Shamon & Shamon - [2021] FamCA 417

FAMILY COURT OF AUSTRALIA
Shamon & Shamon [2021] FamCA 417

File number(s): SYC 2375 of 2021

Judgment of: MCCLELLAND DCJ

Date of judgment: 22 June 2021

Catchwords:
FAMILY LAW – PROPERTY –Injunctions –Where the husband has transferred significant property interests since separation – Where the wife seeks orders restraining the husband from further dealing with the matrimonial property –Orders made restraining the husband from further dealing with the identified matrimonial property.

FAMILY LAW – PROPERTY – Interim Application – Partial Property Distribution – Where the wife seeks orders for litigation funding and lump sum payment by way of partial property settlement – Consideration of s 79(4) of the Family Law Act 1975 – Finding that litigation funding for the wife up to the conciliation conference is in the interests of justice – Where the parties seeks orders for sale of property to meet litigation funding – Where the parties dispute property to be sold – Finding that orders for sale are inappropriate where the property is sought to be retained by a party – Orders made for the husband to pay the wife $80,000.

FAMILY LAW – PROPERTY – Interim Application – Spousal Maintenance – Where the wife was the primary carer of the parties’ children and has been the sole carer since separation – Where the husband has paid no child support and provided limited financial support for the children since separation – Consideration of s 75 of the Family Law Act 1975 – Orders made for the husband to pay the wife weekly spousal maintenance in the sum of $772.

Legislation:
Family Law Act 1975 (Cth) Pt VIII ss 72, 74, 75, 79, 80, 114(3)

Evidence Act 1995 (Cth) ss 76, 79, 140

Family Law Rules 2004 (Cth) rr 12.07(2), 15.41, 15.63, 15.64, 19.04(2)

Cases cited:
Acton & Burton [2015] FamCA 469

Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170

Aitken & Murphy (No. 2) [2012] FamCA 239

Cutler v Wandsworth Stadium Limited [1945] 1 All ER 103

Davidson and Davidson (No. 2) (1994) FLC 92-469

Edgar & Strofield (2016) FLC 93–711

Finn v Carelli [2007] NSWSC 261

Gabel & Yardley (2008) FLC 93-386

Hall v Hall (2016) 257 CLR 490

Hyman v Hyman [1929] AC 601

Iphostrou & Iphostrou [2011] FamCA 20

Maroney & Maroney [2009] FamCAFC 45

Medlow & Medlow (2016) FLC 93-692

Stein v Stein (2000) FLC 93-004

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-570

Thornley and Thornley [2018] FamCA 964

Wenz v Archer (2009) 40 Fam LR 212

Yunghanns v Yunghanns (1999) FLC 92-836

Number of paragraphs: 174

Date of hearing: 24 May 2021

Place: Sydney by web conference

Counsel for the Applicant: Mr Campton SC

Solicitor for the Applicant: Lawbridge Lawyers & Consultants

Counsel for the First Applicant: Mr Cummings SC

Solicitor for the First Respondent: Cordoba Legal

No appearance for the Second and Third Respondents, who were excused by consent.
ORDERS

SYC 2375 of 2021

BETWEEN:
MS SHAMON

Applicant

AND:
MR SHAMON

First Respondent

MR B SHAMON

Second Respondent

MS C SHAMON

Third Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

22 JUNE 2021

THE COURT ORDERS THAT:
1.Orders 1 and 2 of the orders made 9 April 2021 be varied to the extent necessary to permit Mr Shamon(“the Husband”) to:
(a)Cause S Pty Ltd to service the mortgage secured on the property at H Street, Suburb J, and to pay any rates, insurances, land tax or other outgoings in respect of the said property;
(b)Deposit money into a bank account held or operated on behalf of S Pty Ltd in order to facilitate Order 1(a) of these Orders;
(c)Cause T Pty Ltd to manage and service the property at Level 3, L Street, Suburb K in the ordinary course of its business; and
(d)Cause V Pty Ltd to deal with the income of the V Fixed Trust for the payment of the mortgage secured on the property at L Street, Suburb K and to pay any rates, insurances, levies, land tax, or other outgoings in respect of the said property.

2.Other than as identified in Order 1, the Husband be restrained from dealing with any benefits or assets held by S Pty Ltd in its own capacity or as trustee of any trust, unless with the prior written agreement of Ms Shamon (“the Wife”) or leave of the Court.
3.Order 4 of the orders made 9 April 2021 be varied to include mandatory injunctive restraints in the same terms as identified in the said order as against the husband in relation to Shamon Trust and Shamon Fixed Trust.
4.That the Husband be restrained from doing any act or thing so as to cause or permit any further drawing upon any loan facility or mortgage secured over:
(a)the property at 1 M Street, Suburb P; and
(b)the property at 2 M Street, Suburb P.

5.The Husband pay by way of litigation funding to the Wife’s solicitor the sum of $80,000.
6.The Husband pay to the Wife the sum of $772 per week as spousal maintenance, to be paid into a bank account nominated by the Wife in writing.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shamon & Shamon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION

This matter concerns competing Applications of the parties, being Ms Shamon (“the wife”) and Mr Shamon (“the husband”), for interim injunctions, disclosure, partial property distribution and interim spousal maintenance.
The primary issue in the proceedings is whether the Court is in a position to conclude at this interim stage whether the husband has engaged in conduct to deplete the marital property pool, and whether it is appropriate for there to be an order for partial property distribution to enable the wife to meet her legal expenses and to meet some day-to-day expenses. A further issue relates to how any such order should be funded and, in particular whether, according to the wife’s Application, the former matrimonial home should be sold or, according to the husband, an investment property currently in the wife’s name should be sold. A further issue is whether the wife is entitled to an order for interim spousal maintenance or, alternatively, whether an additional lump sum should be awarded in favour of the wife, as contended by the husband, to be categorised at final hearing.
I have determined that it is appropriate, in the circumstances of this case, to make an order for there to be a partial property distribution in the sum of $80,000 representing the wife’s anticipated costs up to the point of a conciliation conference. I have also determined that it is appropriate that there be an order for interim spousal maintenance in the sum of $772 per week, and that the Court should grant the injunctive relief sought by the wife.
BACKGROUND
On 4 April 2004, the parties married.
From 2007 until separation, the parties resided with the children at the property located at 2 M Street, Suburb P in the State of New South Wales (“the former matrimonial home”).
There are three (3) children of the parties’ marriage, being:
(1)X born in 2007, currently aged 13 years;
(2)Y born in 2010, currently aged 10 years; and
(3)Z born in 2018, currently aged two (2) years
(collectively “the children”).
On 30 June 2020, the parties separated on a final basis when the wife left the former matrimonial home with the children.
The husband currently resides in the former matrimonial home.
The wife currently resides with the children in a two bedroom rental unit located on a major highway, Suburb AA in New South Wales.
On 1 April 2021, the wife commenced these proceedings by filing an Initiating Application in this Court, seeking final orders for an adjustment of property under s 79 of the Family Law Act 1975 (Cth) (“the Act”). By way of that Application, she further sought urgent interim orders for injunctions in respect to the parties’ dealings with certain items of property.
On 9 April 2021, Rees J made the following orders and notations:
IT IS ORDERED PENDING FURTHER ORDER
1.That, noting that the wife has provided an undertaking as to damages filed on 8 April 2021, the husband be restrained in his capacity as a shareholder, director or officeholder of any of the corporations identified in this order, or in respect of any trust that the said corporation is a trustee of, from transferring, assigning, encumbering or adversely dealing with his shareholdings or any other interest including by way of debit credit loan account:
(a)       S Pty Ltd ACN …
(b)       BB Pty Ltd ACN …
(c)       T Pty Ltd ACN …
(d)       V Pty Ltd ACN …
(Collectively known as “the entities”)
2.That in respect of each of the entities listed in order 1, the husband shall be restrained from doing any act or thing to deal with, sell, encumber, mortgage or in any other way dispose of or adversely affect any asset or property including but not limited to the following real property:
(a)       H Street, Suburb J NSW; and
(b)       L Street, Suburb K NSW.
3.That the husband shall in his personal capacity, be restrained from doing any act or thing to deal with, sell, encumber, mortgage or in any other way dispose of or adversely affect any of the following real property:
(a)       2 M Street, Suburb P NSW
(b)       1 M Street, Suburb P NSW
(c)       L Street, Suburb K NSW
(d)       H Street, Suburb J NSW.
4.That the husband be restrained in relation to the V Fixed Trust (“the trust”) other than with the prior agreement in writing of the wife from doing or causing to permit to be done any of the following:
(a)The exercise of any power that the husband may have directly or indirectly in respect of the trust including but not limited to any power of appointment and any power to vary the terms of the trust.
(b)Removing, replacing or appointing any director or other office holder of any of the trustees of the trust.
5.That the matter be referred to the listing registrar to list the wife’s application for interim orders on a date not before 10 May 2021.
IT IS DIRECTED
6.That the husband within 28 days file and serve any application and affidavit upon which he seeks to rely in these proceedings and provide disclosure to the wife in compliance with Rule 13.04.
7.That costs of all parties are reserved.
IT IS NOTED
8.That the wife may amend both her final and interim relief sought subject to the husband making disclosure and such amendment may include relief pursuant to section 106B of the Family Law Act 1975 (Cth) and the joinder of other parties.
On 19 April 2021, the wife filed an Application in a Case seeking various interim orders, including further urgent injunctive relief against the husband, his brother, Mr B Shamon (“the Second Respondent”), and his sister, Ms C Shamon (“the Third Respondent”), who were joined as Respondents in these proceedings as a result.
On 20 May 2020, Ainslie-Wallace J made the following orders by consent of the wife and the Second and Third Respondents:
BY CONSENT WITHOUT ADMISSIONS (as between the Applicant, Second and Third Respondents):
1.That Mr B Shamon be restrained in his capacity as a shareholder, director or officeholder of BB Pty Ltd ACN … (“BB Pty Ltd”), or in respect of any trust that the said corporation is a trustee of, from transferring, assigning, encumbering or adversely dealing with his shareholdings or any other interest including by way of debit credit loan account, save and except by way of reconveyance of the Husband’s interest in BB Pty Ltd.
2.That in respect of BB Pty Ltd, Mr B Shamon shall be restrained from doing any act or thing to deal with, sell, encumber, mortgage or in any other way dispose of or adversely affect any asset or property, other than in the ordinary course of business.
3.That Ms C Shamon be restrained in her capacity as a shareholder, director or officeholder of S Pty Ltd ACN ..., or in respect of any trust that the said corporation is a trustee of, from transferring, assigning, encumbering or adversely dealing with her shareholdings or any other interest including by way of debit credit loan account, save and except by way of reconveyance of the Husband’s interest in S Pty Ltd.
4.That in respect of S Pty Ltd, Ms C Shamon shall be restrained from doing any act or thing to deal with, sell, encumber, mortgage or in any other way dispose of or adversely affect any asset or property, other than in the ordinary course of business.
5.Costs reserved.
Her Honour further made the following orders in Chambers by consent of the parties:
IT IS ORDERED BY CONSENT
By consent in circumstances where the Court has become unavailable to hear the proceedings on short notice and without admission or prejudice on the part of the husband or the wife:
1.The husband be and hereby is restrained pending 4pm on the adjourned date from causing or permitting any further drawing upon any facility secured over or by reference to all interest in the property at 2 M Street, Suburb P.
2.The wife be and hereby is restrained pending 4pm on the adjourned date from causing or permitting any further drawing upon any facility secured over or by reference to all interest in the property at D Street, Suburb F.
3.It is noted that:
3.1the current drawings on the facilities referred to in paragraph 1 are $723,000 in respect of the home mortgage and $530,000 in respect of the debt to Ms G; and,
3.2the current drawings on the facility referred to in paragraph 2 is $72,000.
4.That the outstanding interim applications as between the husband and wife be adjourned to a date to be fixed by the Court at the first available opportunity.
On 24 May 2021, at the hearing of this matter, I made the following orders by consent of the parties:
BY CONSENT, AND PENDING FURTHER ORDER, THE COURT ORDERS THAT:
2.Orders 1 and 2 of the orders of 20 May 2021 by Justice Ainslie-Wallace by consent, in respect to husband and the wife, be extended until 4pm of the day of delivery of my Reasons for Judgment in relation to the Applications in a Case filed 1 April 2021 and 19 April 2021 heard today.
APPLICATIONS
Orders sought by the wife
The wife seeks orders be made in accordance with her Amended Consolidated Minute of Orders, marked ‘Exhibit C’ in the proceedings, set out as follows:
1.That orders 1 and 2 of the orders made 9 April 2021 be varied to the extent necessary to permit the Husband to:
1.1.Cause S Pty Ltd to service the mortgage secured on the property at H Street, Suburb J, and to pay any rates, insurances, land tax or other outgoings in respect of the said property;
1.2.Deposit money into a bank account held or operated on behalf of S Pty Ltd in order to facilitate order 1.1;
1.3.Cause T Pty Ltd to manage and service the property at L Street, Suburb K in the ordinary course of its business; and
1.4.Cause V Pty Ltd to deal with the income of the V Fixed Trust for the payment of the mortgage secured on the property at L Street, Suburb K and to pay any rates, insurances, levies, land tax, or other outgoings in respect of the said property
2.That, other than as identified in Order 1, the Husband be restrained from dealing with any benefits or assets held by S Pty Ltd in its own capacity or as trustee of any trust, unless with the prior written agreement of the Wife or leave of the Court
3.That order 4 of the orders made 9 April 2021 be varied to include mandatory injunctive restraints in the same terms as identified in the said order as against the husband in relation to Shamon Trust and Shamon Fixed Trust.
4.That the Husband be restrained from doing any act or thing so as to cause or permit any further drawing upon any loan facility or mortgage secured over:
4.1.     the property at 1 M Street, Suburb P; and
4.2.     the property at 2 M Street, Suburb P
5.That the Husband shall within 14 days do all acts and things necessary and sign all documents to list for sale the property at 2 M Street, Suburb P by way of public auction to be held within 6 weeks of the date of these orders for the best price obtainable and at a reserve price as agreed as between the husband and the wife in writing 3 days prior to the auction, and upon completion of the sale the husband shall apply the sale proceeds as follows:
5.1.     Adjustment of rates and taxes;
5.2.     Payment of agent’s commission and marketing expenses of the sale;
5.3.     Payment of conveyancing/solicitor’s fees of the sale;
5.4.Payment of the amount required to discharge the CBA registered mortgage on title;
5.5.$530,000 to be paid into a controlled monies account in the name of the husband and the wife to be operated by the solicitors for the Husband pending determination of any claim to such sum by or on behalf of Ms G pursuant to the contended agreement between she and the husband bearing the date 11 August 2020; and
5.6.The balance to paid into the trust account of LawBridge Lawyers & Consultants, the solicitors for the Wife, on behalf of the husband and the wife.
6.That for the purposes of complying with order 5 above the husband shall do all things as are necessary to cause Ms G to remove the caveat she has placed upon the title of the property at 2 M Street Suburb P
7.That Ms G be given liberty to apply on 21 days’ notice for any orders to discharge or vary order 5 above.
8.That the Court note that the wife will file and serve within 14 days a 2nd Further Amended Initiating Application seeking to set aside pursuant to s.106B of the Family Law Act the contended loan and mortgage security agreement made as between the Husband and Ms G bearing the date 11 August 2020.
9.That the Husband pay to the Wife the sum of $2,000.00 per week as spouse maintenance to be paid into a bank account nominated by the Wife in writing
10.That the Husband pay by way of litigation funding to the Wife’s solicitor the sum of $150,000.00.
11.      In the alternative to order 10, and without concession:
11.1.that within 14 days the Husband pay to the Wife’s lawyers by way of litigation funding an amount equivalent to the costs he has paid to his lawyers including solicitors and counsel as at the date of these orders.
11.2.Within 7 days after any future payment by or on behalf of the Husband of any money in payment of accounts rendered by his solicitors including in relation to expenses associated with the preparation of his case, the Husband pay or cause to be paid the same sum of money to the solicitors for the Wife.
11.3.Within 24 hours after any payment by or on behalf of the Husband of any money referred to in subparagraph 11.2 of these orders, the Husband cause to be given to the Wife’s solicitors a memorandum stating the amount or amounts so paid to the solicitors.
11.4.All money paid to the solicitors for the Husband including on his behalf pursuant to subparagraph 11.2 of these orders, shall be held in trust by the solicitors for the Husband and not applied in payment to the Husband’s solicitors until such time as the same amount has been paid by or on behalf of the Husband to the solicitors for the Wife.
11.5.In the event that the payment referred to in subparagraph11.2 is not made within seven (7) days thereafter, the Husband is to direct his solicitors to pay 50 per cent of whatever is received (as referred to in subparagraph 11.4 and held by them on trust), to the solicitors for the Wife.
11.6.The amounts paid pursuant to these orders to the solicitors for the Wife are to be applied by them in payment of the costs and disbursements incurred by the Wife in the conduct of the proceedings.
12.That the Husband shall pay to the Wife by way of interim property distribution the sum of $50,000.00.
13.That an order for disclosure be made in accordance with attachment “A” hereto.
14.That the relief of the husband seeking an order for the sale of the property at D Street Suburb F be dismissed.
15.That the Husband pay the Wife’s costs of and incidental to this application on an indemnity basis.
Orders sought by the husband

The husband seeks that orders be made in accordance with his Minute of Order, included in his Tender Bundle marked ‘Exhibit D’ in the proceedings, set out as follows:
1. That orders 1 and 2 of the orders made on 9 April 2021 be varied to the extent necessary to permit the Husband to:
1.1 Cause S Pty Ltd to service the mortgage secured on the property at H Street, Suburb J, and to pay any rates, insurances, land tax or other outgoings in respect of the said property;
1.2 Deposit money into a bank account held or operated on behalf of S Pty Ltd and/or Mr Q in order to facilitate order 1.1;
1.3 Transfer net rental proceeds derived from the rent of the Suburb J property to Mr Q and Mr R;
1 .4 Cause T Pty Ltd to manage and service the property at Level 3, L Street, Suburb K in the ordinary course of its business; and
1.5 Cause V Pty Ltd to deal with the income of the V Fixed Trust for the payment of the mortgage secured on the property at L Street, Suburb K and to pay any rates, insurances, levies, land tax, construction and repair costs, or other outgoings in respect of the said property.
1.6      That order 1(b) of the orders made on 9 April 2021 be discharged.
2. That, other than as identified in order 1 or in this order, the Husband be restrained from dealing with any benefits or assets held by S Pty Ltd in its own capacity or as trustee of any trust, save for the trail income received, unless with the prior written agreement of the wife or leave of the court.
3. That the Husband be restrained from doing any act or thing so as to cause or permit any further drawing upon any loan facility or mortgage secured over 2 M Street, Suburb P.
4. That the Wife be restrained from doing any act or thing so as to cause or permit any further drawing upon any loan facility or mortgage secured over D Street, Suburb F.
5. That the Wife shall within 14 days do all acts and things necessary and sign all documents to list for sale the property at D Street, Suburb F by way of public auction to be held within 6 weeks of the date of these orders for the best price obtainable and at a reserve price as agreed as between the wife and the husband in writing 3 days prior to the auction, and the Husband do all things necessary to withdraw the caveat registered on the Suburb F property no later than 7 days prior to completion, and upon completion of the sale the wife shall apply the sale proceeds as follows:
5.1      Adjustment of rates and taxes.
5.2      Payment of agent’s commission and marketing expenses of the sale.
5.3      Payment of conveyancing/solicitor’s fees of the sale;
5.4 Payment of the amount required to discharge the CBA registered mortgage on title;
5.5 $70,000 to the Wife’s solicitors trust account for the sole purpose of litigation funding.
5.6 $70,000 to the Husband’s solicitors trust account for the sole purpose of litigation funding.
5.7 A further $20,000 to a bank account nominated by the Wife to be categorised at final hearing.
5.8 The balance of sale proceeds to be deposited in the Wife’s solicitors trust account held for the benefit of the Wife and the Husband and the solicitor for the Wife be restrained from dealing with these funds without tile express and written approval of the Wife and the Husband.
6.        That the Application in a Case filed on 19 April 2021 be dismissed.
7. That the Wife pay the Husband’s costs of and incidental to this application on an indemnity basis.
During the course of the proceedings, the husband indicated, through senior counsel appearing on his behalf, that the orders he seeks are consistent with those sought by the wife and may be made by consent, save for those orders which appear underlined in his Minute of Order marked ‘Exhibit D’.
EVIDENCE
The wife relies upon the following documents:
(a)Amended Initiating Application sealed on 16 April 2021;
(b)Application in a Case filed 19 April 2021;
(c)Affidavit of the wife filed 14 May 2021 together with annexures (“the wife’s Affidavit”);
(d)Financial Statement of the wife filed 14 May 2021; and
(e)Undertaking as to damages of the wife filed 8 April 2021.
The husband relies upon the following documents:
(a)Response to Initiating Application filed 12 May 2021;
(b)Affidavit of the husband filed 12 May 2021 together with annexures (“the husband’s Affidavit”); and
(c)Financial Statement of the husband filed 12 May 2021.
The following exhibits were relied upon:
(a)Case outline of the wife filed 19 May 2021 (‘Exhibit A’);
(b)Case outline of the husband filed 19 May 2021 (‘Exhibit B’);
(c)The wife’s Minute of Consolidated Orders filed 24 May 2021 (‘Exhibit C’);
(d)Tender bundle of the husband filed 24 May 2021 including the husband’s consolidated Minute of Order (‘Exhibit D’);
(e)Joint Balance Sheet filed 10 May 2021 (‘Exhibit E’);
(f)Tender bundle of the wife part one (‘Exhibit F’);
(g)Tender bundle of the wife part two (‘Exhibit G’);
(h)Costs notice of the wife dated 24 May 2021 (‘Exhibit H’);
(i)Suburb F Mortgage Statement for account ending (‘Exhibit I’);
(j)Bank statements in annexures to affidavit of husband (‘Exhibit J’) ; and
(k)Letter from husband’s solicitors dated 7 May 2021 in respect to the issue of disclosure (‘Exhibit K’).
RELEVANT FACTUAL CONTENTIONS
I have set out in greater detail the husband’s initial contributions and contributions made during the course of the marriage in my consideration below of the wife’s Application for orders for partial property distribution.
Both parties agree that, on 28 September 2005, S Pty Ltd was incorporated and, on that date, the husband was the sole shareholder and appointed as the sole director of S Pty Ltd.
The wife contends that the husband holds a legal and/or beneficial interest in a unit trust, the ‘V Trust’, which is the beneficial owner of the property located at L Street, Suburb K (“the Suburb K property”). It was not disputed that V Pty Limited (“the V Pty Ltd”) is the corporate trustee of the V Trust.
Comparatively, the husband attests that he has never held any legal or beneficial interest in the V Trust and that his involvement “was simply as the director and shareholder of the corporate trustee entity”, which I take to be the V Pty Ltd. The husband further contends that the ultimate beneficial ownership of the units in the V Trust is as follows:
(a)five (5) per cent by the wife and the parties’ eldest two children;
(b)80 per cent by the husband’s brother-in-law Mr EE ; and
(c)10 per cent by Mr FF, on behalf of the husband’s “former employer”, Mr GG.
The husband’s contention appears to be confirmed in relevant documentation provided to the Court, however, it is unnecessary to resolve that issue in these interim proceedings.
In that respect, the husband attests, at paragraph 43 of his Affidavit filed 12 May 2021, to acquiring the Suburb K property in 2012. At paragraph 44 of his Affidavit, the husband attests to purchasing that property through the V Trust, with the other unit holders including Mr EE, Mr GG and a former business associate, Mr HH. That unit trust was, as he attests, established on 21 June 2012 with Mr HH and the husband being appointed as directors and shareholders of the V Pty Ltd. As will be noted below, Mr HH subsequently withdrew from involvement in the corporate trustee and transferred his shares to the husband.
The husband further attests that, at the time of establishment, the unit holdings of the respective beneficiaries of the V Trust were:
(d)S Pty Ltd as trustee for (“atf”) the ‘Shamon Fixed Trust’, with 40 per cent;
(e)EE Pty Ltd atf EE Trust, with 45 per cent;
(f)KK Pty Ltd, with five (5) per cent; and
(g)Mr FF on behalf of Mr GG, with 10 per cent.
At paragraph 56 of his Affidavit, the husband attests that, on 6 January 2016, the Shamon Fixed Trust acquired the five (5) units from KK Pty Limited. At the same time, the husband states Mr HH resigned as director of the V Pty Ltd and transferred his shares to the husband.
It did not appear to be in dispute that subsequently in 2016, the commercial office building block located on the Suburb K property was demolished for the construction of a new complex. At paragraphs 58 through to 67 of his Affidavit, the husband provides evidence of the construction process and the funding of that construction. It is not, however, necessary for me to detail that evidence in explaining my reasons for making the orders set out at the commencement of these reasons for judgment.
It also did not appear to be disputed that the reconstruction was successfully completed in early 2019. At paragraph 68 of his Affidavit, the husband contends that, at the time of completion, the unit holding of the V Trust was:
(a)the Shamon Fixed Trust – 10 per cent;
(b)EE Pty Ltd – 80 per cent; and
(c)Mr FF – 10 per cent.
It did not appear to be disputed that, after the occupation certificate was issued for the Suburb K property in early 2019, the V Pty Ltd leased the commercial building to various tenants, including the husband’s then finance business, BB Pty Ltd. Relevantly, for the purpose of these proceedings, the husband attests that the ground floor and level 4 remain unfurnished and incomplete. The husband further attests that there is a mortgage owing in respect to the development of the Suburb K property in the amount of approximately $3 million.
The Suburb K property is currently occupied by a number of different tenants including BB Pty Ltd. The parties agree that the husband established BB Pty Ltd in 2013, and that, at that time, it was solely owned by the husband. The husband now contends that he no longer has any interest in the operation or shareholding of BB Pty Ltd, and states at paragraph 72 of his Affidavit that “the business was a modest earner in the year prior to separation”.
At paragraphs 71 through to 78 of his Affidavit, the husband gives evidence in respect to his involvement with BB Pty Ltd since establishing it in January 2013. The husband attests to employing the Second Respondent to work in the business in about 2014, and further attests to reaching an agreement with his brother whereby he would pay the Second Respondent “minimal income” during his university coursework with a view to eventually giving his brother partnership in the business.
The husband further contends, at paragraph 75 of his Affidavit, that, in 2017, his brother “sought to enforce our agreement for 50% ownership” to which the husband agreed. He further attests at paragraph 76 that, to give effect to that agreement, he and the Second Respondent established the Shamon Trust in 2017. It did not appear to be disputed that the beneficiaries of the Trust included the wife, the eldest children and S Pty Ltd, as well as the husband. The husband states, however, that the Second Respondent was also a beneficiary “by virtue of being my sibling”. The information before the Court is insufficient to determine, however, what that statement means in the context of these proceedings, nor to determine the extent of any interest that the Second Respondent had in the Shamon Trust.
It did not appear to be disputed that the husband’s father was listed as an appointor of the Shamon Trust. At paragraph 77 of his Affidavit, the husband attests that he “operated as the trustee of the Shamon Trust in [his] personal capacity”. It can be reasonably inferred that, while not stated, the husband was appointed to do so by his father.
It also did not appear to be disputed that, on or about 1 October 2020, the husband caused the balance of the shareholding in BB Pty Ltd not held by the Second Respondent, to be transferred to the Second Respondent. The parties dispute the precise manner in which that transfer occurred. At paragraph 78 of his Affidavit, the husband attests that, on 22 March 2018, he caused his shares in BB Pty Ltd to be transferred to the Shamon Trust. Comparatively, the wife contends that the husband held the shareholding until its transfer to the Second Respondent. It is, however, unnecessary for me to resolve that issue for the purpose of these proceedings.
At paragraph 47 of his Affidavit, the husband attests that the Shamon Fixed Trust was also established in June 2012, with S Pty Ltd being appointed as the corporate trustee. The husband further contends that S Pty Ltd is and has always been the corporate trustee of the Shamon Fixed Trust. At paragraph 48 of his Affidavit, the husband further contends that, since it was established in 2012, the beneficiaries of the Shamon Fixed Trust are the wife and the parties’ eldest children, X and Y, who hold equal shares of the units in the Shamon Fixed Trust. His evidence in this respect did not appear to be challenged by the wife, who seeks an order from this Court that would restrain the husband from dealing with the property of the Shamon Fixed Trust. The husband further states at paragraph 50 of his Affidavit that his involvement in the Shamon Fixed Trust “was simply as the director and shareholder of S Pty Ltd”.
At paragraphs 79 through to 82 of his Affidavit, the husband provides evidence of the establishment of T Pty Ltd. The husband attests that T Pty Ltd was established on 13 February 2017 to act as the “servicing entity” on behalf of BB Pty Ltd. The husband further attests that he is the sole shareholder of T Pty Ltd and was its sole director until the Second Respondent was appointed as a director in March 2019.
It was not disputed that S Pty Ltd is one of the two registered owners, with the other being the husband’s cousin, Mr Q (“the husband’s cousin”), of the property located at H Street, Suburb J (“the Suburb J Property”). The parties appear to agree that the husband’s father, in partnership with the husband’s cousin, previously operated a fruit shop business from the Suburb J property. The wife contends, however, that those premises are currently leased to a tenant who now carries on the fruit shop business.
At paragraph 34 of his Affidavit, the husband contends that his father and his cousin purchased the Suburb J property in 2000 for the sum of $698,500. It was not disputed that, at the time of purchase, the title of that property included the husband’s aunt and uncle who are the parents of his cousin. The husband contends that they were included on the title to the Suburb J property because they were guarantors for the loan secured over the property, but that they “did not hold any interest in the commercial property”. That is an issue that will, however, require determination at final hearing.
At paragraphs 37 and 38 of his Affidavit, the husband contends that, on advice from an accountant, he established S Pty Ltd “to hold 50% ownership of the Suburb J property on behalf of [his] father”. As I have noted, it was not disputed that S Pty Ltd has held and continues to hold 50 per cent ownership in the Suburb J property. It is not possible, however, in these interim proceedings to determine whether that ownership held by S Pty Ltd is in fact held on behalf of the husband’s father.
It was further not disputed that, on 24 July 2020, being approximately four (4) weeks after the parties separated on a final basis, the husband caused his shares in S Pty Ltd to be transferred to the Third Respondent. It was further not disputed that the husband remains the sole director of S Pty Ltd.
The husband is the sole registered owner of the former matrimonial home and, as I earlier noted, he continues to live in this property. It was not disputed that, as I have earlier referred, the former matrimonial home was purchased in or around 2007, and that the parties lived in the property from that time until they separated in June 2020.
The former matrimonial home is also located across the road from the home in which the husband’s parents reside, being the property located at 1 M Street, Suburb P (“the 1 M Street property”). At paragraph 92 of his Affidavit, the husband states that subsequent to the parties’ separation in June 2020, he redrew approximately $400,000 on the mortgage secured over the former matrimonial home. The husband further states in that paragraph that he secured a line of credit in the sum of $700,000 from his sister, Ms G, which appears to have occurred at about the same time that he redrew that amount of $400,000. The husband, however, has not provided particulars as to how either those funds withdrawn, nor the line of credit from his sister, have been spent, save to the extent that, as he attests, he “used these funds to pay creditors and other debts”.
The parties agree that the husband is the registered owner of the 1 M Street property. The husband contends, however, that his father is the beneficial owner of this property as a result of funds provided by the husband’s father towards both the purchase of the property and the payment of the mortgage on the property. In that respect, it was also not disputed that the husband’s father, that is the paternal grandfather, has registered a caveat on the title of the 1 M Street property. It is unnecessary, however, to determine the issue of the beneficial ownership of that property in these proceedings.
It was not disputed that the property located at D Street, Suburb F (“the Suburb F property”) was purchased in 2003, and that the parties lived in that property from the time of their marriage until 2007, when they moved into the former matrimonial home. It appears, on the basis of the evidence presented to the Court that, save for a period of from mid-2020 to early 2021, the property has been leased by tenants.
The parties appear to agree that the Suburb F property is solely registered in the wife’s name. It was also not disputed that the mortgage secured against the Suburb F property is in the sole name of the wife. It was not disputed that, sometime shortly after the parties’ separation, the wife obtained funds in the amount of $60,000 by way of a redraw on an existing loan facility secured by the Suburb F Property. It was further not disputed that, subsequent to the wife redrawing the amount of $60,000, the current outstanding balance of the home loan is approximately $72,000.
At paragraphs 105 through to 118 of her Affidavit, the wife sets out a summary of her contributions as a parent and a homemaker during the course of the parties’ marriage. For the purpose of this decision, it is unnecessary to refer to that evidence in great detail, save to the extent that it satisfies me that, in addition to periods in the full-time paid workforce, the wife has been the parent who has been primarily responsible for the care of the children and has fulfilled the role as homemaker. The wife contends that the parties’ relationship has been characterised by a history of abuse perpetrated by the husband. It is not, however, necessary for the purpose of these proceedings to determine that issue.
Conversely, I am satisfied that the husband has been the primary income earner of the household. I am, however, also satisfied that, at the same time, he has provided some assistance to the wife in respect to caring for the children and attending to some tasks around the household. In that respect, the wife acknowledges that, on two occasions in or around 2014, she travelled to Melbourne with her sister-in-law, during which time the husband cared for the children in Sydney. The wife further acknowledges that, during the period of their relationship, the husband would take the children on outings and, from about early 2020, would take X to her soccer practice.
It was not disputed that, since the parties’ separation, the children have continued to live with the wife and have spent time with the husband on occasions. However, it appears that the children have not spent time with the husband for several months, and the husband did not challenge the wife’s evidence that the children last spent time with him in January of this year.

It was further not disputed that, save for some limited assistance provided by the husband, the wife has been primarily responsible for meeting all of the financial needs of herself and the children in the period subsequent to separation.
In that respect, the wife contends that the husband’s financial contributions towards the care of the children since separation have been limited to the few occasions he transferred funds to the wife, being the sum of approximately $1,000, twice in the months immediately following the parties’ separation, and an additional sum of approximately $500 late last year. The wife further states that an additional sum of $100 was transferred by the husband to the wife to enable her to purchase a mobile phone. The husband did not appear to dispute the fact that, aside from those monies described at paragraphs 40 and 41 of the wife’s Affidavit, he has not provided any additional funds to the wife.
The husband contends at paragraph 124 of his Affidavit that he “continue[s] to pay the school fees for the Children” and that he has “paid the school fees since the time of separation”. He further contends that his most recent payment of school fees in the sum of $1,600 was in respect to Term 1 of this year. However, the husband did not challenge the wife’s contention that she paid for the children’s school fees for Term 1 of this year in the sum of approximately $1,555. In any event, the wife acknowledges that the husband has paid those school fees owing for Term 2 of this year. For the purpose of these proceedings I accept that the husband has paid the children’s school fees up to and including Term 2 of this year.
The wife was not challenged on her evidence that, in late March 2021, she purchased a motor vehicle, being a Motor Vehicle 2, for the sum of $22,000, in circumstances where the motor vehicle, a Motor vehicle 3, that she had utilised until separation was no longer available to her. The parties appear to agree that, in either November or December 2020, the Motor vehicle 3 was removed from the wife after the husband arranged to have the motor vehicle collected.
The husband acknowledges that he caused the Motor Vehicle 3 to be sold after it was collected, but contends that this was due to advice received from a car mechanic that the vehicle would require costly repairs. He further contends that he did not receive any proceeds from the sale of the Motor vehicle 3. The wife also contends that a pram and other belongings were contained in the Motor vehicle 3 but have not, despite her requests, been returned to her. It is not, however, necessary in these proceedings to resolve those issues, save to the extent that I have found that it was not disputed that the husband caused the sale of the Motor vehicle 3 and, as a result, the wife was left without a motor vehicle until she purchased the Motor vehicle 2 with her own funds.
It did not appear to be in dispute that the wife has not worked since, at least, the time of Z’s birth, who is now aged 2 years. The wife contends that her responsibilities for caring for the children, including Z who will not reach school age until 2024, has prevented her from returning to the workforce. I accept that the wife’s parental responsibilities are such that she is unable to return to the paid workforce at this point in time.
In that context, the husband did not challenge the wife’s evidence that she is currently receiving social security benefits from Centrelink by way of a fortnightly payment of Family Tax Benefit A and B together with Rent Assistance, in the total sum of $973. It was also not disputed that the wife additionally receives a fortnightly payment of$868.40 as social security benefits, comprising $825.80 as Single Parenting Payment, $24.40 as Pension Supplement, $12 as Energy Supplement and $6.20 as a pharmaceutical benefit allowance. The husband further did not challenge the wife’s evidence that those social security benefits have been her sole source of income since approximately August 2020.
In this matter, the wife has tendered a Costs Notice, marked as ‘Exhibit H’ in these proceedings, indicating that she has, to the date of the hearing, incurred legal expenses in the total sum of $52,386.30, and her anticipated future legal expenses up to, and including, attending a conciliation conference are estimated to be an additional $30,000. The wife contends that, from the funds she obtained by redrawing on the loan facility secured by the Suburb F property, she has spent the amount of approximately $41,000 on living expenses for herself and the children. Specifically, at paragraph 55 of her Affidavit, the wife states that she has applied that amount of approximately $41,000 as follows:
(a)       $7150 – payment of legal fees;
(b)      $151.89 – Water bill (1 April 2021 –30 June 2021).
(c)       $2051.08 – Strata bill for the Suburb F Property (Due 12.02.21)
(d)      $1524.27 – Strata bill for the Suburb F Property (Due 01.05.21)
(e)       $22,000 – Purchase of car [being the Motor vehicle 2].
(f)       $1555 – School fees.
(g)       $457.34 – Water bill (1 January 2021 – 31 March 2021)
(h)      $688 – Transfer vehicle registration
(Total = $35,577.58)
The wife further contends that the remaining balance of approximately $5,500 has been spent on other day-to-day expenses for herself and the children. The wife’s assertions in that respect appear to be consistent with the information set out in her Financial Statement filed 14 May 2021 and, specifically, her account at paragraph 60 of the weekly expenses of supporting herself and the children.
At paragraphs 129 through to 148 of her Affidavit, the wife sets out her current circumstances and future needs. I will make further reference to those matters in setting out the reasons why I have determined that the wife is entitled to an order for interim spousal maintenance.
ISSUES
The issues to be determined in these proceedings are as follows:
(1)Should orders be made varying the existing restraints that have been made in respect to the parties dealing with matrimonial property, and, if so, what should those variations be?
(2)Should an order be made, by way of partial property distribution, for the wife to be paid an amount in the sum of $150,000 in respect to the funding of her legal expenses?
(3)Should there be a further order, by way of partial property distribution, to enable the wife to meet additional expenses in the sum of $50,000?
(4)Should an order be made for the sale of either:
(a)the former matrimonial home; or
(b)the Suburb F property?
(5)Should an order be made for the wife to be paid interim spousal maintenance?
In respect to the wife’s Application for interim spousal maintenance, the considerations to which I am to have regard are as follows:
(1)To what extent is the wife unable to support herself having regard to s 72(1) of the Act (i.e. the “gateway” issue)?
(2)What are the wife’s reasonable needs?
(3)What capacity does the husband have to meet a spousal maintenance order, if such an order was to be made?
(4)If the considerations set out in (1) to (3) above favour an order for spousal maintenance being made by the Court, what order is reasonable having regard to s 75(2) of the Act?
INJUNCTIONS TO PRESERVE MATRIMONIAL PROPERTY
The law – concepts and principles
Section 114(3) of the Act relevantly provides that:
(3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
In respect to the relevant legal principles in determining whether the Court should make orders or grant injunctions for the preservation of property, I noted in Thornley and Thornley [2018] FamCA 964 at [16] – [19], as follows:
16.The relevant law in respect to the making of preservation orders or granting of preservation injunctions is usefully summarised by Hume J in the case of Liu v Xiao (2018) NSWSC 1401 at [7], as follows:
The principles relating to an application of this type were usefully set out in written submissions by senior and junior counsel for the plaintiff:
The Court’s jurisdiction to grant a freezing order is contained within UCPR 25.14, as well as its inherent jurisdiction. An applicant must establish, first, a good arguable case and, second, a risk that any judgment will go unsatisfied by reason of the other party dealing with their assets to place them out of the reach of the Plaintiff (Tomasetti v Brailey [2012] NSWCA 6 at [14]–[15]; Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 at [72–[74]). It must be shown there is a risk, not a mere assertion, the Defendant may dispose of or deal with his her assets in such a manner as to leave any judgment unsatisfied (Frigo v Culhaci [1998] NSWCA 88 at p8). It is not necessary to prove the Defendant has a positive intention of embarking on that course (Finn v Carelli [2007] NSWSC 261 at [4]). Proof of risk of dissipation of assets may be established by evidence of a prior want of probity by the impugned person (Samimi v Seyedabadi; Seyedabadi v Samimi [2013] NSWCA 279 at [73]; Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG ‘The Niedersachsen’ [1983] 1 WLR 1412; [1984] 1 All ER 398 at p406; Frigo v Culhaci [1998] NSWCA 88 at p8.). The quantum of the freezing order ought not be fixed at a sum greater than that which the Plaintiff would potentially or likely recover (Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 428; OXC Bidco Pty Ltd v Dickson [2016] NSWSC 968 at [14]).
17.The reference in that extract to the Court’s jurisdiction to grant a freezing order, is contained in the Uniform Civil Procedure Rules 2005 (NSW). The equivalent of that provision, for these purposes, is s 114(3) of the Act, as set out above.
18.In summary, an applicant for such an order must establish, firstly, an arguable case, and, secondly, that there is a risk that, if the order is not made, a judgment will go unsatisfied by reason of the other party having dealt with their assets to place them out of the reach of the applicant. In terms of that second element, it must be shown that there is a real risk of that occurring, rather than a mere assertion that the defendant may dispose of, or deal with, their assets in such a manner.
19. Relevantly, in Finn v Carelli (2007) NSWSC 261 at [4], Brereton J said:
It is not necessary for an applicant to show that the respondent has a positive intention of evading a judgment, and it is sufficient to show that the course on which the respondent proposes to embark is, objectively speaking, calculated to have that effect. But as the Court of Appeal made clear in Frigo v Culhaci, an applicant must establish, by evidence and not mere assertion, that there is a real danger that by reason of the respondent absconding or otherwise dealing with assets, the applicant will not be able to have its judgment satisfied. While acknowledging that there has been much debate as to the precise degree to which that has to be shown, the Court emphasised that mere assertion that the defendant was likely to put assets beyond the plaintiff’s reach was inadequate, for which the Court cited Ninemia Maritime Corp v Trave GmbH & Co Kg (The Niedersachsen) [1984] 1 All ER 398, as well as Patterson v BTR Engineering.
Consideration
The parties are in agreement that some restraints on both parties are necessary in order to preserve the marital property that is available for distribution at final hearing. The orders sought by the wife, however, go further than that agreed to by the husband. In that respect, she carries the onus of establishing that there is a real risk that the husband will deal with the assets of the matrimonial property pool in such a manner that raises a real risk that the Court will be unable to do justice between the parties at final hearing.
As noted by senior counsel for the husband, the Court is unable to make findings of fact in interim proceedings where the parties’ respective factual contentions are in dispute. I accept that is the case: see Iphostrou & Iphostrou [2011] FamCA 20 at [44] and Acton & Burton [2015] FamCA 469 at [26].
As noted by Brereton J in Finn v Carelli [2007] NSWSC 261, it is unnecessary for the Court to make a finding regarding whether the husband has participated in several transactions, which I have detailed below, for the purpose of depleting the marital property pool, such that the role of the Court is unable to do justice between the parties at final hearing. It is sufficient, having regard to the conduct of the husband to date, I am satisfied that, even at this interim stage, there is a real danger that this will be the effect if the husband’s conduct is not restrained.
In determining that it is appropriate for orders to be made that would restrain the dissipation of marital property, I have had regard to the following matters.
At paragraphs 83 through to 86 of his Affidavit, the husband attests that his finance business, BB Pty Ltd, was adversely impacted in the second half of last year, as a result of his emotional reaction to the parties’ separation on 30 June 2020. Specifically, at paragraphs 83 and 84, the husband states as follows:
83.On 30 June 2020, Ms Shamon departed the matrimonial home with the children. We have been separated since that date. Despite the difficulty and emotional impact of Ms Shamon’s departure with the children, I continued to go to work to ensure BB Pty Ltd was operating smoothly. However, by around late July 2020, the severity of the situation manifested itself and I felt increasingly distracted and unable to focus. On the advice of my doctor, I took some leave of absence however I did not return to work until February 2021. From July 2020, I gradually stopped answering the phone and stopped servicing my clients.
84.I developed symptoms of anxiety, depression and felt increasingly isolated. I was prescribed medication by my general practitioner, Dr DD.
As these are proceedings under Part VIII of the Act, the rules of evidence apply. Accordingly, unless an exception set out in the Evidence Act 1975 (Cth) (“the Evidence Act”) applies, s 76(1) relevantly provides that evidence “of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed” in these proceedings. Accordingly, while I acknowledge that the husband stated that he felt anxious, depressed and increasingly isolated, his opinion that he suffered anxiety and depression is inadmissible to establish that he in fact did suffer such mental illnesses.
To support his assertions of suffering mental illness such that his business was adversely impacted, the husband relies on the report of a general practitioner, Dr DD, dated 6 May 2021, which is included at pages 173 and 174 of Annexure ‘SH-1’ attached to the husband’s Affidavit and relevantly reads as follows:
1. [The husband] states that he became formally separated from his wife… from June 2020. I saw [The husband] on 3rd September 2020. At that time he looked dishevelled, anxious and emotional. On enquiry he stated that he became separated from his wife.
2. At that consultation, [the husband] displayed physical symptoms of anxiety. He was restless, fidgety and had a shaky voice. He had visibly lost significant weight. He had no appetite and admitted not eating well, he could not sleep and could not concentrate. He stated his thoughts were racing and he could not function. He felt very anxious when leaving his home and was consciously trying to avoid seeing people. He was physically and emotionally unable to go to work. He resorted to excessive cigarette use in an attempt to de-stress himself. At that time I advised to avoid smoking, undergo blood testing and urine testing along with regular blood pressure readings.
3. I diagnosed him with acute anxiety
4. I offered [the husband] to see a psychologist on a subsequent consultation on 26th November 2020, but that time [the husband] declined. He was also offered anxiolytic medications in the form of SSRI antidepressants but he declined this as well.
5. [The husband] suffers from acute anxiety and has many symptoms also of depression. He has been rendered unable-to work from July 2020 and states he has been unable to contribute to any aspect of his work in his accounting firm since then. More specifically he has been unable to meets clients, conduct meetings and manage his staff. Essentially he has been incapacitated and continues to be incapacitated from his employment since his separation.
Prior to his separation in June 2020, [the husband] was working full time as the principal finance professional and tax adviser of BB Pty Ltd.
6. His prognosis is very unclear. [The husband] has expressed extreme emotional distress at the lack of contact with his children. It is my hope for him that if an amicable agreement can be struck with his wife, his symptoms may improve. However currently his symptoms have not shown signs of improvement as the separation and court proceedings are not yet finalised.
7. I have read and understand and agree to abide by Divisions 15.5.4, 15.5.5, 15.5.6 of the Family Law Rules and have used my best endeavors to comply with them. I understand my duty to the court and I have complied with it and will continue to do so.
That medical report goes beyond the matters referred to in r 15.41 of the Family Law Rules 2004 (Cth) (“the Rules”), in that Dr DD proffers an opinion on the husband’s ability “to meet clients, conduct meetings and manage his staff”. Further, Dr DD opined that, based on two appointments which the husband attended on 3 September and 26 November 2020, the husband “has been incapacitated and continues to be incapacitated from his employment since his separation”.
Insofar as that report departs from those matters set out in r 15.41, the report should have but did not comply with r 15.63 of the Rules, which relevantly provides:
An expert’s report must:
(a)state the reasons for the expert witness’s conclusions;
(b)include a statement about the methodology used in the production of the report; and
(c)include the following in support of the expert witness’s conclusions:
(i)the expert witness’s qualifications;
(ii)the literature or other material used in making the report;
(iii)the relevant facts, matters and assumptions on which the opinions in the report are based;
(iv)a statement about the facts in the report that are within the expert witness’s knowledge;
(v)details about any tests, experiments, examinations or investigations relied on by the expert witness and, if they were carried out by another person, details of that person’s qualifications and experience;
(vi)if there is a range of opinion on the matters dealt with in the report—a summary of the range of opinion and the basis for the expert witness’s opinion;
(vii)a summary of the conclusions reached;
(viii)if necessary, a disclosure that:
(A)a particular question or issue falls outside the expert witness’s expertise;
(B)the report may be incomplete or inaccurate without some qualification and the details of any qualification; or
(C)the expert witness’s opinion is not a concluded opinion because further research or data is required or because of any other reason.
Mere non-compliance with the Rules does not, however, make the medical certificate inadmissible, pursuant to r 15.64 of the Rules, but it is nonetheless a matter relevant to weight. In that respect, I note that it was not argued that the medical certificate was inadmissible as falling foul of s 79 of the Evidence Act. Accordingly, it is unnecessary to determine whether that was the case. Specifically, I note that in Watton v MacTaggart [2020] NSWSC 1233, Ward CJ in Equity at 95 stated;
…in order to fall within the exception under s 79(1) of the Evidence Act, evidence must satisfy two conditions: first, the witness must have specialised knowledge based on his or her training, study or experience (Dasreef Pty Limited v Hawchar (2011) 243 CLR 588; [2011] HCA 21 (Dasreef) at [32]; Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 (Honeysett) at [23]); and, second, the opinion must be wholly or substantially based on that knowledge (Dasreef at [32]; Honeysett at [24]).

Nonetheless, the failure of Dr DD to set out his training, study or experience is a matter that I take into consideration in considering the weight of his medical report. In that respect, it is noted that Dr DD expresses an opinion that the husband suffered from and continues to suffer from “acute anxiety”. His report did not establish that he has qualifications which would equip him to make that diagnosis.
Secondly, Dr DD did not refer to any tests that he may or may not have administered, such as a questionnaire being used as a diagnostic tool to assess the level of the husband’s depression and/or anxiety. Further, his report did not refer to whether the results of any assessment were of the magnitude that they justified the conclusion which was expressed by Dr DD. That conclusion, being that the husband’s mental health issues are such that they had incapacitated, and continue to incapacitate, the husband from his employment, to a degree that could compel him to sell his interest in BB Pty Ltd.
Further, the contents of Dr DD’s report is internally inconsistent with his conclusion. Specifically, on the one hand, Dr DD notes that, contrary to the husband’s assertion, he did not prescribe medication but merely “offered anxiolytic medications” to the husband which he rejected. Dr DD also states that he “offered” to facilitate the husband seeing a psychologist, which the husband declined. Despite the husband declining those “offers”, Dr DD nonetheless concluded that the husband’s mental health issues were so profound that he suffered an ongoing incapacity for employment as a finance professional. That conclusion, with respect, is in my opinion, one that is without persuasive weight, even at this interim stage of the proceedings.
Moreover, even if there was material that justified the conclusion that the husband was compelled to sell his interest in BB Pty Ltd as a result of being incapacitated by anxiety and depression, I accept there is a significant issue, that will need to be resolved at the final hearing, as to whether he sold his interest in the finance business at fair market value. For the purpose of these proceedings, my task is to determine whether there is a significant risk that he did not and, further, whether there is a similar significant risk that he may repeat such conduct in the period prior to the hearing. In assessing whether the husband’s past conduct is reflective of a risk that he will engage in similar conduct in the future, it is necessary to have regard to the totality of his conduct which I set out in greater detail below
In that respect, I have earlier noted that, on or about 1 October 2020, the husband caused his shareholding in BB Pty Ltd to be transferred to his brother, the Second Respondent. The husband has not produced business records in respect to the company for the financial year ending 30 June 2020. Accordingly, the most recent figures before the Court are the company’s tax return for the 2019 financial year, which is included at pages 54 through to 66 of the wife’s tender bundle part two, marked Exhibit ‘G’ in these proceedings. The company tax return of BB Pty Ltd for the financial year ending 2019 shows that, after payment of total salary and wage expenses of $279,900 and payments to associated persons of $150,000, the profit of the business was $262,214. Further, that tax return stated that, as at the end of the 2019 financial year, the total assets of the business were $894,029 and the total liabilities were $346,086, which left a surplus of net assets of $547,943. In those circumstances, the sale by the husband of the 50 per cent interest in BB Pty Ltd to the Second Respondent for the total sale price of $48,000 appears, even at this interim stage of the proceedings, to require considerable explanation.
In addition to the circumstances concerning the sale of his interest in BB Pty Ltd to the Second Respondent, in the weeks immediately following the parties’ separation, the husband re-drew the sum of $400,000 on the mortgage secured over the former matrimonial home. At paragraph 92 of the husband’s Affidavit, the husband further states that he used those funds “to pay creditors and other debts”. However, the husband has not provided disclosure in respect to the identity of such creditors and the nature of those debts.
Similarly, by a loan agreement dated 11 August 2020, which is included at pages 184 to 192 of Annexure ‘SH-1’ attached to his Affidavit, the husband contends that he secured a line of credit in the amount of $700,00 from Ms G, and that line of credit was again secured by a charge over the mortgage on the former matrimonial home. During the proceedings, counsel for the wife submitted that the husband’s Financial Statement acknowledged that he had not as yet dispersed the totality of that credit facility. Again, in respect to that portion of the funds which have been so dispersed, being the sum of $530,000 as stated at paragraph 50 of his Financial Statement, the husband again states by use of the same phrase that he applied those funds “to pay creditors and other debts.”, As previously noted, this is in circumstances where he has not provided disclosure in respect to those creditors and those debts.
Having regard to the fact that the parties separated on 30 June 2020, in assessing whether there is a real risk of the husband engaging in conduct to dissipate the matrimonial property, I further note as being of relevance that, on 24 July 2020, being approximately four (4) weeks after their separation, the husband caused his shares in S Pty Ltd to be transferred to his sister, the Third Respondent. The ‘Minutes of a Meeting of Directors’ for S Pty Ltd, which is dated 24 July 2020 and is attached to the husband’s Affidavit as page 197 of Annexure ‘SH-1’, records the transfer and sale of the husband’s single ordinary share in S Pty Ltd to the Third Respondent. Despite selling his interest in the company, it is uncontroversial that the husband remains the sole director of S Pty Ltd.
As I have earlier noted, S Pty Ltd holds half the interest in the Suburb J property and is the trustee of the Shamon Fixed Trust. A transfer document which is included at page 8 of Annexure ‘SH-1’ attached to the husband’s Affidavit establishes that, on 2 May 2006, S Pty Ltd and the husband’s cousin acquired the Suburb J property as tenants-in-common in equal shares, for consideration of $637,500. Subsequent balance sheets of S Pty Ltd as trustee for the Shamon Fixed Trust, for the financial years ending 2013 and 2015, record the value of “Buildings – at cost” as $311,704: see page 48 of Annexure ‘SH-1’ attached to the husband’s Affidavit. It was not disputed that the reference to “buildings” is a reference to the Suburb J property.
The Financial Statements of S Pty Ltd for the financial year ending 30 June 2019, at page 49 of the wife’s tender bundle part two marked Exhibit ‘G’, show that the bank loans of the company reduced from $217,770.42 to $194,155.09 over the 2019 financial year. The profit and loss statement in those Financial Statements also showed that S Pty Ltd had generated profit from its ordinary activities in the sum of $12,870.98 in the financial year ending 30 June 2018 and $7,322.19 in the financial year ending 30 June 2019. As indicated by the husband at paragraph 114 of his Affidavit, S Pty Ltd also trades on its own account, receiving income and paying expenses as a mortgage originator.
While the husband contends, as I have earlier noted, that the interest held by S Pty Ltd in the Suburb J property is an interest held on behalf of his father, this assertion is inconsistent with representations made by the husband in 2006 when a loan was obtained for the purchase of the Suburb J property for consideration of $637,500. The mortgage application, which is at pages 3 to 6 of the wife’s tender bundle part one marked Exhibit ‘F’ in these proceedings, shows that the borrowers for the loan were the husband and his cousin. That document also records, under the heading “Notes”, that a representation was made to the bank that “[the husband’s father] has no further claim on the new partnership or business”. A letter from ‘BB Solicitors’ dated 6 February 2006, which was attached to that mortgage application, relevantly states that:
The Business known as Shamon Company is under a partnership agreement between [the husband’s cousin] and S Pty Ltd (with [the husband] as it sole director). Furthermore, we confirm that [the husband’s father] has no claim against either the new partnership or the business itself.
Clearly, the significance of those representations will be matters of intense scrutiny at the final hearing of this matter. It is sufficient for me to note that there is, at least, a substantial issue as to whether the husband has further dissipated the matrimonial property pool by transferring his interest in S Pty Ltd to the Third Respondent approximately four (4) weeks after the parties separated.
Finally, in respect to the risk of the husband dissipating the property of the parties prior to the final hearing, it is to be noted that, in the period shortly after the parties’ separation, the husband paid to the Third Respondent the amount of $50,000, which he contends was a recent repayment of funds that he borrowed from his sister prior to the parties moving into the former matrimonial home in 2007. In so far as it appears that no repayments were made by the husband in the period between 2007 and 2021, it is possible that the loan, attested by the husband to have been made by the Third Respondent, was repayable on demand. If that is the case the loan may have been statute barred as at the date that the husband repaid that loan. It is not possible to determine that issue in these interim proceedings, however, given the date of the transaction, any time limit is clearly a live issue to be explored at the final hearing of this matter.
I accept the submission of senior counsel for the husband, that it is inappropriate for the Court, at this interim stage of the proceedings, to make findings of fact in respect to what clearly are matters of controversy between the parties. However, the evidence to which I have referred above satisfies me that, at the very least, there is a live issue regarding whether the husband has engaged in conduct, to date, which was intended to dissipate the assets of the matrimonial property pool and, based on the number of transactions that give cause for concern, to which I have referred, I am also satisfied that there is a real risk the husband may further dissipate the matrimonial assets in the future such that, at the final hearing, the Court is unable to do justice between the parties.
Summary and conclusion in respect to preservation injunctions
Accordingly, the restraints sought by the wife, which in part modify previous restraints imposed by the orders of Rees J made on 9 April 2021, are entirely justified. Specifically, I note that both of the parties sought a variation to those restraints in the form of the proposed order 1.1 sought by the wife in her consolidated Minute of Order marked Exhibit ‘C’ in these proceedings. I will therefore make an order in those terms.
Proposed order 1.2 by the wife is not agreed to by the husband, unless that proposed variation to the existing restraints includes a reference to a bank account held or operated on behalf of the husband’s cousin, so as to enable the husband to deposit money into such a bank account. That proposal is, however, too open-ended, insofar as there is no qualification or, more accurately, limitation, on any such monies which could potentially be paid to the cousin. This is in the context where the husband remains the sole director of S Pty Ltd. In those circumstances, the Court has concerns that enabling an unspecified amount to be paid into a bank account of the husband’s cousin, at his behest, leaves open the risk to which I have referred, being that property of the parties may be dissipated through that process prior to the final hearing. Accordingly, I am satisfied that order 1.2 as proposed by the wife is appropriate and I will make an order in those terms.
In addition, the husband also proposes order 1.3, which would enable the husband to transfer net proceeds derived from the rental income of the Suburb J property to both his cousin and his father. In circumstances where evidence, to which I have referred, casts into doubt the husband’s assertion that S Pty Ltd holds its interest in the Suburb J property on behalf of his father, that order sought by the husband is inappropriate.
Proposed order 1.4, as sought by the husband in his Minute of Order marked Exhibit ‘D’ in these proceedings, essentially replicates proposed order 1.3 set out in the wife’s consolidated Minute of Orders, save to the extent that it seeks to limit the reference to the Suburb K property to ‘Level 3’ of that property. It being noted that BB Pty Ltd, which was formerly owned jointly by the husband and the Second Respondent but now owned solely by the Second Respondent, operates from that floor. At paragraph 80 of his Affidavit, the husband attests to T Pty Ltd being a service company for the finance business that operates on the third floor of the Suburb K property. In that respect, the accuracy of the husband’s evidence did not appear to be disputed in these proceedings, and no contrary evidence has been presented which enables me to conclude that T Pty Ltd has a role broader than acting as a service company for BB Pty Ltd. Accordingly, in those circumstances I will make proposed order 1.4 as sought by the husband.
Order 1.5 sought by the husband essentially replicates order 1.4 proposed by the wife. However, the husband seeks to expand the capacity of the V Pty Ltd to deal with the income of the V Fixed Trust, such that, in addition to meeting repayments of the mortgage securing the Suburb K property and also paying rates, insurances, levies and land tax owing on that property, capacity also be given to the corporate trustee to pay construction and repair costs. Those costs are, however, potentially very significant, noting that the husband attests, at paragraph 69 in his Affidavit, that the ground floor and level 4 of the Suburb K property “remain unfurnished and incomplete”. In the context of the concerns that I have referred to regarding the risk of the husband dissipating the property of the parties prior to the final hearing, empowering the V Pty Ltd to apply funds in the open-ended manner proposed by the husband is unacceptably broad and I will not make an order in those terms proposed by the husband. I am, however, satisfied that the restraint sought by the wife in her proposed order 1.4 is appropriate, for the reasons I have set out above, and I will make an order in those terms.
In proposed order 1.6 of the husband’s Minute of Order, he seeks that Order 1(b) of the orders made on 9 April 2021 be discharged. That order made reference to BB Pty Ltd which, as noted, is the finance business previously jointly owned by the husband with the Second Respondent, but which the husband contends is now owned solely by the Second Respondent as result of the husband selling his interest to him for the sum of $48,000.
In Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 178, the High Court of Australia stated that, in considering whether interim orders should be varied, a Court should consider whether, inter alia, any “new facts come into existence or are discovered which render its enforcement unjust”. The High Court in that decision applied Cutler v Wandsworth Stadium Limited [1945] 1 All ER 103 in confirming that the onus rests on the person seeking to vary the consent or interim order to establish those changed circumstances.
The material presented by the husband in this case has not persuaded me that the orders made by Rees J on 9 April 2021 should be varied in the manner for which he contends. Specifically, I am satisfied that a significant issue in the trial of this matter will be the circumstances in which the husband purports to have transferred his interest in BB Pty Ltd to his brother, the Second Respondent. In those circumstances, I consider that the orders made by Rees J were entirely appropriate, and the husband’s evidence has not satisfied me that there are new considerations before the Court which would render the enforcement of those restraints unjust.
Proposed order 2 sought by the parties in their respective proposed Minutes of Order are substantially identical, save to the extent that the proposed order 2 sought by the husband includes an exemption from the restraint on S Pty Ltd for the “trail income received” by the corporation. In circumstances where there is a significant dispute regarding the ownership of S Pty Ltd and how funds received by that company should be applied including, specifically, whether income should be provided to the husband, the husband has not satisfied me that the form of the proposed order as sought by him is appropriate. I am, however, for the reasons which I have set out above, satisfied that there is justification for an order, as sought by the wife, to restrain husband from dealing with any benefits or assets held by S Pty Ltd as set out in proposed order 2 of the wife’s consolidated Minute of Orders, and I will therefore make an order in those terms.
Proposed order 3 sought by the wife seeks the imposition of mandatory injunctive restraints upon the husband, in the same terms as identified in Order 4 of the orders made on 9 April 2021, to also apply to the Shamon Trust and the Shamon Fixed Trust. Order 4 of the orders made by Rees J on 9 April 2021 is set out as follows:
4.That the husband be restrained in relation to the V Fixed Trust (“the trust”) other than with the prior agreement in writing of the wife from doing or causing to permit to be done any of the following:
(a)The exercise of any power that the husband may have directly or indirectly in respect of the trust including but not limited to any power of appointment and any power to vary the terms of the trust.
(b)Removing, replacing or appointing any director or other office holder of any of the trustees of the trust.
The course of the husband’s dealings with corporate entities in which he has been involved, as I have referred to above, satisfies me that there is a real risk that the husband may use similar powers that he has in respect to the Shamon Trust and the Shamon Fixed Trust. On that basis, I am satisfied that the restraint proposed in order 3 of the wife’s consolidated Minute of Order is appropriate.
Proposed order 3 sought by the husband is consistent with order 4 proposed by the wife in her consolidated Minute of Order, save to the extent that it would not include the 1 M Street property. In circumstances where the legal title of the property is in the husband’s name, and he has made representations to financial institutions that he is the owner of the property, I am not satisfied, at this interim stage of the proceedings, that the husband holds his interest in the 1 M Street property on behalf of his father. Accordingly, in circumstances where the husband has engaged in conduct to encumber the former matrimonial home in the manner in which I have described above, I am satisfied that there is a real risk that the husband will engage in similar conduct in respect to the 1 M Street property that remains in his name. On that basis I am satisfied that the restraint sought by the wife in her proposed order 3 is appropriate, within the criteria specified in s 114(3) of the Act to which I have referred. I will therefore make an order in those terms, subject to the orders I have made in respect to the wife’s Application for partial property settlement and interim spousal maintenance.
Additionally, at proposed order 4 of his Minute of Order, the husband seeks that a restraint be imposed upon the wife “from doing any act or thing so as to cause or permit any drawings upon any loan facility or mortgage secured over [the Suburb F property]”. The wife acknowledges, at paragraph 54 of her Affidavit, that she has redrawn the amount of $60,000 against the mortgage in respect to that property.

In Hall, at [3]–[8], the High Court set out the appropriate approach in considering an application for interim spousal maintenance, as follows:
3.… The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section 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 … having regard to any relevant matter referred to in [s] 75(2)”.
4.The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, “[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”.
5.A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
…
8.Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2).
(Footnotes omitted)
As noted in Hall, the High Court confirmed that an applicant seeking orders for spousal maintenance carries the evidentiary burden as set out in s 140 of the Evidence Act. This can be particularly challenging in the context of an application for interim spousal maintenance. As the Full Court recently, in Edgar & Strofield (2016) FLC 93–711, said at [15]:
…the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing.
Despite those limitations, in Hall at [8], the High Court confirmed that:
No doubt, on an application for an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth).
(References omitted)
Consideration
The gateway issue
In this matter, I am satisfied that the wife satisfies the requirements of s 72(1)(a) of the Act, as a result of her having primary responsibility for the continued care of the children.
The wife’s needs
In this matter, the wife’s Financial Statement filed 14 May 2021, identifies her weekly expenditure, as follows:
(1)at paragraph 21, rental payment – $243;
(2)at paragraph 23, mortgage payment in respect to the Suburb F property – $200;
(3)at paragraph 24, council and water rates in respect to the Suburb F property – $120; and
(4)at paragraph 60, her average weekly expenses, set out as follows:

ITEM FOR YOU

Food $260.00

Household supplies $30.00

House repairs $5.00

Gas $4.00

Electricity $5.00

Heating fuel $NIL

Telephone $20.00

Motor vehicle (Not paying yet)

Petrol $20.00

Maintenance $NIL

Fares/car parking $NIL

Clothing and shoes $50.00

Children's activities $NIL

Children's tutoring (Not paying) $NIL

Child minding $NIL

Medical, dental and optical (not including health insurance premiums – not currently paying) $30.00

Entertainment/hobbies $10.00

Holidays $NIL

Education expenses, including fees and levies $NIL

Chemist/pharmaceutical $35.00

Gardening/lawn mowing $NIL

Cleaning (house/pool) $NIL

Repairs – furnishings and appliances $25.00

Dry cleaning $10.00

Books and magazines $5.00

Gifts $20.00

Hairdressing, toiletries $NIL

Other necessary commitments (specify)

TOTAL $529

In considering the wife’s weekly needs, I have not taken into consideration the mortgage payments in respect to the Suburb F property, nor have I taken into consideration the council and water rates in respect to that property. This is because I am satisfied that, on the basis of the evidence presented to the Court, the property is now being rented. In that respect, at paragraph 10 of the wife’s Financial Statement, she states that she receives weekly income in the amount of $340, by way of rental income, and I note that amount exceeds the total of the amounts set out at paragraphs 23 and 24, to which I have earlier referred, by $20.
Furthermore, I have not included those amounts of average weekly expenses set out in paragraph 60 of the wife’s Financial Statement which are listed under the column titled “FOR CHILDREN (IF APPLICABLE)”, because they relate to expenses incurred by the wife in respect to the children. In that respect, I have had regard to the decision of Stein v Stein (2000) FLC 93-004, in which the Full Court found that the reasonable needs of the applicant for interim spousal maintenance are to be assessed according to the amount that they require for their own support, as opposed to what they require in order to support a child. Accordingly, in arriving at that assessment, I have disregarded the expenditure that the wife incurs in respect to the children.
To the credit of the husband, through his senior counsel, it did not appear that he contended that the wife’s weekly expenses were unreasonable or excessive. Indeed, by way of comparison, I note that the wife’s weekly expenses are less than those identified by the husband as his average weekly expenses, as set out in paragraph 60 of his Financial Statement filed 12 May 2021. Accordingly, I am satisfied that the wife’s reasonable weekly expenses amount to the sum of $529 which, together with her weekly rental expenses of $243, is a total sum in the amount of $772.
The husband’s capacity to pay
For reasons which I have set out above, despite attending BB Pty Ltd on at least a part-time basis since separation and a full-time basis since February 2021, the husband contends that he receives no income from that finance business. This is in the context where the husband states at paragraph 110 of his Affidavit that, until the parties’ separation, he received a gross income of $150,000.
For reasons which I have earlier set out, the evidence presented by the husband, including the medical report of Dr DD to which I have referred, has not satisfied me that the husband is incapable of earning income as a finance professional by virtue of what he contends is a depressive anxiety condition from which he suffers. Nevertheless, even if, in interim proceedings as these proceedings are, I am wrong in arriving at that conclusion, I note that, in Maroney & Maroney [2009] FamCAFC 45 at [56], in determining the “capacity” of a party to satisfy an order for interim spousal maintenance, the Court is not confined to considering only that party’s income, but rather:
Once a party…establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets.
In this matter, it was an agreed position that the husband has the capacity to draw upon a line of credit facility that he has established with his sister, Ms G, to the extent of $170,000. I have made an order, in these proceedings, for the husband to pay to the wife the sum of $80,000 by way of an interim property distribution. This leaves the balance of $90,000 in that facility. In addition, the husband states, at paragraph 127 of his Affidavit, that he has a total of $13,500 in bank accounts, together with approximately $21,000 in cash savings. Further, at paragraph 128 of his Affidavit, the husband states that he is owed approximately $46,000 from his personal debtors.
In total, therefore, I am satisfied that the husband has the capacity to access funds in the amount of at least $170,500, in order to meet the order for interim spousal maintenance that I propose to make in these proceedings. When divided by the amount which I have identified as the wife’s weekly needs, being the amount of $772, this is equivalent to at least 220 weeks. It can reasonably be anticipated that a final hearing will be held prior to the time that those funds are expended. If that is not the case, the parties are, of course, entitled to seek such further orders as they deem appropriate.
Consideration of the s 75(2) factors
Before making an order for interim spousal maintenance, I am required to be satisfied of the matters set out in s 75(2) of the Act, to the extent that I am capable of determining those matters in these interim proceedings.
Sub-section (a) – the age and state of health of each of the parties
The husband is currently 42 years of age. He has a Bachelor degree and a Master’s degree from CC University. He is also registered as a Financial Advisor.
The husband contends that he suffers from a depressive anxiety condition which prevents him from earning income as a finance professional. The husband has not, however, for the reasons which I have set out above, satisfied me that this is the case.
The wife is currently 37 years of age. The wife did not appear to have formal qualifications and there is no evidence that she suffers from any medical condition that adversely impacts upon her earning capacity.
Sub-section (b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The parties in this matter have prepared a joint Balance Sheet filed 10 May 2021, which is marked Exhibit ‘E’ in these proceedings. There is a wide disparity between the parties as to the extent of the parties’ property pool. On the one hand, the husband contends it is approximately $600,000. On the other hand the wife contends it is approximately $6 million. At this stage of the proceedings, it is not possible to meaningfully determine the full extent of the parties’ income property and financial resources.
Sub-section (c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
A significant consideration in this matter is the fact that the wife is the primary carer of the parties’ three (3) children. Other than occasionally providing gifts to the children, and, for the purpose of these proceedings I have accepted that the father has paid school fees up to the end of term two of this year, the wife is not receiving any financial support from the husband to assist her in caring for the children. As a result she and the parties’ children are being sustained by the tax payers of Australia.
Sub-sections (d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person
Neither party has disclosed that they are responsible for supporting another person other than the children.
Sub-section (f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country, or any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
At paragraph 45 of his Financial Statement filed 12 May 2021, the husband declares that he estimates the value of his superannuation entitlement with the Shamon Self-Managed Superannuation Fund at $53,000. In her Financial Statement filed 14 May 2021, the wife has specified that she has no superannuation entitlement.
At paragraph 12 of her Financial Statement, the wife states that she receives Family Tax Benefits A and B, together with Rent Assistance and Single Parenting Payment, a Person Basic Supplement, an Energy Supplement and a Pharmaceutical Allowance, with the combined amounts totalling $920 per week.
Sub-section (g) – where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
Prior to separation, the parties enjoyed a comfortable standard of living consistent with the husband receiving a reasonable wage in his employment as a finance professional, together with other investment income.
The wife is not receiving any financial support from the husband in respect to herself or the children, and is living in modest accommodation on a main highway in Sydney’s western suburbs.
Sub-section (h) – the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
Neither party has proposed undertaking a course of further education and I have not regarded this as a relevant consideration.
Sub-section (ha) – the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
Neither party has contended that this is a relevant consideration.
Sub-section (j) – the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
This is a matter that will be considered in detail at the final hearing. However, I am satisfied, even at this interim stage of the proceedings, that the wife’s role, in fulfilling the responsibilities as a primary carer of the children and fulfilling homemaking responsibilities, can reasonably be assumed to have contributed to the income, earning capacity, property and financial resources of the husband.
Sub-section (k) – the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties were married for 16 years. It is acknowledged that, after the birth of Z, the wife has not continued to engage in paid remuneration. The wife’s lack of income is reflected in the fact that she has no superannuation. Again, while this matter will be an issue for consideration at the final hearing, it is reasonable to assume that the period of time that the wife has spent out of the paid workforce has impacted upon her earning capacity. It is not possible, however, at this stage of the proceedings, to determine the extent to which that has occurred.
Sub-section (l) – the need to protect a party who wishes to continue that party’s role as a parent
The wife wishes to continue in her role as the primary carer of the children, and I consider her desire to do so is entirely appropriate.
Sub-section (m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
Neither party has declared that this consideration is relevant to themselves or the other party.
Sub-section (n) – the terms of any order made or proposed to be made under section 79 in relation to the property of the parties, or vested bankruptcy property in relation to a bankrupt party
These are interim proceedings, pending final determination of the parties’ respective Applications for property adjustment, and, accordingly, it is not possible at this point in time to make a determination in respect to this consideration.
Sub-section (naa) – the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to a party to the marriage, a person who is a party to a de facto relationship with a party to the marriage; or the property of, or vested bankruptcy property in relation to, any or both such persons
Neither party has contended that this consideration is relevant to the present application.
Sub-section (na) – any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
A significant consideration in this matter is the fact that the husband has not and is not paying child support in respect to the children.
Sub-section (o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
A relevant consideration in this matter is that, despite the parties having a potentially significant property pool, and despite the fact that the husband has an employment record whereby he has received what, by community standards, is a comfortable income, as result of the fact that the husband is not providing financial support to his wife or the children, they are being supported by the taxpayers of Australia.
In that context, the historical recognition of public interest considerations involved in spousal maintenance is relevant. For instance, in Hyman v Hyman [1929] AC 601 at 628–629, Lord Atkin said:
When the marriage is dissolved the duty to maintain arising out of the marriage tie disappears. In the absence of any statutory enactment the former wife would be left without any provision for her maintenance other than recourse to the poor law authorities. In my opinion, the statutory powers of the court to which I have referred were granted partly in the public interest to provide a substitute for this husband’s duty of maintenance and to prevent the wife from being thrown upon the public for support.
Reference to the respective roles of husband and wife are of historical interest only. However, the public interest continues to be reflected in s 75(3) of the Act which requires the Court, in determining a party’s responsibility to pay maintenance, to “disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit”.
Sub-sections (p) and (q) – the terms of any financial agreement that is binding on the parties to the marriage; and the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Neither party has contended that these considerations are relevant.
Summary and conclusion in respect to spousal maintenance.
Accordingly, for the reasons which I have set out, I am satisfied that the wife is unable to adequately support herself in terms of s 72 of the Act, that she has weekly needs equivalent to $772 per week, and that the husband has the capacity to satisfy those needs. Further, for the reasons I have set out under the respective considerations set out in s 75(2) of the Act, I am satisfied that an order for spousal maintenance in the sum of $772 per week should be made in favour of the wife.
CONCLUSION

Accordingly, for these reasons above, I make the orders as set out at the commencement of my reasons for judgement.

I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McClelland.
Associate:
Dated: 22 June 2021

File number(s):	SYC 2375 of 2021
Judgment of:	MCCLELLAND DCJ
Date of judgment:	22 June 2021
Catchwords:	FAMILY LAW – PROPERTY –Injunctions –Where the husband has transferred significant property interests since separation – Where the wife seeks orders restraining the husband from further dealing with the matrimonial property –Orders made restraining the husband from further dealing with the identified matrimonial property. FAMILY LAW – PROPERTY – Interim Application – Partial Property Distribution – Where the wife seeks orders for litigation funding and lump sum payment by way of partial property settlement – Consideration of s 79(4) of the Family Law Act 1975 – Finding that litigation funding for the wife up to the conciliation conference is in the interests of justice – Where the parties seeks orders for sale of property to meet litigation funding – Where the parties dispute property to be sold – Finding that orders for sale are inappropriate where the property is sought to be retained by a party – Orders made for the husband to pay the wife $80,000. FAMILY LAW – PROPERTY – Interim Application – Spousal Maintenance – Where the wife was the primary carer of the parties’ children and has been the sole carer since separation – Where the husband has paid no child support and provided limited financial support for the children since separation – Consideration of s 75 of the Family Law Act 1975 – Orders made for the husband to pay the wife weekly spousal maintenance in the sum of $772.
Legislation:	Family Law Act 1975 (Cth) Pt VIII ss 72, 74, 75, 79, 80, 114(3) Evidence Act 1995 (Cth) ss 76, 79, 140 Family Law Rules 2004 (Cth) rr 12.07(2), 15.41, 15.63, 15.64, 19.04(2)
Cases cited:	Acton & Burton [2015] FamCA 469 Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 Aitken & Murphy (No. 2) [2012] FamCA 239 Cutler v Wandsworth Stadium Limited [1945] 1 All ER 103 Davidson and Davidson (No. 2) (1994) FLC 92-469 Edgar & Strofield (2016) FLC 93–711 Finn v Carelli [2007] NSWSC 261 Gabel & Yardley (2008) FLC 93-386 Hall v Hall (2016) 257 CLR 490 Hyman v Hyman [1929] AC 601 Iphostrou & Iphostrou [2011] FamCA 20 Maroney & Maroney [2009] FamCAFC 45 Medlow & Medlow (2016) FLC 93-692 Stein v Stein (2000) FLC 93-004 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-570 Thornley and Thornley [2018] FamCA 964 Wenz v Archer (2009) 40 Fam LR 212 Yunghanns v Yunghanns (1999) FLC 92-836
Number of paragraphs:	174
Date of hearing:	24 May 2021
Place:	Sydney by web conference
Counsel for the Applicant:	Mr Campton SC
Solicitor for the Applicant:	Lawbridge Lawyers & Consultants
Counsel for the First Applicant:	Mr Cummings SC
Solicitor for the First Respondent:	Cordoba Legal
No appearance for the Second and Third Respondents, who were excused by consent.

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	22 JUNE 2021

ITEM	FOR YOU
Food	$260.00
Household supplies	$30.00
House repairs	$5.00
Gas	$4.00
Electricity	$5.00
Heating fuel	$NIL
Telephone	$20.00
Motor vehicle (Not paying yet)
Petrol	$20.00
Maintenance	$NIL
Fares/car parking	$NIL
Clothing and shoes	$50.00
Children's activities	$NIL
Children's tutoring (Not paying)	$NIL
Child minding	$NIL
Medical, dental and optical (not including health insurance premiums – not currently paying)	$30.00
Entertainment/hobbies	$10.00
Holidays	$NIL
Education expenses, including fees and levies	$NIL
Chemist/pharmaceutical	$35.00
Gardening/lawn mowing	$NIL
Cleaning (house/pool)	$NIL
Repairs – furnishings and appliances	$25.00
Dry cleaning	$10.00
Books and magazines	$5.00
Gifts	$20.00
Hairdressing, toiletries	$NIL
Other necessary commitments (specify)
TOTAL	$529