Rosemond and Rosemond

[2016] FamCA 877

FAMILY COURT OF AUSTRALIA

ROSEMOND & ROSEMOND [2016] FamCA 877

FAMILY LAW – PROPERTY – INTERIM – Where the wife seeks that the husband be restrained from dealing with funds to be paid to him by his employer – Where the husband seeks a distribution from a family trust by way of a loan – Where previous interim property distributions have been made – Where there will be an argument at final hearing as to the size of the property pool – Where the husband has retired from his employment on an involuntary basis – Where the Court is satisfied that there are reasons for the making of an interim distribution – Where there is an issue in relation to repairs to a property owned by the parties – Where it is unnecessary to restrain the husband in relation to his post-termination payments – Order made that the husband obtain an interest free loan in the amount of $250,000 from the family trust pending the final property settlement – Order made for the wife to facilitate the repairs to the property with costs to be shared between the parties.

Family Law Act (1975) (Cth) s 79

Barro and Barro (1983) FLC 91-300
Harris and Harris (1993) FLC 92-378
Hogan and Hogan (1986) FLC 91-704
Medlow and Medlow (2016) FLC 93-692
Mullen and De Bry (2006) FLC 93-293
Poletti and Poletti (1990) 15 Fam LR 794
Strahan and Strahan (Interim Property Orders)(2011) FLC 93-466
Zschokke and Zschokke (1996) FLC 92-693

APPLICANT: Ms Rosemond

RESPONDENT: Mr Rosemond

FILE NUMBER: SYC 8075 of 2014

DATE DELIVERED: 29 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 29 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Knox

SOLICITOR FOR THE APPLICANT: York Law

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

1. An order is made in terms of paragraph 7 of the Further Amended Response to an Application in a Case filed by the husband on 25 August 2016, as amended as set out hereunder:

   7.     That within 28 days from the date of the making of this Order, the husband and the wife as directors of the Trustee company, Rosemond Nominees Pty Ltd ATF Rosemond Family Trust do all acts and things and sign all necessary documents and pass all necessary resolutions for the sum of $250,000 together with an amount equivalent to one half of the cost identified by the wife to the husband of the repairs referred to in paragraph 1 of Part O of the wife’s Financial Statement, to be advanced to the husband by way of an interest free loan pending the final property settlement being effected between the parties and to implement such loan:

   7.1The parties will instruct Mr B from Company C to sell the managed funds owned by Rosemond Family Trust and thereafter distribute the proceeds of sale of the Professionally managed portfolio and the cash portfolio of Rosemond Family Trust (Portfolio code …) and deposit the proceeds (after deduction of any fees due to Company C) into the Rosemond Family Trust NAB Bank Account being BSB … Account No. …;

   7.2The parties will instruct Mr D from NAB to transfer the sum of $250,000 together with an amount equivalent to one half of the cost identified by the wife to the husband of the repairs referred to in paragraph 1 of Part O of the wife’s Financial Statement, from the Rosemond Family Trust Bank Account to the husband’s NAB Bank Account BSB … Account No. ...

2. An order is made in terms of paragraphs 14 and 15 of the Further Amended Response to an Application in a Case filed by the husband on 25 August 2016, as set out hereunder:

   14.    That within 42 days from the date of the making of this Order, the wife take all steps necessary to repair the leaks in the roof on the property located at E Street, Suburb F (“the Suburb F property”).

   15.    The wife be responsible for payment of the repairs to the Suburb F property pursuant to Order 14 above and provide to the husband documentary evidence of such repairs having been completed within 14 days of such completion.

1. Together with the evidence of the repairs the wife shall advise the husband of the cost of the repairs and as soon as practicable thereafter the husband shall reimburse to the wife a sum equivalent to one half of that cost.

1. An order is made in the terms of paragraph 13 of the Second Amended Application in a Case filed by the wife on 25 August 2016, as set out hereunder:

13.    That the wife and the husband as directors of the trustee company, Rosemond Nominees P/L ATF Rosemond Family Trust do all acts and things and sign all necessary documents and pass all resolutions and declare and distribute all income of the Rosemond Family Trust (after payment of expenses) to the wife for the 2017 tax year and thereafter until the finalisation of these financial proceedings by way of final orders with the wife to be responsible for and pay the tax on all actual/physical distributions made by Rosemond Family Trust for her for the said tax years.

1. The husband notify the solicitor for the wife as soon as practicable after any significant notice or change or event in relation to the financial arrangements associated with his separation from his current employer.  That advice is to include copies of any relevant correspondence or notices.

1. Leave is granted to the parties to apply on seven days’ notice.

1. The question of the costs of these proceedings is reserved.

1. Otherwise the Further Amended Response to an Application in a Case by the husband the Second Amended Application in a Case by the wife 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 Rosemond & Rosemond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC8075 of 2014

Ms Rosemond

Applicant

And

Mr Rosemond

Respondent

REASONS FOR JUDGMENT

1. These are proceedings for interim financial relief in the context of proceedings for settlement of property and spousal maintenance.

2. The matter was before the Court on 14 April of this year.  Some consent orders were made on that date and I noted that there were still some interim issues outstanding.  The agreed orders provided for the parties as directors of a company to sell some managed funds, to deposit the proceeds in a company account and then to lend $445,000 to each of the parties.  The orders noted that the character of the payments was to be a matter for the trial judge at the final hearing.  The orders provided for some other drawings to pay other debts, including debts to the Office of State Revenue. 

3. The Court noted that the parties were proposing to attend a mediation and for the purposes of that mediation to do some things.  The husband was at liberty to organise for trades people to attend on the former matrimonial home at Suburb F by arrangement with the wife to provide for quotes for carpet replacement, painting and rectification of work on a roof.  The remaining issues were put over to a date that later identified as today. 

4. The parties both attended today and were represented.  The husband sought orders arising from distributions of income from a family trust in relation to the payment of tax in relation to that income, a consequential order.  He sought that the parties do all things to enable the trustee company of the family trust to make an interest-free loan to him of $250,000, the term of the loan being until final property settlement, and consequential directions in relation to raising funds and facilitating the payment.  An order was sought in the alternate, being an order for the sale of a property at Suburb G.  As it transpires, that order was not pressed.  There were a number of consequential orders on the sale of the unit which do not arise.  The husband sought an order that the wife account to him for one half of an amount of $22,000-odd received by her from the H Group.  He sought an order that the wife take all the necessary steps to repair the leak in the roof in the property at Suburb F and that she be responsible for the costs thereof and he sought a 106A order and an order for costs.

5. The wife sought that a fund be established with an amount of $130,000 that I will come to, with $37,000 that came from a particular source or with the after-tax amount from that sum; that the husband be restrained from withdrawing funds paid by him to his employer; that he be restrained from receiving funds from his employer by way of capital contribution except in a certain way, in the alternative that he pay half of any amount received by him to the wife and that, as and when he became entitled to post-termination payments, that he account to the wife for – I think it is intended to be half the net payments – half the after-tax payments; that he be restrained from doing anything that interferes with his entitlement to receive those payments; that the parties do all things to cause all of the distributions from the family trust to be paid to her; and she seeks costs.

6. The husband is 54 years of age.  The wife is the same age.  The parties were married in 1986 and separated in November 2013.  There is some issue as to the date of separation.  They have three children, all of whom are over 18.  The proceedings were commenced by the wife by an application filed on 22 December 2014. 

7. Relevantly, by her Second Further Amended Initiating Application filed 25 August 2016 the wife seeks a settlement of property as to 67.5 per cent to her.  Sadly, there will be, no doubt, a Third Further Amended Initiating Application because that is not a competent application.  But anyway, we get the idea of it.  I think the position would be that the wife says she does not know enough about the property pool and the husband’s entitlements to know exactly what the ultimate net property of the parties will be but her claim will be that, taking everything into account but not including the post-termination payments, she receive a bit over two-thirds of the pool of assets. 

8. She also seeks an order for spousal maintenance, as I referred to, for a period of five years at $2,000 a week.  She seeks an order for adult child maintenance at $500 a week in relation to, the oldest of the parties’ children – Mr J and when the husband turns 55 she seeks a distribution from his post-termination payments.  There are a number of consequential orders.  I think there might be some uncertainty about whether the superannuation regulations apply to those payments.  And again she seeks a 106A and costs orders.

9. In short form, it is the husband’s case that he can identify a shortfall in his budget over the next period, taking him up to a final trial.  With the moneys he has, the moneys that he expects to receive, he thinks there is a shortfall of about $225,000.  He seeks for that reason to be able to borrow from the trust $250,000.  There was some discussion in relation to the repairs to the Suburb F property.  I think it was the wife’s proposal that the cost be met equally, that she make the practical arrangements.  I indicated that I was attracted to that idea.  It was said on behalf of the husband, well, he might need to borrow or he would need to borrow an additional amount and I said if I get to that point that that might be an appropriate approach.  It might be that those costs would amount to $60,000.  It could be less. 

10. On the bright side, on the basis of the orders he seeks, the husband does not oppose the wife’s application that she retain the distributions from the trust, so those orders can be made.  It is not strictly a matter of consent because the wife opposes the orders the husband seeks. 

11. The real issues are, firstly, whether the husband can have access to the funds that he wants – that is, the funds that will be coming to him on his termination as a partner in a major firm, together with the right to borrow against the trust; and the second category of the orders is the wife wants injunctions in relation to those same funds; in the alternative, either they are held or at worst, divided equally; and she seeks injunctions in the way he comports himself. 

12. The factor that is agitating the parties is that the husband’s employment with his firm is coming to an end.  He says in his affidavit:

    I am presently a partner of this firm.  Following sustained under-performance in achieving my client facing revenue and profit targets, in March of 2015 I agreed to the request from the firm that I retire from the partnership.  I sought to have my retirement date agreed as 31 March 2017; however, the latest the firm would accept was 30 September 2016.  Accordingly, I am retiring from the partnership then.  My income will cease on 30 September 2016. 

13. He says pursuant to an agreement with the firm he has a contingent right to receive post-termination payments from the firm.  He says that he will not receive any income for six months between his involuntary retirement on 30 September and 23 March but at that time he will become eligible to receive those payments. 

14. The two other amounts that were mentioned in the proceedings were his net partnership capital, payments made by him into the firm, the net total of which is to be returned to him on his departure, and there was also reference to an amount presumably disbursed to the partners on the sale of a part of the business in China and I think a sum of about $37,000 was received in that regard. 

15. The husband sets out in his affidavit from paragraph 12 to paragraph 16 what income he expects from now until 30 June 2018, what expenditure he anticipates from that time, and he includes in that the net benefit of the post-termination payments, the return of his capital, his cash at bank and his income until 23 March 2017.  As I understand his case, he does not anticipate earning any income otherwise over this period.  He estimates that he will have available to him $382,000 and he anticipates that he will have $607,800-odd in outgoings and that includes a calculation of his living expenses, leading to a shortfall, as I say, of $225,000. 

16. The wife, in effect, opposes him receiving – retaining any of the payments that would come to him or, at worst, without accounting to her for half of them.  She opposes him being able to borrow more funds.  It is her case – her contention that the husband has artificially conspired at these arrangements; that he did not take all of the steps that he could have taken to retain his employment with the firm; that he took steps to artificially bring forward debts; that his expenses are excessive and they include him providing support for a new partner; her dependent child, and there are some expenses, I think, associated with her parents. 

17. The husband’s case on a final property settlement I think is for something like an equal division.  I should have said in the wife’s case – and perhaps it is accommodated by the distribution she wants – she has an argument about whether a property at Suburb G that is an asset of the trust – whether that would be dealt with in a different way. 

18. The legal position is that the Court has power to make orders for distribution of property. The Court’s power is found in s 79 of the Family Law Act 1975 (Cth) (“the Act”) and it is, strictly speaking, a power to change interests in property. The general practice is that that be done once, and that is an obvious practical approach because there is some complexity or can be some complexity in identifying the assets. The way in which the power is exercised has been acceptably undertaken on the basis of a number of steps identifying the assets or, at least, identifying the legal interests in assets, there being a finding that it is appropriate to make some order, then if an order is to be made, the assets are to be identified and valued, an assessment is to be made of the contributions the parties have made in various ways and an appropriate division identified, based on that. That assessment, usually expressed in terms of a percentage of the assets, is identified and then, by reference to s 79(4)(d), (e), (f) and (g) of the Act, the Court is to decide whether there should be any adjustment from the outcome based on contributions alone.

19. The law has changed in relation to interim property proceedings.  A fairly conservative approach has been taken in the past.  That was given something of an overhaul in a decision of Strahan & Strahan (Interim Property Orders)(2011) FLC 93-466 (“Strahan”)that I have been referred to and, in that decision, from paragraph 114 on, the Full Court dealt with what it described as the approach to an application for an interim property order. The Court says in this judgment that there is a two-stage process: firstly, whether an order should be made – it is referred to in some places as an “adjectival” step and, secondly, then an application of s 79 of the Act to the circumstances, and there is a great deal of discussion about all of that.

20. It was the law in a series of cases, mainly to do with interim costs – Hogan and Hogan (1986) FLC 91-704, Barro and Barro (1983) FLC 91-300, Zschokke and Zschokke (1996) FLC 92-693,, Poletti and Poletti (1990) 15 Fam LR 794 – whereby it was said among other things that there needed to be compelling circumstances for the making of an interim distribution and it seems that all of that has been swept away.  It has been swept away in relation to the costs issue, the requirements from Poletti about complexity and one party controlling the patrimony of the family and so on:  all swept away.  And the Full Court quoted an earlier Full Court in Harris & Harris and Harris (1993) FLC 92-378 (“Harris”). Section 80 is a general power section allows orders to be made on an interim basis. There is no justification for imposing limitations upon its normal or ordinary meaning and operation when applied to s 79 of the Act, and the Full Court – this is still in Strahan – discussed the arguments that were before the Court.  In Harris, there was a reference to in “appropriate circumstances” an interim or partial order could be made – reference to a “proper case”.  At 127 in Strahan  the Full Court said:

    We observe that notwithstanding what was in the written submissions, during discussion before us senior counsel for the Husband ultimately agreed that the test for the exercise of power in s 80 of the Act to make an interim order is that it be an appropriate case in order to do justice.

21. The Full Court later agreed with submission on behalf of the wife in terms of reasons given by Reithmuller FM (as his Honour then was) in an earlier case, inter alia, concluding that the test for an interim order under section 79 “must be whether, in all the circumstances, it is ‘appropriate’.”

22. Then, coming to that question about the first decision, whether an interim order would be made – paragraph 132 of the judgment in Strahan:

    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.

23. Then this was referred to by counsel before me – paragraph 133:

    In Harris at 79,930, the Full Court gave some examples of circumstances where it may be appropriate to exercise the power being “where both parties agree to the disposal of some asset pending the trial”…

    –

    just stopping there, that has already been done in this case –

    … and “urgent situations” to avoid injustice.  Another example is where, as in this case, one party requires funds to assist in defraying the costs of litigation without which funds an injustice may be caused.

    And then the Court goes on to the substantive step from Harris & Harris, and that is described, the application of s 79 of the Act allowing for the fact and with the limitations of the fact that it is not a final hearing and, nextly, what is described in Harris as an “adjustment issue” or “claw-back issue”.  There are a number of decisions about that and, in essence, the concern is that something might be done on an interim basis that cannot be undone on a final basis.  An example would be where one party on a final basis wants to retain a property and on an interim basis that property is sold.  There, an interim order has been made in advance of the considerations at a final trial and the order cannot be undone – although, interestingly, the Full Court in Strahan is a little less absolute about it than it had been in some other decisions, weighing one thing against another, weighing the need for orders to be made against the claw-back position.  Anyway, that is a problem for another day.

1. It is not submitted in the wife’s case that the orders sought by the husband will interfere with her claims under s 79 of the Act. She says there is some complexity in it. There are issues about valuation. She is not sure what she will be able to encourage the Court to make of the post-termination payments. She is not sure what is going to happen in relation to the Suburb G property and she is not sure, presumably, what the Court will make of her claim in relation to the husband’s earning capacity. Just listening to what the parties said about that and reading their documents, I think there will be an issue between the parties about the respective earning capacities of the parties. That is a relevant matter in s 75(2) of the Act taken up by s 79(4)(e) of the Act and I do not know how that argument will run.

2. Learned counsel for the wife correctly said, that it is important for me to understand the wife’s case.  There is some uncertainty about some of those issues but we have an agreed balance sheets or an agreed balance sheet which describes the problem as a bit under $2 million disparity between the parties.  The wife contending that the assets are $8.2 million and the husband at $10 million, and that might be significantly to do with the treatment of the Suburb G property.  There is $2 million difference in the arguments that the parties have in relation to the Rosemond Family Trust.

3. It is asserted without complaint that the distributions the husband seeks would be only a fraction of what the wife contends should be his property settlement.  There was no complaint about that argument.  He, of course seeks a much more significant distribution, but that is not the issue for the purposes of today. 

4. What I need to do, as I understand the authorities, is to understand the wife’s claim and be careful not to make a provision which would jeopardise that claim.  The husband is assisted in this case because he is only seeking things to which he is legally entitled, so from the point of view of a court having power to change interests in property we do not have the problem that arose in a decision of Medlow and Medlow (2016) FLC 93-692 whereby the Full Court was concerned among other things, that the notional balance of the equity of a property that would be within the wife’s legal entitlement was going to be disbursed to the husband.

5. The husband points to a reason for these disbursements.  He wants to make payments for legal fees.  Both parties will incur legal fees – I think somebody said to me $250,000 in relation to that.  It is a fact of life.  That is a category of payment that was allowed for in Harris.  It is a debt that the parties have.  It is not something they have contrived at.  As to the other advances and payments, the husband’s case is that he will not have employment for these next six months.  The wife says that he has artificially conspired at that.  I am not going to be in a position to make a determination of that issue on an interim basis.  People do retire from positions such as this.  There is some correspondence that indicates that the firm did make the asserted decision.  It might be that, on a final trial, when the witnesses are cross-examined about those things, something else is revealed, but it is not more probable than not.  It is not a matter in respect of which I could assume that the wife’s allegations are true.  The circumstances are neither unbelievable nor bizarre.  For the purposes of these proceedings, that is a background fact.  What happens on a final trial basis, that may be a different thing.

6. As to the earlier consent orders, the wife is aggrieved that the husband made an application for distribution of funds and that she compromised the issue, she says wrongly, because she thought the husband had an immediate need for funds and it transpired that he did not. There is not much I can do with that, as I said, during the course of submissions. She, through her counsel, represented that it was proper to make an order in April for those moneys. If she wants now that that order should be impugned, then there is a front door for doing that and that is an application under s 79A of the Act. There is no such application and the same outcome cannot be achieved in submissions in a subsequent proceeding. For all I know, she might not have set out to mislead the Court on that day. That would also be consistent with the facts. By that order, the parties allowed that this is a case where there can be interim distributions.

7. The parties are aggrieved about how well each of them is living and the wife is aggrieved, I gather, about who the husband is supporting. Life goes on. Whether the husband’s new partner or her daughter – or others fall within the relevant references in s 75(2) of the Act to a party having a legal obligation or other obligations to support somebody, that will be determined later. It is a bit like the husband taking up employment for the next six months. There is no power in this Court to stop him supporting another person. There is no power in this Court to make him take up paid employment. These are not provisions about assisting families to live their lives. These proceedings relate to the issue of how, on the breakdown of a marriage, the parties’ net assets should be divided. Those things will take their place at a later time. They are not matters for today. The husband says he is spending at a certain rate and anticipates spending at that rates. I was taken to no particular claim or expense in relation to his needs for what he calls “outflow”. It is not possible to compare his position with that of the wife because she has not told me what distributions she receives from the family trust. He evidence is that her income is $431 a week and her outgoings are $8,213 a week. That is probably not right.

8. It seems to me that there are reasons for making an interim distribution.  These claims will hopefully take the parties through to a time when there would be a final trial and that would hopefully avoid any repetition of this exercise.  That is a desirable end in itself.  The husband’s employment has been terminated.  The termination of employment has certain consequences, and so on.  This was a long marriage and the subtext suggests that the husband made significant contributions by way of income.  I do not know what other contributions were made by either of the parties.  It seems as though this was a marriage where the arrangement might have favoured the husband’s career over that of the wife.  She did not continue her training and pursue her career, took up other work when she could, that was the parties’ arrangement, but suffice it to say that there is evidence to be pointed to in relation to valuable contributions. 

9. There are some issues in relation to the adjusting factors. Section 79(4)(d) deals with the impact of orders on income of the parties. That will turn on the way orders are structured, whether there is a capital fund that provides an income. Then s 75(2) refers to health. The husband has given some evidence about problems in his health that will be relevant. He does not say they are anything to do with him leaving his employment, I do not think, and I do not think he says there is a link between that and what he is going to do in the future, but he does give some evidence about problems. I just cannot quite see the relevance of that, but he does give some evidence about that.

10. It is not submitted that this order threatens the integrity of the settlement of the property that the wife favours, so I do not think I need to dwell on that.  There can be adjustments made later.  There is a home for preliminary distributions.  As Mr Richards said, it is fairly well-trod law that – or implied that moneys applied to legal fees in advance of an argument about s 117, the cost power, would be added back into the pool, or treated as a preliminary distribution.  If the parties payments of costs are in a similar sum, then that probably does not matter, but if they are different then that is an issue. 

11. I think it seems to me that the orders can be made.  There is a couple of odd aspects to it.  Firstly, the husband’s proposal means that the wife will have less funds.  Not only that, there will not be the controlled moneys account that she identifies that she would like either some distribution from or she would like preserved, and the borrowing caused by the husband will reduce her income.  Just looking at it quickly, if there was a five per cent return on $250,000, that is about $12,500.  I do not know whether any of those numbers make sense but, in the absence of any submissions about that – I think I was told maybe $12,000 as an estimate for the wife’s – the loss of income for the wife, and that is something.  I do not know what it means, of course, because I have not been told what her income is, but $240 a week or two hundred and something dollars a week is a significant amount to lose, and that would be added to if the husband has to borrow a bit more money to pay his share of the roof repair costs, and he says he does, so it will be a little bit more than that.

12. On the positive side, there are funds available to the wife if she is in necessitous circumstances.  The wife retains the benefit of the April 2016 orders and has access to a fund of just a bit under $500,000.  Hopefully, that accommodates that problem.  If it causes some other difficulty, that will have to be dealt with in running.

13. The parties, for all that they have a significant balance of assets, have been quite obtuse about practical matters and they need to wake up to themselves a bit.  The idea that a leaky roof would be causing a problem to anybody is ridiculous.  Parties who have houses worth less than $4 million manage to get their roof fixed and it is disappointing to have this as an issue.  I suppose it can come down to the problems of parties being in litigation.

14. It follows from what I have said, because the husband is relying on the $130,000, the fact that he has had $37,000 from China and his post-termination payments to make the calculation that he needs $225,000 rounded up to $250,000, that that there is no utility in granting the injunction.  Mullen and De Bry (2006) FLC 93-293is a relevant authority in relation to injunctions. There does not need to be established a threat to the integrity of the exercise of power under s 79 or anything else for the court to grant an injunction to preserve assets, but in this case, I cannot see an identified risk. The husband wants to claim the benefit of the $130,000 capital return. He wants to retain the benefit of $37,000. He wants to use his post-termination payments. The idea of restraining him in relation to those things seems unnecessary.

15. In a similar vein, the wife seeks a series of orders that would prevent the husband from threatening the condition precedent to the payment of the post-termination payments.  There is no evidence that he is likely to do that.  Courts grant injunctions when it is proper to do so.  The wife does not point to anything said by him or any behaviour to suggest that he is likely to jeopardise those payments.  A similar argument applies to the wife arranging for the repairs on the roof.  If she was to have somebody charge too much for the repairs on the roof, that hurts her.  I would not interfere with that and trust to her good judgment, and it seems to me that there is no reason to restrain the husband, save that it might be sensible to require him to give the wife timely notice of any significant event – the event whereby the return of the capital sum is made so that the wife can satisfy herself about the payment;  the events that trigger the commencement of the termination payments; any copies of any correspondence in relation to the future of the termination payments.  In that way the wife can get advice about things and, hopefully, the parties can avoid having to come back to court because something has happened and it could not be retrieved.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 29 August 2016.

Associate: 

Date:  14 October 2016