Raymond & Raymond - [2023] FedCFamC2F 1396

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Raymond & Raymond [2023] FedCFamC2F 1396

File number(s): NCC 838 of 2023

Judgment of: JUDGE CARTY

Date of judgment: 20 October 2023

Catchwords:
FAMILY LAW – PROCEDURAL – Application to restrain wife’s solicitor from acting – inherent jurisdiction.

FAMILY LAW – INTERLOCUTORY – Financial application – spouse maintenance

Legislation: Family Law Act 1975 (Cth) ss 72, 74,75, 114, Pt VIII

Cases cited:
Atwill & Atwill (1981) 7 FamLR 573 at 576; (1981) FLC91-107 at 76,792

Bevan & Bevan (1993) 120 FLR 283

Charisteas & Charisteas [2022] FedCFamC1A 160

Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC1181

In the Marriage of Mirkin (1980) 5 FamLR 782

Osferatu & Osferatu [2015] FamCAFC 177

Division: Division 2 Family Law

Number of paragraphs: 170

Date of last submission/s: 16 October 2023

Date of hearing: 11 August 2023, 6 & 16 October 2023

Counsel for the Applicant: Mr Kelly

Solicitor for the Applicant: Coppertree Family Law

Counsel for the Respondent: Mr Weightman

Solicitor for the Respondent: Seton Family Lawyers
ORDERS

NCC 838 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RAYMOND

Applicant

AND:
MS RAYMOND

Respondent

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

20 OCTOBER 2023

THE COURT ORDERS THAT:
1.The husband’s interlocutory application to restrain the wife’s solicitor or her law firm from continuing to represent the wife in the proceedings is dismissed.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:
2.The wife shall have sole use and occupation of the property situate and known as F Street, Suburb G in the State of New South Wales (“the Suburb G property”) subject to the following:
(a)The wife is responsible to pay one half of all periodic and minimum principal and interest repayments due to ANZ pursuant to the home loan accounts …03 and …91 as and when they fall due and payable; and
(b)The wife is responsible to pay one half of the rates, insurances and utilities as and when they fall due and payable.

3.Pursuant to s. 74 of the Family Law Act 1975 (Cth) the husband shall pay or cause to be paid for the benefit of the wife by way of spousal maintenance:
(a)A lump sum of $5,500.00 with payment to the wife to be made within 14 days of the date of these orders; and
(b)A periodic sum of $685.00 each week with the first payment to be made within 7 days of the date of these orders and weekly thereafter; and
(c)All Health insurance premiums due and payable for the family health insurance.

4.The wife shall, within 2 days of the date of these Orders, notify the husband’s solicitor in writing of the wife’s nominated bank account, with the first periodic payment to be received as cleared funds within 7 days of the date of these orders and each subsequent payment to be received as cleared funds into the account within each 7 days thereafter.
5.The costs of and incidental to the interlocutory applications heard on 11 August 2023, 6 October 2023 and 16 October 2023 are reserved to the Directions hearing on 24 October 2023 before a Judicial Registrar.

THE COURT NOTES THAT:
A.No submissions were made at the interim hearing as to the costs in this matter.
B.The Court has reserved the costs of each party in the interim proceedings, with the issue of costs to be considered further at the directions hearing and further directions made in relation to determination of the costs issue, if required.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Before the Court is an interlocutory application by the husband to restrain the respondent wife’s solicitors, Seton Family Lawyers, from further acting for the wife in the family law property proceedings.
The husband also seeks various other orders, as does the wife, but for present purposes the other order that the husband seeks is that the wife pay the husband’s costs of the interlocutory application on an indemnity basis.
The wife opposes the husband’s application to restrain her solicitors from acting and, relevantly for present purposes, the wife seeks an order for spousal maintenance in the sum of $1350 per fortnight and that, with respect to the Suburb G former matrimonial home, for the benefit of the wife the husband make all the periodic minimum principal and interest payments due to ANZ Bank and pay for various other outgoings in respect of that property.
The wife also seeks an order that the husband pay her costs of and incidental to the application.
There is no controversy per se between the parties about the wife remaining in the former matrimonial home on an interlocutory basis, but the husband’s consent to the wife having the sole use and occupation of the home is conditional upon her meeting all the outgoings in respect of the home, whereas in the wife’s case she seeks an order that the husband pay all outgoings for the matrimonial home as well as the payment of the fortnightly sum of money to her by way of spousal support.
The parties agreed that the Court would hear and determine the above interlocutory applications together, notwithstanding that the husband’s application to restrain the wife’s solicitors would, ordinarily, be heard and determined before the Court would hear and determine other pending applications.
BACKGROUND
The husband was born in 1978. He is 45 years old and lives in rental accommodation at Suburb H in New South Wales. The husband is employed full time in his business which is styled D Company. In his financial statement filed on 5 October 2023 the husband discloses a gross average weekly income from D Company in the sum of $2200.
The wife was born in 1983. She is 40 years old and lives in the former matrimonial home at Suburb G, New South Wales, with the four children of the marriage, three of whom are under the age of 18 years. Until separation the wife was, it appears, receiving a part time salary as a co-director of C Company as trustee for Raymond Family Trust trading as C Company. It appears that it is common ground that she was on an extended leave of absence leading up to the separation and currently she says that she is not working in paid employment.
The parties commenced their relationship in 2003 and were married in 2004 in the USA. The parties separated finally under the one roof on 30 January 2023.
There were two prior periods of separation before the final separation. The first period was between two dates in late 2009, and the second period was for a 12 month period between early 2015 and early 2016.
On 17 March this year the husband moved out of the former matrimonial home at Suburb G and into shared rental accommodation at Town K, before securing his current rental accommodation in mid-2023, which is an apartment at Suburb H.
The current proceedings were commenced by the husband on 20 March 2023, three days after he moved from the former matrimonial home.
There are four children of the marriage: Ms L, born in 2005 who is 18 years old; X, born in 2006, who is 17 years old; Y, born in 2007, who is 15 years old; and, Z, born in 2018, who has just turned five years old.
In 2015 the wife developed and started the business which is styled C Company and she operated that business as a sole trader. C Company provided technology services, both in person and virtually, in the use of a system which is, I am told, an established logging system used largely by companies. The wife learned the B Company system and developed the model used by C Company. There is not, and has never been, a formal contract between C Company and B Company. The wife describes the relationship between the two businesses as an informal partnership whereby B Company refers overflow clients to C Company, such as start-ups and companies who seek bespoke business products.
In 2016 the husband commenced to work part time with the wife in C Company and later that year the husband started working full time in C Company with the wife. In 2017 the parties began trading C Company as a partnership. In 2018 the parties registered a company called C Company as trustee for the Raymond Family Trust, and I will refer henceforth to that company as C Company. The parties traded C Company. Both parties are directors of the trustee company and the beneficiaries of the discretionary family trust.
At the time that C Company was created in 2018 the wife was pregnant with the youngest child, Z, and the parties agree that the husband took over financial management of the business at that time, and also the household finances.
Until March 2023, that is up until the husband moved out of the former matrimonial home, the parties traded C Company and the business was the primary source of funding for all of the family’s expenses.
Exhibit H19 in the proceedings is an agreed table setting out the combined taxable income of the parties for two recent financial years, being the financial years in 2021 and 2022. What exhibit H19 demonstrates is that the parties had a combined taxable income in the financial year 2021 of $158,509, and in 2022 a combined income of around $100,000.
The table also shows that C Company’s gross income, for the four financial years commencing with the financial year in 2019 and concluding in 2022, ranged from a high of $327,773 in the financial year 2021 to a low of $215,219 in the financial year 2020. The average gross income over the four years’ period was around $250,000 per annum, and net profit average just under $86,000 per annum. That is, profit after the payment of the salaries of each of the husband and the wife.
Indeed, the husband’s evidence in his affidavit, which he swore on 27 July 2023[1], is that until early 2023 both he and the wife drew a wage. The husband’s wage was based on a $60,000 annual salary for full-time hours and the wife’s wage was based on a part-time salary, 20 hours a week, of $35,000 and:
“…drawings were taken out for mutual family expenses in categories of medical, kids’ activities, additional groceries, dining, pets and our individual drawings are divided to reduce our tax liability as we are lawfully able to do.”
[1]Paragraph 62 – husband’s July affidavit
The parties used the profit of the business as drawings and drew them down to pay family expenses in addition to having the benefit of their salaries, and it appears that the wife continued to draw a wage from C Company until around June 2023 when around such time C Company’s funds were exhausted, in the sense of C Company was not receiving any income to pay its expenses.
The husband in C Company was the principal consultant for the business, and the wife is described as client manager. The evidence of the husband[2] is that the wife was on some form of extended absence from her role as the client manager and it seems that, as at early 2023, the wife had not worked directly for C Company for about two years. She was receiving a salary, but she was not working in the company in the sense of actually physically doing the work. There was probably some work the wife did but certainly the husband’s email seems to suggest that she was not directly working. All of the household expenses were paid from the personal income of the parties and the distributions from the trust derived from the operation of the business during the relationship, including the husband’s full-time salary, as I have said, the wife’s salary of about $1350 a fortnight which was used. She says she used it for groceries and other household expenses.
[2] Exhibit E – to the husband’s July affidavit
It is common ground that in March 2023 the husband ceased to work for C Company and commenced working as a sole trader in a business which he solely operates called D Company. It is clear from the evidence that the husband took with him, into his new business, certain of the existing clients of C Company, or existing at that time, and the wife says that the husband effectively stripped the C Company business of clients in order to establish his D Company business.
It does appear that D Company conducts operations which are almost identical to those conducted by the parties through C Company. In fact, what the husband continues to do is to work at the B Company, and he is receiving payments from the former clients of C Company including from the M Group and the N Group[3].
[3] Exhibits W7 and W8
The parties accuse each other of not working collaboratively after separation and of denying and restricting each other’s access to accounts systems and documents, changing passwords and the like. They also accuse each other of destroying or removing business documents and electronic communications, and there is certainly no doubt in the Court’s mind that the relationship between the parties, currently at least, is deeply antagonistic. The husband gives evidence[4] that he does not trust the wife, and it is also very clear that the wife does not trust the husband.
[4] Exhibit W3 – which is the husband’s affidavit filed in March 2023
There is no doubt that the husband has had access to the wife’s electronic devices, emails and passwords. In early 2023 he read the wife’s email communications with other people[5].
[5] Exhibit W3 – paragraphs 16 and 17
There are mutual allegations of family violence in the matter. The husband says that he was so angry in early 2023 that he banged his head against a wall and hit the wall with his open hand, causing a dent in the wall, when the children X and Z were present in the home[6]. Following that incident, the wife made a report to the police which resulted in the husband being served, in early 2023, with a provisional ADVO and it appears that Order was made on a provisional basis in early 2023 for the protection of the wife and the children.
[6] Exhibit W3
In early 2023 a Final ADVO was made by consent on a without admission basis for 12 months, against the husband. It is not clear on the evidence whether the Final ADVO is for the protection of the children as well as the wife, but certainly it is for the protection of the wife, but it is not going to be influential in the decision in this case in any event. It is noted by way of background as to the current nature of the parties’ relationship.
On 20 March 2023 the husband filed an initiating application seeking interlocutory and final financial and property orders, and the wife filed her response on 9 May 2023 seeking interim and final property and spouse maintenance orders.
The parties’ respective interlocutory applications were listed for interim defended hearing, with two hours allocated, on 11 August 2023. The Judicial Registrar who set the matter down for interim hearing ordered, amongst other things, that the parties confer with each other for the purposes of identifying the precise scope of the issues which require determination of the Court, and the parties were ordered to prepare a consent order reflecting any agreed issues.
THE INTERIM HEARING
On Friday 11 August 2023 the matter came before this Court for interim hearing at 10 am, allocating two hours. There was a part-heard trial scheduled to resume at 2 pm that day in relation to another matter.
At the outset of the hearing on 11 August 2023 I asked the parties’ legal representatives whether there was a consent order reflecting any agreed issues, however there were no agreed issues and no consent order. The matter proceeded on 11 August 2023 by way of the Microsoft Teams platform. The hearing commenced just after 10 o’clock that day and concluded just after 1.30 pm that day, without any break.
Mr Kelly of counsel appeared for the husband and Mr Weightman of Counsel appeared for the wife.
Having read the Case Outline filed on behalf of each of the parties, along with the evidence upon which each party sought to rely at that point, obviously not the Exhibits, the Court was sufficiently concerned to raise with each Counsel the manner in which this matter is being conducted, having regard to the very modest pool of property in contention, and the long marriage between the parties which produced four children, who are all currently in the wife’s care, and three of whom are under the age of 18 and have special needs, including a very young child.
The Balance Sheet filed on 10 August 2023 in the husband’s case, shows that the gross assets of the parties are somewhere in a range between $997,000 and $866,000 depending on whether the Court accepts the husband’s values or the wife’s values. The liabilities are in the order of $658,000-odd dollars, if the Court accepts the husband’s case, or $683,000-odd dollars on the wife’s case. The parties have superannuation which combined totals $52,984. So the net non‑super pool of the parties is somewhere in the vicinity of $340,000 at best or $183,000 at worst. Clearly the case involves a very modest pool and the factual dispute, in terms of the value of assets is relatively minor, and there is not much dispute either about the history of the parties’ relationship and their business operations.
The husband gave oral evidence and was cross-examined on 11 August 2023 and, as the hearing could not be concluded in three and a half hours, let alone the two hours allocated, the matter had to be put over and was adjourned part-heard to Friday, 6 October. The matter proceeded over the course of that entire day in person. The husband was re-called to give further evidence, due to him having filed and served an Updated Financial Statement on 5 October 2023, the day before the hearing resumed. The further evidence of the husband, including his cross‑examination, proceeded for just over half an hour, and then the wife gave oral evidence and was cross-examined for the rest of the day.
The wife’s evidence could not be completed, and the matter was again adjourned part-heard and listed for continuation of the interlocutory hearing on 16 October 2023. The matter proceeded over the course of the whole day on 16 October 2023 and concluded finally just before 6 pm with some short breaks.
An interlocutory matter, originally listed for a hearing which had been allocated two hours, has taken up hearing time so far of two and one half days of Court time, and that does not include the preparation and the delivery of these oral reasons for decision today.
THE PROPOSAL OF EACH PARTIES
The husband’s proposal
Relevantly for the purpose of this interlocutory proceeding the husband seeks the following interlocutory orders:
(a)Firstly, that pursuant to the Court’s inherent jurisdiction Seton Family Lawyers be restrained by injunction from continuing to act in any capacity in relation to family law matters on behalf of the wife, and that they are further restrained from disclosing any information to any other legal representatives regarding the business and/or company and/or trust or any other personal matter related to this matter;
(b)The husband also seeks an order that the wife pay his costs of the application on an indemnity basis; and
(c)The husband opposes the wife’s interlocutory application for spouse support.

He does seek an order that, on the basis that the wife wishes to remain in the Suburb G property, she shall have sole occupation subject to her paying all mortgage repayments, rates, insurances and utilities as and when they fall due, notifying the husband of the home building insurer and attending to the maintenance and upkeep of the property, and he proposes that in the event that the wife fails to comply with those obligations, or in the event that she does not wish to remain living in the property then the parties would forthwith thereafter do all acts and things to effect the sale of the Suburb G property by private treaty, and he seeks orders set out in his interlocutory application for disbursement of proceeds.
The Wife’s Proposal
The wife’s proposal, relevantly for the purposes of the current interlocutory application, is set out in her case outline document. She seeks:
(a)Sole and exclusive right to occupy the property, but on the basis that the husband would pay her spouse support in the sum of $1350 per fortnight.
(b)With respect to the Suburb G property for her benefit, the husband make all periodic minimum principal and interest repayments due to ANZ pursuant to the home loan secured by way of mortgage over the property as and when due and payable, including any arrears, and that for the benefit of the wife the husband pay the home building and contents insurances and excess payments in relation to those insurances along with all the council rates in relation to the property, water rates and other utilities connected to or in relation to the property as and when they fall due.
(c)The wife proposes that she will nominate a bank account within two days and that the husband will pay the spousal maintenance payments to the wife into the nominated account.
(d)The wife seeks an order that the husband pay her costs of and incidental to the interlocutory application.
ISSUES FOR DETERMINATION
The issues in this interlocutory matter are:
·Whether the wife’s solicitors will be restrained from acting for the wife;
·Whether the husband will pay interim spouse support, and if so what spouse support will the husband pay;
·The terms of the wife’s sole use and occupation of the home; and
·The costs issue.
As I have said, both parties conducted the hearing on the basis that the Court would hear and determine the husband’s restraint application and the wife’s spouse support application.
The first issue that the Court must consider is whether the wife’s solicitors will be restrained from acting for the wife.
RESTRAINT -THE LEGAL PRINCIPLES
The legal principles applicable in respect of restraint are set out in the Full Court decision of Osferatu & Osferatu[7]. The Full Court reviewed the authorities relating to the making of restraining orders against solicitors and confirmed that there are three established categories of case in which a solicitor may be restrained from acting against a client or former client, and that is:
(i)to prevent a breach of confidence;
(ii)to prevent a breach of fiduciary duty; and
(iii)otherwise in the exercise of the Court’s inherent jurisdiction over its officers and to control its process.
[7] [2015] FamCAFC 177
In the present case the husband contends that the restraint on the wife’s solicitor should be made pursuant to the Court’s inherent jurisdiction[8] to restrain a solicitor from acting against a client or a former client otherwise in the exercise of the inherent jurisdiction over its officers to control its processes.
[8] Husband’s Case Outline paragraph 11
Neither party took issue in relation to this Court’s inherent power to restrain a solicitor from acting for a party in the proceedings before the Court where the interest of justice requires.
The basis of the inherent jurisdiction and the relevant authorities were discussed by Brereton J in Kallinicos & Hunt.[9] Brereton J distilled the following principles[10]:
(a)The Court retains an inherent jurisdiction to restrain a solicitor from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice;
(b)the test to be applied is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires the legal practitioner should be prevented from acting in the interests of the protection of the integrity of the judicial process and due administration of justice, including the appearance of justice.
[9] (2005) 64 NSWLR 561; [2005] NSWSC1181
[10] At paragraph 76 of Kallinicos & Hunt
I pause to note that that second principle identified by Brereton J has been recently reformulated in the case of Charisteas & Charisteas.[11]
[11] [2022] FedCFamC1A 160
I am not going to, for the purposes of this decision, go into the jurisprudential arguments as to which test is the appropriate test, but for the purposes of my decision in this case I adopt the test set out in Charisteas which is:
“Whether a fair-minded reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice.”
So just to be clear, I am adopting the Charisteas formulation of the test set out in Kallinicos & Hunt.
The third principle referred to by Brereton J in Kallinicos & Hunt is:
That the jurisdiction is to be regarded as exceptional and is to be exercised with caution.
The fourth principle is:
That due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.
Finally:
The timing of the application may be relevant in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief.
I do not consider that there is any timing issue in this case. The husband raised the issue at the earliest possible stage of the proceedings.
The issue that the husband has raised relating to the inherent jurisdiction of the Court goes to the heart of justice being seen to be done in the proceedings, and this is obviously a matter which is a fundamental concern to the Court. The inherent jurisdiction exists to preserve public confidence in the Courts and in the judicial or in the justice system generally, but, nonetheless, these are adversarial proceedings and the onus is squarely on the husband in this case to establish on the evidence before the Court that the Court would find that the test is made out, in terms of the Court exercising its inherent jurisdiction, the Charisteas test, and the onus is on the husband to demonstrate that the Court ought to exercise its discretion to invoke the exceptional jurisdiction that the Court has on the basis that there is a proper cause to deprive the wife of her choice of lawyer.
RESTRAINT: THE EVIDENCE
The husband relied upon his Case Outline filed on 4 August 2023, his Affidavit filed on 28 July 2023, and his Affidavit filed on 10 August 2023.
The wife relied upon her Case Outline filed on 10 August 2023, her Affidavit filed on 4 August 2023, the Affidavit of Mr J, Solicitor, filed 4 August 2023, and the Affidavit of Mr J filed 5 October 2023.
Both parties tendered documents which were made Exhibits in the proceedings, and to which reference will be made by the Court as required in the course of these Reasons.
At the outset of the hearing, the Court invited Learned Counsel for the husband to inform on what basis the husband asserts that the proper administration of justice would require the wife’s solicitor be restrained from acting. Counsel took the Court to pages 14, 15 and 16 of the husband’s Affidavit, filed on 10 August 2023, which comprise the front pages of three separate agreements which have been purportedly executed between C Company and certain third parties and it is noted that CC Lawyers appears at the bottom of each of the front pages, and documents were tendered in evidence in relation to those agreements between C Company and third parties.[12]
[12] Exhibits H9, H10 and H11
In particular, the husband asserts that he had a direct discussion with Mr J in the presence of the wife on speakerphone concerning the terms and conditions relating to a client of C Company called O Group[13]. The wife disputes that, as does her solicitor, and I will get to that in a moment.
[13] Exhibit W3 paragraph 49; 28 July 2023 paragraphs 32-34; 10 August 2023 paragraph 18 – Husband’s Affidavits:
The wife agrees in her evidence[14] that after she established the C Company business she reached out to Mr BB on some occasions seeking advice on certain matters that arose, and she sets out what she says is the full extent of her involvement with Tony in that regard, and it does not appear on the face of it that there is too much contest between the parties factually as to what the wife says was her involvement with Mr BB in respect of the advice she sought from time to time over a number of years, on sporadic occasions. It is also not in contest that Mr BB did not invoice the wife and she did not pay for any of the advice or assistance she received.
[14]Paragraph 61 – Wife’s Affidavit
The wife is adamant that the only time she has ever consulted Mr J is in relation to issues arising out of family law matters between herself and her husband. Her evidence is that back in 2015 she was thinking of separating from the husband. There is no doubt on the evidence that they were separated between early 2015 and early 2016. The wife said she sought advice from Mr J at that time and she has also sought advice from Mr J leading up to and following the separation of the parties, and he is currently the solicitor acting for the wife in the proceedings.
There is no doubt that the wife received, via Mr Mr BB in November 2016, a draft of a Services Agreement. Exhibit H14 is a chain of emails whereby it is clear that Mr BB at Ryan Seton Law enclosed a draft Services Agreement in an email that was sent to the wife and he asked her to read it and let him know when she was available to have a chat about it, but there is certainly no evidence before the Court that anything was done about that immediately. Certainly, there was then some further interactions between the wife and Mr BB, which the husband was copied into, which indicates that the parties had landed a pretty big client and they were wanting to put this Service Agreement into action:
“What do I have to do so I can copy and I can edit?”
It is clear that Mr BB has assisted the wife further in an email which is contained within exhibit H14 where he has attached the Word version of a Services Agreement and he says that:
“Unless the services you are providing for them are different to what we had previously discussed, the parts you will need to edit….”
and he sets out what she would need to do, and I note also that the email between the wife and [Mr BB] is copied to the husband and the wife makes the comment:
“How cool is this?”
There is certainly no evidence that the husband had anything to do with the interactions between the wife and Mr BB, but there is evidence that the husband was aware of those interactions and was copied into the email communication on 4 May 2017.
I infer from those communications that the husband and wife were pleased to be provided with what can only be described as a generic Services Agreement that they were able to adapt and use for their own purposes without the need to see or instruct a lawyer or to pay for legal services. The husband in his evidence does not assert that he ever spoke to Mr BB directly. It is quite clear on the evidence that any and all communications with Mr BB were only ever between the wife and Mr BB and that there was never any invoice or payment in respect of the Services Agreement that the parties were able to use, or at least possibly use if they wanted to, but it was done, clearly on the evidence, as a favour to the wife by Mr BB, and the wife is adamant, as is Mr J, that there were never any interactions between her and Mr J in relation to C Company.
Mr J has provided an affidavit to the Court and was cross-examined, and I consider that his evidence withstood the scrutiny of the cross-examination, and I accept his evidence as to the searches that he has performed, and that there was never a file opened in either the system of CC Lawyers or in Mr J’s current firm in respect of C Company or the Raymond Family Trust or, indeed, C Company, and I also accept that the business structure issue, that is referred to in the husband’s affidavit[15] was in fact a blog on a website which was, again, a generic advice to potential clients of the firm, and that it was not specific advice provided to the wife in respect of business structure.
[15] Husband’s Affidavit 28 July 2023 paragraph 31, Annexure A
The most significant factual contest in the restraint application between the husband, on one hand, and the wife and her solicitor, on the other, is the alleged conversation that the husband asserts that he had with Mr J by telephone in the presence of the wife in 2022. Exhibit W3 is the husband’s original Affidavit filed in these proceedings on 20 March 2023 and there is no doubt that in paragraph 49 of that affidavit, in support of his application for an order to restrain the wife’s solicitors from acting, the husband provided evidence that in April 2022 he discussed a situation about terms and conditions, in relation to C Company, directly with Mr J. The husband says that:
It was in relation to our client [O Group] and our responsibility to maintain working with them although I wanted to end the relationship. There’s no doubt that [Ms Raymond] was present as she…[16]
[16] Exhibit W3 – paragraph 49
The wife says that the conversation never occurred, but on the husband’s evidence the wife was present. He says that she called Mr J and that he was on speakerphone and that during that call the husband had a brief conversation with Mr J about his obligation to continue a relationship with the client, and that conversation is set out at paragraph 49 of exhibit W3.
In his affidavit affirmed on 27 July 2023 at paragraph 32, the husband says that the alleged conversation regarding the O Group, between him and Mr J, took place in July through August 2022, and the husband says he initially thought it was April 2022. He says, at paragraph 33, that he was extremely stressed about the situation with O Group. He had a conversation with the wife where he effectively said to her;
“We need to get the lawyers on the phone. I am worried about this”.
He alleges that the wife told him, “I’ve contacted [Mr J]. We will have to wait for him to call me”. The husband says he was present when Mr J returned Ms Raymond’s call, and that he had a conversation which, in his July affidavit, he sets out as somewhat more extensive, but not much. There is certainly additional conversation included in the July affidavit which was not in the March affidavit.
It was only during cross‑examination of the husband on 11 August 2023 that the husband narrowed down the possible dates upon which he could have had any conversation with Mr J. Initially, during cross-examination, the husband said that it was late August 2022, and then further narrowed that it could only have occurred, due to the travel arrangements, etcetera, on either 22 August 2022, or on 26, 27, 28 or 29 August 2022.
As I have said, the wife is adamant and was not shaken in cross-examination, and nor was Mr J, that the conversation never occurred, and Mr J deposed in his Affidavit, and confirmed, that the conversation never occurred.
In his cross-examination Mr J confirmed that he has not communicated with the wife by any means other than by her mobile phone, so using her provider number, or social media as set out in the material that is in evidence in W6, although Counsel for the husband pointed out that there were a couple of messages, which on the wife’s social media page appeared in late 2015, that did not appear in the screenshot from Mr J, but I do not consider that to enhance the husband’s case that there was a conversation in August 2022 because on neither the wife’s social media version nor Mr J’s social media version was there any conversation at all recorded for the wife with Mr J using Messenger in August 2022. There is no evidence, in other words, of any social media messaging between the wife and Mr J in August 2022, let alone on the dates that were narrowed down, only under cross-examination.
In his Affidavit filed on 10 August 2023, the husband still did not specifically tell the Court when it is that the conversation, he says, occurred. He did not narrow it down in his August affidavit. It was only in cross-examination that it came out that it could only have been on the dates nominated above.
The husband issued a subpoena to P Pty Ltd on 7 September 2023, so that was after the first day of hearing, and the wife’s solicitor inspected that material which was produced on 5 October 2023, and the subpoena related to two numbers: one the wife’s mobile phone number; and, the second the number used by Seton Family Lawyers since it commenced trading on 1 July 2022. There is no evidence before the Court of any outgoing or incoming call in this material produced on subpoena between the firm, Mr J, or, even the solicitor’s mobile number and the wife’s mobile number. There is no record of any outgoing calls between the wife’s mobile number and Mr J or his firm in the period from 1 July 2022 to 2 September 2022, and there is no record of any incoming calls to the wife’s mobile from Mr J or his firm on specific dates, including 22 August 2022 and 26 August 2022.
I pause to note that the husband’s recollection as to the precise date of the alleged conversation with Mr J was inconsistent and vague, and that is just an observation that I make about that evidence. Other than the husband’s evidence that he spoke to the solicitor when the solicitor called the wife’s mobile number which was placed on speaker, there is no evidence at all of any call.
The wife’s evidence is that there was simply no call that was taken on her mobile phone on speaker, or by any means whatsoever, between the husband and Mr J. Mr J’s evidence is that there was no call taken between him and Mr Raymond at any time, and the inconsistency and vagueness in the husband’s evidence as to the date of the call sits in quite curious contradiction to his recitation verbatim of what he purports to recall about the alleged conversation with Mr J, unsupported by any file note or email or any document at all.
There are no phone records, there are no messaging records. Mr J says the conversation never took place. The wife says the conversation never took place. The upshot of all of the foregoing is that I cannot be satisfied on the evidence before the Court that the conversation which the husband alleges he had with Mr J in August 2022 ever took place.
The only documentary evidence before the Court supports the evidence of each of the wife and the solicitor that the wife has only ever spoken to Mr J about her family law issues and has never spoken to him on behalf of C Company.
The wife concedes that she has spoken to Mr BB about C Company, but there is no evidence that this created any fiduciary duty whatsoever between Mr BB and his then firm with C Company. There was no confidential information disclosed. There is no evidence of the husband and wife were in any conflict with each other in relation to C Company before their separation, or in relation to any of the advice that the wife obtained from Mr BB. There was no information that I could see on the evidence pertinent to the current case which is confidential to the husband, and there was no confidential communication at all, as far as I can see. Even on the husband’s evidence, when he spoke to Mr J, which I have found I cannot be satisfied he did, the wife was present and clearly it was a benign alleged conversation between Mr J and the husband about what he could do about a particular obligation.

I am not satisfied that there has been any information provided by the husband to Mr J which is confidential to the husband. I am not satisfied that the husband has ever been a client of Mr J’s, or of Mr BB’s, and I am not satisfied therefore that he is a former client of either Mr J or Mr BB, and in terms of even the getting to know you factors, which might put the husband in a position for the Court to exercise its inherent jurisdiction, I am not satisfied that the husband has ever corresponded directly with Mr BB.
I am not satisfied that the husband has ever spoken personally to Mr J, except on one single occasion in the community when the wife introduced the husband to Mr J at a children’s sports lesson in about 2019 and they exchanged greetings and some small talk. There is no evidence of there being a friendship or any other social interaction between the husband and Mr J which would cause the Court to consider that there might be a disadvantage to the husband in the proceedings, or that somehow the administration of justice requires that Mr J be restrained from acting.
Exhibit H1 is a chain of emails between the husband and O Group which confirms that O Group complained about certain aspects of the service provided by C Company, but the Exhibit does not, in my view, in any way strengthen the husband’s case that he spoke with Mr J about the issue. In respect of what the husband says was provided by way of assistance to C Company with advice in relation to the separate clients: Q Company in 2015, which was before the husband was ever involved in the wife’s business; S Company in early 2017; R Company, which was the information regarding the business structure, which I consider to have been generically posted on the website of the firm, and that is how it came to the wife’s attention, but even if all of that occurred, there is no reason, on my view of that evidence, to suggest that the Court would exercise its inherent jurisdiction to restrain the wife’s solicitor from acting when clearly the husband was not a client of the firm.
In relation to the neighbourhood dispute, Exhibit H15 is a letter that appears to be in draft form, but even if Mr BB acted, even if that letter was sent, and it is not clear whether it was or was not, more particularly, there is no confidential information that the husband could possibly be disadvantaged by, noting that it was not Mr J; it was Mr BB. Even if Mr J had sent that letter at the request of the wife – which there is no evidence that he did and it is not even contended that he did – but even if he did, it is exculpatory of the husband. It is a one-off. There was no payment for it, and clearly no client file opened in relation to it, and I do not consider that any knowledge gained in relation to that issue would be knowledge that would impact or at least cause the Court to exercise its extraordinary jurisdiction to restrain the wife from instructing the solicitor of her choice.
Learned Counsel for the wife invited the Court to find that the husband has lied to the Court about the call in July through August 2022, and I want to say something about that. Although I cannot be satisfied on the balance of probabilities that the husband had the phone call with the solicitor which he asserts he had, I have stopped short of finding that the husband has lied about it. I simply prefer the evidence of the wife and her solicitor as being more reliable. The evidence of each of those witnesses corroborates the other’s, and the husband has failed to produce a single document which corroborates his account, and I consider that it is possible that the husband has reconstructed, perhaps even unconsciously, what has happened over the course of the years and is preferring a recollection which, although faulty, supports his own case, but I have stopped short of making a finding that the husband has lied about it, and I do prefer the evidence of the other witnesses that it did not happen.
But even if the Court accepted the husband’s case at its highest, even if it was accepted that the husband somehow, by association with the wife was a client of Mr BB, by virtue of the assistance that Mr BB provided to the wife from time to time in relation to the parties’ business, there is no evidence of the husband ever having confided in Mr BB about private domestic or business matters which could amount to a risk of breach of fiduciary duty or breach of confidentiality. The husband was happy to leave it up to the wife to communicate with Mr BB. He was happy to use, or to at least have access to, the templates which were provided by way of assistance, and he does not assert that any confidential information was ever provided by Mr BB. Not that he is required to tell the Court what the confidential information is, but the onus is on him to establish that there was some confidential information provided, and I do not accept the submission of Learned Counsel for the husband that the wife might have said something to Mr BB. It is simply too vague for the Court to rely upon to exercise an extraordinary jurisdiction.
Mr J deposes, and the Court accepts his evidence, that he was never involved in any engagement between the wife and Mr BB during the partnership between himself and Mr BB in CC Lawyers. I accept Mr J’s evidence that he has never been engaged to provide the wife with advice or assistance in relation to any matter other than her family law matter and that he has not ever provided her with advice or assistance in relation to the business arrangements for C Company, and I note also for the record that Mr BB and Mr J no longer work together and have not done so since the dissolution of their partnership in 2022.
So, in short, for the reasons I have given, I am not satisfied that the husband has discharged his onus of persuading the Court that it should exercise its inherent jurisdiction and restrain Mr J from acting for the wife.
APPLICATION FOR SPOUSE SUPPORT
The wife’s proposal is that:
(1)From the date of these Orders and pending further Order, the husband shall pursuant to section 74 of the Family Law Act 1973 (Cth), pay or cause to be paid by way of spousal maintenance:
(a)To the wife the sum of $1,350 per fortnight; and
(b)With respect to Suburb G:
(i)For the benefit of the wife all periodic minimum principal and interest repayments due to ANZ pursuant to the home loan secured by way of mortgage over the property as and when due and payable, including any arrears; and
(ii)For the benefit of the wife the following:
(A)All home building and contents insurances premiums and excess payments in relation to the property;
(B)All council rates in relation to the property;
(C)All water rates; and
(D)All other utilities connected to and/or in relation to the property,
As and when due and payable, including any arrears.
(2)That for the purposes of Order 1(a):
(a)The wife shall, within 2 days of the date of these Orders, notify the husband and/or his solicitor in writing of her nominated bank account for receipt of the spousal maintenance payments; and
(b)The husband shall do all things necessary to pay the spousal maintenance payments to the wife’s nominated account with the first payment to be received as cleared funds into that account within 7 days of the date of these Orders and each subsequent payment to be received as cleared funds into that account within 7 days thereafter.
In short, the wife seeks $1350 per fortnight and payment of all the outgoings in respect of her occupation of the home at Suburb G.
The husband opposes the wife’s application in toto in terms of spouse support and says that he cannot afford to pay anything.
In support of her case for spouse support, in addition to the documents upon which the wife relies in support of the application to dismiss the husband’s restraint application, the wife also relied upon her Financial Statement filed 4 August 2023 and documents which became Exhibits.
In support of his case that the wife’s application for spouse support be dismissed, in addition to the documents that the husband relied upon in the restraint application, he also relied upon his Financial Statement filed 7 August 2023, his Financial Statement filed 5 October 2023 and relevant Exhibits.
SPOUSE SUPPORT: THE LEGAL PRINCIPLES
In the case of married spouses, the maintenance provisions are contained within Part VIII of the Family Law Act 1975 (Cth) (“the Act”). Section 72 of the Act sets out the right of a spouse to maintenance in the following terms:
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 the 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 in section 75, subsection (2).
The power of the Court to make an order for spouse maintenance is contained within section 74, subsection (1) of the Act which provides:
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 of the Act sets out the matters which are to be taken into account in exercising jurisdiction under section 74 of the Act. The question of weight to be attached to each of the matters referred to in section 75(2) is a matter in the discretion of the Court in each particular case.
The threshold test for the Court to make an order for spouse support is the ability to support one’s self, not need. This distinction was considered in the case of In the Marriage ofMirkin[17], which is a decision of Nygh J, who stated:
In my opinion, the issue is not whether the wife is receiving sufficient funds, but whether she is able to support herself adequately. That is, whether she can generate funds from her own resources or earning capacity to supply her own needs. The threshold test in terms of section 72, subsection (1) is ability to support one’s self, not need. The criteria of need and ability to support one’s self are not identical.
[17] (1980) 5 FamLR 782
The interpretation of the expression “unable to support herself adequately” is subject to the words “Having regard to any relevant matter referred to in section 75, subsection (2) of the Act”. Adequately imports relativity. Subsistence may be adequate for some applicants but not for others, and it must be viewed in light of paragraph (g) of section 75(2), a standard of living that, in all the circumstances, is reasonable[18].
[18] (1981) 7 FamLR 573 at 576; (1981) FLC91-107 at 76,792
In Bevan & Bevan[19], which was a 1993 Full Court decision, the Court set out the requirements for an award of spouse maintenance and stated the law as follows:
[19] (1993) 120 FLR 283
Taken together then, we would state the law as being that an award of spousal maintenance requires:
(1) a threshold finding under section 72 –(which is now section 72(1))
(2) consideration of section 74 and section 75(2);
(3) no fettering principle that pre separation standard of living must automatically be awarded, whether the respondent means permit; and
(4) discretion exercised in accordance with the provisions of section 74 with reasonableness in the circumstances as the guiding principle.
EVIDENCE – SPOUSE SUPPORT
The wife’s case is that, in terms of the issue of need, she has the care of four children, including at least two of them who have special needs, and she sets out the evidence in her affidavit. I am not going to recite it in full, but it appears at paragraphs 49 to 55 and there is no doubt that Z has a plan managed through NDIS for funding, and I do consider that even in an intact marriage a parent would be under great stress looking after the three children who are under the age of 18.
There is really little dispute between the parents in terms of the needs of the children and the need for them to have counselling and things of that nature and dieticians, occupational therapists and other support. Z, the youngest child, who has only just turned five, lives with the wife. There is no evidence from the husband about what time he spends with the children. The wife says that Z spent two occasions of supervised time with the husband since separation in March 2023[20]. The wife’s evidence is that in seven months of Z living with the wife, in a single parent household, he has had two occasions of time with the father.
[20] Paragraph 55 - Wife’s Affidavit
There is no doubt that Z has speech therapy, occupational therapy and I accept that that will not go away when he starts kindergarten. His needs are not suddenly going to dissipate. I am going to go back to the wife’s situation in her household but first of all I want to look at some evidence about the current situation with C Company.
On 30 March 2023 the husband wrote to the C Company business accountants instructing them to wind up the entities associated with the C Company business, so that was a few days after the physical separation of the parties, of course noting that they had separated in late January initially under the one roof. The wife objected to the winding up. The husband still currently seeks orders to wind up C Company and the Trust[21].
[21] Paragraph 49 – Husband’s Affidavit 28 July 2023
The husband asserts that the wife has refused to cooperate with him in running the C Company business and that she has restricted his access to systems and relevant supports. The wife’s evidence is that she discovered in early 2023, when she attempted to access the C Company business operational systems platform with B Company, that her access had been revoked and when she was able to access the profile again she discovered that the entire history and records of C Company had been deleted, and the husband, I note, denies that he did it.
The wife says that she was unable to access the general business email accounts until the husband sent her an email in mid-2023 with the account password. The wife says that she has been unable to regain access to the workspace for the business and that the website for the business was deactivated due to outstanding fees, which she then paid, but she says she cannot edit the content on the website and the Contact Us page lists a landline which no longer exists, along with the husband’s mobile number and an email address which the wife does not have access to. Most of the mail for C Company has been redirected.
At paragraph 36 of her affidavit the wife says that just prior to separation the husband reduced the fortnightly payment to her down from $1350 to $1200, and she also says that following the separation the husband has provided inconsistent financial support to her, and in respect of the children, which has caused the wife, at times, embarrassment and distress. She says that the husband has not paid the mortgage repayments as and when they fall due and that the accounts are in arrears. I have had regard to the ANZ Bank mortgage account statements[22] and certainly there is no doubt that the husband has been making some payments with respect to the mortgage, but maybe not when they fall due. I do not know. I cannot determine that issue on the current state of the evidence because I do not know when the payments are due.
[22] Exhibit H17
The wife says that the husband ceased paying the electricity bill for the former matrimonial home and that she says she now pays that, but she is in arrears. He cancelled her credit card, which she says she used for fuel, and she says that he ceased paying the insurance for the car at one stage, and the wife says that the car, which I understand is Motor Vehicle 1, an asset of C Company which is subject to a finance agreement and which on the evidence of both of the parties has a balloon payment of $5500 which, if it is not due now, is due in a couple of weeks to be paid. I will assume for the purposes of this decision that if not paid then the car is in danger of being repossessed and that it is the only means of transport, on the evidence, that the wife has currently, to transport at least the three younger children.
I understand that the older child, Ms L, does have a licence, but she is the only one of the four children who currently has a licence.
The wife’s evidence is that she considers herself to be in financial hardship and she has sought assistance from welfare agencies and the ANZ Bank. The wife has borrowed money from her father to pay household expenses and groceries and legal fees and she owes her father, she says, more than $20,000 currently for her legal fees. Counsel for the husband submitted that the wife has a financial resource in her father, but it is not the duty of the grandfather – if I can call him that – he has no liability to support the wife, unlike the husband who has a duty to support the wife to the extent that he is reasonably able to, subject to her having the need for support, but her father does not have a legal responsibility to support her now that she is an adult.
The wife accepts, in her evidence, that C Company cannot likely be salvaged. In the balance sheet, the husband in his list of assets, contends that the business known as C Company, is worth nothing. The wife says she does not know, but she certainly says that the business may not be salvageable, and she says that she seeks the opportunity to maintain it in case she can use the business entities, avoid the costs of winding up, and presumably also avoid the costs of setting up new business entities. There is no doubt that she is currently not working, and it appears that she has not worked in any employment role outside of the business since 2014. It appears also that she has been on part time wages since Z was born, and it is clear also that the wife, from the husband’s own evidence[23], his own email to the wife, has been on some form of extended leave in the business for two years leading up to the separation, but she was still being paid a salary because it was of an advantage to the husband and wife for tax reasons for them to split their income from the business, which effectively the husband was operating as the principal consultant.
[23] Husband’s Affidavit 28 July 2023, Annexure E
It was the submission of the husband that the wife can work in C Company, and forge new relationships with B Company, and work in places like Western Australia, where the husband does not work. Clearly the B Company contact, which the wife had, has been exasperated[24], not surprisingly, by being caught in between the parties’ personal dispute, and the wife’s relationship with B Company is not good currently. I have considered that in time the wife may be able to reestablish a relationship, but at the present moment she does not have one. The husband does, and clearly there has been some exasperation on the part of B Company in its communications with the wife.
[24] Exhibit H12
It is quite clear that the husband has continued to travel extensively for work, as he did in the marriage. It was for two weeks out of every four when he was working for C Company as the principal consultant. He has had to travel extensively since he set up D Company to generate the income that he has generated over the last two quarters of the current financial year. In the last quarter of the financial year 2023 and in the first quarter of the financial year 2024 the husband has continued to work full-time, and I note that he does not have the care of the four children so he is able to travel a lot and generate income for his new business.
Although the wife has told B Company that she hopes to continue some business with them, she does not think C Company is salvageable but she would like that it not be wound up, and it was put to the wife that she has the ability to support clients with products at various times and she agreed that, yes, she does have that ability, but it was put as a submission that Z would not hinder her and that she could schedule work at times outside normal work hours, and that the father or the older daughter Ms L could look after Z, and I do not find much favour with that submission. The father is travelling extensively in terms of his work, and the evidence is that he has only had supervised contact with Z, so I cannot take it any higher than that. There is no evidence at all that the older daughter is in a position to look after Z. I understand from the evidence of the wife that all of the children are having counselling. I do not accept the submission that the wife is choosing not to work in the C Company business given her current circumstances.

It was suggested that the wife could start a shelf company, contact B Company and get clients in Perth and Adelaide, away from where the husband works, which seems to be in Region DD, Melbourne, and City T[25], and I am not sure where else. It was put that this is an impediment against any spousal order being made in favour of the wife, but I am not attracted to that submission because the wife clearly, if she has the full-time care of the three minor children and in particular Z, is not in the position to travel extensively in order to support clients with their products, and I note that even when the wife first established C Company the business assisted people in person and virtually. It seems to be a relationship where it does require the parties, and it did require the husband during the relationship and since, to travel extensively in order to build the necessary client relationships to underpin the business making any money.
[25] Exhibits W7 and W8
The husband says he works like a dog, and scheduled six weeks of travelling and makes people pay when they schedule the travel, and he said that he was travelling more than average, but he is in the fortunate position that he is able to do that because he does not have to worry about providing care for the children.
The husband submitted that when he filled out his Financial Statement he took away what he described as “the blip” in the April earnings, which he said was occasioned by deposits made for him scheduling travel and the like, and averaged it out, but it is quite clear on my view of Exhibits W7 and W8 that there is no blip, and that the business of D Company is continuing to perform well, and undoubtedly the husband is working hard in making sure it performs well, which is a credit to him. On pages 13 to 14 of the husband’s Financial Statement filed on 5 October 2023 he has funds in the bank, in ANZ Saver account, $6714 and E Bank $9000. The wife does not have similar funds, but I will get back to the husband’s capacity in a minute.
In the wife’s Financial Statement filed on 4 August 2023 she discloses a weekly income of $282, and it appears that she could only have been getting that from her part time co-director role in C Company. She has $282 by way of salary or wages before tax. For the present purposes, I do not include the amount she receives by way of the Single Parent Pension and Family Tax Benefit A and B, which is to be disregarded under the legislation for the purposes of assessing her current income, and I am not going to include any amount that she receives from the husband by way of spouse support because that is also to be disregarded for the purposes of assessing the wife’s capacity to support herself adequately.
The husband deposes that he pays on average around $400 per week for child support, and clearly the children are very much reliant on that, given the wife’s current circumstances. The children have a right to have the financial support of both of their parents, even when the parents are separated, so that is the children’s right to be supported financially by both parents, but I am not including any child support paid for the purposes of assessing the wife’s income.
Looking at the wife’s income, she has income of $282 per week for the present purposes, and I will turn now to the evidence of her expenditure and will do the best I can on the current state of the evidence. The wife in her Financial Statement, on page 5 at Part F, sets out expenses that have at least historically been paid since separation by the husband for the wife’s benefit. They include the mortgage repayments, the home phone and internet, the TV and streaming subscriptions, the home and contents insurance, the health insurance, motor vehicle finance repayments and preschool fees for Z, but there is some double-counting, I note, in the wife’s financial statement in respect of some of that expenditure. So doing the best that I can – and the double-counting, for example, is in relation to the Part N where the wife is claiming expenses under part N which apparently the husband has been paying, but I am going to do the best I can on the evidence that the wife has provided of her current situation.
Looking at the wife’s expenditure, and as far as I understand from looking at the Balance Sheet which the husband has filed, the parties have joint ownership of the Suburb G property, and they are jointly liable for the mortgage secured over that property. I am going to treat the wife’s expenditure as being one-half of the mortgage payments and one-half of the outgoings of the property for the purposes of assessing her personal expenditure on a weekly basis. The evidence before the Court is that the required mortgage repayments are $838 a week, so if I allow the wife, first of all, her income tax of $74 a week, her mortgage payments of $419 a week, which is one-half of the joint mortgage obligation, the rates of 38, but halved at $19, half of the home and contents insurance policy, given that it is a policy that both the parties are required to maintain pursuant to their mortgage. I am not going to worry, for present purposes, about the health insurance because the husband has an insurance policy that he pays from D Company and I am going to deal with that in a separate way, so I am not going to allow that in the wife’s expenses at this stage. The expenses are one-half of the mortgage, her tax, one‑half of the share of the rates, one‑half of the share of the home and contents, and then I turn to her part N expenses. Now, looking at part N for the wife, and she was not challenged in respect of any of this, so I am going to allow her part N expenses at $527 a week.
I calculate the total of the wife’s necessary expenditure for the support of herself and to meet her own obligations as amounting to $1066 a week. Given that she only has an income of $282 a week to meet her expenses, I consider that her present income is inadequate to meet her expenses within the meaning of section 72 of the Act.
I move on to consider the relevant considerations under section 75(2) of the Act and I consider that for the purposes of this case those relevant considerations fall under subparagraphs (b), (c), (g), (d), (na) and (o). Section 75(3) requires the Court when exercising jurisdiction under section 74 to disregard any entitlement that the wife has to the income tested pension or benefit, so I am going to move on to the question of whether the wife lacks the resources to produce adequate income for herself, either through her earning capacity or from her assets.
The first question is whether the wife has the capacity for remunerative employment, and I have already dealt in part with that, but I am going to deal with it a bit further. As I have said, there is no issue between the parties as to the value of C Company. The wife does not really know, but the husband says nil and he has provided an annexure to his Financial Statement which indicates that C Company, when you look at its assets and its liabilities, it is not in a healthy financial position currently. It appears that the wife has worked part time at least since the birth of Z and she has taken an extended leave of absence over the past two years leading up to separation.
C Company, it appears, has not operated to earn any income since the husband created his own business around the time of separation in March 2023, and clearly the husband took clients from C Company[26]. I am not going to make any moral judgment of that. Clearly the C Company business was not operating, and clients of C Company were concerned, but certainly there is no doubt that the husband is now servicing former clients of C Company whom he encouraged. Certainly, the wife did not consent to this, and the husband has advantaged himself by telling clients, as appears in Exhibit W4, that C Company is going through some internal restructuring, which was true. The husband and wife were not able to work together, it would appear. But he certainly told the clients of C Company that he is working privately under his own entity, D Company. And then another client, Ms U, wanted the husband to get in touch with her. So, the husband has maintained those important relationships, but transferred them, rather than continuing to service them through C Company, which he could have done. He has chosen not to. He may not have been able to, because of the animosity between the parties. But whatever way you want to look at it he has moved those clients over to his current sole trader business, and he is now having the benefit of generating income by way of clients who were formally with C Company.
[26] Exhibit W4
I do not consider that the wife has, currently, an income producing asset, in that there’s not much income being generated from C Company other than what the wife has disclosed. And C Company is not currently operating. It does not have B Company clients. I consider that the wife cannot generate sufficient income from C Company at this stage, and there is no other asset disclosed by the wife from which she could reasonably generate any income.
The Court has to consider whether the wife has the care or control of a child of the marriage who has not attained the age of 18 years. It is a platform of the wife’s case in the current interim proceedings for spousal maintenance that she is unable to support herself adequately by reason of having the care and control of a child of the marriage who has not attained the age of 18 years. I’ve already noted the three children of the marriage, two of whom have diagnosed conditions, and the other one, Y, struggles with his mental health.
X is diagnosed with Attention Deficit Hyperactivity disorder and is prescribed medication, which the husband says he does not regularly take. X is also diagnosed with Aspergers Syndrome, according to the husband, or Autism Spectrum Disorder, according to the wife. The husband says, in his evidence, that X finds it difficult to regulate his emotions. The wife says that X is engaged with a GP, a paediatrician and two psychologists.
According to the husband, Y struggles with his mental health, and the wife says that Y has been receiving counselling from a school counsellor.
Z is diagnosed with anxiety, Autism Spectrum Disorder, and other medical conditions. The wife says that Z has frequent chest infections and requires strict supervision when eating or drinking. The wife works closely with Z’s speech therapist, occupational therapists, support workers and nutritionists, and, clearly, on both parties’ case, he has funding by NDIS to assist in meeting his needs, including for occupational therapy and dietitian and developmental tools. The husband concedes that Z has the special needs. He is in day care three days a week. He is currently two days a week with the wife.
Counsel for the husband submitted that there is nothing in the wife’s evidence upon which the Court can find that the wife is unable to adequately support herself by reason of having the sole care of the three children who are under the age of 18. I reject that submission. It is very plain on the wife’s evidence, and the husband concedes, that those children have special needs. She sets out her daily routine. It is certainly a demanding routine, and it’s demanding enough in respect of the children, let alone the wife dealing with her own psychological issues, which she says have arisen. She has anxiety and some need for psychological support herself.
When one looks at the wife’s daily routine, and meeting her own current needs, it’s difficult for her to start travelling and doing what’s required, and what has been required during the marriage, to service clients of B Company. The husband is travelling to Melbourne, travelling to Region DD, travelling to City T. I do not consider that the wife is currently in a position to travel anywhere to service clients, even given that she has three days a week where she has some time to herself, but she is singlehandedly looking after the children. The husband gives no evidence of giving any practical support at all on a daily basis, to the wife, in the raising of the children.
The Court takes into account the evidence of the wife that Z is home with her Monday and Tuesday each week. I do not consider that the other children can assist the wife in caring for Z, given that Y and X go to school. And there’s little evidence as to what Ms L does. It’s certainly not Ms L’s responsibility, as an 18 year old who has just finished school, to provide care for a younger sibling.
There is no evidence to support the proposition that anybody could assist the wife in caring for Z while she works. I am not attracted to the submission that the father could assist the mother by providing care for Z while she works, considering that he is working like a dog, travelling far and wide, generating income for his business. It’s important for the children that he continues to do it, because there’s no other evidence of support for the family, other than the work that the father is currently doing in his own business. I note that Z has spent so little time with the husband, and that, apparently, the two older boys currently spend no time with him. I consider that the wife’s duties in caring for and raising the four children as a single parent, in circumstances where they all need counselling and have special needs, and are adjusting to the separation of the parents, is certainly an impediment to her being able to obtain work.
That’s not to say that the wife will not obtain work in the future. She is clearly an intelligent and resourceful woman, as is the husband an intelligent and resourceful man. The Court has to consider the current situation of the wife, and on the current situation she is not in a position to work. She has enough on her hands meeting the needs of the children. It was suggested that the wife can fulfil a voluntary role in a Suburb V community group currently, so there is no reason why she couldn’t work and generate sufficient income to meet her own needs. I am unable to accept that submission. I consider there’s a very big difference in committing to undertake a voluntary role for a few hours on a Saturday. The wife gave evidence also that, more often than not, the children would accompany her to a Suburb V community group. She can attend to other voluntary miscellaneous duties during some downtime at home. That is a far cry from the sort of performance that’s required to provide a service to paying clients.
The Court must consider, where the parties have separated, the standard of living is in all the circumstances reasonable. On the current state of evidence, it’s more than reasonable for the wife to have the benefit of remaining in the matrimonial home, and the children having somewhere to live. There’s no evidence before the Court of any other adequate place where the children can live.
I appreciate that the husband is paying for an apartment in Suburb H. In circumstances where the older two boys are not apparently spending any time with him, and Z is spending supervised time – I am not sure who the supervisor is - it would seem that the children are not spending time in his household. I consider that it is reasonable for the wife, not only to have the sole use and occupation of the home, but for her to have a car to drive around in. I am very concerned about the spectre of the car not being paid for, and the wife having no transport to get the children to all of the various therapists and other activities that she has to take them to, including to the train station to catch the train to school. In Y’s case, he travels a considerable distance to attend W School.
I have to consider the need to protect a party’s role as a parent. Clearly, it has been the wife doing the majority of the parenting while the parties were in the relationship, certainly in the last few years, because the husband has been the principal consultant and travelling away from home. Somebody must have been caring for the children while he was doing that. That person can only, on the evidence, have been the wife and I consider that she is the party who has had the more significant role in the parenting of the children.
That’s not to say that the husband hasn’t done anything, but the wife currently has no alternative but to continue in her role as a parent. The husband’s affidavit is silent as to what role that he currently plays in the children’s life, whereas the wife details, with quite some specificity, her role in the children’s lives, currently as a single mother. I take that evidence into account.
I also take into account the child support that’s being paid. The wife has made an application for child support but apparently was granted an exemption due to family violence. I will just comment again that the children have a right to be financially supported by both their parents. The wife has an exemption, currently. That may be something that could be given some further consideration. Certainly, the husband has made various payments to the wife in relation to the financial support of the children, sporadically, not necessarily reliably and consistently, which obviously is difficult for the wife if she doesn’t know when she is going to receive the money. But, at least, there is some moneys being paid. I accept that the husband has been paying Z’s school fees and the like, and the children are entitled to that support. The Court is not permitted to include the costs of the children in assessing the wife’s reasonable needs for the purposes of the spouse maintenance application, and nor does the court include the child support that the husband pays, for the purpose of calculating what income and other financial resources the wife has to meet for her own support.
Z’s school fees seem to be around the $85 a week alone, without taking into account any of the food needs of the children which the wife has to meet, the electricity needs in the home, the transport needs, the educational needs and things of that nature. It’s important that the husband continues to pay child support, but I cannot take it into account for the purposes of calculating the wife’s income or her expenditure. I take into account, in a general sense, that the wife has to house the children, she has to transport the children, and she has to feed the children. But I haven’t included those expenses in calculating the wife’s need for financial support for herself, as I indicated when I went through her Financial Statement.
The husband’s evidence is that he was paying the mortgage in the sum of $837.50 a week up until about June 2023, and he says now that he is unable to afford to continue to pay or contribute towards the cost of the mortgage as well as support himself in alternative accommodation. I will make a comment about that in a minute.
The court has no difficulty in finding, on the evidence, that the wife has no present capacity to generate sufficient income to support herself adequately.
A party to a marriage is liable to maintain the other party, to the extent that he is able to do so, once the wife has satisfied the threshold test, which I consider she has.
I will turn now to the husband’s income. The husband discloses in both his Financial Statements that he earns $2,200 per week by way of income from D Company. The Financial Statement makes it more than plain that, when you indicate what your income is in the relevant column, it is an average weekly amount, and it is a gross amount, because otherwise there wouldn’t be a provision for the payment of tax and other expenditures in the expenditure section. I consider that the husband’s disclosure of $2200 per week by way of income is a gross amount. He asserts an income of $2200 a week, as against expenses of $3621 a week. He says he is paying rental payments of $575 a week. There’s no documentary evidence to support the obligation to pay that amount. I am not even sure whether he needs to have a large apartment if he is not spending time with the children. But that’s a matter for him. I will take into account that he is spending that amount of money at the moment on rent.

Exhibits W7 and W8 are the activity statements for D Company, for the last quarter of the financial year 2023, and the first quarter of the financial year 2024. I have regard to the fact that it’s quite clear that the first quarter of income for the husband’s new business was $51,360, including GST, and after GST it’s $47,000. Plus, he has GST free income of just over $7000. After GST the husband’s first quarter income for his business was $54,392. I am doing the best I can on the documentary evidence. The husband had business expenses of $16,256 after GST. I’ve said ‘after’ because, of course, he claims back the GST on his business expenses, and I’ve already allowed him the full amount of the GST in terms of deducting it from the income.
After GST his business expenses are $16,256 plus GST free expenses of $2,423. So he has business expenses, in the last quarter of the financial year, but the first quarter of operation of his business, of $18,679. His gross profit is $35,713, which equates to a gross weekly income of around $3000 in the first quarter of his operation.
In the next quarter of his operation, which is Exhibit W8, the business receives income of $65,869. The income goes up in the second quarter of business operation. After GST it’s $60,000-odd. Plus, it has GST free income of around $2274. A total of $62,000-odd, less business expenses, after GST, of $26,500.
Gross profit, I calculate on W8, is around $35,000 in the second quarter of business operations, or the first quarter of this financial year. It’s the same. It’s around $3000 per week. I consider that the husband has likely underestimated his gross income and that it’s more likely on average $3000 gross per week, than the $2200 that he has estimated in his Financial Statements.
The husband has income tax of $680. He has rent of $575 a week, although, I noted there’s no documentary evidence of it. But I will accept it for the present purposes. He has insurance premiums for his health insurance, of $27 a week, home and contents insurance $21, comprehensive insurance on Motor Vehicle 2, $30, and his ATO tax debt and the like. I am going to allow the tax debt, I am going to allow the child support of $400. The credit card payments, I am not going to allow at the rate he has put in there. I do not consider it’s appropriate for him to prioritise his credit card at $750 a week, when the minimum payment is $20 a week. I am going to allow the minimum weekly payment on his Mastercard, and his credit card is allowed at $94.
I’ve calculated, on the basis of his fixed weekly personal expenditure, that he spends $1,805 weekly. He has a surplus, therefore, of $1,195 each week before I take account of the part N expenses, which are discretionary. I am going to turn to those expenses. I am going to make comments about what I am prepared to allow for the husband’s discretionary expenditure. Three hundred for food a week, $80 for household supplies, $40 for electricity, internet and telephone. The electricity, internet and telephone, he has claimed as amounting to about $185 a week but, clearly, he is apportioning his expenses between personal and business. I am going to allow him only $40 a week for the personal expenditure in relation to that and consider that the rest comes out of his business, before his income is paid, as a business expense. I consider that his car expenses of petrol and maintenance are coming out of the business as a pre-tax expense. I also consider that his clothing and shoes at $100 a week is excessive, when you consider that he has children to support and a wife to support at the moment, in an interlocutory environment, and I am going to allow $10 a week for his clothing and shoes. Medical and dental and optical, I am going to allow $20 a week. I have noted that he has private health insurance.
I am not allowing $80 for entertainment and hobbies. I can see that he entertains himself using his business expenses. He has been to concerts and other things. They might be business related, but I am not going to prioritise the husband’s entertainment over the support of the wife. The chemist and pharmaceutical, I am not going to allow at $30. I am going to allow it at $5. There’s no evidence of the husband suffering from any health issues. Drycleaning I will allow at $10, gifts at $20. Books and magazines, I consider are probably more likely a business expense. Hairdressing and toiletries seem rather excessive at $40 a week, and I am going to allow less than that. It will be allowed at $10 a week. All up I consider that the husband’s discretionary expenditure, rather than $867 a week, is $510 a week.
When one combines $510 with the amount allowed for fixed weekly personal expenditure of $1,805, that’s $2,315.00, with an income I consider is more likely $3000 a week. I consider that the husband has capacity of $685 per week that he could contribute to the support of the wife. I also take into account in my overall assessment in the discretionary exercise of considering what is a proper amount of maintenance to award for the wife, and the husband’s capacity, that in exhibit W9 it’s quite obvious that the husband has paid for legal advice in relation to his resignation as director and trustee of C Company, through D Company. It is clearly a personal expense not an expense of D Company.
The husband has the benefit of access to D Company funds for personal expenses pre-tax[27]. He is using a business asset to pay a personal expense. He is deducting drawings from the capital of his business, which reduces the liability of that entity, and is not shown on the asset side. He has, clearly, some advantages of running this business. He has treated personal legal advice as a deductible expense of D Company, and I note that there are plenty of expenses in running D Company. But I’ve taken them into account including travel. He has the great advantage of using D Company to cover his expenses. While I agree with the submission of Counsel for the husband that the husband can’t afford to pay the wife $81,000 per year that she seeks, he does have the capacity to contribute to her need.
[27] Exhibit W8 – page 9
I consider, given that the health insurance premiums are coming out of D Company, and the husband has been managing to pay those, and given that the husband has the benefit of his business paying some of his personal expenses, and he currently has money in the bank, and he has the benefit of driving around in Motor Vehicle 2, which is owned by C Company, and he pays the finance as a D Company expense, that he has the capacity not only to pay the wife $680 per week for her support but he has the capacity to continue to pay the health insurance premiums for the family, and that he has the capacity to contribute a lump sum of $5,500 to the wife to enable her to take whatever action she believes is appropriate to make sure that she has the continuing opportunity to drive around in a motor vehicle, at least, in the interim.
I do not accept that the husband is unable, entirely, to contribute to the support of the wife. It is appropriate to make an order that the husband also has an obligation to pay the mortgage, and he will have to continue to find some money to do it.
In summary, I’ve found that the wife is unable to support herself adequately, and particularly by reason of having the care and control of the children, but also by reason of the demise of the business. I consider that to work in the business of C Company would require travel and commitment beyond the capacity of the wife at present. I’ve already made reference to other relevant matters such as the husband no longer operating C Company from 23 March, a business which he operated prior to the separation, albeit with the wife, but with her working on a part time basis and taking extended leave and predominantly caring for the children and income splitting.
The husband has commenced an almost identical business, D Company, and he has provided services to clients who were formerly clients of C Company. That’s undoubtedly had an impact on the future prospects of C Company.
Overall, I consider that in the short term the wife has a need for support, and that both parties need to consider whether their current co-business relationship is helpful. There’s a very limited pool of assets, very little dispute on the balance sheet, the children need the support of both their parents and are entitled to it. Certainly, the wife needs somewhere to live so that she can house the children and herself.
I consider that whilst, no doubt, both the parties, in their separate realms, are doing their level best to keep working, and I acknowledge that the husband is working very hard, and the wife is also working very hard, and there is sometimes a tendency to undervalue the role of a homemaker and a parent. I consider that in his evidence, and in his submissions, the husband has indicated a tendency to undervalue the role of the wife as a homemaker and parent. Undoubtedly the wife is a person who has worked in the past. As I’ve said, both parties are intelligent and resourceful people. There’s no need for them to have the acrimonious relationship that they have now, but that’s a matter for them.
Although they are now separated, if they could work with each other and not against each other, that’s more likely to produce a better result for both of them, and maximise the returns for the benefit of the family, particularly the children who, no doubt, both the parents love dearly.
Overall, I consider it is proper to make a maintenance order in favour of the wife. I consider that the wife should have sole use and occupation of the home. The power of the Court to make that order is found in section 114 of the Act, and there’s clearly no objection on the husband’s part to the wife having sole use and occupation provided, he says, that she pay all of the costs relating to the home.
Currently the wife doesn’t have the capacity to generate the income required for her to pay housing costs, let alone to be solely responsible to make the repayments for the mortgages in respect of a jointly owned real property and a joint mortgage. The court considers that the wife should have the sole use and occupation of the home on the basis that she pays one half of the outgoings on the property.
The court has determined that until further order the husband will pay the wife $685 per week by way of spousal maintenance, plus he will continue to make the health insurance payments, and I consider it’s appropriate that the husband pay in respect of Motor Vehicle 1. The wife drives the car. She relies on it to transport the children. It’s clearly an asset of C Company. The husband, as I’ve said, has the benefit of Motor Vehicle 2, which is also an asset of C Company. He is making the payments for that vehicle from income that he has generated by his business pre-tax. There’s the balloon finance payment. Without the payment the wife won’t have the use of the car. I am satisfied that she does not have the means currently to pay the balloon payment. The husband does have funds at the bank. I appreciate that he has to apportion funds to pay tax and the like, but I am not going to prioritise the husband’s obligations to pay tax over his obligation to support the wife, given that I found that she has a need.
I am going to order that the husband, in addition to the periodic spouse support in the sum of $685 a week, will pay to the wife a lump sum payment of $5,500 so that she can, in her capacity as a co-director of C Company, apply, in whatever manner she requires, including if she thinks it’s appropriate to pay out the existing finance agreement, so that she can keep the car in C Company, or alternatively, find a way to purchase another vehicle. But either way the wife needs spouse support in order for her to be able to transport herself.
I will make an order that the husband pay the wife $685 per week by way of periodic spouse support in addition to the $5500 lump sum, and the health insurance payments.
No submissions were made at the interim hearing as to the costs in this matter. What the Court will do is generally reserve the costs of each of the parties in the interim proceedings, and I will consider the issue further at a directions hearing.

I certify that the preceding one hundred and seventy-one (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty.
Associate:
Dated: 20 October 2023

File number(s):	NCC 838 of 2023
Judgment of:	JUDGE CARTY
Date of judgment:	20 October 2023
Catchwords:	FAMILY LAW – PROCEDURAL – Application to restrain wife’s solicitor from acting – inherent jurisdiction. FAMILY LAW – INTERLOCUTORY – Financial application – spouse maintenance
Legislation:	Family Law Act 1975 (Cth) ss 72, 74,75, 114, Pt VIII
Cases cited:	Atwill & Atwill (1981) 7 FamLR 573 at 576; (1981) FLC91-107 at 76,792 Bevan & Bevan (1993) 120 FLR 283 Charisteas & Charisteas [2022] FedCFamC1A 160 Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC1181 In the Marriage of Mirkin (1980) 5 FamLR 782 Osferatu & Osferatu [2015] FamCAFC 177
Division:	Division 2 Family Law
Number of paragraphs:	170
Date of last submission/s:	16 October 2023
Date of hearing:	11 August 2023, 6 & 16 October 2023
Counsel for the Applicant:	Mr Kelly
Solicitor for the Applicant:	Coppertree Family Law
Counsel for the Respondent:	Mr Weightman
Solicitor for the Respondent:	Seton Family Lawyers

NCC 838 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR RAYMOND Applicant
AND:	MS RAYMOND Respondent

ORDER MADE BY:	JUDGE CARTY
DATE OF ORDER:	20 OCTOBER 2023