SKINNER & CLUNY - [2013] FamCA 301

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY

[2013] FamCA 301

FAMILY LAW – CHILD SUPPORT – Where Wife seeks a child support departure Order – s 117 Child Support Assessment Act 1989 (Cth) – Gyselman and Gyselman (1992) 15 Fam LR 219 – Richardson & Older (No. 2) [2008] FamCA 512 – Where current child support payment liabilities in respect of the Husband have been assessed as nil – Non-disclosure of the Husband’s financial circumstances – Where Husband found to have capacity to earn $250,000 per annum – Where Husband found to have access to financial resources – Departure allowed – Periodic child support payments ordered.

FAMILY LAW – CHILD SUPPORT – Where Wife seeks an order for retrospective child support – s 114 Child Support Assessment Act 1989 (Cth) – Where Father found to have had capacity to pay payments during period in question – Lump sum of retrospective child support ordered for the relevant period.

FAMILY LAW – SPOUSAL MAINTENANCE – Where Wife seeks an order for spousal maintenance – s 74 Family Law Act 1975 (Cth) – Bevan and Bevan (1995) FLC 92-600 – DJM v JLM (1998) FLC 92-816 distinguished – Where Wife’s list of needs not reasonable – Order made for periodic spousal maintenance payments until either the child commences school in 2015 or when the Wife commences full-time employment, whichever is the earlier.

FAMILY LAW – SPOUSAL MAINTENANCE – Where Wife seeks an order for retrospective spousal maintenance – Milenkov & Milenkov (2002) FLC 93-095 – Where Wife established a need for maintenance during the identified period – Where the Husband found to have had the means to pay maintenance during the identified period – Lump sum of retrospective spousal maintenance ordered for the relevant period.

FAMILY LAW – PROCEDURAL – Where Wife seeks enforcement of child support arrears and spousal maintenance arrears – Where Wife seeks enforcement of arrears in respect of Order for costs made against the Husband in previous proceedings – s 105 Family Law Act 1975 (Cth) – Enforcement order made.

APPLICANT:

Mr Skinner

RESPONDENT:

Ms Cluny

FILE NUMBER:

BRC

812

2010

DATE DELIVERED:

16 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

3, 4 September 2013; 17 January 2013; and 21 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Husband appearing in person

COUNSEL FOR THE RESPONDENT:

The Respondent Wife appearing in person

Orders

There be a departure from the administrative assessment of child support payable by the Husband to the Wife in respect of the child, B born on … August 2009.
Pursuant to sections 117 and 118 of the Child Support (Assessment) Act (Cth), the weekly rate of child support payable by the Husband in respect of the child be fixed at $665, commencing 22 April 2013.
Pursuant to section 114(h) of the Child Support (Assessment) Act (Cth), by way of retrospective child support, for the period 1 February 2011 to 13 June 2011, the Husband shall pay to the Wife, in respect of the child, the sum of $11,970 plus interest pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004.
The Husband and Wife shall share equally in the costs of the child’s educational expenses, including but not limited to, school fees, compulsory uniforms, books and materials, excursions and extra-curricular activities up until the child reaches the age of 18 years of age.
By way of spousal maintenance, the Husband shall pay to the Wife, by depositing into a bank account nominated in writing by her, the sum of $350 each week commencing 22 April 2013, until either the child commences school in 2015 or the Wife commences full-time employment, whichever is the earlier date.
By way of retrospective spousal maintenance, being for the period

20 September 2009 to 13 June 2011, the Husband shall pay to the Wife, by depositing into a bank account nominated in writing by her, the sum of $31,500 plus interest pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004.
Pursuant to section 105 of the Family Law Act 1975 (Cth), the Husband pay to the Wife, arrears payable under Orders (2), (4) and (6) of the Order of Justice Murphy made 14 June 2011, being the amount of $76,321.08 plus interest, pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004, to a bank account nominated in writing by the Wife.
Pursuant to section 105 of the Family Law Act 1975 (Cth), the Husband pay to the Wife, arrears payable under Order (3) of the Order of Justice Young made

3 June 2011, plus interest payable in the amount prescribed in Order (4) of the Order of Justice Young made 3 June 2011.
The payment of Orders (3), (6), (7) and (8) hereof are to be paid by the Husband to the Wife by close of business on 31 December 2013, into a bank account nominated by the Wife in writing.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 812 of 2010

Mr Skinner

Applicant

And

Ms Cluny

Respondent

REASONS FOR JUDGMENT

The proceedings in respect of property and parenting commenced in the Federal Magistrates Court in 2010 and since then, have been markedly litigious and financially burdensome with the legal fees expended by the parties totalling close to one million dollars.

BACKGROUND

The Husband is 45 years old having been born in 1967 and the Wife is 42 years old having been born in 1970. The parties met in or around 2006 and commenced cohabitation in either December 2007 (according to the Wife) or May 2008 (according to the Husband). The parties married in October 2008 and their only child, B, (“the child”) was born in August 2009. The parties separated on 20 September 2009 and were divorced in January 2011.
At the beginning of the proceedings, the Husband owned and operated his own international transport industry business, Skinner Pty Ltd t/as I Company, which was operated by a corporate trust structure. The company suffered as a result of the global financial crisis and consequently, Skinner Pty Ltd is now in liquidation and out of the Husband’s control. The Husband is presently employed as; inter alia, an advisor at N Company, as the CEO of V1 Pty Ltd and V2 Pty Ltd, and as a consultant at V3 Pty Ltd.
The Wife is qualified in the education field however, she left her employment to take on the role of home-maker and did not work during the course of the marriage, save for a three week contract in her field in June 2009. Since separation, the Wife has had the full-time care of the child and has not returned to the work force.
The parties depose that they enjoyed a lavish lifestyle during their relationship. Prior to separation they travelled first class, the Husband drove a luxury car Make O (which he replaced with a luxury car Make Q) and the Husband gave the Wife a Land Rover to use. The parties had extensive domestic help.
The Husband commenced proceedings in respect of parenting and property on 28 January 2010. The Wife states that a few days later, on 31 January 2010, the Husband ejected the Wife and the child from the former matrimonial home. The Wife and the child moved in with her parents and resided there until

28 November 2011 whereupon she moved into a rental property. The Husband deposes that the Wife lived rent free in his home for four months following separation and he then rented a unit for the Wife from January 2010, paying the first month’s rent, but the Wife did not move into this accommodation. The Wife remains unemployed and has the primary care of the child who will turn four in August this year.

PROCEEDINGS

The Applicant Husband filed an Initiating Application on 28 January 2010 seeking both financial and parenting Orders. Justice Kent made final parenting Orders on 21 June 2012 providing, generally, that the child, B live with the Respondent Wife, Ms Cluny, and spend significant time with the Father.
The Wife sought orders for interim spousal maintenance and child support departure which were heard by the Court on 14 June 2011. The Husband consented to pay the sum of $1,200 per week in child support in lieu of the child support assessment. The Husband opposed the Wife’s order sought for spousal maintenance and Justice Murphy ordered that the Husband pay $350 per week in spousal maintenance until further Order. The Husband complied with these Orders for some time after they were made, but at the trial in September 2012, it was not disputed that the Husband was in arrears of the sum of $33,939.08 (including interest) in relation to the Orders up to

3 September 2012. Since the Orders were made, the Husband has not commenced any appeal in relation to them. As such, they have remained in place since the date they were made.
With regard to the property settlement, on 29 November 2012, I ordered that the Land Rover vehicle was to be transferred to the Wife, and made the declaration that the Wife was to retain ownership in the three properties which were in her name, as well as all of her superannuation entitlements, bank accounts, furniture and contents in her possession. No further property Order was made and the Husband was to retain all property in his name and possession accumulated prior to, during, and after the breakdown of the relationship, save for the abovementioned Land Rover.
During the course of the proceedings, two costs Orders have been made against the Husband. On 18 November 2010, the Husband filed a Notice of Child Abuse and Family Violence. This Notice was subsequently withdrawn and on 14 June 2011, Justice Murphy ordered the Husband to pay the Wife’s costs for these proceedings in the sum of $1,600. Further on 1 December 2010, the Husband filed a Contravention Application which was dismissed by Justice Young on 3 June 2011. An Order for costs against the Husband was made in the sum of $10,000. Neither costs Order has been paid by the Husband.
Pursuant to the Wife’s submissions filed 11 February 2013, the issues which remain to be determined are:
a)the Wife’s application under the Child Support Assessment Act 1989 (Cth) (“the CSAA”) for departure from the administrative assessments of child support payable by the Husband in respect of the child;
b)the Wife’s application for spousal maintenance;
c)the Wife’s application for retrospective maintenance; and
d)the Wife’s application for the payment of arrears of maintenance pursuant to the Orders of Justice Murphy made on 14 June 2011.
The trial in respect of the above issues was set down for and heard on

3 and 4 September 2012. I had all but finalised the judgment in this matter when on 27 November 2012, the Husband filed an application for the evidence to be re-opened. The application was sought on the basis that since the trial, Skinner Pty Ltd (in liquidation), had gone into receivership on

23 November 2012 and consequently, his financial situation had changed substantially. Leave was granted for this application and the trial was re-opened on 17 January 2013.

17 January 2013: the first re-opening of evidence

Pursuant to his application, the Husband submitted to the Court that he was impecunious. His former transport industry company, which was at one time turning over more than 60 million dollars per annum, had since the time of the application, gone into liquidation. The Husband submitted that he was no longer in control of the company and not been able to earn any income since the company had gone into receivership. Further, the Husband gave evidence that, to settle the debts of the company to creditors, which were at the time over $1 million dollars (HSBC required this), he had obtained a number of loans from business colleagues and had given personal guarantees on those loans.

21 March 2013: the second re-opening of evidence

After the trial was re-opened on 17 January 2013, the Wife made two applications in a case for the evidence to be re-opened. The first application, filed 1 February 2013, was made on the basis that the Husband, on the same day as, or very shortly after, the trial was re-opened on 17 January 2013, had accepted a position as an advisor with N Company. The employment contract was signed by N Company on 17 January 2013, and was signed by the Husband on 20 January 2013. The Wife submits that the Husband’s employment in this role impacts upon his ability to meet child support and spousal maintenance payments.
The Wife’s second application, filed 6 March 2013 again went to the issue of the Husband’s altered financial circumstances since the evidence was

re-opened on 17 January 2013. The Wife submitted that the Husband had now taken up the position of CEO of the companies, V1 Pty Ltd and V2 Pty Ltd and that he was also employed as a consultant at V3 Pty Ltd. The Husband’s “Linkedin” profile, noting these appointments, was marked as annexure A to the Wife’s Application in a Case filed 6 March 2013.
The result of these two applications, according to the Wife, was that, notwithstanding the Husband’s choosing to volunteer his wealth of expertise in lieu of paid employment, the Husband had the requisite capacity to meet child support and spousal maintenance payments.
Leave was granted for both applications and the trial was re-opened on

21 March 2013. During this trial, the Husband contended that his present employment to which the Wife referred was unpaid volunteer work, assisting with the establishment of the V Group, and that his role as an advisor with N Company, was on a commission basis. The Husband provided no evidence to the Court as to his anticipated earnings from this role.
The Husband maintained his position that he had no income and that his living expenses are being met by his friends and family. Further, the Husband gave evidence that he was required to meet various repayments in respect of inter alia the mortgage held by HSBC on his house and the repayments to Capital Finance in respect of his luxury car Make Q. The making of these repayments, he attested, was of vital importance as if he were to default on them, bankruptcy would be a high probability.
The Husband gave evidence that his monthly mortgage payments in respect of his home are met by loans of $9,400 from his sister and her husband. The monthly lease payments of $5,394 in respect of the luxury car Make Q had, up until November, been paid by I Company. Since then, it is quite unclear as to how these expenses have been met. In his evidence, the Husband mentioned that there has been some assistance also from his sister and her husband in this respect, but that the loan for the vehicle is largely in arrears. At present, if the Husband were to sell the vehicle, this would be at a loss.
The Wife submitted that it was of little relevance that the Husband should choose to be unemployed and work in volunteer roles. What was important for the determination of this Court was his earning capacity, which, as he himself explained to the Court, would be in the order of $250,000 per annum as a CEO.
The Wife emphasised that amongst other various payments which the Husband manages to meet in respect of inter alia pool cleaning, mowing and ‘pay tv’ at his Suburb U residence, the Husband has also been making weekly child support payments of $24.32 to his former wife in respect to another child of his, T. Evidence of these payments is given by the Wife in the Husband’s Westpac account bank statement marked as annexure JLC 11C to her affidavit filed 19 March 2013. This bank statement also shows a further payment of $270 for speech and drama lessons for T on 9 January 2013. At the time of these payments, the Husband, as he accepts, was paying nothing by way of child support to the subject child of these proceedings. In his oral evidence, however, the Husband also disclosed that at least since 19 November 2012, the sum of approximately $2,000-$3,000 is held on trust for the child, B, by the Husband’s former wife, Ms S. It remains unclear as to why these funds have not been made available to the child. When asked on the final day of trial, the Husband was unable to answer this question when it was put to him.
In her applications, the Wife has also sought costs in respect of the proceedings due to the Husband’s failure to provide disclosure when repeatedly asked, and his conduct throughout the proceedings. She states that he has engaged in various stalling tactics.
The issues noted at paragraph 11 of these my reasons, are what must be dealt with and determined. Central to these issues, however, has been the Husband’s capacity to meet any order for maintenance and his access to financial resources. In the absence of full and frank disclosure, I first seek to deal with these matters.

THE HUSBAND’S CREDIT

The Wife submits that of necessity to the determination of the Husband’s capacity to meet any maintenance order of this Court is the issue of his credit. The Wife alleges that the Husband’s evidence is wholly unreliable in that he has inter alia:
(a)failed to comply with the directions of the Court;
(b)has been conveniently vague in two affidavits which he filed;
(c)he gave evidence which altered only when confronted with a document which contradicted his evidence;
(d)gave evidence which was inherently unbelievable; and
(e)was evasive in his answering.
As such, the Wife submits that the Husband’s evidence, particularly in relation to his ongoing capacity to meet any maintenance order, should not be accepted.
The Husband denies these allegations and submits that he has been truthful in his evidence; he is a credible witness.
It is the general practice of civil courts to not make adverse credit findings where the disposition of the case can be achieved by other means. I do not wish to displace that general proposition as the facts before me in relation to the Husband’s non-disclosure, when considered in light of the well-established body of case law relating to disclosure issues, allow me to make a determination in relation to the Husband’s capacity, without the need to make a finding as to his credit.

THE HUSBAND’S NON-DISCLOSURE

The issue of the Husband’s capacity to pay any maintenance order of this Court has been both the subject of much dispute between the parties. It has been the Husband’s case, since re-opening evidence on 27 November 2012, that since the liquidation of Skinner Pty Ltd, he is left without any income. Further, the Husband noted in his oral evidence that he will be potentially liable for personal guarantees which total over 3 million dollars should there be any default on his current financial commitments. It is the Wife’s case that the Husband has the capacity to work and earn income of at least $250,000 per annum as a CEO and through his other employment, despite the fact that he presently chooses not to. Further, the Wife has submitted that the Husband is able to draw upon further funds of his own, apart from the loans that he has disclosed.
The Husband has provided evidence to this Court of the loans which he states that he has been receiving from his sister and her husband in order to pay his home loan repayments in the amount of $9,400 per month, and has also stated that she assisted him with his repayments on his luxury car Make Q. He has also disclosed another loan of $4,000 from his sister and her husband to meet his expenses, including rates and electricity. This loan was received by him on

12 February 2013. For the month of February alone, the Husband, therefore, received loans of nearly $14,000 from his sister and her husband. The Husband also states that he received a loan from his father to pay off his Amex bill, which was in the amount of some $20,000. In his oral evidence, the Husband has submitted that he is meeting his day-to-day living expenses via loans from family and friends. Though, in the material filed earlier by the Husband, he provided a detailed list of his living expenses, this was in relation to the 2011/2012 financial year; his circumstances have since changed, in accordance with his application filed 27 November 2012.

The Wife has faced many difficulties in obtaining disclosure from the Husband in relation to the above submissions and evidence. In the Wife’s written submissions filed 11 February 2013, she submits that:

(a) there is sufficient evidence in these proceedings to support a finding that the Husband has failed to make full disclosure in these proceedings;
(b) [I] should not be cautious in making findings against the Husband arising from his non-disclosure; and
(c) [I] should make a finding that notwithstanding the Husband’s evidence, he has the capacity to meet any order for maintenance which [I] determine to be appropriate.

While the Husband has made submissions that he has provided disclosure where required, he has conceded that there have been circumstances where his disclosure was lacking.
The Full Court of the Family Court, in In the Marriage of Weir (1992) 16 Fam LR 154, affirmed the following principles set down in Black and Kellner (1992) 15 Fam LR 343 in relation to circumstances where there has been clear evidence of non-disclosure. The principles, as set out by the Wife, and accepted by me, are as follows:
(a) a party should not be able to take advantage of his or her own non-disclosure;
(b) if there is sufficient evidence to support a finding that a party has failed to make full disclosure the court has jurisdiction to make an order in relation to unidentified or undisclosed property;
(c) where there is clear evidence of non-disclosure the court should not be unduly cautious in making findings in favour of the other innocent party; and
(d) failure by a party to fulfil its duty of disclosure does not relieve the court of its responsibility of applying the provisions of the FLA in light of such findings as can be made.

More recently, Collier J in Leonardi v Leonardi [2011] FamCA 266 cited Wier and Black and Kellner with approval, stating at [450] – [452] that:
The authorities to which I have referred indicate that in the event that the court is satisfied that a party has not been frank in making appropriate disclosure to the court then the court should not be unduly cautious in making findings in favour of the other party.

The Husband’s capacity

Though it is the Husband’s case that he has no capacity to pay a maintenance order, his disclosure to support this has been both selective and limited.
The Husband gave oral evidence that pursuant to his skill set and training, he would expect to earn in the region of $250,000 as a CEO if employed. The Husband has not provided any evidence to the Court that he is not employable.
On 20 January 2013, the Husband signed an employment contract with N Company, appointing him to the role of advisor. In cross-examination on 17 January 2013, when asked about whether he had been actively seeking work, the Husband made no mention of any potential employment ventures with N Company.
The Husband maintained his position in further questioning on 21 March 2013. He submitted that the contract simply came to him on 18 January 2013, and that he had no knowledge of it prior to that date. The Wife submits that he had entered into negotiations with N Company before he received the contract, and that the contract had been in his possession on 17 January 2013 when he gave evidence. The Wife sought disclosure of the email which attached the contract to clarify two things: first, whether the contract had been received by him prior to his giving evidence on 17 January 2013 and secondly, whether the content of the attaching email gave any indication that there had been negotiations prior to the contract. The Husband did not provide disclosure of the attaching email.
In light of the non-disclosure, I am at liberty to find that the Husband did in fact know, to some extent, about the contract of employment at the time of trial. This goes to the issue of the Husband’s capacity. As at 17 January 2013, the Husband knew that a contract from N Company was forthcoming and would allow him to generate future income.
Further, in relation to the issue of capacity, the Husband did not adhere to his duty to provide disclosure to the Wife in relation to his appointment as CEO of V1 Pty Ltd and V2 Pty Ltd and his appointment as consultant at V3 Pty Ltd. It was only as a result of the Wife’s diligent research that this information became available to the Court. The Husband has admitted in his evidence that his skills and training would allow him to earn income in the amount of $250,000 per annum as a CEO. He stated that the former CEO of I Company (in liquidation), a global transport industry company which shares countless similarities with V3 Pty Ltd, was being paid $250,000 per annum. The Husband has stated in his evidence that, while at the moment his role as CEO is an unpaid role, he hopes that the company will become successful and profitable. It stands to reason that there must have been some sort of talk or negotiations as to his payment. As a businessman who believes he is worth at least $250,000 per annum, it is hard to believe that he would invest so much time and energy into the development of this project if it were to receive any less than that. No information about this has been provided to the Wife or the Court.
In the absence of further and better disclosure in relation to the Husband’s employment, I find that his earning capacity is at least in the amount of $250,000 per annum and while he presently has the capacity to earn that, he is simply choosing not to.

The Husband’s access to financial resources

Throughout the proceedings, the Wife has made submissions that the Husband had and continues to have access to undisclosed financial resources. As stated above, it is the Husband’s case that he has no income and is meeting all expenses through loans from friends and family. The Wife has long disputed the origin of these purported loans and has recently raised questions about there being no evidence as to his general living expenses.
The Husband, despite maintaining his position, has provided limited and selective disclosure as to his access to financial resources. While he has recently provided a number of his personal bank statements, these only relate to small time frames and are thus unable to substantiate all of the loan payments he purports to have received. Further, as only small time frames are provided, there arise situations where the origin of funds in the accounts cannot be accounted for.
In support of the Husband’s evidence that he is receiving loans from his sister and her husband, the Husband has provided to the Wife bank statements for his HSBC accounts and his Commonwealth Bank Day to Day account.
It is the Husband’s evidence that each month, a loan in the amount of $9,400 is received from his sister and her husband. Though he has provided, by way of disclosure, the HSBC loan account statement which shows the receipt of those funds from his sister, the Husband has not, as requested by the Wife, provided evidence of the origin of those funds in his sister’s account. It is the Wife’s case that this money is, in fact, his own, and that his sister and her husband, being employed as health care workers, who are of limited means and have two children to support, are in no way capable of meeting payments of almost $10,000 per month. Further, while the Husband states that these payments have been going on for some months now, the HSBC statement he has provided only gives evidence of the funds entering his account in the month of February 2013.
The Husband has had ample opportunity to explain the ability of his sister and her husband to meet these loans, and provide evidence as to the source of the funds. He has also had the opportunity to show that these loans have been met each month while he purports to have been impecunious. He has not done so. This is exemplified in the email below, which was met with no reply from the Husband.
On 16 March 2013 at 3:42:51pm, the Wife sent an email to the Husband via his usual email address. In this email she states:

Subject: DISCLOSURE TO BE PROVIDED BY 5pm MONDAY THE 18^th March 2013

Dear [the Husband’s first name],

I note that our matter is listed before Justice Bell for the day on the 21^st of March.

I have been ordered to file and serve an affidavit and any further material by 4pm on Tuesday the 19^th March.

It is my understanding that it is your obligation to provide disclosure of all relevant material without me having to make a direct request for it.

I have had to provide evidence of all my borrowings from my Father and all of my Father’s financial affairs as well as my own.

Unfortunately, you have not been meeting your obligation and therefore your disclosure is incomplete.
So that it cannot be inferred that I have not asked for particular documentation, I am formerly requesting it now.
Accordingly, I require the following materials by way of disclosure by 5pm on Monday the 18th March.
1. Disclosure of the bank account of [Ms Y Skinner], since January, 2012. Specifically but not limited to include the source of the finds into [Ms Y Skinner’s] account and also transfers of $3700.00 on the 07th Feb into your HSBC account number …02.
2. The transfer of $5700.00 into your HSBC account number …59 on the 7th Feb 2013. It is important for me to see the source of these funds.
3. I note that your next home loan repayment was due on the 8th of March. It is now the 16th of March. could you please disclose how this has been paid?
4. The loan of $4000.00 on the 12th Feb, 2103 into your commonwealth bank day to day account number …81.
I would also like disclosure since January, 2012 to present of any other bank accounts [Ms Y Skinner] holds in any other name.
I understand that [Ms Y Skinner] is your sister and she goes by the name [Ms JJ Vallin], or [Ms Y Vallin], or [Ms Y Best]. [Skinner] being her maiden name. [Best] being her first husband’s name. [Vallin] being her second (and present Husband’s name). [JJ] being her preferred name.
It is very possible that there could be amounts held in each of these names and yet they are the same person.
It is also my understanding that [Ms Y Skinner] is a part time worker in [health care] and her husband [Z], works as a [health care worker] at the … Hospital.
I need disclosure of [Ms Y Skinner’s] weekly income.
4. Disclosure of [Ms S’s] bank account. Specifically, but not limited to show the source of $9000.00 ( transaction description – deposit CBA from [Ms S’s first name]) into your Westpac reward saver account. Customer number – …70.
5. I note that [Ms S’s] maiden name was [X]. Please disclose bank accounts loaning to you monies in the name of [Ms X].
6. I note that on the 19th of November, 2012 you withdrew $9435.89 from you Westpac reward saver account. Please explain and give evidence of what this was used for.
7. On the 17th January you withdrew $3713.44 from your HSBC account number …00 to pay off your American express centurion card. Please disclose your most recent Amex centurion account.
8.On the 3rd December, 2012, you withdrew 4212.33 from your Westpac eSaver account. Transaction description is ( payment by authority to Maxquarie – …90 interest) Doe you still hold your Macquarie investment? Please explain the purpose of this payment.
9. On the 13^th Feb, 2013, you transferred $590.00 to [BB Company]. I understand that [BB Company] one of the companies in your direct control. Please disclose which bank this money was transferred to and also any accounts for [BB Company].
10. I understand that [Skinner] PTY LTD is still in administration. Please disclose how you are paying [CC Accountants] monthly invoices and how much you have paid them todate.
11 On the 26th Feb, you disclosed a fee retainer letter from Haynesboone solicitors in the USA.
The letter states that “ the company has agreed to pay a $10 000 retainer and an invoice will be sent each month.” Please disclose where you paid the $10 000 retainer from.
12. I need disclosure of any credit cards in your name personally and in your name on behalf of the company [V3].
13. Disclose any job applications made by you where you actually have a salary.
14. Where are [V4], [V2], and [V1] registered?
15. In or around the 31st October, 2012, [Ms NN Skinner] lent you or ( the business) a sum of $484 000. Please have [Ms NN Skinner] disclose the source of these funds. I request disclosure of this particular account from January, 2012 to present.
19. On the 1st Nov , 2012, [Ms MM] lent you( or the business)$200.000. Please have [Ms MM] disclose the source of these funds. I request disclosure of this account from January, 2012 to present.
20. I have evidence in my possession that you are the Managing Director of [V3]. AS Managing Director you would have access to the companies accounts and reports to the bank.
21. Please disclose which bank or banks are funding [V3].
22. I note that [V3] has been trading since 7th December 2012. Please disclose any and all reporting to the bank in reference to this company, That is, how much is it making etc etc.
I assume it is making a profit otherwise it could not be trading.
23. Please disclose all employees of [V3] and what they are being paid.
Kind regards,
[The Wife’s first name]
(errors as in original)

In respect of the accounts which the Husband has disclosed, he has not provided the “full” disclosure that his duty requires of him. Again, the issue of the origin of the funds in the accounts disclosed arises and again, the question remains unanswered.
The Husband disclosed a statement from his Westpac account which he uses to make weekly child support payments to his other child, T. While there is evidence that he pays the amount of $24.32 per week, the statement which he provides does not go back far enough to reveal the origin of the opening balance for the statement of $708.57. In failing to provide a statement which dates back far enough to show where the funds from the account are originating, the whole purpose of disclosure is undermined.
The same issue arises in relation to two other accounts which the Husband provided by way of disclosure. The Husband makes cash deposits into both his Westpac eSaver account ending …46, and his Commonwealth Bank Day to Day account ending …81. Again, as the Husband is well aware, the question before the Court is where his money is coming from? By making cash deposits into accounts and providing no evidence as to where the money for these came from, he is again avoiding providing evidence of the origin of the money. Though, I accept, these deposits are small, in circumstances where the Husband states that he has no income at all, they become very relevant.
There is no evidence before me whatsoever, despite questions from both myself and the Wife, as to how the Husband is presently paying for food, petrol and/or public transport, incidentals, his internet, his phone bills, and his cable television. I have raised this during the trial and prior to the final day of trial, on 16 March 2013 at 5:08:38pm, the Wife sent an email to the Husband via his usual email address. In this email she states:

… Subject: FURTHER DISCLOSURE TO BE PROVIDED BY 5pm MONDAY the 18^th MARCH
Dear [the Husband’s first name],
Please provide by way of disclosure the following evidence:
1.How are you paying for food, petrol, and incidental living expenses, your Internet and cable TV.
2.If you are borrowing cash, please give details from whom, how much and have that person/s provide disclosure of the origin of the cash funds.

Kind regards,
[The Wife’s first name]

No response was received by way of email as per the evidence before me.
While I accept that the Husband did provide details of his living expenses to the Court in his earlier material, the detailed amounts were for the financial year ending 30 June 2012, which pre-dates the liquidation of Skinner Pty Ltd.
It stands to reason that, if the Husband were meeting his living expenses through loans, he would have also provided the evidence of these to prove his case that he is living off loans. He has not done so.
In light of the evidence above and the law which I have stated above, I am at liberty to reach the conclusion that the Husband has access to his own financial resources with which he meets his general living expenses.

CHILD SUPPORT DEPARTURE ORDER ON A FINAL BASIS

At paragraphs 68 and 69 of her submissions filed 20 September 2012, the Wife seeks a departure order from the administrative assessment of child support payable by the Husband. The amount of child support the Wife seeks is $1,013.27 per week plus school fees, compulsory uniforms, books and materials, excursions and extracurricular activities.
Since the interim consent Order was made by Justice Murphy on 14 June 2011, a number of child support assessments have been made. At the final date of trial, the parties were ad idem that the child support assessment in place was for $0 per week. The assessment was based on the Husband’s annual income of nil. My determination as to whether there should be a departure order relates to that assessment.
Under section 116(b) of the CSAA, I have jurisdiction to make such an Order.
Section 117 of the CSAA provides the requirements which must be satisfied for this Court to order a departure from a child support assessment. In Gyselman and Gyselman ( (1992) 15 Fam LR 219 at 224), the Full Court of the Family Court identified the three-step process set out in s117(b) which must be followed for such determinations:

1. Whether one or more grounds of departure in s117(2) is established. If so;
2. Whether it is “just and equitable” within the meaning of s117(4) to make a particular order.
3. Whether it is “otherwise proper” within the meaning of s117(5) to make a particular order.

The Full Court went on to note that, in respect of the grounds in s117(2):

…each of those ground is prefaced by the words “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (at Fam LR 815 FLC 77,897), Kay J, adopting the view in In the Marriage of Philippe (1977) 4 Fam LR 153; [1978] FLC 90-433 at Fam LR FLC 77,202 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The approach to the interpretation and application of the particular grounds in s117(2) must be guided by that qualification.

I make my determination by reference to the above principles.

(1) Whether in the special circumstances of the case, a ground of departure has been established

Subsection (2) of Section 117 of the CSAA provides the grounds for departure for the purposes of subparagraph (1)(b)(i). The grounds which have been raised in this case are ss117(2)(c) (ia) and (ib). These provide:
…(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
…(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent…
In Richardson & Older (No. 2) [2008] FamCA 512 at [54], Fowler J held that this ground for departure was held to be satisfied where there was a disparity between the income which the Husband was deemed to have when the child support assessment was made, and the Husband’s actual income, which was lower than the deemed amount.
The Wife submits that special circumstances in this case exist for the following reasons:
(a) The husband has reported in each of the past 4 previous years a taxable income of either nil or substantially negative. The assessment of child support pursuant to the provisions of the CSA Act occurs by use of formula which is applied to taxable income of the liable parent. In each period since separation and currently, the husband’s taxable income will not generate any assessed liability.
(b) The standard of living of the husband prior to separation and at all times since separation is at odds with his reported income to the Tax Office.
(c) The assessment of child support in place at the time of trial for the child B is annexure JLC1 to the wife’s Affidavit filed 10 July 2012. For reasons that are inexplicable the assessment prepared by the Child Support Agency calculates that the husband should pay $243 per week for the child based on him having a 2011 taxable income of $110,000, although the document does not establish from where the Child Support Agency have derived that amount when the actual taxable income for the husband for that financial year was ($539,795).
(d) The actual need of the child as particularised by the wife is $1,013.27.
(e) The husband himself sought and proposed a child support departure amount of $1,200 throughout the proceedings until the wife agreed the same and then he changed his position.

On the facts of this case, I find that special circumstances exist which “…establish something which is special or out of the ordinary…” (Gyselman and Gyselman (1992)15 Fam LR 219 at 224). The facts of the case necessarily set it apart on two grounds. First, due to the disparity between the Husband’s taxable income which formed the basis for the assessment which was in place as at the final day of trial, and his earning capacity; and secondly, the disparity between his standard of living and expenditure.

(i) Disparity between the Husband’s taxable income and his earning capacity

As evident from the figures above, the Husband’s taxable income, being in many assessments negative amounts, is at odds with his earning capacity, which is at least $250,000 per annum.
While I appreciate that the Husband had, as he noted in his affidavit filed 9 January 2013, “…statutory obligations as the company director to give all reasonable assistance to the administrators and receivers in the administration process… [and] ASIC reporting responsibilities…” combined with the care and support of his ill father and his family, the company as at the final day of trial was in liquidation, and as a result of that liquidation, many of these onerous responsibilities had lifted. I appreciate also that the company in respect of which the Husband lists himself as CEO is in a negative financial position, as visible in Annexure A of his affidavit filed 21 March 2013. But it is his choice to volunteer his time there.
The Wife should not be penalised because the Husband, as he states, “…merely [chooses] to be self-employed…” and as a consequence, is unable to generate an income until “…the demands of these proceedings end…” in order for him to “…be able to invest in re-establishing an income via [the businesses for which he states he is a volunteer]”.
I therefore find that the special circumstances threshold is met in this regard. These circumstances set the case apart from the ordinary as there is a large disparity between the Husband’s taxable income and his earning capacity. The principle reason for this disparity is that the Husband chooses not to work in paid employment, or, as is the case with his role as an advisor at N Company, chooses not to generate income through his present employment. But what is relevant to my determination is that the Husband has the capacity to work, evidenced by his skills, training and ability to make himself available to work as the CEO of V1 Pty Ltd and CEO of V2 Pty Ltd, and as a consultant at V3 Pty Ltd, regardless of whether he is remunerated or not.

(ii) Disparity between the Husband’s taxable income and his standard of living and expenditure

From the evidence before me, which, as I have stressed, leaves many gaps in the Husband’s present financial circumstances, despite the Husband’s lack of income, he has been able to:
·meet his monthly home loan repayments of $9,305.85 to HSBC;
·make payments on his luxury car Make Q of $5,394.12 per month, which he states are now in arrears;
·meet monthly payments of $271.40 for the maintenance of his pool;
·meet payments to Origin Energy for the electricity at his home, which for the last quarter appear to have been $927.41;
·pay the quarterly rates at his home of $799.60;
·meet fortnightly to monthly payments for the mowing of his lawn at his home; and
·meet weekly payments of $24.32, to his child of his former marriage.

The Husband’s evidence is that most of these expenses are met by loans from his sister; further, it is necessary for him to meet these expenses, or otherwise, the bank will foreclose. Regardless, the Husband’s annual expenditure, based on these figures alone would need to be somewhere in the region of $190,000. I strenuously note, that this figure does not include his current expenses for food, incidentals, medical, fuel and transport. The Husband’s expenditure, therefore, greatly outweighs his purported income. Further, the Husband’s standard of living is also at odds with his taxable income.
These circumstances set the case apart from the ordinary as there is a large disparity between the Husband’s taxable income for the purposes of the child support assessment in issue, being $0, and his standard of living and annual expenditure.
Upon having found that there are special circumstances, I now move to my determination of whether in the special circumstances of the case if the present child support assessment were to be relied on, this would result in an unjust and inequitable determination of the level of financial support to be provided by the Husband because of the Husband’s earning capacity. This would of course be so. To rely on the assessment of $0 per week when the Husband has the capacity to earn at least $250,000 per annum and pay child support in accordance with that amount, would be unjust and inequitable.
I therefore find the first limb of this test to be satisfied.

(2) Whether it is “just and equitable” within the meaning of s117(4) to make a particular Order

Section 117(4) of the CSAA provides:

In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard:

(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and

(da) the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself;
(ii)any other child or another person that the person has a duty to maintain; and

(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child;
(g)any hardship that would be caused:
(i)      to:
          (A) the child; or
          (B) the carer entitled to child support;
          by the making of, or the refusal to make, the order; and
(ii)      to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;

by the making of, or the refusal to make, the order; and
(iii)to any resident child of the parent (see subsection 10)) by the making of, or refusal to make, the order.

The Husband and Wife have addressed these points in their written and oral submissions.
With regard to subsection (a), it is accepted that as the father of the child, the Husband has a primary duty to meet the needs of his child. Presently, he is not doing so, despite the Order of Justice Murphy dated 14 June 2011.
With regard to subsection (b), the Wife has detailed the proper needs of the child to be in the amount of $1,013.27 per week. These are detailed in the table below. In her written submissions, she notes the expenses “…[were not] the subject of any significant challenge during her cross-examination…”. She submits that the proper needs of the child significantly outweigh the current assessment. Though the Husband has submitted that many of her claimed expenses are not reasonable, in circumstances where that assessment is $0, I can come to no conclusion other than that the child’s needs do outweigh the amount payable pursuant to the current child support assessment.
With regard to subsection (d), it has been and remains the submission of the Wife that the Husband has had, and continues to have, access to income and financial resources. I accept that it is the case that the Husband’s Suburb U residence is being sold in accordance with the instructions of HSBC who hold the mortgage over it. The proceeds of sale will go towards paying off his debts owing to HSBC. With regard to the Husband’s other property, I also accept his evidence that there is no equity in his luxury car Make Q. The Husband, in both his written and oral submissions has maintained that he has no income or financial resources. In the absence of full and frank disclosure of all his bank accounts and access to funds, I made the finding above that the Husband does in fact have access to financial resources aside from loans.
It is the Wife’s submission that her income is minimal, being confined to Australian Government family assistance payments of $210 per fortnight, loans from her father in the amount of approximately $2,000 per week, and rent from the properties which she owns; however, those properties are negatively geared. These properties are now on the market to be sold and have little to no equity in them, as per her evidence.
With regard to subsection (da), section 117(7B) of the Child Support Assessment Act 1989 (Cth) provides the factors relevant to a determination that the “parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act”. Pursuant to the subsection (a)(i), the Husband does not work in paid employment despite having the opportunity to do so. As previously noted, the Husband has stated that his present status of employment, being a volunteer, is a choice. While he is capable of generating income in the amount of at least $250,000 per annum as a CEO, and an indeterminate amount as an advisor, he chooses instead to volunteer his expertise in the pursuit of building up another transport industry company which he hopes to gain the same success as his former company. Further, in accordance with subsection 117(7B)(b)(i), the Husband’s decision not to work is not justified on the basis of his caring responsibilities. The Wife is the primary carer of the child, and the Husband has overnight time with the child for varying lengths of time. This time is not significant enough to warrant the Husband generating an income of nil as a result of his choice to volunteer his expertise in lieu of being paid. As such, I find that the requirements of this provision are satisfied.
The Wife submits that while her “…earning capacity has been effectively eliminated by her responsibility for the full time care of [the child]…”, she has made herself available for casual employment in her field two days per week. Further, the Wife would not meet the threshold of having capacity in any event as, with the primary care of a toddler, she would not meet the second threshold in section 117(7B).
With regard to subsection (f), the Wife relies on the weekly costs of caring for the child which she states to be $1,013.27 per week.
With regard to subsection (g), the Wife submits that she would experience significant hardship were the Court to refuse to make the Order she seeks in relation to child support. In support of this, she draws upon the substantial gap between the assessed amount of $0 and the actual need of the child which she would be liable for were the Order not made. She notes that the child would also suffer hardship in respect of an Order not being made. In respect of the Husband, the Wife submits that the Husband would not suffer financial hardship as a result of the order she seeks being made. The Husband has given evidence to the Court that he has no income and is unable to meet an order for child support in respect of the child.
Upon considering the factors and the evidence before me, I consider that in light of the Husband’s earning capacity, the Wife’s earning capacity, the needs of the child, the current child support assessment of $0, and the hardship that would be caused to the Wife and child were the Husband to not meet an order for child support, it would be unjust and inequitable to allow the determination to stand.

(3) Whether it is “otherwise proper” within the meaning of s117(5) to make a particular Order.

Section117(5) of the Child Support Assessment Act 1989 (Cth) provides:

In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:

(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the fate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

Having considered section 117(5), I am of the view that it would be otherwise proper to make an order for child support. In the circumstances of the case, the Husband’s earning capacity is clear, as is his duty to support his child. In making a departure order, the child will have the benefit of a level of financial support from his father which will benefit the child, without placing unreasonable financial expectations on the Husband.

Quantum: Child support

Having established that the grounds necessary for a child support assessment departure have been satisfied, the question then becomes quantum.
The Wife seeks an order that the Husband pay $1,013.27 per week in child support, plus school fees, compulsory uniforms, books and materials, excursions and extracurricular activities. She has provided particulars for each of the expenses which are detailed below:

Item	Amount
Rent – [DD Street, Suburb W]	$360 (half share)
Electricity – [DD Street, Suburb W]	$27.05 (half share)
Gas – [DD Street, Suburb W]	$7.22 (half share)
Nappies	$65
Toiletries	$25
Medical	$38
Chemist	$10
Food	$120
Clothes	$70
Toys	$25
Activities	$60
Petrol for [Land Rover]	$58.50 (half share)
Motor vehicle maintenance	$70 (half share)
Gifts	$15 (half share)
Holidays	$67.50 (half share)
TOTAL	$1,013.27

The Husband has made submissions that the Wife’s orders sought in relation to child support are excessive and have the effect of making him wholly responsible for the needs of the child. In his written submissions filed 26 September 2012, the Husband was of the view that child support in the amount of $408 per week would be reasonable. He also made reference to the fact that, pursuant to the child support tables, the highest amount of child support applicable for a child the age of the subject child is $362 per week.
I accept the Husband’s submission that, as stated by Federal Magistrate Brown in Carr & Vincent (No 2) [2009] FMCA fam 684, the Wife “…should not consider that she is entitled to bill [the Husband] for every conceivable item of expenditure relating to the children and expect automatic reimbursement…”
Having reviewed the expenses provided by the Wife, I consider that in the circumstances, the reasonable amount of child support payable would be in the order of $665 per week, or $34,580 per annum. Particulars for this amount are detailed in the table below.

Item	Amount
Rent	$200
Electricity & Gas	$30
Medical	$30
Chemist & Toiletries	$25
Food	$120
Clothes	$40
Toys	$25
Activities	$60
Vehicle expenses including fuel and maintenance	$70
Gifts	$15
Holidays	$50
TOTAL	$665

In addition to this amount, the Husband shall be liable to share equally in the costs of the child’s school fees, compulsory uniforms, books and materials, excursions and extracurricular activities.

Retrospective Child Support

Section 141(h) of the CSAA provides:
(1)In exercising its powers under this Act, a court may do all or any of the following:
(h) make an order expressed to be retrospective to such day as the court considers appropriate.

The issue of retrospective spousal maintenance was reserved to be determined by the trial judge pursuant to Order 5 of Justice Murphy’s Orders made 14 June 2011 and has been raised by the Wife in respect of the period from the date of separation, being 20 September 2009, up until 13 June 2011.
At paragraphs [8] and [9] of her submissions filed 11 February 2013, the Wife sought $39,630.57 by way of retrospective child support for the period of 20 September 2009 to 13 June 2011. The Husband contended that pursuant to section 116 of the CSAA the Court does not have jurisdiction to make a departure order in relation to the retrospective child support sought. Section 116 of the CSAA provides that the departure must be in respect of an administrative assessment of child support. The Husband submits that there has been no child support assessment until 22 January 2010 therefore no departure Order can be made for period from 20 September 2009 to 22 January 2010.
In the absence of an assessment, it is the case that a departure order cannot be made during the period from 20 September 2009 to 22 January 2010. However, the issue which follows from this is whether a departure order is necessary for the period of 23 January 2010 until the date of Justice Murphy’s Order, being 14 June 2011?
On the evidence before me, during the period in question, the Husband made the following payments (p.29, para 245, Affidavit of Wife filed 5 Aug 2011):
·    On 26 February 2010: $133.91;
·    From 5 March 2010 – 16 April 2010: weekly payments of $22.86; and
·    From 20 April 2010 – January 2011: weekly payments of $600.
The Husband also, in his evidence notes that he provided the Wife with $42,000 being the proceeds of sale of jewellery following separation, and in addition to this, permitted her and the child to live in his house rent free for the four months following separation. Further, in January 2010, he rented a unit for the Wife for a month, yet the Wife chose not to live in it with the child.
In light of the above evidence, I see it fit to make a retrospective order for child support which reflects the time period from February 2011- 13 June 2011. This too will be in the amount of $665 per week, and totals $11,970 plus interest. On the evidence before me the Husband was more than capable of making payments during this period.

SPOUSAL MAINTENANCE

Pursuant to paragraph 43 of her written submissions filed 20 September 2012, the Wife seeks spousal maintenance in the amount of $1,324.27 per week. This amount is particularised in her affidavit filed 10 July 2012. The amounts are as follows:

Item	Amount
Rent – [DD Street, Suburb W]	$360 (half share)
Electricity – [DD Street, Suburb W]	$27.05 (half share)
Gas – [DD Street, Suburb W]	$7.22 (half share)
Food (not inclusive of eating out)	$200
Mobile Phone	$33
Petrol for [Land Rover]	$58.50 (half share)
Motor vehicle maintenance	$70 (half share)
Clothing	$150
Medical and Dental	$50
Medical Insurance (MBF)	$32
Entertainment	$100
Chemist and Pharmaceuticals	$20
Dry Cleaning	$10
Gifts	$15 (half share)
Hairdressing and toiletries	$85
Gym membership	$39
Holidays	$67.50 (half share)

Pursuant to section 74 of the Act, the Court “…may make such order as it considers proper for the provision of maintenance.” The Wife must establish that she is unable to support herself adequately and that the Husband is reasonably able to do so (s72 of the Act). Section s75(1) of the Act provides that, “In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2)…” that is, the s75(2) factors which are well cited by and known to this Court.
In Bevan and Bevan (1995) FLC 92-600, the approach to assessing a maintenance claim was set down by the Full Court to be as follows:
Taken together then, we would state the law as being that an award of spousal maintenance requires:
1. a threshold finding under s72 [now s72(1)];
2. consideration of s74 and s 75 (2);
3. no fettering principle that the pre-separation standard of living must be automatically awarded where the respondent’s means permit; and
4. discretion exercised in accordance with the provisions of s74, with ‘reasonableness in the circumstances’ as the guiding principle.

The Wife outlines in her submissions the factors that relate to her inability to support herself, namely;

·she is currently aged 42;
·when the parties separated, she was not in any employment and had not been in any full-time employment since November 2007;
·since the separation the Wife has not been in any employment, the reason for this being that she has had the full time care of the child;
·when the parties separated, the child of the marriage was only 27 days old;
·she had experienced health issues during and since the birth of the child; and
·the child has had various health issues.

The Wife has degree qualifications in the education field. On the final day of trial, the Wife informed the Court that, effective as at after Easter, she has made herself available for casual employment in her field for 2 days per week.
Though the Wife has three investment properties, they are negatively geared. In her evidence which was not contested by the Husband, she has stated to the court that these are now on the market to be sold as she can no longer afford to keep them. In terms of income, she receives assistance from Australian Government family assistance payments in the amount of $210 per fortnight. This amount is insufficient to meet the needs of supporting both herself and the child and as a consequence, the Wife supplements this amount with loans from her parents.
I am satisfied that the Wife is unable to support herself adequately while maintaining primary care of the child.
I turn now to the question of whether the Husband is able to do so. As it has been found by this Court, and accepted by the Husband, the Husband has earning capacity in the amount of $250,000 at least per annum as a CEO. The Husband submits to the Court that he has no income at present, is liable for personal guarantees upwards in the amount of three million dollars and is living off loans from family and friends.
I accept that this Court’s approach to capacity, as a rule of thumb tends to be exercised more generously in favour of the respondent when assessing the issue in relation to maintenance applications, as opposed to child support applications. In the case of DJM v JLM (1998) FLC 92-816, the Husband’s earning capacity was far in excess of his actual income. The Full Court made their assessment in relation to the Wife’s application for child support based on the Husband’s earning capacity, but made the finding that he had no capacity to pay spousal maintenance based on his income.
While on the facts before me, there may very well be an argument that this Court should make a finding in accordance with the Full Court in DJM v JLM, what sets the present case apart from the Full Court’s decision is the Husband’s access to financial resources. In support of that, I refer to my findings above that the Husband does have access to financial resources which he has not disclosed to the Court.
I am bound also to consider whether the Husband would have the capacity to pay, once having met his necessary commitments. In effect, therefore, I am dealing with Husband’s “surplus”. The Husband, pursuant to my Order will be liable to pay $34,580 per annum in respect of his child support payments until the child turns 18. The Husband also has the liability of paying off his home loan and luxury car Make Q. However, in respect of those payments, I note that he is meeting these payments with loans from his sister and her husband, and further, that once his house is sold (it is already on the market), and the vehicle paid off, they will no longer be a monthly expense of some $12,000.
Further, the Husband attests to being liable for loans which he received from members of Business Organisation P, which total over one million dollars. In the absence of many of the actual agreements having been placed before the Court to provide me with time frames for repayment, or evidence of the verbal agreements, I exercise my discretion to come to the conclusion that these loans can be met by the Husband at a later date and thus permit his obligations to his Wife and his primary duty to maintain his child to take precedence.
As such, on the weight of the evidence before me, I find that the Husband has the ability to pay an order for maintenance.
Turning then to my consideration of sections 74 and 75(2). In addition to the Wife’s submissions in relation to the provisions, I also note the following:
·the Husband is 45 years of age;
·the Husband is in gainful employment, being his role as an advisor with N Company and has both the physical and mental capacity to be in appropriate gainful employment;
·The Husband has both the physical and mental capacity to be in appropriate gainful employment;
·the Husband has the duty to maintain his child of another marriage;
·the Wife’s earning capacity would be increased by her ability to be able to pay for child care to enable her to undertake further studies, as she has stated on the final day of trial; and
·the marriage endured a period of some 18 months, and while the Wife did leave her employment at the commencement of cohabitation, the time she has spent away from the work force, when considering the nature of her work, has not substantially affected her earning capacity. There is no evidence before me that the Wife has lost touch with any of the skills which she had prior to the marriage in relation to her role in the education field. Though, as she has submitted, she will need to go through the process of re-interviewing with the relevant licensing authority.
In respect of the Wife’s list of her reasonable needs, as detailed above at paragraph 103 and particularised in her Affidavit filed 10 July 2012, I cannot accept that many of these expenses are reasonable. I re-emphasise that in relation to my determination, I must keep in mind that there is “…no fettering principle that the pre-separation standard of living must be automatically awarded where the respondent’s means permit…” (Bevan and Bevan (1995) FLC 92-600).
By way of example, the Wife seeks $85 per week for hairdressing and toiletries. In her particulars for this amount, she states that she would like to, “I have my hair done … on average every twelve weeks at a cost of $300. I also have to buy hair care products, make up and toiletries which over two months I estimate being $160. I also wish to recommence attending my beauty therapist for waxing once a month which I estimate to cost $160 per month”. While I accept that the question of spousal maintenance is “…[not] to be determined on a ‘subsistence’ level…” as stated by the Full Court in Mitchell and Mitchell at (1995) FLC 92-601 (at p 81,995-81,996), in the circumstances, the expenses sought are not reasonable. As I have noted above, the half-share amount of rent the Wife seeks, being $360, is not reasonable when comparing it to the current rental market, as submitted by the Husband.
In the circumstances of the case, the Wife’s needs would be reasonably met by a payment in accordance with the amount of $350 per week set down by Justice Murphy on 14 June 2011.
This will remain in place until such time as the child reaches school age, or the Wife returns to full-time work, whichever is the earlier.

RETROSPECTIVE SPOUSAL MAINTENANCE

The Wife seeks an order for retrospective spousal maintenance to be paid as a lump sum of $57,256.50.
The Full Court in Milenkov & Milenkov (2002) FLC 93-095 found that the Court has the discretion to make retrospective spousal maintenance orders where the trial judge had found that the Husband had the means to afford to pay maintenance and the Wife established the need for such maintenance. The capacity to meet the maintenance payments is assessed not by reference to the Husband’s ability to pay at time of trial but at the time of the period for which the retrospective order is sought.
The Husband submits that in the circumstances where the Wife has received in terms of the proceeds of the jewellery and cash payments made by the Husband of $81,735.64, a retrospective order is not justified. Further, the Husband stated in his written submissions that the periods for which retrospective spousal maintenance are sought, the Husband did not have the capacity to pay such as demonstrated by his taxable income and trust drawings.
I accept the submissions of the Husband to the extent that there were payments made to the Wife during this period. However, the Wife, being in similar circumstances now as she was during the period when she and the Husband separated, save for the time periods when she was not paying rent, is able to demonstrate there was a need.
With regard to the Husband’s capacity to pay, on the evidence before me, his earnings and lifestyle during much of this time did not reflect the circumstances of a person who did not have the means to pay. One particular instance demonstrating this which has remained in my mind is found in the Wife’s evidence in her affidavit filed 5 August 2011. Here, amongst a various list of examples of the Husband’s lavish lifestyle during this period, she states at paragraph 270:
On 13 August 2010 I received an email from the Husband attaching a photograph of himself and [the child T] sitting at a pool of a new six star hotel, … in Singapore. He invited me to join him with [the child B] and told me that this arrangement was all set up and all I needed to do was ring his personal assistant. He told me that the nanny was going to fly over with [T] to Singapore.
As such, when taking into account the amounts which were provided to the Wife by the Husband, the Wife’s circumstances and the Husband’s capacity at that time, it is not unreasonable for my discretion to be exercised to make a retrospective order for spousal maintenance in the amount of $350 per week for the period of 20 September 2009 to 13 June 2011. This amount totals $31,500 plus interest.

OUTSTANDING ARREARS AND COSTS ORDERS

The Orders of Justice Murphy made on 14 June 2011

The Wife seeks the payment of arrears of maintenance pursuant to the Orders of Murphy J made on 14 June 2011. The Husband has not sought leave to appeal these Orders.
At the conclusion of the trial in September, the parties were agreed that the amount of maintenance owing pursuant to the Order of Justice Murphy on 14 June 2011 was $33,939.08. The Wife submitted in her written submissions filed 11 February 2013, that as at the date of the hearing on 17 January 2013, the arrears owing were $60,771.08 plus interest of $2,730.41. The Husband did not contest this evidence. As there was a period of some nine weeks since the date 17 January 2013 and the final day of trial, during which time the Husband has not made any payments in accordance with Justice Murphy’s Order, the amount owing is in the order of $74,721.08 plus interest.
PXIII of the Family Law Act 1975 (Cth) (“the Act”) makes provision for the enforcement of decrees.
Section 105 provides that:
(1) Subject to this part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any Court having jurisdiction under this Act.
Section 106 provides that, in respect of maintenance orders which are more than 12 months in arrears:
In determining whether to make an order enforcing a maintenance order, a court must not require that there be special circumstances that justify enforcing the maintenance order merely because the maintenance payable under it is more than 12 months in arrears.
In respect of the child support order, as it was made by consent, the order constitutes a decree under section 4 of the Act. As such, this brings the order within the ambit of section 105 of the Act.
In respect of the spousal maintenance order, this too constitutes a decree under the Act, bringing it within section 105 of the Act.
In respect of the costs order in the amount of $1,600 payable to the Wife by the Husband, this too constitutes a decree under the Act, bringing it within section 105 of the Act.

Arrears in respect of the costs Order of Justice Young on 3 June 2011

As noted above at paragraph 10 of these my reasons for judgment, the costs Order in the amount of $10,000 payable to the Wife by the Husband made by Justice Young of 3 June 2011 remains outstanding.
This Order constitutes a decree under the Act, bringing it within section 105 of the Act.

PAYMENT OF THE ENFORCED AMOUNTS AND RETROSPECTIVE MAINTENANCE ORDERS

As it is the case that the Husband, as he has stated in his affidavit filed 23 March 2013, anticipates that he will be unable to derive income from V3 Pty Ltd “…until toward the end of this year…” and in light of the weekly, child support and spousal maintenance payments which he will be liable for pursuant to these Orders, the payment of the Orders to be enforced and the maintenance arrears will be not be due until the 31 December 2013. I note here that the retrospective orders were made on the basis of findings that the Husband had the ability to meet the payments during the time period in respect of which they were ordered. However, I also note that the suspension of payment of the Orders takes into account that the sum of $129,791.08 plus interest would almost consume his entire earning capacity of $250,000 after tax. I also make note of the evidence provided to me, in respect of the Husband’s capacity, that he has available to him a large amount of tax credits which can only be used when he gains some income. As such, apart from his access to financial resources, which are indeterminate, and his access to loans, and the $2,000 - $3,000 which he has on trust for the child, consideration must be had for his ability to meet his weekly child support payments and also to support himself.

COSTS

Having taken into consideration the submissions of both the Husband and the Wife in respect of costs, I have come to the conclusion that in the circumstances of the case, both parties should be equally responsible for the costs expended in the proceedings.
Upon consideration of section 117 of the Family Law Act 1975 (Cth), and the relevant case law guiding these principles, I am of the view that the Husband’s actions do not fall within the ambit of the provision. The Husband has not been wholly unsuccessful in these proceedings, and while his actions, specifically in relation to his non-disclosure, have been less than satisfactory, they fall short of warranting the exercise of my discretion to make an Order for costs.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 16 April 2013.

Associate:

Date: 16 April 2013