Rickard and Rickard

[2018] FamCA 400

FAMILY COURT OF AUSTRALIA

RICKARD & RICKARD [2018] FamCA 400

FAMILY LAW – INTERIM PROPERTY – SPOUSE MAINTENANCE – Where the wife seeks that the husband pay her spouse maintenance – Where the wife has not worked for a significant period due to being the primary carer of the children – Where the two youngest children remain in the care of the wife – Where the wife is unable to support herself financially – Where the husband has failed to make full and frank disclosure – Where the husband’s current financial position and resources are unclear – Where it appears the husband has greater finances and financial resources available to him than he has disclosed – Where the husband has the capacity to financially support the wife – Where the husband seeks that one of the parties’ properties be sold – Where there are no circumstances to justify an order for sale – Orders made for the husband to pay the wife’s spouse maintenance – Orders made for lump sum spouse maintenance to be paid to the wife from  controlled monies account.

Family Law Act 1975 (Cth) ss 72, 74, 75(2)

Bevan & Bevan (1995) FLC 92-600
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Shaw & Shaw [2014] FamCAFC 146
Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Rickard

RESPONDENT: Mr Rickard

FILE NUMBER: PAC 1356 of 2016

DATE DELIVERED: 1 June 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stapleton

SOLICITOR FOR THE APPLICANT: Rebekah Dorter Family Lawyer

COUNSEL FOR THE RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE RESPONDENT: McLachlan Thorpe Partners

Orders

1. That the husband pay to the wife the sum of $1,000.00 per week for a period of 50 weeks from this date by way of interim spousal maintenance with the first payment to be made within seven days from the date of these orders and the husband’s obligation for such payments be satisfied by the following order.

2. That the husband and wife do all things necessary to authorise and direct that of the funds held in a controlled money account on behalf of the parties or either of them the wife be paid the sum of $50,000.00 within seven days from the date of these orders.

3. That, otherwise, the parties do all things necessary to authorise and direct that of the funds held in a controlled money account on behalf of the parties or either of them the wife be paid the sum of $50,000.00 within seven days from the date of these orders and that the characterisation of such payment be reserved to final hearing.

4. That any application for costs arising from the present applications be made by way of written submissions filed and served within 28 days from this date with any submissions in reply to be filed and served within a further 14 days and that on completion of submissions judgment will be reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1356  of 2016

Ms Rickard

Applicant

And

Mr Rickard

Respondent

REASONS FOR JUDGMENT

1. The present application for determination is that of the applicant wife arising from her further Amended Application in a Case filed 15 December 2017.

2. In summary, the wife seeks orders for financial provision as follows:

   (1)payment by the husband by way of interim spouse maintenance to her of $1,500.00 per week;

   (2)or, in the alternative, payment to her by the husband of the sum of $100,000.00 and thereafter payment to her by way of interim spouse maintenance in the sum of $1,500.00 per week; and

   (3)costs.

3. In support of the orders sought by her, the wife relies upon:

   (1)her Affidavit filed 7 February 2018 including material exhibited to her affidavit (Exh “A”);

   (2)tender Bundle of documents marked into evidence as exhibit “E”;

   (3)her Financial Statement filed 7 February 2018; and

   (4)Notice to Admit Facts dated 6 February 2018 and the Response to that Notice dated 20 February 2018.

4. The husband for his part relies upon his Amended Response to the wife’s Application in a Case, that response having been filed on 15 December 2017.

5. The husband relevantly seeks orders that, in summary, provide:

   (1)that the wife’s Application in a Case to be dismissed;

   (2)that the husband and wife do all necessary things to cause the property at B Street, Suburb C to be sold by public auction and for the purposes of sale the husband be appointed as trustee for sale;

   (3)that upon sale of the Suburb C property the net proceeds of sale after payment of agent’s commission and legal costs on sale be paid into a controlled monies account in the joint names of the parties pending further order; and

   (4)costs on an indemnity basis.

Context

1. Proceedings were commenced by the husband by Application filed 29 March 2016.  In that application the husband sought orders, in summary, as follows:

   (1)that the husband pay to the wife within 60 days of the date of orders the sum of $1.2 million;

   (2)concurrently with the payment to the wife, the wife transfer to the husband her interest in properties at E Town, Suburb C and F Town;

   (3)that pending payment to the wife, the wife have exclusive occupation of the property at D Street, E Town provided that she pay utilities in respect of that property with the husband to pay mortgage payments;

   (4)otherwise the husband retain other assets in his name, entitlement or possession;

   (5)otherwise the wife retain other assets in her name, entitlement or possession; and

   (6)that the wife within 60 days prepare two proposed lists for distribution of matrimonial furniture, artwork and chattels and the husband shall thereafter nominate which list he chooses and be thereafter entitled to such items on that list to the exclusion of the wife.

2. The wife in her Amended Response filed 11 November 2016 to the husband’s Application sought orders as to property settlement, in summary, as follows:

   (1)that the husband and wife do all things necessary to sell the property at G Street, F Town and that the net proceeds of sale after payment of legal costs, agent’s commission and selling expenses be paid to the wife;

   (2)that within 28 days of the wife receiving the net proceeds of sale of the F Town property the husband do all necessary things to transfer to the wife his interest in the E Town property and concurrently with such transfer the wife shall refinance the present mortgage secured over the said property so as to discharge same;

   (3)that within seven days from the date of orders the husband transfer to the wife his interest in the Suburb C property;

   (4)that within seven days from the date of orders the husband do all things necessary to refinance the present mortgage secured over the property at H Street, Suburb J so as to refinance that mortgage into his name;

   (5)otherwise the husband retain other assets in his name, entitlement or possession;

   (6)otherwise the wife retain other assets in her name, entitlement or possession;

   (7)that within seven days from the date of the orders the husband pay to the wife by way of spousal maintenance the sum of $1,500.00 per week for a period of 15 years with such payment to be indexed annually in accordance with movements in the Sydney CPI index; and

   (8)that there be a child support departure order providing that the husband pay in relation to the parties’ children X, Y and Z $500.00 per week each by way of periodic child support indexed annually by reference to the Sydney CPI index together with tuition fees for the children’s ongoing attendance at private schools, together with 100 per cent of all costs associated with the children’s schooling, together with 100 per cent of all costs associated with the children’s extracurricular activities, together with all private health insurance costs for the children at the current rate together with all “gap” payments referable to the children’s medical needs.

3. The proceedings generally have involved numerous appearances before registrars and judicial officers and demonstrate high conflict between the parties in relation to the financial issues between them.

4. On 21 November 2016 orders were made by consent that provided:

   (1)that valuers be appointed to undertake a market valuation of the property at the [F Town] property;

   (2)that upon receipt of the valuation the property be offered for sale to the husband’s father [Mr K Rickard] at the value determined with such sale to occur within 60 days of the valuation and proceeds of sale to be paid as follows:

   a)in repayment to the husband of valuation fees incurred; and

   b)in discharge of the line of credit secured over the [E Town] property with the balance to be held in the line of credit account or such other account as agreed for the purposes of meeting the payments set out below;

   (3)that the husband and wife do all things necessary to cause to be paid from the line of credit account or other account as agreed the following:

   a)up to $250,000.00 to the wife’s solicitors upon the issuing of accounts for legal fees and disbursements such payment to be by way of interim costs;

   b)up to $250,000.00 to the husband’s solicitors upon the issuing of accounts for legal fees and disbursements such payment to be by way of interim costs;

   c)$100,000.00 to the wife by way of partial property settlement;

   d)$1,500.00 per week to the wife by way of interim spousal maintenance;

   e)private health insurance and gap medical expenses for the wife and children by way of interim spousal maintenance; and

   f)rates and insurance premiums for the [Suburb C] property.

   (4)that the wife have liberty to restore proceedings in the event that the property is not sold to [Mr K Rickard];

   (5)noted that the husband’s father is meeting the council rates and insurance premiums on the [E Town] property and in the event that he ceases to do so the parties agree they are to be paid from the account referred to above and characterised as interim spousal maintenance;

   (6)that the wife have exclusive occupation of the former matrimonial home at [E Town]; and

   (7)each party pay their own costs.

5. It appears that difficulties arose in relation to the orders made 21 November 2016.  Subsequently, on 17 July 2017 orders were made as follows:

   (1)That the wife forthwith and within three (3) days file and serve [Mr K Rickard] with all applications and affidavits in relation to the relief contained in her Amended Application in a Case filed on Sunday, 16 July 2017 at 8.30 pm.

   (2)That the husband and [Mr K Rickard], should he wish to be heard, file and serve any Responses and affidavits on which they wish to rely within 21 days of compliance with order 1 by the wife.

   (3)That the husband’s costs of the appearance today be reserved.

6. Subsequently, on 29 August 2017 further orders were made by consent as follows:

   (1)Order 1 made 21 November 2016 is continued.

   (2)Order 2 made 21 November 2016 is continued subject to:-

   a)60 days being varied to 30 days.

   (3)[Ms M of M Solicitors] at [L Town] will be appointed by the parties to act on the sale of the property.

   (4)In the event that the property is not the subject of exchange of contracts for the sale of it to [Mr K Rickard] within 30 days of issue of the valuation of it, the property will immediately be offered for sale to the public by auction.

   (5)In the event the property is to be sold by auction in accordance with Order 4 above, the Husband shall within 48 hours of being provided with the names of three real estate agents to act on the sale of the property, choose an agent and the parties shall thereafter do all things necessary to sign the Agency Agreement for the sale of the property, with the Husband’s choice of agent.  The reserve price for the auction will be the valuation of the property.

   (6)In the event that the property does not sell at auction at the reserve price in Order 5 above, the parties shall agree at what lower price it continues to be offered for sale.

   (7)From the net proceeds of the sale of the property, the following initial distributions will first be made, and the parties will do all acts and sign all documents to cause it to occur:-

   a)All marketing, legal and agency costs related to the sale;

   b)The payments and discharges in paragraphs 2(a), (b) and (c) of the Orders made 21 November 2016.

   (8)From the net proceeds of the sale of the property, in addition to the payments in Order 7 above, Order 3 of the Orders of 21 November 2016 shall be varied so payments also be made as follows:-

   a)Order 3(a) is increased to $350,000.00;

   b)Order 3(b) is increased to $350,000.00;

   c)Order 3(c) remains the same for the Wife and is varied to include a $100,000.00 payment to the Husband by way of partial property settlement;

   d)Order 3(d) is continued;

   e)Orders 3(e) and 3(f) are continued;

   f)The Husband will receive a payment equivalent to $964.00 per week from 29 August 2017 to the date of settlement of the sale of the property.

   (9)Order 4 of the Orders dated 21 November 2016 is discharged.

   (10)From 29 August 2017 until the date of settlement of the sale of the property, the Husband shall pay the Wife the amount of $964.00 per week, in addition to his weekly liability for child support as assessed by the Child Support Agency with the first payment to occur no later than 5.00 pm on 30 August 2017.

   (11)Orders 5 and 7 of the Orders made on 21 November 2016 be continued.

   (12)It is noted that the Wife contends that the payment of $964.00 per week in Order 10 above, is urgent spouse maintenance but that will be the subject of a determination as to the character of the payment at trial.  The same applies to the payment to the Husband in Order 8(f) above.

   (13)It is noted that the Wife’s agreement to these Orders is only on the basis she is making no admission as to the Husband’s incapacity to pay spouse maintenance.

   (14)The parties agree to appoint [Ms N of O Accountants] (within 28 days of these Orders) to value various companies, trusts and assets.  A joint letter of instructions will be prepared.  If no agreement can be reached on that letter and what is to be valued and how, the issue will be determined by a Judge.

   (15)The parties also agree to appoint [P Valuers to] value the following properties of the parties as at a date not more than three months before the final date for hearing:

   ·     The [E Town] Property;

   ·     The [Suburb C] Property;

   ·     The [Suburb J] Property.

   (16)The parties’ costs of today are reserved.

   IT IS FURTHER ORDERED THAT

   (17)The Applicant wife on or before Friday, 1 September 2017 file and serve an affidavit dealing with her contentions that the subpoenas presently the subject of a Notice of Objection have apparent relevance to the issues in these proceedings.

   (18)The outstanding Notices of Objection to subpoenas are adjourned to 2.15 pm on Thursday, 5 October 2017 before a Registrar for determination.

   (19)All interim applications before the Court are dismissed.

   (20)The proceedings are adjourned for further judicial case management to 9.30 am on Friday, 24 November 2017 noting that if the parties are in agreement that the date is not required they may jointly approach chambers for a later allocation of a date for further judicial case management.

   (21)The question of costs of [Mr K Rickard] of today is reserved.

   (22)Leave is granted to the parties or either of them to seek to re-list the matter on short notice in appropriate circumstances by application to the Court in Chambers.

The present application

1. The present interim issues for determination were listed before the Court for hearing on 22 February 2018.  On that date the Court made the following orders and directions:

   (1)The solicitors for the husband be authorised to forward to the appointed single expert a letter of instructions being a joint instructions from both parties to undertake the requisite valuations required in these proceedings with such letter to be forward within seven days of today’s date and a copy of such letter of instructions to be forwarded to the wife’s solicitors concurrently with the letter being forwarded to [Ms N].

   (2)The Applicant file and serve a properly indexed and paginated set of documents comprising the tender bundles being Exhibit “E” in these proceedings within seven days of today’s date.

   (3)The Applicant wife file and serve written submissions in support of the orders sought by her, those submissions in particular taking the Court to such documents as are comprised in the exhibited material relevant to the Applicant’s argument by no later than Monday, 5 March 2018.

   (4)The Respondent husband file and serve written submissions in response to those of the wife and in support of orders sought by the husband by no later than Tuesday, 13 March 2018.

   (5)The Applicant wife file and serve and short submissions in reply by no later than Tuesday, 20 March 2018.

   (6)Thereafter judgment is reserved to chambers.

   THE COURT NOTES THAT

   (7)The wife continues her enquiries and investigations into the husband’s interests, if any, in various corporate entities and trusts and, that if appropriate, and subject to the report from the single expert, the wife will in accordance with the rules be at liberty to administer questions to the single expert arising from her further enquiries and investigations and if she sees fit instruct a shadow expert to assist in that process.

Context

1. The wife is presently aged 47, as is the husband.

2. The parties commenced cohabitation a year or two before their marriage in 1993.

3. There are five children of the parties’ relationship.  Two of the children are now over 18 years of age with the other children presently aged 15, 12 and eight.

4. The husband has primary care of one of the younger children and the wife has primary care of the other two.

5. The parties separated according to the husband in January 2014 and according to the wife in May 2015.  Nothing turns on this issue. 

6. There is significant issue between the parties as to the nature and extent of the matrimonial asset pool with the husband asserting that significant funds have been provided over the years by his father and that indeed certain property is held by him in trust for his father.  A determination of these issues will await final trial. 

The wife’s evidence

1. The wife says that interim orders in relation to the sale of the F Town property as referred to above were for her part consented to in the expectation that the valuation to be undertaken would result in a valuation of between $3.6 million and $3.8 million for the property.

2. The valuation in September 2017 was in the sum of $2.25 million.  The property was as provided for in the previous orders purchased by the husband’s father Mr K Rickard in November 2017 for $2.25 million.

1. The husband and wife were each to receive an allotment of $350,000.00 for unpaid legal fees and the wife $100,000.00 by way of interim property distribution.

2. The wife’s entitlement to spouse maintenance payments under the orders of 29 August 2017 was only serviced by the then remaining surplus for five weeks until 12 December 2017 following settlement of the sale.  The wife deposes that as at February 2018 there was $823.00 in her solicitors’ trust account to meet spousal maintenance obligations and payments for council rates and health insurance premiums.

3. The wife says that she has sought the husband’s agreement to vary the amount allocated to service legal fees down to the sum of $300,000.00 each so as to free up a further $100,000.00 from sale proceeds that would meet the ongoing spouse maintenance obligations under the orders.

4. On 31 October 2017 the payment of $100,000.00 then standing in the controlled money trust account was restrained pending determination of this application.

5. The wife, otherwise, complains that the husband, notwithstanding having the present entitlement to draw up to $300,000.00 for his legal fees, has only drawn $78,199.00, she says by reason of him being, otherwise, able to pay his legal fees from his other resources.

6. The wife presently has the primary care of the children Y and Z aged 12 and eight respectively.  They spend four or five nights a fortnight with the husband.  The husband’s obligation for the provision of child support and other payments for these children are the subject of other orders.

7. The child X now aged 15 spends about five nights per fortnight with the wife and, otherwise, is in the primary care of the husband.

8. Otherwise, the wife provides financial support for the older children Mr Q aged 19 and Mr R aged 23.  The child Mr R lives with her about 70 per cent of the time.

9. The wife asserts that her reasonable expenses would be $2,755.00 per week as set out in her financial statement filed 7 February 2018.

10. Her asserted reasonable expenses in fact comprise:

    $      10.00        Income Tax

    $     375.00        Food

    $      70.00        Household Supplies

    $     150.00        House repairs

    $        5.00        Gas

    $     200.00        Electricity

    $      10.00        Heating fuel

    $      90.00        Phone/Internet

    $     150.00        Petrol

    $      75.00        Car maintenance   

    $     120.00        Clothing/Shoes

    $      35.00        Medical etc

    $      80.00        Entertainment

    $     100.00        Holidays

    $      50.00        Education

    $      35.00        Chemist

    $      75.00        Gardening

    $      25.00        Cleaning

    $      60.00        Repairs:  Furniture/Appliances

    $      15.00        Books Magazines

    $     120.00        Gifts

    $      50.00        Hairdresser Toiletries

    $      18.00        Foxtel

    $      50.00        Work clothing

    $  1,928.00

11. The wife’s income comprises her part-time work averaging about $140.00 per week and rent from a “boarder” Mr S of $350.00 per week. She, otherwise, receives $159.00 per week for Child Support and a Family Tax Benefit of $25.00 per week for the children.

12. The wife is 47 years of age and has not worked in any meaningful way for 23 years by reason of her primary care of the children during cohabitation. The wife asserts that her ability to work more is limited by the needs of the children of the marriage particularly those in her primary care in circumstances where she needs to be available to them. Whilst she has sought further employment, by reason of her limited skills she has not been able to find further employment that works around the needs of her children for whom she wishes to remain available.

13. The wife has supplemented her needs by accessing the $100,000.00 she received by way of interim property provision pursuant to interim orders referred to above. She has, she contends in submissions, about $28,700.00 left from those funds.

The husband’s capacity

1. The wife asserts that the husband has the capacity to meet her spousal maintenance claim.

2. The husband is a Director and Shareholder of T Pty Ltd the trustee of the U Trust, a discretionary family trust. The trust has made no recent distributions to the husband nor are there any unpaid beneficiary distributions standing to his credit in the Trust as at 30 June 2016.

3. Yet at the time of separation until August 2015 the husband had been receiving some $7,000.00 per month from the Trust bank account and from September 2015 payments reduced to $3,500.00 per month. The characterisation of the payments is not known to the wife but they are not evidenced as distributions in the Trust’s 2016 Financial Statements, although it appears that some Trust distributions were made to one or more of the parties’ children.

4. The husband, it appears, has paid legal fees from the Trust’s account totalling about $40,000.00 in the period June 2015 to March 2016.

5. A financial report for the Trust prepared in 2011 evidences the husband’s interests as:

   (1)one of the two directors of T Pty Ltd and one of four shareholders in the company. He is one of the Trust beneficiaries;

   (2)a director of V Pty Ltd, a beneficiary in the U Trust. The shareholders of the company are the husband’s father and T Pty Ltd; and

   (3)a director of and one of four shareholders in Rickard Group Pty Ltd as Trustee of the Rickard Trust, a discretionary trust in which the husband is one of the nominated beneficiaries. The husband and his father are the two appointers of the Trust.  The Trust owned as at June 2016 various properties at W Town, NSW with a balance sheet value of $12.173 million subject to mortgages of about $5.335 million and a debt to the U Trust of $8.070 million. The company is also Trustee of the AA Trust, a discretionary trust in which the husband is one of the nominated beneficiaries. The husband’s father is the appointer of the Trust. 

6. A Financial Report was prepared for the entities BB Pty Ltd (with the husband’s father as sole director and shareholder) and CC Pty Ltd in February 2015, about the time of separation. The companies were established in July 2014 to purchase a property at DD Street, Suburb EE at a total price of $6.25 million. The report records that the “clients have $1 million in cash to put toward the purchase”.

7. The husband at the time of separation was paid $1,532.00 per week for working at the family business, the Business FF. These funds were paid into the parties’ joint account and used exclusively by the wife for household and living expenses. Otherwise, the husband paid household bills and outgoings and credit card debts from other sources. The wife, otherwise, asserts that the husband would bring home sums of cash each week of about $3,000.00 from the business.

8. Shortly after separation, the husband reduced the funds paid into the account to $1,232.00 per week that included a small child support component. This payment continued for more than two years from May 2015 to July 2017.

9. The husband, otherwise, has his significant NAB and Citibank credit card liabilities paid through the U Trust or from his NAB account and until sale of the F Town property in early November 2017, serviced interest payments of $1,402.00 per week on a NAB Line of Credit secured over that property.

10. The husband has, since separation, travelled extensively overseas involving about 21 overseas trips.

11. The husband operates a joint CBA bank account with a third party trading as “GG”.

12. CBA accounts …63 and …98 reveal the husband receiving $10,000.00 per month from 2013 to October 2017 from account …63, and a total of $300,000.00 from account …63 in the same period. These accounts were not disclosed by the husband. Account …63 reveals significant deposits and withdrawals.

The husband’s evidence

1. The husband complains of the wife’s failure to make proper disclosure. Having regard to her limited circumstances the issue is of little moment.

2. The husband asserts that the wife is in a de facto relationship with her “boarder”. The issue will need to await final trial. At this point he pays rent to the wife for his occupation of the home she resides in and she has the use of his car.

3. The husband says he is employed as a manager at a salary of $1,232.00 net per week ($64,000.00 per annum) as he was during cohabitation. The business is owned by his father. He, otherwise, receives rent of $406.00 per week from the Suburb J property.

4. He asserts that he is dependent upon financial assistance from his father to meet expenses.

5. The husband acknowledges that the wife ceased work in 1995 after having some experience in the finance industry before then.

6. The husband ceased providing his salary to the wife when he says his father ceased providing financial help to him in July 2017. Yet his father has paid part of his legal fees in the sum of $220,311.00. He has repaid his father part of this debt including by way of a motor vehicle transfer to his father.

7. The husband asserts that withdrawals from the wife’s NAB account over a period to mid November 2017 average about $1,746.00 per week, mostly supportive of the wife’s asserted expenses.

8. He asserts his expenses at $2,206.00 per week. They include:

   $     375.00        Rent asserted to be paid to his father

   $      84.00        Health Insurance self and children

   $     159.00        Child support

   $  1,195.00        NAB credit card

   NK             Citibank Credit Card

9. He asserts that his weekly expenses, otherwise, are:

   $     150.00        Food

   $      20.00        Electricity

   $        5.00        Car parking

   $      25.00        Clothing and shoes

   $      20.00        Entertainment

   $      70.00        Holidays

   $      15.00        Chemist

   $        2.00        Dry cleaning

   $        8 .00       Hair dresser

10. Otherwise, he has some expenses for the children variously in his care.

11. The husband concedes that an indeterminate amount of his weekly expenses are paid on his credit card so there is some “doubling up”.

12. Yet a perusal of the husband’s credit card transaction on his NAB account (Exh “E”) until November 2017 reveal a very different story. Significant payments to the card have met expenses incurred for dining out, shopping, airfares, shopping in Europe, transactions in the Asia, transactions in Queensland, and hotel stays.

13. Some payments appear to have been in reimbursement to him by his father of school fees as contended by the husband but deposits to the account are markedly inconsistent with the husband’s assertion as to his income and resources.

14. Otherwise, the husband’s Citibank Pty Ltd Credit Card exhibits similar expenses including the purchase of significant personalty such as, it appears, a Ski-Doo, which simply appear to be unrelated to the conduct of the business managed by the husband. As to such expenses, it may be inferred that payment of the same on behalf of the husband is, in fact, part of his employment benefits.

15. The parties have an obligation to the Court to provide full and frank disclosure.

16. As the Full Court repeated in Shaw & Shaw [2014] FamCAFC 146 at [45]:

    A party’s obligation to make full and frank financial disclosure in property proceedings in this court has long been settled. In Black & Kellner (1992) FLC 92-287 it was said:

    The Full Court in Oriolo and Oriolo, supra, referred with approval to the remarks of Smithers J in the case of In the Marriage of Briese, supra, and it is perhaps worth reiterating a portion of his Honour's statement at Fam LR 662; FLC 75,181where he said, after referring to the decision of the House of Lords in Livesey v Jenkins [1984] UKHL 3; [1985] All ER 106:

    “I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required. "In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred."

    (See also Weir v Weir (1993) FLC 92-338, and Oriolo v Oriolo [1985] FamCA 54; (1985) FLC 91-653.)

17. Considering the evidence above, there are grave concerns as to the husband’s evidence as to financial circumstances and his real income. In such circumstance it is open to the Court to make robust findings against him.

18. Accordingly, on the evidence available, the Court is satisfied that the husband has the capacity to meet the wife’s claim as to spousal maintenance subject to the Court’s determination as to her reasonable needs.

Spouse Maintenance

1. Section 72 of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant provisions in relation to the right to spouse maintenance. The Court can make such order as it considers proper (s 74 of the Act).

2. Section 72 provides that a party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

   a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

   b)by reason of age or a physical or mental incapacity for appropriate gainful employment; or

   c)for any other adequate reason;

   having regard to any relevant matter referred to in subsection 75(2) of the Act.

3. In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said:

   As Nygh J. said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order. Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.

4. There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle (see Bevan & Bevan (1995) FLC 92-600).

5. The relevant matters in s 75(2) need to be considered.

6. Both parties are of similar age with no issue raised as to health.

7. The property and financial resources of the parties are the subject of ongoing proceedings and valuation. The husband has failed to disclose his true income or financial benefits from all sources as discussed above.

8. The child care arrangements are set out above as are the parties’ asserted financial commitments for self-support.

9. The wife has been out of the work force for many years by reason of the parties’ respective roles during cohabitation. As a consequence, her capacity for any significantly remunerative work is limited.

10. The wife seeks to remain available for the younger children.

11. There is an issue as to the wife’s “cohabitation” with Mr S. He, however, pays her rent for living in the home on whatever basis he lives there.

12. The wife receives modest child support. 

13. The Court finds that the wife is unable to support herself adequately by reason of her ongoing childcare obligations and her limited capacity for employment.

14. Her reasonable needs as claimed in some respects appear excessive and are not supported by objective evidence and in the circumstances are assessed at $1,500.00 per week. With her income of about $500.00 per week her net needs are then about $1,000.00 per week.

15. The Court finds that the husband has the periodic capacity to meet such an obligation. However, in the face of his clearly unsatisfactory evidence as to his income and resources the enforcement of such obligation may prove problematic. It is appropriate that the obligation be quantified as a lump sum for payment.

16. The husband has a balance of $50,000.00 remaining in the controlled money account under previous interim orders. Such sum to be utilised for legal costs. This sum will be paid to the wife as a lump sum representing interim periodic spouse maintenance at the rate of $1,000.00 per week for 50 weeks by which time these proceedings should be finalised.

17. Otherwise, it will be ordered that the balance of $50,000.00 in the controlled money account that, in fact, is to be attributed to the wife’s costs be paid out to her to be used as she directs or chooses.

The sale of Suburb C

1. The husband seeks a sale of the Suburb C property that comprises vacant land.

2. He says he is in parlous financial circumstances as to meeting the modest property outgoings. He is not. The money is available to him from various sources.

3. He says the property is of little utility as it cannot be subdivided and simply accumulates rates to be paid. It has an estimated value of $1.8m.

4. He seeks an order that the property be sold and the proceeds be held in a controlled money account pending further order.

5. The order sought simply changes the nature of the asset from realty to cash. He seeks no provision by way of interim property from the proceeds.

6. The wife opposes the order for sale and seeks the property in specie as part of her asserted property entitlements.

7. The primary considerations as to such an application are considered in Strahan & Strahan [2009] FamCAFC 166 and require a two-step process.

8. In Strahan (supra), the Full Court said:

   132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1) (h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

   Firstly, there must be circumstances enlivening the power to make an interim order. The test is not limited to “compelling circumstances” but whether it would be “appropriate” to make an interim order, with the “overarching consideration” being the interests of justice.

   Secondly, the Court is to have regard to relevant matters in s 79 of the Act. It needs to be kept in mind that the final outcome of property settlement should not be compromised by an interim property order. Either the remaining property needs to be adequate to meet the legitimate expectations of both parties at the final hearing or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so. (emphasis added).

9. Such considerations are not supportive of the sale of the Suburb C property. The husband has not evidenced any circumstances that would justify an order for sale being made, particularly given his lack of disclosure as to his financial circumstances and resources and the fact that he seeks no orders as to interim distribution of the proceeds of sale of the property. The application for sale will be dismissed.

1. Orders will be made accordingly.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 June 2018.

Associate: 

Date:  1 June 2018