SMART & SMART

[2013] FamCA 823

FAMILY COURT OF AUSTRALIA

SMART & SMART [2013] FamCA 823

FAMILY LAW – ORDERS – Discharge – Where the husband seeks that part of an order made by consent be discharged – Where the husband failed to discharge his onus of ‘new facts’.
FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the wife seeks a lump sum spousal maintenance payment –periodic spousal maintenance ordered.
FAMILY LAW – PROPERTY SETTLEMENT – Interim division of property.

Family Law Act 1975 (Cth) s79, s80(1)(h)

Strahan & Strahan (2011) FLC 93-466.
AMP Investments Pty Ltd v Trade Practices Commission (1983) 49 ALR 475.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.

APPLICANT: Ms Smart

RESPONDENT: Mr Smart

FILE NUMBER: BRC 10559 of 2011

DATE DELIVERED: 25 October 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 21 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cameron

SOLICITOR FOR THE APPLICANT: McLaughlins Lawyers

SOLICITOR FOR THE RESPONDENT: Jones Mitchell Lawyers

It Is Ordered

1. That clause 1 of the Order made 24 May 2013 be amended by deleting the words “that within 28 days of the date of these orders” and replacing them with the words “by 31 October 2013”.

2. The Husband pay to the Wife, by way of spousal maintenance, the sum of $133.00 per week with the first such payment to be made on Monday, 1 November 2013 and, thereafter, on each Monday by deposit into a bank account nominated by the Wife.

3. The Husband pay to the Wife by deposit into a bank account nominated by the Wife, by way of spousal maintenance $1,387.00 by 4.00 pm on 22 November 2013.

4. That until final order or written agreement between the parties the Husband do all things necessary to cause L Pty Ltd [“L Pty Ltd”] to pay the loan repayments payable to Westpac Bank Corporation, secured by mortgage over the real property situated at B Street, Suburb C in the State of Queensland, as and when each such repayment falls due.

5. That the Husband pay to the Wife, by 4.00 pm on 8 November 2013, the sum of $20,000.00 by way of partial settlement of property.

6. The question of categorisation of any payment made pursuant to Clause (4) of this Order is a matter for determination by the Trial Judge.

7. That all interim applications are otherwise dismissed.

IT IS DIRECTED

1. In the event that either party seeks an order that the other pay the costs of and incidental to the Case filed 20 August 2013 and the Response relied upon by the Husband on 21 October 2013:

   (a)the party seeking an order for costs file and serve brief written submissions in support of such application for costs within 14 days of the date hereof;

   (b)the party from whom costs are sought file and serve any brief written submissions in answer to any submission filed and served by the party seeking costs within a further 14 days thereafter;

   (c)the party seeking costs file and serve any brief further written submissions strictly in reply to the submission served by the party from whom costs are sought within seven (7) days of its service,

   and any such application for costs shall be determined in Chambers.

IT IS FURTHER DIRECTED

Applications/Responses

1. The Applicant Wife file any Amended Initiating Application (which sets out all final orders sought) by 29 October 2013.

2. The Respondent Husband file any Amended Response to Final Orders (which sets out all final orders sought) by 4 November 2013.

Trial affidavits

1. The Applicant and Respondent each file and serve by no later than 15 November 2013 the following:

   (a)       one affidavit setting out his/her evidence in chief;

   (b)any affidavit setting out the evidence of any professional or lay witness that the party proposes to call at the trial, not to exceed a further three (3) Affidavits;

   (c)       an updated Financial Statement;

   (d)       a Superannuation Information Form attached to an affidavit; and

   (e)an agreed Balance Sheet which sets out the assets, liabilities and financial resources of the parties and the agreed values of the same.

Disclosure

1. Each party by written request to the other no later than 6 November 2013:

   (a)make disclosure pursuant to Rule 13.20(2) of the Family law Rules 2004 as amended (the Rules) and

   (b)file a written undertaking as to disclosure pursuant to Rule 13.15 of the Rules by 15 November 2013.

List of Documents

1. A list of documents (eg, third party, disclosure, or as produced upon subpoena) which either party proposes to tender into evidence to be filed by 20 November 2013.

No further material without leave

1. The parties without the leave of the Court not be permitted to read or rely upon the affidavits or evidence of any other witnesses.

Cross- examination

1. The parties notify each other in writing the name or names of any witness not required for cross-examination by 20 November 2013.

Objections to evidence

1. The parties file and serve a list of objections to evidence if any by not later than 21 business days prior to the commencement of trial.

2. The parties file and serve a reply to objections to evidence seven (7) business days prior to the commencement of trial.

Case Information

1. Each party by 20 November 2013 file and serve the following Case Information:

   (a)       a minute of the Orders sought by the party;

   (b)       a list of the applications and affidavits relied upon by the party;

   (c)       a brief chronology of relevant events;  and

   (d)       list of witnesses and brief description of their evidence.

2. The Applicant and Respondent file and serve a summary of argument including any authorities upon which the parties intend to rely no later than seven (7) business days prior to the allocated trial date. 

Applications to appear by telephone or video

1. All applications under Rule 16.05 of the Rules for attendance at the trial by telephone or video be filed and served 21 days prior to the commencement of trial.

Compliance mention

1. The matter is listed for a compliance mention before a Registrar by telephone link at 10.00 am on 22 November 2013.  The parties are excused from attending if represented.

Rule 11.02(2) Family Law Rules 2004

1. That in the event a party fails to comply with these Trial Directions the matter may proceed on an undefended basis and the other party be at liberty to seek orders by default.

NOTATION:

A.Should it be considered appropriate at the Compliance check this matter may be listed to the Callover on 2 December 2013 for allocation of Trial Dates.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smart & Smart 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 10559 of 2011

Ms Smart

Applicant

And

Mr Smart

Respondent

REASONS FOR JUDGMENT

1. The issues requiring determination are:

   a.the wife’s application that the husband pay to her the sum of $20,000.00 by way of urgent lump sum spousal maintenance and the sum of $20,000.00 by way of interim division of property; and

   b.the husband’s application for the discharge of Order 1 of the Consent Order made on 24 May 2013 (“the Consent Order”) which required him to pay the sum of $15,000.00 to the wife and with which he has not complied.

Should Order 1 of the Consent Order be discharged?

1. Pursuant to Order 1 of the Consent Order, the husband was required to pay the wife $15,000.00 by 21 June 2013. He has not done so.

2. By correspondence dated 21 June 2013 the husband’s solicitors confirmed that he did not intend to comply with Order 1 of the Consent Order. The reason provided for this position is that, contrary to his understanding at the time he entered into the Consent Order, the husband had discovered that an overseas account (“the account”), from which he intended to make the payment, held not $22,000.00 Country U dollars but $1,700.00 Country U dollars.

3. The husband was legally represented at the time he entered into the Consent Order. He does not provide any sworn evidence detailing attempts made by him prior to entering into it to discover the balance of the account.

4. The husband asserted, via the correspondence referred to above, that his consent to the Consent Order was on the basis of his understanding that there were sufficient funds in the account to meet the interim payment to the wife’s solicitors (and to meet at least some of the costs of valuation) and that, had he been made aware that the funds in the account had been depleted, he would not have consented to the Orders made that day. In addition, the husband also asserted that he does not otherwise have available to him the funds required to comply with Order 1 of the Consent Order or to meet the costs of the valuation and the mediator’s costs at first instance.

5. The wife asserts that the husband was aware that, post separation she had accessed the account. Clearly, this factual dispute between the parties cannot be resolved at an interim hearing.

6. Whilst made in the context of discussing the proper approach to a question of discharging an interlocutory undertaking, the judgment of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc[1] is apposite:

   …Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf. Woods v Sheriff of Queensland; Hutchinson v Nominal Defendant; Chanel Ltd v F.W. Woolworth & Co Ltd. Of course, the changed circumstances must be established by evidence: Cutler v Wandsworth Stadium Ltd.

   [1] (1981) 148 CLR 170.

7. In AMP Investments Pty Ltd v Trade Practices Commission[2], Smithers J said the following at 489:

   Reliance was placed by the FLC on the provision in the undertakings that they were to operate ‘until further order’. The observations of Buckley LJ in Chanel Ltd v F.W. Woolworth and Co Ltd [1981] 1 WLR 485 at 493 are in point. His Lordship said:

   In my judgment, an order or an undertaking to the court expressed to be until further order by implication gives a right to the party bound by the order or undertaking to apply to the court to have the order or undertaking discharged or modified if good grounds for doing so are shown. Such an application is not an application to set aside or modify any contract implicit in the order or undertaking. It is an application in accordance with such contract, being an exercise of a right reserved by the contract to the party bound the terms of the order or undertaking.

   Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change in circumstances, or the party has become aware of facts which he could not reasonably have known or found out, in time for the first encounter.

   [2] (1983) 49 ALR 475.

8. In AMP Investments Pty Ltd v Trade Practices Commission[3], Fitzgerald J said the following:

   Without seeking to express an exhaustive statement of the circumstances which might be appropriate for consideration in the exercise of the discretion, it seems safe to assume that they will generally be those described in Adam P Brown Male Fashions Pty Ltd supra. Whether or not ‘new facts’ in the sense there referred to are always necessary under O 35, r7(2)(c), the parties seeking the discharge or modification of an interlocutory order will have the onus of establishing that enforcement of the order is unjust. In the absence of ‘new facts’, it will not ordinarily be unjust to insist that a party abides by an order made or an undertaking given. Even where ‘new facts’ can be pointed to, justice may require that the order or undertaking be adhered to; for example, if any alternative course would be productive of injustice to the other parties. In the event that, whichever course is followed, there will be detriment to one party or another, the court’s task will not involve a mere reassessment of the balance of convenience. The onus will remain on the party seeking to have the existing order set aside or varied. Even if the possibility be acknowledged, that despite a lack of ‘new facts’, substantial detriment which an order is causing one party may constitute injustice in the absence of some detriment to the other party from the variation or alteration of the order, in a contest in which, whichever course is followed, there will be detriment to one or other party (and this case provides a striking example of such a contest), an absence of ‘new facts’ will usually be of critical significance and will generally be decisive that justice requires that the order be permitted to stand.[4]

   [3] (1983) 49 ALR 475, 510-511.

   [4] See also Marello & Marello (No. 2) [2011] FamCA 799, a decision of Kent J in relation to the discharge of interlocutory undertakings.

9. There is no sworn evidence from the husband to support a finding that he could not reasonably have known or found out the balance of the account prior to entering into the Consent Order. In such circumstance, I am not persuaded that he has discharged the onus of establishing the existence of ‘new facts’ in the sense referred to above.

10. The evidence clearly establishes there are sufficient funds held in other accounts (including those accessed by the husband to fund his own litigation costs after the Consent Order was made) from which the husband can meet the obligation accepted by entering into the Consent Order. His unsworn assertion that a particular source of funds was not as he thought it to be does not, in these circumstances, discharge the onus of establishing that enforcement of Order 1 of the Consent Order is unjust or that it should be set aside or discharged.

11. Even if I am wrong in concluding on an interim basis that the husband has failed to discharge the onus of establishing ‘new facts’ I am satisfied, in the circumstance where the husband has access to funds held within the L Pty Ltd accounts in order to meet his own expenses, that the discharge of the husband’s obligation under Order 1 of the Consent Order would be productive of injustice to the wife and that justice requires that the Consent Order be adhered to.

12. For these reasons I dismiss the husband’s application[5] for the discharge of Order 1 of the Order made 24 May 2103.

    [5] As contained within his Response to an Application in a Case dated 21 October 2013.

13. The consequence of this determination is that the husband’s obligation to pay to the wife the sum of $15,000.00 remains. Given that the time prescribed for payment has passed, I consider it just that the terms of Order 1 of the Consent Order be amended to provide that the payment is to be made by 31 October 2013 and I so order.

14. The husband’s legal representative submitted that, by arriving at the Consent Order the parties compromised the spousal maintenance and interim property matters such that it would be unjust for the wife to be permitted to re-litigate the same matters. Had there been compliance by the husband with the terms of the Consent Order such submission may have been more persuasive. However I consider that it would work an injustice between the parties if a party could agree to the payment of monies in compromise of claims, fail to meet the terms of such agreement and then seek to rely on the agreement as the basis on which the other party’s subsequent application for relief about such matters should be dismissed.

The application for $20,000.00 by way of urgent lump sum spousal maintenance

1. Whilst the wife sought the payment of a lump sum of $20,000.00 by way of urgent lump sum spousal maintenance, it was soon apparent that her immediate concern arose out of the imminent cessation of a moratorium period for the mortgage repayments relating to the former matrimonial home in which she continues to reside.

2. The husband’s legal representative informed the Court during submissions that the husband would ensure that this expense is met and would do all things necessary to ensure that that L Pty Ltd meet the mortgage repayments of $966.00 per month until further notice.

3. The term of the order I make does not limit the requirement imposed upon the husband to an amount of $966.00 per month. Rather, I consider it appropriate that, whatever the quantum of the monthly repayments in the time until further order or written agreement of the parties, the husband do all things necessary to ensure that they are paid irrespective of the source from which such payments originate.

4. Counsel for the wife sought that this payment be characterised as spousal maintenance whereas the husband’s legal representative sought that no such characterisation occur because the husband intends to cause L Pty Ltd to pay the loan repayments. The characterisation of the mortgage payments will be a matter reserved for the trial Judge.

5. Having accepted that there had been no attempt in the evidence to identify the use for which or basis upon which the lump sum sought was arrived at, Counsel for the wife ultimately submitted that the wife’s needs and the husband’s capacity to meet them were such that it was proper that a payment of no less than $300.00 per week be made by the husband.

6. The husband’s legal representative submitted that the Court would conclude that the wife had no reasonable need for spousal maintenance given that some of her claimed expenses were exaggerated and failed to take into account the presence of three (3) other adults in her home from whom contribution could be sought to meet the shortfall, calculated to be some $228.00 per week, between her quantified reasonable needs and her income. It was submitted that the wife has the capacity to meet her needs and, therefore, her application for spousal maintenance should be dismissed.

7. The principles which govern orders for spousal maintenance are well established.[6]

   [6] See:  Bevan & Bevan (1993) 19 Fam LR 35; Mitchell and Mitchell (1995) 19 Fam LR 44; Stein & Stein (2000) 25 Fam LR 727; Brown & Brown (2007) 37 Fam LR 59; DJM v JLM (1998) 23 Fam LR 296.

8. I calculate that, exclusive of the mortgage costs, the wife’s weekly expenses which are reasonably necessary for self-support are in the sum of $745.00. I arrive at this figure by:

   a.excluding from the amount claimed ($1,240.00) the amounts for heating fuel, education expenses, supporting daughter at university;

   b.allowing half of the amounts claimed for ‘books’ and magazines’ and ‘gifts’;  and

   c.apportioning to the wife a quarter of the costs of the cost of gas, electricity, gardening, cleaning, repairs and water rates on the basis that four adults share the former matrimonial home – this amount being $55.00 per week.

9. The wife’s gross income is $932.00 per week. After deducting the amounts required to be paid for tax, superannuation contribution, insurances and car registration, which I find to be reasonably necessary for self-support, she is left with $612.00 per week. Her reasonable need for spousal maintenance is, therefore, quantified in an amount of $133.00 per week.

10. The husband has the capacity to meet this need. His Financial Statement[7] records an excess of income over expenditure in the amount of $228.00 per week. 

    [7] Filed 26 April 2013.

11. Having taken into account the matters outlined above, I consider it proper that the husband pay to the wife the sum of $133.00 per week spousal maintenance from 20 August 2013, when the wife filed the Application in a Case by which an interim order for the payment of spousal maintenance was sought.

1. I calculate the wife’s entitlement to spousal maintenance from 20 August 2013 to the making of the Order to be in the amount of $1,387.00 1,577.00. Given that the funds the husband will use to meet this payment are located outside Australia, I consider it proper that he be afforded time within which to make this lump sum payment.

The application for $20,000.00 by way interim division of property

1. Whilst the form of Order contained within the Application in a Case suggested that the wife was seeking a litigation funding order, the submission prepared by Counsel on her behalf make it apparent that, in reality, the wife is seeking an order for interim division of property.

2. In Strahan and Strahan (Interim Property Orders)[8] the Full Court:

   [8] (2009) 42 Fam LR 203.

   a.observed that there is only one exercise power under s 79 of the Family Law Act 1975 (Cth) (“the Act”) and that it was preferable that there only be one final hearing;

   b.noted that a two-step process should be followed:

   i)consideration as to whether the jurisdiction should be entertained; and

   ii)if so – the applicant needs to satisfy the necessary requirements for the exercise of power under s 79 of the Act to make the order sought;

   c.when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act, to make an interim property order, the “overarching consideration” is the interests of justice and all that is required is that in the circumstances it is appropriate to exercise the power;[9]

   [9] Ibid at [132]

   d.emphasised that, in respect of the first step, it was necessary to show more than the mere fact that at a final hearing the applicant for such order would receive the property sought or greater than that from the other party; [10]

   [10] Ibid at [139].

   e.observed that, whilst the financial circumstances of both parties are relevant at the substantive stage of the two step process, they may also be relevant to a consideration of the procedural stage of the process;

   f.noted that one example in which it might be appropriate to exercise the power to make an interim order was in circumstances where a party required funds to assist in meeting the costs of litigation – without access to such funds an injustice may be caused;

   g.commented that in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s likely costs of litigation given that the need for funds to defray litigation costs and expenses is the circumstance propounded as to why it is appropriate that an order be made;[11]

   h.observed that, once a determination is made to exercise the power, there must be evidence that satisfies the necessary requirements of s 79 of the Act;

   i.rejected the necessity to establish compelling circumstances,[12] the requirement being only that it be appropriate to exercise the power;

   j.confirmed that the power must be exercised conservatively and that the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing or that the order contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so;

   k.observed that if the order is sought under s 79 of the Act, then the Court may make such an order as it considers appropriate provided it is satisfied that it is just and equitable to make the order;

   l.accepted that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be relevant matter to take into account at the procedural or first stage;[13]

   m.noted that there is no doubt that the financial circumstances of both parties are relevant at the substantive stage and may also be relevant at the procedural stage;[14]

   n.observed that complexity in the financial affairs of the respondent and a need for an expert investigation into those affairs are not necessary pre-conditions for the making of an order.[15]

   [11] Ibid at [141].

   [12] Strahan & Strahan (2009) 42 Fam LR 203, [132].

   [13] Ibid at [138].

   [14] Ibid at [140].

   [15] Ibid at [90] citing Zschokke & Zschokke (1996) FLC 92-693 at 83,217.

3. The parties agree that the net value of the property amenable to orders pursuant to s 79(2) of the Act, exclusive of entitlements to superannuation, is in an amount of about $1,300,000.00. A number of real property assets are owned by L Pty Ltd (a corporate entity in respect of which the wife owns 49 per cent of the issued shares and the husband owns 51 per cent of the issued shares). In addition, L Pty Ltd owns 51 per cent of E Limited [“E Limited”] through which an English language school was established after separation. Given this agreement and that valuations have been completed, the financial affairs of the parties do not seem to me to be particularly complex.

4. The parties married in 1979 and separated on 5 December 2009. During their 30 year marriage they had four (4) children.  The parties had no significant assets at the time of the marriage. The wife worked for approximately the first four (4) years of the marriage and then, upon the birth of the parties’ first child, ceased working for remuneration – she undertook the primary care giver and homemaker roles. The husband worked for remuneration which was applied to the support of the family unit. During the marriage the parties lived in the Country M, Country U, City V and City W as a consequence of the husband’s employment.

5. The wife says that, in 1994, she received a personal injuries payment which the parties applied toward the purchase of the family motor vehicle. In 2000, the husband received a ‘significant’ inheritance from his late mother’s estate which was applied towards the purchase of a boat.

6. The wife is 58 years of age. The husband has just turned 60 years of age. Both parties are currently in paid employment and their financial circumstances have been briefly referred to above.

7. It is clear from this brief recitation that there could be no dispute that the wife has at least an arguable case for substantive relief which deserves to be heard.

8. The husband’s own position that property adjustment orders be made granting each party 50 per cent of the total property of the parties confirms this conclusion.  Given that the parties agree that the net value of the property is about $1,300,000.00, I am entitled to presume that the husband acknowledges that, from the pool of property, the wife is it least entitled to approximately $650,000.00.

9. The wife seeks $20,000.00 for use towards her litigation expenses.

10. I accept the submissions made by the husband’s legal representative that there is no evidence before the Court to establish the basis upon which such amount is sought or the terms of the retainer between the wife’s solicitors and the wife.

11. The absence of such evidence going to the wife’s likely costs of litigation is but one matter relevant to the exercise of discretion. Also included within such matters is the undisputed fact that the husband has recently caused a transfer of $10,000.00 from the L Pty Ltd accounts in order to meet his own legal expenses. This action establishes that the husband is prepared to utilise funds held within that corporate entity’s bank accounts – arrived at as a consequence of the rental of real properties owned by it – to the exclusion of the wife.

12. The evidence establishes that there is about $110,000.00 held in various accounts available to either the husband solely, or both parties jointly.[16] Even accepting the submission made by the husband’s legal representative that provision from these funds needs to be made for corporate tax payable in the Country M (in an amount of $10,080.00 (AUD)) and payment of the husband’s income tax of about $37,000.00 (AUD), which will be payable in March or April 2014, it is clear that there are ready funds from which the $20,000.00 sought by the wife could be paid. After allowing for the payment of Country M corporate tax, the husband’s prospective income tax, the costs of the unsuccessful mediation and valuations which the husband is to pay at first instance, the payment by the husband of $15,000.00 in accordance with the Consent Order, the funds available will, on my assessment, stand at about $24,148.00.

    [16] Some relatively small amounts being held within joint accounts.

13. I take into account the undisputed fact that, on about 3 October 2013, the husband caused $10,000.00 to be paid from corporate accounts to his solicitors. By this he has, I consider, demonstrated an ability to meet his own litigation expenses. In addition, the wife’s uncontested evidence is that a further $8,300.00 was withdrawn by the husband from the corporate accounts in the 10 day period between 3 October 2013 and 13 October 2013. I also take into account that the combined total of funds held in joint bank accounts is, at present, in an amount of about $4,887.10 – which is in addition to the funds referred to above.

14. The husband’s legal representative submitted that certain chattels – namely a motor vehicle, two (2) jet skis and a trailer – could be sold and the funds obtained used in preference to those monies standing in the various bank accounts. This course is attended by potential delay but it is, of course, open to the parties to agree about the sale of these chattels and the manner in which the sale proceeds are applied. I am not persuaded that the interests of justice require that the wife await the sale of such chattels when there are available funds which could be replenished using any sale proceeds of the same.

15. I am satisfied on the evidence that the wife is unable to meet her own costs of litigation and that, by virtue of his ability to access the funds held within corporate accounts and direct them to his own use, the husband is in a position of relative financial strength.

16. I am satisfied on the evidence that to leave the husband alone to have access to and use funds held within the corporate account and in joint bank accounts would not be a just and equitable outcome, even on an interim basis. In the circumstances, it is appropriate to exercise the power. I am satisfied that there is sufficient evidence to find, on an interim basis, that the wife has made a significant contribution in the terms prescribed by s. 79(4) of the Act. On this basis alone, I consider that I am satisfied that the wife has an entitlement to some of the assets under the control of the husband, by virtue of his role as sole director of L Pty Ltd, such that I can make an order within the meaning of s. 79(2) of the Act to achieve a just and equitable outcome.

17. I am satisfied that it is just and equitable to make the order sought and that an order requiring that the husband to pay, or cause to be paid, to the wife the sum of $20,000.00 is appropriate. For the reasons outlined above during the consideration of the timeframes within which the husband is to pay spousal maintenance for the period from the filing of the Application in a Case to the making of the Order, I consider it just that such payment be made by 4.00 pm 15 November 2013.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 25 October 2013.

Associate: 

Date:              25 October 2013