Strahan and Strahan (No 2) - [2017] FamCA 248

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO 2)

[2017] FamCA 248

FAMILY LAW – PROPERTY – Application for litigation funding by way of property settlement, maintenance or costs where substantial amounts had already been spent over 12 years – application refused.

Family Law Act 1975 (Cth)

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Strahan and Strahan (2011) FLC 93-466
Zschokke and Zsckokke (1996) FLC 92-693

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

26 April 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robinson

SOLICITOR FOR THE APPLICANT:

Westminster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Wilson

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

The application in a case filed by the wife on 14 March 2017 is dismissed.
If no later than 4.00pm (Melbourne time) on 10 May 2017, the wife requests of the husband’s solicitor that the husband pay into the husband’s solicitor’s trust account the sum of $300,000, the husband do so within 14 days thereafter.
For the purposes of paragraph 2 of these orders, the said $300,000 is to be held on trust for the wife by way of part property settlement in her favour but such monies only be released to her at the conclusion of the final hearing of the property proceedings.
ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 4 September 2017 subject to any part heard case as a four day case and such trial be held in Melbourne subject to the orders that follow.
The evidence in chief of all witnesses shall be given by affidavit.
TIMETABLE:
By 4 pm on 7 July 2017 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)all affidavits of evidence to be relied upon; and
(c)a financial statement.
The applicant pay all required court fees by 4 pm on 7 July 2017.
By 4 pm on 4 August 2017 the applicant file and serve any affidavit in reply.
Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon
SUBPOENAE
All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.
By 4 pm on 31 August 2017 all parties file electronically to … a case outline in one document setting out:
(a)      the outline of the issues in dispute;
(b)      the list of the affidavits to be read;
(c)      a concise set of orders to be sought;
(d)      the list of objections to evidence requiring a ruling;
(e)      a list of assets and liabilities.
That to facilitate the final hearing referred to in these orders, the court provide a video link to the Adelaide Registry to enable the wife (should she so chose), to attend and participate from Adelaide including giving evidence from there.
AND THE PARTIES SHOULD NOTE:
A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.
B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Strahan & Strahan (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADF 228 of 2005

Ms Strahan

Applicant

And

Mr Strahan

Respondent

REASONS FOR JUDGMENT

By her application in a case filed 14 March 2017, Ms Strahan (“the wife”) (at a time when she was without legal representation) sought the following interlocutory order:
That within 14 days of the date of this order the husband do all such things as may be reasonably required to pay to the wife’s solicitor’s trust account on behalf of the wife, the sum of $1,600,000 by way of interim settlement of property pursuant to Section 79 and Section 80(1)(h)(k) of the Family Law Act (“the Act”) or, in the alternative, that such an award be made pursuant to those provisions of the said Act and, in the alternative or supplementary thereto, pursuant to Section 117(2) (a costs order) or pursuant to Section 72 of the Act (a spousal maintenance order).
Other orders were sought but ultimately not pressed. The evidence said to support the proposed order was contained in two affidavits filed on the same day as the application.
Mr Strahan (“the husband”) opposes the application but has an alternative proposition which in essence, is that he will put $300,000 in his solicitor’s trust account to be paid to the wife for her legal fees for the forthcoming property trial upon its conclusion.
All of this sounds simple enough but it has to be seen in context.
These are substantive property and spousal maintenance proceedings which began about 12 years ago and, despite numerous court hearings, the matter might appear no closer to being heard, let alone resolved. However, in September 2016, Austin J set the case down for final hearing in April 2017. One would have thought that six months was ample time for the parties to be ready for trial where they have been arguing for years. The wife engaged lawyers in South Australia and they appeared at a first mention hearing before me early in 2017 at which discussion occurred about a trial timetable including a day being allocated before the final hearing for all outstanding interlocutory issues.
The solicitor advocate told the court that the wife was intending to pursue discovery and litigation funding at the intended allocated interlocutory hearing. Subsequently however, the wife terminated the instructions of those solicitors before any application was filed.
Quite unusually in this case, the wife, as a self-represented litigant, then filed the present application along with supporting affidavit material in which she set out complaints she had about her now former lawyers. I consider it important to observe that, to the extent that any complaint about the lawyers has been made, it is not appropriate for me to make comment let alone any finding as those persons have not only not been given an opportunity to be heard, but may not even know of the existence of the complaint.
The affidavit material of both the husband and the wife in this case, indicates there have been quite a number of lawyers involved on behalf of the wife over the 12 year journey. The wife’s current lawyers have only just joined the proceedings.
The immediate application is being determined on the basis of the affidavit material filed by the wife. I have also had the benefit of reading the husband’s untested affidavit of evidence in chief which he says he proposes to rely on for the trial.
In September 2016, in setting the case down for trial, Austin J ordered each party to file their final affidavit evidence. The husband complied; the wife did not. Thus, I am aware of the husband’s substantive application for orders but not those proposed by the wife.
The last application for substantive orders filed by the wife was in January 2009. It sought orders including parenting and child support issues relating to the parties’ only child who is now an adult.
In that application, the wife sought alteration of property interests relating to five pieces of real estate. In his amended response filed 1 March 2017, the husband agreed to transfer four out of the five properties she sought in 2009. A fifth property, not mentioned in the wife’s application, is referred to by the husband as vacant land upon which he understands the wife wishes to construct a new home.
In her application in 2009, the wife also sought a property overseas. According to the affidavit of the husband, that property was owned by an entity and it remains so.
Finally, in respect of her property application in 2009, the wife sought that the husband pay to her a sum “representing one half of the pool of matrimonial assets”. It is not clear what that means.
To the extent also that the wife sought for the trial not to commence as Austin J and I later had ordered, her request is rejected. Both the court and the husband are entitled to a conclusion of this litigation particularly as the wife has been on notice of a final hearing since September 2016. For the convenience of the husband, I have agreed to delay the start of that trial until September 2017 which gives the wife further time to undertake what I perceive to be a discovery approach that should have been completed a long time ago.
From the wife’s perspective, the problem with discovery lies in the question of her ability to fund the professionals required. A significant submission, properly and eloquently put on behalf of the wife, was that this was complex commercial litigation and notwithstanding the time that had elapsed and the lack of resolution of the discovery issue despite so much money having been spent on lawyers, justice required that the wife still have legal representation.
It is trite now to say that it seems accepted that literally millions of dollars have been spent on this case. It is time to bring it to an end even if the wife faces hurdles of the type her counsel described.
For his part, the husband maintains he has done all he can to provide discovery and financial assistance to the wife. He maintains he has paid maintenance for her support at the rate of $312,000 per annum. He has provided part property settlements as well as sums of money for litigation funding. It is very telling in this case that the period since the parties’ separation is longer than their marriage.
On 3 April 2017, the husband filed an application in a case which sought orders that he have leave to proceed to a final hearing on an undefended basis. At the request of his counsel, I have not dealt with that but adjourned it to 4 September 2017. It seems it is intended by the husband to be a metaphorical Sword of Damacles.
In her affidavit, the wife referred to her son’s health problems. It is common ground that those problems are significant. Both parties have travelled internationally with their son for the purposes of obtaining professional assistance. As best I can determine, the need to care for the parties’ son is relevant to the wife’s claim for spousal maintenance and for an adjustment in relation to property matters because of the disparity of the parties’ economic circumstances.
In respect of the immediate application for funds to pay lawyers, Mr Robinson of counsel for the wife indicated that he and his instructors had been funded only to the extent of the interlocutory hearing. No indication has been given as to what would occur if they are not funded by orders sought in the immediate application.
In her evidence, the wife set out some of the history of her dealings with past lawyers and how monies had been used. In one case, she alleges misappropriation. Even so, one must wonder what has been achieved.
I was informed that a single expert witness valuer relating to the husband’s business has been engaged over a number of years and hundreds of thousands of dollars had been spent on that exercise. I understand that in 2016, a report was concluded but even so, it is said that the wife still has a “shadow” expert accountant advising her. What all of that tells me is that either by consensual arrangement or court order, funds have been allocated previously upon the exercise of an appropriate power to enable the wife’s representation to continue but that much of that seems to have taken the wife nowhere. She is still disputing the husband’s financial position.
In his summary of argument, counsel for the husband said:
The court should treat the wife’s claims about her past representation with caution and circumspection as it is only her account that is before the court. No doubt each of the lawyers impuned by the wife would give an account different to hers, and the husband is in no position to lead that evidence.
There is much to support that assertion.
The argument went on:
There is no evidence that the wife has asked a lawyer to act for her on the basis that she will give them an irrevocable authority for their fees from the proceeds of the settlement in her favour, using the orders proposed in the husband’s amended response filed 1 March 2017 as representing the least she could reasonably expect.
There is no evidence that the wife has asked the husband for his cooperation in selling any of, or obtaining mortgage finance from the security of, the properties he proposes to transfer to her in his amended response filed 1 March 2017.
The husband’s evidence to support his contentions can be seen in his financial statement filed 1 March 2017. He deposes to IY Ltd paying him by distributions as a beneficiary of the KC Trust which is apparently set up in the British Virgin Islands, $82,440 per seek. He otherwise earns about $7000. The husband has remarried and has an eight year old child from that marriage. He lives in Hong Kong. He pays mortgages or rent of about $6500 per week. He currently owes monies on credit cards of about $60,000. He says he pays an estimated $70,000 per week for his son although counsel for the wife indicated that that figure is not accepted as being accurate by the wife. The husband also pays spousal maintenance and child support otherwise of $6000 per week.
Of his interests in property, the husband has real properties either alone or with the wife (as distinct from his present wife) of about $8.8 million. In his proposed final orders, he says he will transfer to the wife the five properties that I have mentioned on an unencumbered basis. One is said to be worth $2.5 million but the others are values about which I am uncertain. That is because he relies on values attributed to a trust by the single expert witness who valued the trust at about $2.5 million. Some of that presumably involves property proposed to be transferred. I am unsure as to what the taxation ramifications (if any) would be by the trust making those distributions.
Counsel for the husband referred to the bundle of properties being valued at $5 million but how that was calculated is not clear. If it represents the unencumbered value of the five properties, the husband also wants to include as the wife’s entitlement, that which she has already received. By his mathematical calculation, the wife has already received more than $12.6 million and another $6.8 million in cash. With all of that combined, the husband’s position is that the wife would be getting more than 30 per cent of the total assets on his proposal.
Of course, the court is dividing up what exists not what has gone. It is the task of the court to work out a just and equitable result factoring in those past spent funds.
In her evidence, the wife deposed to attending a mediation in August 2016. Whatever the intention of that was, the court was not controlling the mediation even if it was encouraging parties to use alternative dispute resolution to resolve their problem. Having regard to the time that has elapsed since this litigation began, one might reasonably conclude that alternative dispute resolution is pointless.
In respect of the future, the wife said she did not have cash or resources to give to lawyers. No evidence was provided by the new lawyers to indicate what they anticipate and it is hard to see how they could. They have no concept of how large this exercise is. That said, they have only a few months to identify the issues and obtain the evidence.
In her affidavit, the wife said that her existing property was identified in the financial statement filed with her affidavit. No such document was filed.
In respect of funding the investigation and trial herself, the wife said that she could not raise mortgage finance even on the properties to be transferred because in all but one of those, she only has a minority common interest. The difficulty with that lies in the position the husband has adopted. He set out what properties the wife can have and, as I have already mentioned also, the husband’s case is that he has not been approached to assist in respect of mortgaging those properties.
The wife went on to say that she knew from “previous experience”, the banks were not prepared to lend her money on mortgage finance because she did not have a reliable regular income to service a loan. Counsel for the husband observed that the wife’s assertion is ambiguous and not corroborated by any form of evidence. He questioned how someone could not get bank assistance where she was in receipt of $312,000 spousal maintenance per annum and to become the unencumbered owner of $5 million worth of real estate.
The wife’s evidence was that her maintenance was required and fully used to cover her living expenses but I cannot judge that because I do not have a financial statement from her. If she is not paying accommodation costs, what is the $6000 per week allocated towards?
In my view, the wife’s evidence has limited probative value in circumstances where it is not accepted by the husband.
There is no evidence that any of these properties, if transferred, could or could not be used as security by the lawyers for their fees. There is no evidence from the wife about why she had not approached the husband to join her in some form of mortgage commitment.
Counsel for the wife submitted that because of the complexity of the case, the court had to look at the overall justice of the issue to ensure that there was proper preparation. He observed that relying upon the husband’s financial statement, there was $9 million sitting in a trust account in Hong Kong. However, I am unsure whether the husband has access to those funds as no evidence was presented to indicate that any request had been made for him to disgorge them and what his reaction would have been.
Counsel for the wife also submitted that the husband’s interests could be protected by him advancing the money and the wife agreeing to permit the lodging of a caveat against one of the properties to enable any funds to be later recovered. There is some sense in that except that it does not explain why the wife has not sought to use the real properties which are being offered to her nor whether a bank will allow her funding with them as security.
In her claim that discovery is essential, the wife alleged:
By a process of stealth and deceit while I tried to deal cope with and care for our (son), the husband from 2002 to 2005 removed $142 million from our joint matrimonial account and took the money offshore removing it from any access by me.
The husband denied that assertion (see paragraph 7 of his reply affidavit 3 April 2017) “categorically”. He was uncertain as to what the wife referred to because she had not particularised the allegation. Oddly, this allegation is long-standing.
The husband in response also said that he had provided a complete and detailed accounting to the wife of his transactions with a particular bank account and he had done that by letter in March 2007. He said he also provided information and documentation relating to that same bank account to the single expert witness. Thus, whilst the evidence has not been tested, the husband has responded to the allegations as long ago as ten years and these have presumably been examined by the single expert witness.

The wife also asserted that she anticipated that the husband would not want to be cross-examined about what he had done with funds:
Especially in a context where the ATO has reserved the right to resume as a party in this action. I expect this is because information disclosed in this action may be inconsistent with what the husband told the ATO to obtain his $17 million tax assessment in 2013 in reduction of the initial $70 million tax assessment.
In respect of the wife’s allegation, the husband responded indicating that he had thus far, made a total of ten lists of discoverable documents and that most of these documents were contained in 117 boxes housed in a storage facility.
He also said that in the course of the single expert witness exercise, he had been requested to provide voluminous documentation and it had been provided. In respect of the Taxation Commissioner, he said he did not expect the Commissioner to be intervening again because he did not derive income from Australia. In his evidence in chief, the husband said that in 2012 he had negotiated with the Taxation Commissioner arising out of assessments for the years 2005 to 2011 and a deed of settlement was executed between them on 14 November 2013. Nothing has been said by the husband about the capacity of the Taxation Commissioner to re-enter the fray and presumably, the wife has seen the deed of settlement.
Thus, it is difficult to know just what the wife is seeking in her proposed discovery bearing in mind that most of it seems to have been trawled over for the best part of a decade. That said, one issue was raised by counsel for the wife which had been raised by her previous lawyers in the mention before me earlier in the year.
Counsel for the wife pointed to an unusual disclosure issue in which the husband has given evidence that he knows little about significant trust payments. That can be tested in cross-examination but, having regard to the husband’s assertions about discovery, it is difficult to see how documentation will advance that investigation. It seems that the single expert witness has looked at the issue and despite the wife having had a number of different lawyers acting for her in the past, not much progress appears to have been made beyond the assertion.
Thus, whilst I am conscious of the issue raised about the necessity to achieve overall justice, and to do that, the wife needs professional advice, it is not clear what that task involves.
I turn then to the legal issues. As the wife’s affidavit said, she pursues the lump sum under any and all of three heads of power. Counsel for the wife submitted that the asset “pool” is well in excess of the $5 million that the husband is proposing and importantly, the wife has no control over those assets. She is dependent upon the income she receives. She cannot obtain employment because she has to care for the parties’ son. Unlike the wife, she says that the husband has the capacity to pay and the control over all of the assets.
In respect of the maintenance issue, it was submitted that there is already an extant maintenance order but that that did not preclude the court making an additional lump sum order. It was submitted that the monies that the wife had otherwise received had been expended and she relied upon the present periodic payments for her support.
The husband’s submission was that the court could not be satisfied that any order of the nature pursued by the wife was just and equitable. The court could not make a finding that the wife would get more than what the husband is currently offering. He elaborated what I have already mentioned about the 30 per cent argument.
It is important to take into consideration the overall way the parties’ cases have been presented. As I have already mentioned, the 2009 application of the wife seems to be pursuing 50 per cent of the “matrimonial assets”. It is trite to say that the court is not dividing “matrimonial assets” but the interests (both legal and equitable) in the property of either of them. It is the husband’s case that the assets he currently has, have largely been acquired post-separation.
Counsel for the husband observed the large amounts of money have already been spent by the wife and as such, the court could not be satisfied that over and above what was currently being offered, the wife would get another $1.6 million. Indeed she might, but the court has to be satisfied that such an order at this stage is appropriate as well as just.
Finally it was submitted on behalf of the husband that the court could not make a finding to justify the exercise of the cost power because the material provided by the wife just did not support that.
I consider it significant that there is a submission by the husband that the whole history of this case warrants caution against the payment of cash. There are the allegations of large sums of money being used apparently ineffectively if not inefficiently and the wife is highly critical of those lawyers. There is evidence of the wife that the lawyers did not do what she wanted done and that led to the termination of their retainers. There is evidence from the wife that the lawyers did things inappropriately as well as contrary to her instructions. There is evidence of monies being retained in a trust account specifically for trial that may have been misappropriated. All of those matters led the husband to submit that the appropriate way of dealing with the problem was for him to pay $300,000 into his solicitor’s trust account to be held by them on trust for the wife by way of a part property settlement but that such funds not be released until the conclusion of the final hearing. It was submitted by counsel for the husband that that would overcome the problems just mentioned but it would also focus the mind of all concerned to get this trial concluded.
The approach to these sorts of applications requires the court to consider principles that are well known. Whilst the power can clearly be seen to be discussed in Zschokke and Zsckokke (1996) FLC 92-693 and Strahan and Strahan (2011) FLC 93-466, the court ultimately cannot exercise the power unless the evidence supports it doing so. Undoubtedly, the decision is ultimately discretionary and it is a fundamental principle of justice that there be a level playing field particularly in circumstances where one party has not only the control but also the knowledge of all of the assets and the other party does not. That principle however cannot override the fact that ultimately, the court must make an order which is just and equitable to both parties. The caution then arises over questions such as whether any such payment can be reversed or paid back. That is a consideration in determining whether to exercise the discretion.
To a very large degree, the court, apart from relying on the evidence presented, has to look at the way in which the parties have set the parameters of the litigation themselves. I am somewhat hampered by the fact that the wife’s last attempt at doing that was in 2009 but on the assumption that she is seeking 50 per cent or more of the “matrimonial assets”, I consider that that is one of the possible parameters. On the other hand, I have the husband’s position where he says that combined with what he is offering and what the wife has had, the parameter is 30 per cent. The question for the court ultimately is whether or not there should be any adjustment for what the wife has already had bearing in mind her lifestyle and the professional fees she has spent.
It is not appropriate for the court to guess nor look at questions such as what might be the worst case scenario for the husband. It is not appropriate for the court to say that he is offering a particular sum and therefore that is the bottom of the range for the purposes of a bargaining position. The court must look at this in a positive way and be confident that its order is just and equitable to both parties. Thus, whilst I accept the wife’s submission that overall justice must be done and a level playing field is important, the exercise of my discretion must take into account the most unusual history of this case and the amounts of money that have already been spent.
In Strahan (supra), the Full Court recognised the imprecise nature of all of these matters. The majority (Boland and O’Ryan JJ) referred to the two phases of the process. The first of those was to decide whether or not the interests of justice required the exercise of power under s 79 and s 80(1)(h) on an interim basis.
The majority held:
In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
The observation of the Full Court is pertinent in this case because there have been a number of such applications for distributions in one form or another. One must ask whether another distribution is going to achieve justice.
In respect of the clawback matter, the court is obliged to contemplate that as part of the discretion but in this case, there is ample property that could be charged or sold to cover any such necessity.
In the first of those two phases mentioned in Strahan, the court is obliged to consider whether the exercise of the power would interfere with the ultimate objective of making an order which is just and equitable on a final basis. The court went on to say that a party who has what is an obvious irresistible claim to a substantial portion of the property of the parties should not be held out during the litigation. That depends entirely upon the court being comfortable that the order it is making is one to which the party is indeed entitled. Here, I have the submission of the husband that a lot of this money that the wife has had should be somehow included in the ultimate consideration. The difficulty for the wife is that in her affidavit, she is highly critical of the lawyers for having spent that money in various ways. I am unable to say whether some form of adjustment if not the whole lot of that money might be included.
Ultimately, bearing in mind those principles, the court has to turn back to the evidence. I am unable to assess the likely division because the evidence of the wife does not assist. I cannot draw a conclusion that what she proposes is just and equitable to make an order outside of what the husband is proposing. The evidence of the wife does not address the issues raised by the husband of all of his post-separation contributions in circumstances where at least on the face of the evidence, she has been adequately supported. The evidence does not indicate to me what sort of finding the court could make relying upon the provisions of s 79(4)(e) of the Act. There seems little dispute that the wife will have the responsibilities for the care of the son but I know no more than that. The husband’s position is that he will always provide for his son. As such, the evidence of the wife is scant. In my view, it would not be appropriate to make an order of an interim property nature sought by the wife here without that evidence.
A second power lies in the area of costs. Section 117 of the Act commences by indicating that each party shall bear their own costs unless there are circumstances to justify a departure from that principle. The obvious circumstance to justify a departure from that principle urged by the wife is that she wants a “level playing field”. The evidence is that the husband is prepared to give her the opportunity to look after her own financial affairs by transferring the properties and the evidence about her capacity to use those properties to obtain a level playing field is missing. To depart from the principle in s 117, the court would be obliged to consider all of the matters set out in s 117(2A) of the Act. That evidence is not present. Whilst I have a reasonable understanding of the parties’ financial position, there are a number of other factors about which I could not make findings here.
In Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578, Brereton J contemplated an interim costs order for the purposes of litigation expenses and indicated that apart from the financial strength of the person pursued to make the payment, the court had to consider the capacity of the applicant to meet their own litigation expenses. I know the husband can pay his professional fees but because of the wife’s evidence about what she could obtain by way of funding and what her lawyers’ position might be, I could not exercise the power in s 117.
The third power urged is what was described as the maintenance power.
Section 74(1) of the Act provides that a court may make such order as it considers proper for the provision of maintenance in accordance with Part VIII of the Act. In exercising the power, the court is obliged to take into account the matters set out in s 75(2) of the Act. I am conscious that the husband is already paying spousal maintenance of some significance so it is unnecessary for me to consider the provisions of the right of the wife to maintenance in s 72 of the Act. In determining whether or not the maintenance power can be used, I would need to be satisfied that there is substance to the wife’s assertion that she uses all of her current maintenance for her support. Absent some evidence in relation to that and particularly the financial statement, it is impossible for me to determine whether or not she is unable to find any funds from her weekly maintenance amount. I will assume for the purposes of the argument that one of her needs is to pay legal fees but there must be a question of reasonableness involved in that. The application of the wife is for a very large sum of money unashamedly not for her own support but to provide for professionals. The amount involved, and the exercise contemplated, is so far outside of what was intended in s 72, 74 and 75 of the Act that it would be very difficult to classify such a payment as maintenance. In my view, this would not be an appropriate exercise of the power for that reason.
Accordingly, I find that the evidence does not support the exercise of any of the relevant powers for the relief sought.
Finally, I was asked to set the matter specifically by way of trial orders and those that commence those reasons have provided for a significant lead in time for the wife to undertake the task that she desires.

I certify that the preceding Seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 April 2017.

Associate:

Date: 26 April 2017