at 85,059):
…My own view is that the concept of impracticability, as referred to in this section, is akin to the application of the doctrine of frustration in contractual matters. What the Parliament is concerned with and what ought to be concerning the Court is the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to.
In standard contractual doctrine, I think that is as comfortably as anywhere described by Russell J. in Re Badische Co. Ltd. (1921) 2 Ch. 331 at 379, where his Honour said:
The doctrine of dissolution of a contract by the frustration of its commercial object rests on an implication arising from the presumed common intention of the parties. If the supervening events or circumstances are such that it is impossible to hold that reasonable men could have contemplated that event or those circumstances and yet have entered into the bargain expressed in the document, a term should be implied dissolving the contract upon the happening of the event or circumstances.
Now, in my view, what the appropriate application of s. 79A(1)(b) ought to be is that circumstances that have arisen in which it becomes impracticable to carry out the orders are circumstances that could not reasonably have been contemplated and that in such circumstances, whilst impossibility is not the test and impracticability is, it may then become just and equitable to change the orders.
The potential insolvency of one of the parties in the future is not such a matter, in my view. In every case before the Court property values may change, go up or down, business may flourish or not flourish, the vicissitudes of life may affect one of the parties.
In an appropriate case, such as the extreme circumstances described in Barder and Barder (1987) 2 All E.R. 440 in the House of Lords, where the mother killed herself and the children after the making of the order, then appeal out of time and fresh evidence is the appropriate answer. However the commercial failure of one of the parties post the making of the orders which will lead to the orders not being capable of being fully implemented does not, in my view, amount to a basis on which to set the order aside.
That situation leads to a problem with enforcement. It may be that the bankruptcy laws would have to take over, but it is not an appropriate basis for having orders set aside and fresh orders made at the behest of the party who has suffered the financial embarrassment. There is no provision in the legislation to have matters looked at a second time if one of the parties suddenly becomes wealthy and, in my view, I do not see that the legislation can be appropriately read as applying when one of the parties becomes suddenly poor, in normal business circumstances. (emphasis added)
Their Honours then referred to Kay J’s approach as being “generally followed” by Moss J in Franklin and McLeod (1994) FLC 92-481 at 81,025.
Their Honours in Cawthorn then concluded, at 85,060:
In our view, it is important to preserve the dichotomy between maintenance orders which are variable as provided for in the Act and orders for settlement of property which are basically permanent in their nature. This concept has underpinned the Family Law Act from its inception. For that reason, we agree with the approach adopted by Kay J that the provisions of s 79A should be construed strictly.
On a case by case basis, reliance upon authority relating to the contractual doctrine of frustration in its various facets may at times prove to be of assistance. In so doing however, care must be taken and it must remain at all times in the forefront of the Court's deliberations that the task before the Court is to interpret and administer a section of the Act.
We also agree with the views of both Kay and Moss JJ that the concept of impracticability contained in s 79A(1)(b) is quite different from problems of enforcement that may arise due to a party's insolvency. In such a case, the matter may well have to be dealt with pursuant to the provisions of the Bankruptcy Act 1966. This, however, merely reflects the vicissitudes of life and is in harmony with the clean break principle enshrined in the Act. An application for a further settlement of property is not available in circumstances where one party suddenly becomes immensely rich. It should also be noted that the words of Russell J quoted earlier from Re Badiche Co. Ltd. (supra) should not be regarded as providing the appellant any solace in the circumstances of this case. Financial problems, such as have arisen in respect of the appellant, have never given rise to the successful invocation of the doctrine of frustration. (emphasis added)

In Sanger & Sanger [2011] FamCAFC 210 the Full Court gave consideration to a binding financial agreement, capable of being set aside or varied if, relevantly:

SECTION 90K CIRCUMSTANCES IN WHICH COURT MAY SET ASIDE A FINANCIAL AGREEMENT OR TERMINATION AGREEMENT
90K(1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
…
(c)in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out;

… (emphasis added)

The Full Court, Coleman, May and Thackray JJ dealt with the matter at [86]-[93], first observing that “impracticable” is not defined in the Act: [86]; then referring to Rohde & Rohde (1984) FLC 91-592 (referred to also in Cawthorn); La Rocca & La Rocca, in the part I have set out above; and Cawthorn & Cawthorn (setting out various parts of it); their Honours then at [91]-[93] referred to Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 in which Stephen J and Mason J discussed the authorities in relation to frustration of a contract; and referred also to textbook reference.
In Sanger, their Honours at [96] referred to “the authorities in relation to frustration of a contract” as providing “ample support” for Counsel for the respondent’s submission that the BFA in that case was not impracticable, based upon the facts set out at [16]-[19]. Largely, these facts seemed to relate to changes in value of a business and a home, after the BFA was entered into. However, I am not concerned here with the particular facts of that case.
I would add reference to Hillcrown Pty Ltd v O’Brien [2011] QCA 129, in particular at [7] and [11]-[13] per Fraser JA; [23] per Chesterman JA and [47]-[53] per Peter Lyons J. Fraser JA, at [7], referred to Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 357 to the effect that a contract will be frustrated where the parties enter into it on a common assumption that a state of affairs essential to its performance will continue to exist, and the common assumption proves to be mistaken; but that the common assumption needs to be “contractual” so that extrinsic evidence can be looked at as to surrounding circumstances to assist in the interpretation of the contract, unless the language is “so plain” that recourse to surrounding circumstances would amount to no more than an attempt to contradict or vary the terms of the contract. Chesterman JA at [23] referred to Codelfa (above) at 356-7 as definitive in Australia as to the doctrine, with emphasis that when the doctrine applies a contract comes to an end “by operation of law”. Peter Lyons J at [47]‑[53] exhaustively analysed the common law cases, drawing distinction between Australian and English authority.
I was invited to consider Starkey & Starkey (2010) FamCA 477, a single judge decision of Murphy J, who at [28] referred to consideration of what is meant by the expression “impracticable” for a s 79 order to be carried out. His Honour referred to Cawthorn, which principles his Honour applied to the facts of the case at [30] and [49] to conclude that on the facts of that case the matters relied upon by the wife as changes which could not reasonably have been foreseen indeed were “well known” at the time the consent orders were made, as a finding in that particular case: see also at [36]. That is not to elevate however, as a matter of principle, that particular facts must in all cases have been “well known”. Rather, his Honour, at [36] was demonstrating, I think, that if something was “well known”, it cannot be said that such could not reasonably have been foreseen.
In Hillcrown, the various references to Codelfa make clear that in operation of the doctrine at common law, evidence of a common assumption is excluded as inadmissible if the language of the contract is “so plain” as not to admit evidence of surrounding circumstances to contradict or vary it.
It must be recalled that in La Rocca, approved in Cawthorn, it was said that the concept of impracticability in s 79A(1)(b) is “akin” to the doctrine of frustration, not that it be assimilated with it in all respects.
Thus, as their Honours in Cawthorn made plain at 85,060:
…[C]are must be taken and it must remain at all times in the forefront of the Court’s deliberations that the task before the Court is to interpret and administer a section of the Act. (emphasis added)

Relevance of these principles to the parties’ evidence

Thus, as I am dealing with an order made under a statute, and not a common law contract, it seems to me to be appropriate to have full regard to the evidence which either party wishes to put forward, and if necessary to make findings. That is to say, I do not regard myself as bound by the common law evidentiary restriction relating to the doctrine of frustration at common law. Indeed, there is nothing in the Act to so confine the admissible or relevant evidence, when the Court is required to consider “impracticability” for the purposes of the Act.
The husband asserted, in effect, common assumption between himself and the wife in relation to his B Company investment and its future success, as underpinning the bargain they made represented in the consent property order. The wife, for her part, disputes any such common assumption, indeed swearing that she was advised by lawyers not to enter into the consent property order as it was not sufficiently favourable to her, but that she did so on the basis of the husband’s further promise that he would look after her well in the future in relation to her spousal maintenance needs.
It seems to me however that whether or not the parties’ had a common assumption as to what might occur in the future, and even if they did, and even if the B Company crash was not reasonably foreseen by the husband and the wife, or contemplated by them, the difficult factual matter which I must decide is whether by the supervening event of the B Company crash the husband merely suffered commercial failure or financial misfortune post the making of the s 79 consent order, or even may be facing bankruptcy now as a consequence (which matters do not form a ground for whether performance of the order is impracticable), or whether, on the particular facts of the case, there was, even assuming a common assumption, or even a unilateral assumption on the part of the husband, that his B Company investment would be successful, and that the B Company crash was not reasonably foreseeable, nor contemplated, this supervening event would cause injustice to the husband if effect is not given to it by setting aside pars 3c and 3d of the consent property order (such that, effectively, it is impracticable for pars 3c and 3d to be carried out).
Mr Galloway, for the wife, in written submissions filed 18 November 2011, made several observations as to the various elements of the Particulars of Claim document, ex 1, submitting that the husband’s case, “made and defined by the particulars”, fails for several reasons:
16. The case made and defined by the particulars fails for the following reasons:
a.The husband gave no evidence about being able to use his investment in [B Company] as a security to borrow sufficiently to meet the payments required by the order
b.There is no evidence that his investment in [B Company] was capable of being taken as security
c.There is no evidence in the property order itself suggesting that the payments were contingent upon the [B Company] investment being capable of providing security
d.The failure of [B Company] subsequent to the making of the order is merely a contingency and although in one sense a circumstance that has arisen since the order was made is not a circumstance which makes compliance with the order “impracticable”.
It is true, as contended by Mr Galloway, that the husband gave no evidence and there is no evidence that the husband’s B Company investment was capable of being used as security for the husband to borrow $23,000 to perform pars 3c and 3d (written submissions par 16a and 16b above) and no evidence in the order itself suggesting any contingency on security (written submissions, par 16c above).
As to Mr Galloway’s written submissions at par 16d, Mr Galloway submitted that “an order for the payment of money is never impracticable” (written submissions par 16d, fn 1).
The Particulars of Claim thus, for the want of any evidence as to the husband’s ability to use his B Company investment as security, reduce, relevantly, to the receivership in April 2009 having effect that the husband lost the ability to obtain repayments of capital and/or income on his B Company investment. The husband’s case as particularised in this regard in my view must fail because the two payments were to be made on 31 July 2009 and 31 July 2010, yet the face of the consent order, par 9, makes clear that the proceeds of the B Company investment for the period 2002-2008 were not to be realised until 2012: “due to commence in 2012”: consent property order, par 9.
Despite the failure of the husband’s case, as it is particularised, this is not a court of pleading, in the sense that the Rules of Court do not require the delivery of a statement of claim and a defence. Although from time to time individual judges will direct pleadings in particular cases, the Rules provide that, otherwise, trials be on affidavit. It is proper thus that I not confine the husband’s case to the Particulars of Claim document (drawn I think by Mr Page of Senior Counsel on 14 November 2011), as particularised, and thus have wide regard to all of the husband’s evidence, in his affidavits and orally, as to whether according to the particular facts of the case his performance of paragraphs 3c and 3d has become impracticable in the sense discussed in the authorities.
I turn then to consider whether there was any common assumption between the husband and the wife at the time of entering into the consent property order that the wife would have “the assets” and the husband would take “the debt” and indemnify the wife in relation to their debt because they both believed that ultimately the husband would benefit by fruition of the B Company investment.
The husband said in his affidavit filed 31 October 2011, par 110, that it was his expectation that the gross returns from B Company expected between 2012-2018 “could have been somewhere between $750,000 and $1,000,000”; and, par 111, that he expected the wife’s share of the proceeds (presumably pursuant to pars 7-9 of the consent property order) to be after tax between $250,000 and $400,000.
The husband thus anticipated that ultimately he would be able to pay all debts from and live comfortably from the B Company proceeds, and from his perspective entered into the consent property order on that basis.
He said he was advised to use the full net proceeds of sale of the parties’ former matrimonial home, about $92,000, to pay matrimonial debts, but instead “gave” $80,000 to the wife (the husband seemingly kept $12,000 – see the application for consent orders filed 15 October 2008 and the financial details set out in that document), whereas now (the date of the hearing), some 3 ½ years after the date of the consent property order he has not paid out debts existing at that time. (The largest debt, it will be noted, is some $502,260 by E No 1 or No 2 to X Pty Ltd by way of a loan account, as will be explained in the section on spousal maintenance, and not a debt of the husband personally).
The husband said thus that the failure of B Company was not reasonably foreseeable to him and that as a result of the failure he is now insolvent (as he was, it appears, at least technically as at the date of the consent property order) and is now “teetering on the verge of bankruptcy”.
The husband agreed however under Mr Galloway’s cross examination that he had never discussed with the wife that he proposed to rely on his B Company investment to pay her the two amounts of $11,500.
On the husband’s own evidence, thus, there was no express common assumption that the B Company investment was relied upon by the husband to pay the two amounts of $11,500 to the wife, nor any discussion to give rise to such common assumption. Further, such cannot be implied from the surrounding circumstances because the wife gave evidence, which I accept, that she in fact had been advised by lawyers not to enter into the consent property order as it was not sufficiently favourable to her, but did so on the basis of a promise by the husband that he would look after her well in the future by way of spousal maintenance.
It seems, therefore, that the parties were far apart in their respective thoughts in relation to their individual reasons for entering into the consent property order, with no commonality of assumption.
I find therefore that there was no common assumption between the husband and the wife to the effect that their bargain was contractually premised upon the future success of the husband’s B Company investment.
Moreover, whilst I have no doubt that the husband did not foresee the B Company crash, in the circumstances of my finding that there was no contractual common assumption, it is not necessary to determine whether its failure reasonably could not be foreseen, at least, in the sense that few investments are risk free, such that investors invariably must be aware, I think, that not all investments necessarily will succeed.
Mr Galloway submitted, as to the Particulars of Claim asserting that the failure of B Company “was not reasonably foreseeable by the husband” at the time the consent property order was made, that the words “not reasonably foreseeable” are not the same as “did not foresee” or “cannot be reasonably forseen” (Kay J, La Rocca, above). Mr Galloway submitted thus that whilst it is plain that the husband “did not foresee” that B Company would fail, this being in the nature of the failure of a commercial enterprise, it was objectively reasonably foreseeable that the B Company investment might not be the source of the husband’s ability to borrow on the security of that investment or utilise it otherwise to pay the wife the $23,000 on the dates that such was due.
I accept this submission.
Next, there is the circumstance that between the date of the consent property order and early 2010 the husband spent a considerable amount of money on restaurants, holidays and lifestyle. He said “Yes, I can’t deny it, up until early 2010 when I was in denial”.
Thus I would infer that the husband could have paid the wife the two amounts due on 31 July 2009 and 31 July 2010 if he had managed his financial affairs more responsibly, so that he cannot rely upon on the failure of the B Company investment for not paying the two amounts on the due dates. As I have observed earlier, according to par 9 of the consent property order, the proceeds of the B Company investment were not due to be realised in any event until 2012, that is, “due to commence” in 2012.
For these reasons, I reject the husband’s case that the supervening event of the failure of B Company establishes the ground of impracticability within the meaning of s 79A(1)(b).
Mr Galloway’s written submissions continued:
21.The irrationality of the husband’s proposition is exposed by example. Any husband could say “The investments I took under the order haven’t worked out as I hoped so we have to vary the order and the wife will have to share my losses”. As no husband will ever agree that an unexpected prospering after a property order will entitle the wife to re-open and enlarge her share neither will any post-order loss. …
22.It may be true that the failure of [B Company] was not caused or contributed to by the husband but that fact, in the circumstances, is irrelevant.
In relation to the matters in par 21, the submission is consistent with the authorities to which I have referred, save perhaps that there might exist some husbands who would share with a former wife a post order unexpected prosperity.
The real point here thus, I think, is that there is no obligation to do such: see La Rocca, 85,059, extracted in Cawthorn:
There is no provision in the legislation to have matters looked at a second time if one of the parties suddenly becomes wealthy and, in my view, I do not see that the legislation can be appropriately read as applying when one of the parties becomes suddenly poor, in normal business circumstances. (emphasis added)
In relation to par 22, in the particular circumstances of this case, I accept the submission that it is irrelevant that the husband did not cause or contribute to the failure of B Company. Indeed, such is an unfortunate change in the husband’s affairs, but one specifically considered by Kay J in La Rocca, Moss J in Franklin, the Full Court in Cawthorn and the Full Court in Sanger as not a circumstance, in itself, amounting to impracticability. In particular, I would refer again to Kay J in La Rocca (above), at 85,059:
…However the commercial failure of one of the parties post the making of the orders which will lead to the orders not being capable of being fully implemented does not, in my view, amount to a basis on which to set the order aside. (emphasis added)
As to whether it is just and equitable that the order be varied, by setting aside pars 3c and 3d, such is academic unless, “in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out” within the meaning of s79A(1)(b) as a jurisdictional fact to be determined before the discretion conferred in s79A to set aside or vary an order is enlivened. That is to say, there is no “separate head” in s79A for an order to be set aside or varied only upon any just and equitable ground, absent the establishment of one of the jurisdictional facts set out in s79A(1)(a)-(e).
Although unnecessary, for the sake of completion, I would refer to Mr Galloway’s written submissions at par 23, in which there is considerable force, so that even if the husband had established the ground of impracticability, it does not follow that the discretion necessarily would have been exercised in his favour to vary the order by deleting pars 3c and 3d:
23.It is not just and equitable that the order be varied. The wife has almost nothing. She is a disability pensioner and she is paid none of the interim maintenance order that binds the husband. In all the time that the husband has been in default of the maintenance order he has found money for his own support, for more than reasonable living. He enjoys a very high income. He is in arrears of maintenance payments in a sum greater than $40,000.00, that is, about twice the money he seeks to avoid paying the wife from the property settlement order. Thus, it could never be just and equitable for the order to be varied.
Although it is not necessary for me to embark upon a consideration of this aspect of the matter, I would observe that there cannot be any foregone conclusion that if the husband had established impracticability the discretion necessarily would have been exercised in his favour.
Finally, I will refer to Mr Galloway’s submission at par 9:
9.The first observation to make is that it is the word “impracticable” upon which the subsection hinges. Since it can never be “impracticable” to pay a sum of money and as an order of the court will have enduring life until satisfied by execution, it remains entirely practicable for the husband to carry out the order by payment.
It may be that the husband presently has no money to pay to the wife the $23,000. However, there is force in Mr Galloway’s submission that the order will remain alive until execution, or, I would add, if, by failed execution, it should become stale.
If the husband is presently, or has become, insolvent, that is not a reason under s79A to set aside or vary the order. If the husband becomes a bankrupt, other considerations will obtain.

In all of the circumstances however I would conclude that the husband’s case as to “impracticability” within the meaning of s 79A(1)(b) is not established.
It follows that I will dismiss the husband’s application, and order that he pay $23,000 to the wife within 30 days.

Spousal maintenance

History

In her initiating application filed 8 February 2010, the wife sought both an interim order and a final order that the husband pay her spousal maintenance of $1350 per week to date from 1 August 2009.
The reason the wife sought backdating to 1 August 2009 is because that is the first day after the husband defaulted in par 3c of the consent property order by non-payment to the wife of $11,500 on 31 July 2009.
In Mr Galloway’s written submissions filed 18 November 2011, par 16, he initially contended, under the subheading “From when should the payment date commence” that “The husband defaulted in his obligations to pay property settlement on 1^st August 2009 and the wife became acutely necessitous on that day”.
On 18 November 2011 however Mr Galloway caused that sentence in his written submissions to be deleted, thus distancing the wife’s spousal maintenance claim from connection with the consent property order, emphasising that there was nothing on the face of the consent property order to indicate that any part of it related to spousal maintenance for the wife.
As will be seen, a central part of the husband’s case concerning spousal maintenance is that in essence he regarded par 3 of the consent property order as, in effect, spousal maintenance.
The husband by his response filed 16 March 2010 had sought that the wife’s claim for spousal maintenance be dismissed.
In his affidavit filed 28 March 2010, the husband continued to seek the dismissal of the wife’s claim.
On 31 March 2010 Coates FM made an interim order that until further order the husband pay the wife $500 per week spousal maintenance.
His Honour provided reasons for judgment which included that whilst on the interim basis he could not make final findings there was evidence that the wife “cannot support herself” [19]; provided an analysis of what appeared to be her circumstances [20]-[43]; an analysis of what appeared to be the husband’s circumstances and the reasons for his opposition to the wife’s claim [44]-[75]; considered other evidentiary matters [82]-[111]; and on the interim basis was satisfied that the wife had the need for spousal maintenance (which indeed was conceded) and that the husband had the capacity to pay $500 per week on the interim basis which he ordered [112]-[114]; but not backdated, on the basis that his Honour did not have sufficient evidence confidently to make a backdated order.
Following the order the husband paid only $1250 and then ceased payments. At the date of hearing the arrears were said to be $40,250. (See however par 2 of these reasons: $41,250).
By amended initiating application filed 14 April 2010, the wife had amended her claim to $1000 per week, also to date from 1 August 2009.
In a minute of orders filed 9 November 2011 the husband continued to seek not only the dismissal of the wife’s claim but also an order that all arrears be discharged.
By reply filed 14 November 2011, the wife sought an order that the husband pay all arrears of interim spousal maintenance within 1 month.
In relation to the husband’s application for discharge of the arrears, he said that he had been dealt “rough justice” and that the learned Federal Magistrate had misunderstood the evidence.
In relation to the final hearing of the wife’s application for spousal maintenance the husband said that his opposition was based not only on significant change in his financial circumstances but that he is “hopelessly insolvent” and “teetering on the verge of bankruptcy”: husband’s affidavit filed 28 April 2010, par 22.
On 18 November 2011 Mr Galloway submitted that as the order the wife seeks is a final periodic order (the arrears being sought as a lump sum) it would be appropriate that any order for spousal maintenance prospectively be couched in the terms “until a court varies or discharges the order or the parties otherwise in writing agree”.
Although the husband (who became self represented on 18 November 2011) opposed the making of an order for spousal maintenance prospectively, I did not understand him to oppose that, if an order be made, it be expressed to operate in those terms.
Mr Galloway conceded, as earlier mentioned, that if I make the spousal maintenance order the wife seeks for $1000 per week, or any amount exceeding $500 per week, backdated to 1 August 2009, or any date preceding 31 March 2010, the wife’s application for arrears pursuant to the interim order would be subsumed and thus not need to be addressed.

The legislation

Sections 72 and 74 of the Act deal with spousal maintenance applications.
Section 72 provides:

SECTION 72 RIGHT OF SPOUSE TO MAINTENANCE

72(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).
72(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.

Section 74(1) provides:
SECTION 74 POWER OF COURT IN SPOUSAL MAINTENANCE PROCEEDINGS
74(1) In proceedings with respect to the maintenance of a party to a marriage the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
Section 75 provides:

SECTION 75 MATTERS TO BE TAKEN INTO CONSIDERATION IN RELATION TO SPOUSAL MAINTENANCE

75(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
75(2) The matters to be so taken into account 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.

75(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

The circumstance that the husband seeks an order for discharge of the arrears has effect that I need also to consider s 83, which provides:
SECTION 83 MODIFICATION OF SPOUSAL MAINTENANCE ORDERS
83(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is any just cause for so doing;
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
83(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative – the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent – that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
83(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first-mentioned order is made for the purpose of giving effect to this Part.
83(4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
83(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
83(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
83(6) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
83(6A) Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date, being moneys that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.
83(6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
83(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
83(8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect. (emphasis added)
Section 83(2) deals with an order “increasing” or “decreasing” an amount ordered to be paid if it is satisfied that since the order was made one of the circumstances there set out is established so as to justify an increase or decrease. Although in this particular case the husband is not seeking a “decrease” but a “discharge”, so that strictly it is not necessary to have regard to the matters in s 83(2), but to identify whether there is a “just cause” for the discharge of the order under s 83(1)(c), having regard to the provisions of ss 72 and 75, it appears that at least technically “discharge” is “decreasing” to zero, so that in my view the matters in s 83(2) need also to be considered, in particular in this case s 83(2)(a)(ii), being change in the circumstances of the husband as the person liable to make the payments, and whether his circumstances have so changed to justify a decrease, in particular, a decrease to zero, such change plainly being one capable of amounting to just cause, if the change has effect that it is “right” or “proper” to discharge the order.

The authorities/observation

In relation to s 83(1)(c), “just cause” was considered by the Full Court in In the Marriage of P & MP Vakil (1997) 21 FamLR 508. In Vakil, Fogarty, Lindenmayer and Moore JJ at [5.4]-[5.23] considered several authorities and at [5.7] referred to the meaning of “just cause” in s 83(1)(c) as determined by Lindenmayer J in In the Marriage of Lutzke (1979) 5 FamLR 533; FLC 90-714:
5.7In relation to the meaning of “just cause” in s 83(1)(c), counsel for the husband relied upon dicta of Lindenmayer J in In the Marriage of Lutzke (1979) 5 FamLR 553; FLC 90-714. The particular dicta from that judgment upon which reliance was placed is the following passage, appearing at FamLR 559-6; FLC 78,832 of the report:
…the act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice “palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged. If there were any room for doubt that this is the correct approach, in my opinion that doubt is removed by s 83(7) which provides:
(7)For the purposes of this section, the court shall have regard to the provisions of sections 72, 73, 75 and 76. (emphasis added)
Section 83(7) now requires that the Court to have regard to the provisions of ss 72 and 75.
In Vakil, after several paragraphs of considering past case authority as at that date, their Honours concluded at [5.23]:
5.23Having regard to all that authority we think that the above-quoted dicta of Lindenmayer J in Lutzke (1979) 5 FamLR 553; FLC 90-714 which appear to have received no judicial criticism over the last eighteen years, probably define the concept with as much precision as it is possible to give it in this context. Thus we conclude that, having regard to the current wording of s 83(7) (above), the question whether there is “just cause” for discharging an order… is to be determined as an exercise of judicial discretion by reference to notions of what would be regarded as “right” and “proper” … having regard (inter alia) to the provisions of ss 72 and 75 of the Act. …(emphasis added)
In an earlier paragraph [5.20], their Honours said that care should be taken in applying, too readily or literally, dicta from cases which were decided in the early days after the commencement of the Act; and in [5.36] emphasised that even if “just cause” be established, it does not follow that a spousal maintenance order must be discharged, because even if such be shown, there must still be exercise of the discretion to discharge an order, or not discharge it.
More pertinently however, although Lindenmayer J in Lutzke cautioned that the words “just cause” are not to be used “in any broad general sense” it is plain that a “just cause” is capable of being shown by reference to circumstances that have ensued since an order was made, provided that the change has relevance to the matters in s 72.
Section 72 broadly has been interpreted as requiring two considerations, first, the need of the claimant party for spousal maintenance, and secondly the capacity of the respondent party to pay spousal maintenance, that is, to the extent that the respondent party reasonably is able to do so, these matters to be assessed against the background of the Court taking into account the matters in s 72(1)(a)(b) and (c), having regard to any relevant matter referred to in s 75(2).

Wife’s need for spousal maintenance – since 1 August 2009, now and prospectively

On 18 November 2011, the husband conceded the wife’s need for spousal maintenance, and further conceded that her need is $1000 per week as claimed.
It is therefore strictly not necessary to consider her circumstances.
However I will do so for two reasons, first because the relevant s 75(2) matters, in a sense, require a comparison of the positions of the husband and the wife, and secondly because, as I understand the husband’s case, whilst he conceded that the wife needs $1000 per week he does not consider that he should be liable to pay that, or any amount, because his case is that by way of the s 79 consent property order he gave her all “the assets” and he took all “the debt”, and he regarded the $80,000 and the $23,000 the subject of par 3 of the consent property order “as spousal maintenance”, such that the cash the wife received (to date $80,000) was intended by him to be used by her to re-establish herself but that she “frittered it away” wastefully.

For these reasons, the preparation and cost of Mr C’s report and affidavit should regarded as the wife’s costs in her own case on the basis that it was she who wanted the report to be commissioned, and the further basis that the husband at all times made clear that he considered the report unnecessary and in any event could not afford to pay for it or contribute to its cost.
In all of the circumstances, in my view the costs fees and expenses properly should be regarded as the wife’s costs in her own case.
Thus, I will not order that the husband pay or contribute to the costs fees and expenses of Mr C’s report, as such would be unjust to the husband.
The effect will be that if the wife should succeed in obtaining an order for her costs of the proceedings to be paid by the husband under s 117 of the Act (made by her initiating application, and amending initiating application, but not yet heard) any assessment of her costs would include whether it was reasonable for her, in her own case, to incur the costs of obtaining Mr C’s report and affidavit as costs in her case, to be assessed in the usual way by a Registrar if not agreed.

I certify that the preceding three hundred and three (303) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 4 June 2012.

Associate:

Date: 4 June 2012

[2012] FamCA 611

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