Rigby & Kingston
[2017] FamCA 877
•11 July 2017
FAMILY COURT OF AUSTRALIA
| RIGBY & KINGSTON | [2017] FamCA 877 |
| FAMILY LAW – PROPERTY SETTLEMENT – Interim Orders – Where the husband seeks an interim lump sum payment by way of interim property payment, interim spousal maintenance or interim costs – Where wife seeks a discrete hearing on s 79(2) enquiry – Application for lump sum payment dismissed – Application for a discrete hearing dismissed – Wife to pay a lump sum for the husband’s legal costs |
Family Law Act 1975 (Cth) ss. 72, 74, 75, 79, 80, 117
| Breen& Breen (1990) 65 ALJR 195 Chapman & Chapman (2014) FLC 93-592 Gabel & Yardley (2008) FLC 93-386 Harris and Harris (1993) FLC 92-378, Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) In the marriage of Bevan and Bevan (1995) FLC 92-600 Kryiakos (2013) FLC 93-528 Rakete (2012) FamCA 267 Re JJT: Ex parte Victoria Legal Aid (1998) 195 CLR 184 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford (2012) 247 CLR 108 Strahan &Strahan (Interim Property Orders) (2011) FLC 93-466; Wilson & Wilson (1989) FLC 92-033 Zschokke & Zschokke (1996) FLC 92-693 |
| APPLICANT: | Mr Rigby |
| RESPONDENT: | Ms Kingston |
| FILE NUMBER: | BRC | 12882 | of | 2016 |
| DATE DELIVERED: | 11 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 27 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney SC |
| SOLICITOR FOR THE APPLICANT: | Hopgood Ganim Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kirk QC |
| SOLICITOR FOR THE RESPONDENT: | Hartley Healy |
Order
The wife shall pay or cause to be paid to the trust account of the husband’s solicitors within 28 days the sum of $135,000 to be used only for the purpose of meeting the husband’s legal fees.
The payment referred to in the preceding paragraph shall be taken into account in such way as considered appropriate by the trial judge in the substantive property proceedings.
The wife’s application for a discrete hearing of the enquiry as to whether it is just and equitable to make an order (s 79(2)) is dismissed.
The interim application by the husband in relation to further and better disclosure by the wife is adjourned to be heard on the same date as the hearing of the objection to subpoena issued to B Pty Ltd.
Save as dealt with by this order all remaining interim applications are dismissed.
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 Rigby & Kingston 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 BRISBANE |
FILE NUMBER: BRC 12882 of 2016
Mr Rigby
Applicant
And
| Ms Kingston |
Respondent
REASONS FOR JUDGMENT
The parties to this application are husband and wife who separated after twenty-nine years (on the husband’s case) or twenty-four years (on the wife’s case) in October 2015. The husband applies for an interim payment to him of $1,450,000 and for specific disclosure. The wife opposes the relief sought by the husband, at least at this stage of the proceedings, and proposes that the issue of whether it is just and equitable to make an order pursuant to s 79 (2) of the Family Law Act 1975 (Cth) be listed for a discrete hearing.
The material relied upon by the parties is extensive and contains significant evidence that is irrelevant to the interim dispute between the parties. For example each of the parties traverses in some detail, relationship difficulties and parenting issues. It would be helpful if practitioners could more assiduously focus their attention on matters that are likely to be relevant to the interim relief sought when preparing affidavit material.
background
The parties were married in 1991 and separated on 26 October 2015 when the husband moved out of the family home and he now lives in rental accommodation. The parties disagree about whether or not they cohabited prior to the date of marriage. They have two children aged 22 and 16 respectively who live with the wife. Both parties are 52 years of age.
The wife is a woman of considerable wealth having been the recipient of a significant inheritance and gifts during the marriage. She was also employed full time throughout the marriage. She estimates her personal wealth at about $11,000,000. The wife is the managing director of her family business referred to in the proceedings as the Kingston Group.[1] The Kingston Group was established by the wife’s father in 1939 and built up over his lifetime to the date of his death in 2008. He made it clear to his children that he did not want any of the wealth he created to be shared with any spouse of his children. His three children are all involved in the varied operations of the businesses and investments conducted by the Kingston Group. The wife received significant gifts from the Kingston Group over the years and has an interest with her two brothers in a testamentary trust established after her father’s death which will vest in 2040. The Kingston Group is estimated to be worth in the vicinity of $150,000,000.
[1] See exhibit 1
The husband’s assets comprise savings of about $60,000, a motor cycle and superannuation of about $200,000. He contends that he owes his mother $100,000 and has outstanding legal fees of $15,000 plus unbilled legal fees of about $46,000. The husband commenced proceedings for property settlement in December 2016 in which he seeks a distribution to him of thirty-five percent of the net property of the parties or either of them.
The husband is a qualified professional but is unemployed other than in his own consultancy from which he earns a modest income.
The parties entered into a pre-nuptial agreement prior to their marriage in 1991 although it is not suggested that the terms of that agreement oust the jurisdiction of the court to make a property order if it is found to be just and equitable to do so. The agreement was intended to protect from claim by the other party any property owned at the time of the agreement; any inheritances and any property solely acquired by one party.
The wife argues that the parties thereafter kept their financial affairs entirely separate and maintained ledgers recording their day to day living expenses which they reconciled each month including dividing expenses for the children. On occasions when the husband was unable to meet all of his expenses the wife advanced money to him pursuant to loan agreements which the husband subsequently repaid. While the husband does not dispute the keeping of ledgers as alleged he contends that he was overborne by the wife to do so.
The parties have never had a joint bank account or credit card. They have never acquired property in joint names. They have never guaranteed the liabilities of the other. They were each free to spend their money and make investments as they wished.
The husband contends that he made substantial contributions to the improvement and conservation of property in the wife’s sole name over the years for which he was not recompensed. The wife disputes this claim and contends that any work undertaken by the husband was paid for at commercial rates.
At times during the marriage the husband was employed as a contractor for the Kingston Group but he contends he was underpaid. He received distributions as a discretionary beneficiary of the Kingston Group in order to minimise taxation for the Group and contends that he gave any such distributions to the wife save for the last distribution of $55,000 in 2015. The wife contends the distributions were made as a tax effective means of the husband repaying loans she had advanced to him.
The wife contends that while she always lived to a budget and was generally quite frugal the husband spent money as he earned it and made no savings or provision for his future. This did not concern her at the time given the agreement which they had reached prior to their marriage and to which she contends they both adhered.
In 2007 the husband commenced his own consultancy business in which he worked part time so that he could attend to the needs of the children and the household enabling the wife to pursue her career within the Kingston Group. The wife rejects this contention. She contends that despite the husband working part time she continued to undertake the majority of household tasks until a cleaner and gardener were employed and she also contends that they shared the parenting responsibilities. She describes the husband as having a “lazy work ethic”.
The husband contends that he is unable to support himself adequately and that he has been actively seeking employment since May 2016.
Since separation the husband has received $150,000 from the wife in three tranches (early 2016, 23 August 2016 and 11 November 2016). The husband expended $50,000 on a trip to Denmark in early 2016, $30,000 on legal fees and the balance on his own support.
The husband has sought disclosure from the wife in relation to her interests in the Kingston Group. The wife resists that disclosure on the basis that she has not been granted permission to disclose the information which is not hers to provide. She has invited the husband to subpoena the various entities to obtain the documents and submits that if the documents are considered relevant they can be obtained from those entities.
The husband recently sought the issue of a subpoena to B Pty Ltd to produce various documents of the Kingston Group. Objection has been taken to the production of the documents sought and a hearing of that application is to occur after each interested party files written submissions.
the lump sum payment
The husband seeks a payment of $1,450,000 with the characterisation of that sum as an interim property payment, interim spouse maintenance or interim costs to be determined at trial. The husband proposes to use the lump sum to purchase a home for $850,000, a car for $55,000, litigation funding of $250,000, superannuation contributions of $49,000, and the balance to maintain a lifestyle comparable with that he enjoyed during the marriage including a provision for travel of $80,000.
It is submitted on behalf of the husband that the power to make the order is to be found in either s 79 and s 80(1)(h), s 74 or s 117.
It is necessary to identify the head of power supporting such a payment so that the parameters of the enquiry can be addressed.[2]
[2]Kryiakos (2013) FLC 93-528
Interim property order
The legal principles to be applied in making an order for interim property settlement are well settled.[3] In summary, those principles include:
a)The discretion to make an interim property order must be exercised within the parameters of s 79 although not as thorough a consideration is required as would be if the Court were determining the matter on a final basis;
b)It is preferable to make only one order (a final order) in the exercise of the s 79 discretion;
c)The fact that it is an interim order requires a degree of caution;
d)An applicant for an interim property order need not establish compelling circumstances;
e)It is insufficient to establish merely that a property order of the type sought will be made at trial;
f)A significant factor is whether or not any interim order is capable of reversal;
g)If made, an order need not limit the use to which the sum ordered may be put.
[3] Harris and Harris , Strahan &Strahan (Interim Property Orders) ; Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) and Stanford v Stanford (2012) 247 CLR 108
The parameters of s 79 require a consideration of whether or not it is appropriate to make an order (s 79(1)); whether it is just and equitable to make an order (s 79(2)) and the factors set out in s 79(4) including as far as relevant the matters set out in s 75(2) of the Act.
In Stanford & Stanford [4] the High Court held:
40 … whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[4](2012) 247 CLR 108
Mr Kirk QC for the wife submits that it is not appropriate to make an order for property settlement until a determination has been made of whether it is just and equitable to make any order. It is submitted that the determination of that issue can and should be listed for a discrete hearing.
Mr Kearney SC submits that the Court can make an interim determination that it is just and equitable to make an order, even where there is considerable factual dispute about that issue (as in this case) and notwithstanding that a final determination may be to the contrary. In support of that submission he cites the Full Court decision of Gabel & Yardley.[5] While that case is certainly authority for the proposition that it is possible to make more than one interim property order I reject the submission that it supports the contention as argued. Even where multiple interim orders for property settlement are made it remains the one exercise of the s 79 power until the power is ‘spent’ or ‘exhausted’.[6]
[5] (2008) FLC 93-386
[6] Gabel & Yardley (supra); Hickey & Hickey and Attorney-General for the Commonwealth of Australia (intervenor) (2003) FLC 93-143; Scott & Danton [2014] FamCAFC 203
Mr Kearney SC for the husband also argued that as long as I could be satisfied that the husband had a prima facie case for relief under s 79, that was sufficient to support an interim order. I do not accept that argument in circumstances where the wife, in this case, also mounts a prima facie case viz that a court will not make an order. Issues of credit loom large in this case.
Any sum paid to the husband and used by him to pay his legal fees, support himself or to purchase a depreciating asset will not be recoverable nor will any fees paid to acquire an asset such as stamp duty.
There is no doubt that there would be significant prejudice to the husband if he is required to represent himself in the proceedings. It is preferable for parties to be legally represented. The wife will be able to afford legal representation given her extensive assets and income. On the other hand the wife will suffer significant prejudice if she is ultimately successful in her case and no property adjustment order is made as there would likely be a significant sum unable to be recovered.
Although the wife’s assets are significant and the husband’s minimal there must be a principled legal basis upon which to interfere with the wife’s property. I can find no such principled basis to do so in this case on an interim basis.
In the circumstances I am unable to be satisfied that it is appropriate to make the order sought by the husband pursuant to s 79 and 80(1)(h).
Interim spouse maintenance
An alternative power relied upon by the husband to support the lump sum order is s 74 of the Act.
In relation to the lump sum sought for legal costs, the Full Court in Wilson & Wilson[7] in the ratio decidendi rejected the notion that legal costs could be ordered pursuant to the maintenance power. The Full Court in Zschokke & Zschokke[8] did not overturn Wilson. The Full Court merely said in obiter dicta that in light of Breen& Breen[9] (a special leave application that failed) the question of whether there is power to make such an order under s 74 should be regarded as remaining open. In Breen, Brennan J (as he then was) said:
The order made in this case may be unusual but it cannot be said to be beyond jurisdiction of the Family Court under either s 117(2) or under s 74 of the Family Law Act 1975 (Cth). It is unnecessary to determine whether the power to make the order falls under s 117(2) rather than s 74 …[10]
[7] (1989) FLC 92-033
[8] (1996) FLC 92-693 at [66]
[9] (1990) 65 ALJR 195
[10] Ibid at 195
In Re JJT: Ex parte Victoria Legal Aid[11] Gaudron J observed in obiter dicta:
3. Doubtless, the power to award maintenance under s 74 of the Act also extends to orders that a party to the marriage provide the other with funds to conduct proceedings under the Act.
By contrast Kirby J stated:
41. …The suggestion that such orders represent a form of "spousal maintenance", supported by s 74 of the Act, although expressly reserved by this Court in Breen v Breen, is unconvincing.
(footnote omitted)
[11] (1998) 195 CLR 184 at [3] cf Kirby J at [41]
Until reconsidered by the Full Court I consider I am bound by the decision in Wilson that the maintenance power does not support the making of an order for litigation funding.
Turning to consider the other lump sum amounts sought - the husband has a right to maintenance if he is unable to support himself adequately by reason of one of the matters set out in s 72 and the wife is reasonably able to support him.
An award of spousal maintenance involves:
(a) a threshold finding under sec 72;
(b) consideration of sec 74 and 75(2);
(c) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit it; and(d) a discretion exercised in accordance with the provisions of sec 74, with reasonableness in the circumstances as the guiding principle.[12][12]In the marriage of Bevan and Bevan (1995) FLC 92-600
The husband contends that income from his consultancy business is inadequate to support his reasonable needs and that he has made a reasonable attempt to obtain employment since May 2016 but has been unsuccessful.
The husband is a qualified professional and works part time as a consultant in his own business. He deposes to earning on average only $231 gross per week. He contends that his reasonable weekly expenses are $3,177.
He seeks a lump sum of $850,000 for a home; $49,000 for superannuation; $55,000 for a car; $80,000 for travel and $166,000 for his ongoing support until December 2018.
The wife opposes the order and submits that the husband has failed to establish that he is unable to support himself adequately. It is submitted that the husband’s attempts to obtain employment fall well short of what is reasonable. Mr Kirk QC submits that while the husband has ‘cold called’ numerous people he has not applied for one actual job vacancy. Further, the husband has limited his enquiries to “short term contract work between two or three days a week”. In response to the wife’s evidence where she had identified 48 jobs advertised in the husband’s profession in the Brisbane area the husband says:
… I reviewed [the relevant] Jobs in All Brisbane QLD SEEK.COM on 3 April 2017 and found [63] jobs advertised.
…
All of the jobs advertised are inappropriate in respect of age and skill set
AGE
The vast majority of jobs involve an applicant who will be much younger that I at 51 years of age where the employer is wanting a much younger person and in their 20s, early to late 30s.
..
SKILL SET
…
These positions involve the following where (sic) I do not have the most relevant qualification(s)/skill set or I do not have the background experience or current relevant knowledge to be a realistic candidate, let alone the successful candidate.
The husband acknowledges that not all of the jobs involve a young candidate. Indeed some of the jobs advertised in the wife’s annexure are clearly seeking a senior professional to manage a team. Further, while the husband may not have the most relevant qualification set or background I do not consider his failure to apply for even one actual job vacancy to be reasonable in the circumstances. Limiting his enquiries to a part time position of two or three days a week is also unreasonable when he is not limited by reason of health, care for children or any other reason to part time work.
If I am wrong in that assessment I would nevertheless reject the claims for lump sum payments. There is no suggestion that if the wife were ordered to pay a periodic amount she would fail to do so. I do not consider the lifestyle prior to separation to be a sufficient reason to order the lump sum/s sought by the husband.
If the husband has a need in the relevant sense I see no reason why any maintenance should not be met by a periodic order rather than a lump sum payment but, for the reasons identified, I am not satisfied that the husband is unable to support himself adequately.
If I am wrong, I consider the husband’s claimed weekly needs to be unreasonable in the following respects:
a)$16 per week for a tax agent when the husband has taxation experience
b)$500 per week for a superannuation contribution. The fact that this contribution was made when the parties were married and living together is not a sufficient basis
c)$130 personal training
d)$809 credit card interest when no liability is disclosed
e)$385 travel and holidays. Although the husband may have travelled extensively during the marriage there is no entitlement to maintain the same standard of living after separation as prior thereto
f)$35 donations
Deducting the above amounts reduces the husband’s weekly needs to $1,302 per week and I would further deduct the husband’s average income of $281 per week.
I did not understand the wife’s capacity to meet a spouse maintenance claim to be in issue but for the reasons outlined I do not propose to make an order for interim spouse maintenance.
An interim costs order
An order for $250,000 (as sought) for past and anticipated legal fees could be made pursuant to s 117 of the Act.[13]
[13]Re JJT & Ors; ex parte Victoria Legal Aid (supra); Wilson & Wilson (supra); Zschokke & Zschokke (supra)
Section 117(2) of the Act relevantly provides:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A) … make such order as to costs … whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) relevantly provides:
In considering what order (if any) should be made … the court shall have regard to:
(a)The financial circumstances of each of the parties to the proceedings;
(b)– (f) …
(g) such other matters as the court considers relevant.
As held by Kent J in Rakete[14]:
42.There must be justifying circumstances as a prerequisite to the making of an Order under s 117(2). This does not mean that there must be a “clear” or “exceptional” case before justifying circumstances exist.
(footnote omitted)
[14] (2012) FamCA 267
It is the husband’s case that after twenty nine years of cohabitation he has nothing and the wife has personal assets of $11,000,000 to which he has made significant indirect contribution. In addition, he contends that he gave up his full time job in 2007 with the agreement of the wife in order to be the primary homemaker and parent.
It is the wife’s case that in 1991 she and the husband entered into a pre-nuptial agreement in which they each undertook to make no claim against the others assets. Thereafter they maintained entirely separate financial lives. They made independent decisions and were not involved in each other’s financial affairs. When they went out together they each paid their own way. The maintained detailed ledgers in which their respective outgoings were recorded and reconciled at the end of each month. They each contributed to the costs associated with the day to day expenses of the children and in the event the husband was unable to pay his way the wife lent him money which was recorded in loan agreements which were generally repaid by the husband. They never bought property jointly. They never borrowed money jointly. They never guaranteed each other’s liabilities. They never had a joint bank account. The husband was appropriately recommenced for any contribution made.
In the present case, it is fair to observe that each party (on their respective versions) establishes a prima facie case for the substantive relief sought. In the husband’s case that is for a property settlement and in the wife’s case that is for a dismissal of the husband’s application.
If the husband does not receive a sum by way of litigation funding there is every prospect he will be forced to represent himself. He will be at a significant disadvantage to the wife who will have no problem meeting her legal costs and be represented by both Queen’s Counsel and junior counsel.
On the other hand if a sum is paid to the husband there is little prospect of the wife recovering that sum and that is a significant prejudice to her.
The decision “devolves into a balance between those two centrally competing considerations”.[15]
[15]Rakete (supra) at [47]
The husband’s solicitor, Mr C, has provided an estimate of the husband’s legal costs from commencement to act for him up to the mediation stage in the range $239,000 to $286,000 to support the husband’s claim for $250,000 up to mediation stage.
It is not entirely clear to me how much the husband has paid to date in legal costs although I note that he has received $150,000 from the wife and some of that sum ($30,000) has been used to meet legal costs. In addition he has borrowed $100,000 from his mother (although it is not conceded by the wife that this is a loan). He paid a further $10,000 in or about January 2017.
The husband deposes in his financial statement sworn on 13 June 2017 that he has outstanding legal fees of $15,290. Mr C deposes to the husband having unbilled work in progress of $46,250. The husband’s senior counsel’s fees for the interim hearing were held in the trust account of the husband’s solicitor. The husband has $60,000 in bank accounts.
Included in Mr C’s estimate are legal fees up to the interim hearing stage between $87,000 to $98,000 ($50,000 of which is up to but not including the case assessment conference); costs relating to disclosure and valuations between $132,000 to 163,000 and for the mediation itself of $19,000 to $23,000.
The estimates are said not to include counsel’s fees (although I note some counsel’s fees are included) and I note that the husband proposes to retain junior and senior counsel from Sydney and a mediator from Sydney. The wife has retained Queen’s Counsel and junior counsel from Brisbane.
Mr C deposes to his firm being unwilling to act for the husband if his legal costs are not paid as and when invoiced.
Mr C also estimates the total costs for the husband up to and including a 7 day trial to be an additional estimated $600,000 which includes junior and senior Sydney counsel fees, and rather extraordinarily, an appeal, a re-hearing (2 – 3 days) and a second appeal.
Doing the best I can, the estimate for the husband’s legal fees up to mediation (which the parties appear to have agreed to attend save if there is a discrete hearing) is as follows:
Stages of litigation process
Estimate of fees
Fees paid
Fees outstanding (including WIP)
Negotiation
38,074
30,000
10,044
Commence proceedings in FCA
7,345 - 12,145
Case assessment conference
4,300 – 5,800
Interim hearing
38,150 – 42,950
Disclosure and valuations[16]
132,060 – 163,900
Mediation
19,650 – 23,425
Total
$239,579 – 262,869
$40,044
$61,540
[16] 50 per cent of the cost of valuations is estimated to be between $65,000 - $75,000
Given the concessions made by the wife as to her approximate worth I do not consider it reasonable for the husband to expend up to $75,000 on valuations for a mediation. I note that the wife’s solicitor estimates that the wife’s costs up to and including a two to three day hearing on the discrete issue as to whether it is just and equitable to make a s 79 order is $93,000 but that does not include all matters to date.
In this case I consider that the circumstances justify an order for costs and that a sum of $135,000 is just. In coming to that conclusion I have taken into account, in particular, the wife’s far superior financial position, the prima facie case for substantial relief established by each party, the prejudice to each party in making or not making an order and the estimate of costs provided.
The sum ordered is to be retained in the husband’s lawyer’s trust account to be used only for the purpose of payment of his legal fees.
discrete hearing
The wife seeks that there be a discrete hearing on the s 79(2) enquiry. No authority was cited in support, it being frankly acknowledged that this matter has not been considered previously. It is submitted that a discrete hearing will only occupy two to three days of court time while a full hearing on all matters will take up to ten days. The costs for the parties are submitted to be prohibitive if the latter course is adopted. Reliance was placed on the estimate of future legal costs prepared by Mr C for the husband and it was submitted that the wife could expect to incur a similar sum. I have already noted the inclusion of two appeals and a re-trial in Mr C’s estimate.
The husband opposes a discrete hearing.
While there is no requirement to consider s79 (4) factors when considering whether it is just and equitable to make an order under s 79(2), nor is there a requirement that those factors be ignored.[17] The matters relevant to the s79 (2) consideration are many and varied and depend on the particular circumstances of each case.[18] As long as separate consideration is given to the two enquiries there is nothing contrary to legal principle in taking into account matters that may be relevant under both sections.
[17]Bevan & Bevan (2013) FLC 93-545
[18]Bevan (supra); Chapman & Chapman (2014) FLC 93-592; Stanford & Stanford (2012) 247 CLR 108
The Full Court in Bevan & Bevan[19] held that the s79 (2) discretion is not a threshold issue. The Full Court in Bevan also stated that the just and equitable requirement is one that permeates the entire process.[20]
[19] Supra
[20] Ibid at 87,234
In the current case the s79 (4) factors may well inform the exercise of the discretion as to whether it is just and equitable to make an order. By way of example, the husband says that he gave up his full time career to be the primary carer of the children. That is a fact in dispute. In my view there is a common substratum of facts relevant to both enquiries.
Accordingly I do not propose to order a discrete hearing.
disclosure
The wife says she has complied with her obligations to provide disclosure and has been denied permission to disclose documents of the various entities. She suggested that the husband issue subpoena to the various entities and he has only recently done so.
The parties agreed that there should be a separate hearing of the objections taken to the subpoena issued to the Kingston Group which are likely to deal with many of the same issues so I intend to adjourn the hearing of the outstanding disclosure issues to the same date.
summary
The husband’s application for a lump sum payment of $1,450,000 will be dismissed. The wife will be ordered to pay $135,000 to meet the husband’s legal costs. The issue of disclosure will be adjourned to be heard at the same time as the objections to the subpoena issued to B Pty Ltd. The wife’s application for a discrete hearing on the issue of whether it is just and equitable to make an order will be dismissed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 11 July 2017.
Associate:
Date: 11 July 2017
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