Strahan & Strahan (No 2)

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN (NO. 2)

[2012] FamCA 248

FAMILY LAW – PROPERTY SETTLEMENT – interim orders – application by the wife seeking interim property settlement of $24 million dollars – where the wife has already received substantial sums by way of interim property settlement – where there is significant dispute about the matrimonial asset pool – just and equitable – where the Court was not satisfied that the payment of further monies by way of interim property settlement was just and equitable or appropriate at this stage of the proceedings – application dismissed.

FAMILY LAW – COSTS – interim orders – application by the wife seeking $2 million dollars to meet her anticipated legal costs up to and including trial – where the wife has already received significant sums dedicated towards this purpose – where the Court was not satisfied that the wife had adequately explained the use of such funds – where the Court was not satisfied that it was just and equitable to order the payment of a further sum for costs – application dismissed.

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders – application by the wife seeking a lump sum or periodic payment of interim maintenance of $2 million dollars – where the Court was satisfied that the husband has the capacity to pay spouse maintenance to the wife – where the parties enjoyed a high standard of living during the marriage – consideration of whether the expenses claimed by the wife were reasonable – orders that the husband pay the wife spouse maintenance on a monthly basis pending trial calculated by reducing some of the wife’s claimed expenses.

FAMILY LAW – CHILD SUPPORT – application by the wife seeking departure from Administrative Assessment – where the child has special needs – where the husband has voluntarily provided significant funds for the care of the child – just and equitable – where the Court held that it was not just and equitable to make a departure order – application dismissed.

Child Support (Assessment) Act 1989 (Cth) ss 116 & 117
Family Law Act 1975 (Cth) ss 72, 74, 79 & 80

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Strahan & Strahan(Leave to appeal interim orders and appeal against costs) [2011] FamCAFC 126

APPLICANT:

Ms Strahan

RESPONDENT:

Mr Strahan

FILE NUMBER:

ADF

228

2005

DATE DELIVERED:

24 April 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

14 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Brown, SC

SOLICITOR FOR THE APPLICANT:

Winter & Co

COUNSEL FOR THE RESPONDENT:

Mr Berman, SC

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

Paragraphs 2 and 7 of the Application in a Case filed on 8 December 2011 (Document 606) be adjourned for further consideration to the final trial.
The husband pay the wife interim spouse maintenance fixed in the sum of TWENTY SIX THOUSAND AND TWENTY ONE DOLLARS [$26,021.00] per calendar month, the first payment to be on 1 May 2012 and thereafter the first day of each calendar month pending trial.
Save as to the question of costs the Application in a Case be dismissed.

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).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

Ms Strahan

Applicant

And

Mr Strahan

Respondent

REASONS FOR JUDGMENT

Introduction

By way of an Application in a Case filed on 8 December 2011 the wife Ms Strahan sought the following orders:
1.That all times be abridged to allow this application to be heard on 8 December 2011.
2.That the sum of $320,000 payable to the wife pursuant to paragraph 3 of the Orders made 5 July 2011 be designated interim property settlement.
3.That the husband pay to the wife by way of further interim property settlement the sum of $24,000,000 or such other amount as the Court deems fit.
4.That the husband pay the wife for solicitors costs, the sum of $2,000,000 or such sum as the Court deems fit, such sum to be used on account of the costs of the wife in pursuing her claim in these proceedings including all relevant legal expenses and disbursements.
5.That the husband pay to the wife by way of interim maintenance a lump-sum or periodic payment for 12 months of $2,000,000 or other such amount as the Court deems fit.
6.The husband provide the funding for [S’s] annual programme; as detailed in the 2012 budget exhibited to my affidavit and marked “ES 8A”, to [WS] Nominees at the commencement of each calendar year.
7.That the wife have leave to reply upon the expert report of [Mr VT] dated 3 March 2011 annexed to the letter form (sic) Mr [VT] of 30 November 2011, for the purposes of this application and at final hearing.
8. That the husband pay the costs of this application.
9.Such further or other orders as this Honourable Court may deem just and equitable.
The husband opposed the orders.
On 10 February 2012 the husband filed a response which sought the dismissal of the Application in a Case filed by the wife on 8 December 2011. (He also sought other orders, but given the short notice to the wife they were adjourned to another date).
The matter was listed for hearing on the interim issues on 14 February 2012. It was indicated that the parties were not seeking a ruling in relation to the expert evidence of Mr VT at the interim stage.

Hearing

At the hearing before me on 14 February 2012 the applicant wife was represented by Mr Brown, SC, (who appeared with Mr Holland). The respondent husband was represented by Mr Berman, SC, (who appeared with Mr Kennedy).
In support of the application for interim financial orders, the wife relied upon her affidavit filed on 8 December 2011 (document 607). On 20 January 2012, the Financial Statement of the wife sworn on that date was filed.
On 8 February 2012 the current solicitor for the wife, Michael Winter, filed an affidavit sworn by him and an affidavit of Dr HS who is managing the child’s health issues. On the same day the solicitors for the wife filed another affidavit of the wife (document 611).
In response the husband filed a Financial Statement and affidavit of the husband on 10 February 2012.
At the hearing the wife did not pursue her application that the sum of $320,000 paid to her pursuant to the order of 5 July 2011 be designated as interim property settlement.
After hearing the submissions of counsel on 14 February 2012 judgment was reserved.

Relevant background and chronology

Both parties were born in 1962. They met in the late 1980s and were married in 1994. There is one child of the marriage, S, who is now aged 15, nearly 16. The child is Autistic. The litigation in relation to the child has not been resolved, however, the father has indicated that he will not be proceeding with any applications concerning parenting orders for the child. The child currently resides with the wife and spends time with the husband by arrangement with the wife.
The parties separated in about January 2005. Proceedings have been before this Court since February 2005 with the wife filing an amended application seeking final orders, including settlement of property and spousal maintenance in June 2005.
Since then there have been numerous interim and procedural orders made. The Court has attempted to list the matter for final determination on various occasions, however, the parties have not been ready to have the matter proceed to a final hearing.
Some of the interim orders have related specifically to financial matters, including payments by the husband to the wife. Some of these are as follows:
(a)on 23 January 2007 the husband was ordered to pay the wife $3 million dollars by way of interim property settlement;
(b)on 27 July 2007, Justice Strickland made a Consent Order which included an order that by way of interim property settlement the husband pay the wife the sum of $1.25 million dollars;
(c)another Consent Order was made on 31 October 2007 providing for the husband to pay the wife the sum of $375,000. The categorisation of this amount as interim or partial property settlement or spouse maintenance was reserved for determination by the trial Judge;
(d)on 21 March 2008, His Honour Justice Strickland made another Consent Order which included payment within 14 days by the husband to the wife the sum of $850,000 by way of interim property settlement;
(e)following a further application by the wife filed in July 2008 seeking $5 million dollars, His Honour Justice Strickland made orders on 24 September 2008 directing the husband to pay the wife the sum of $1 million dollars within 30 days by way of interim property settlement. The wife filed a Notice of Appeal against that order;
(f)in December 2008 the wife filed an application seeking urgent and interim spouse maintenance. Also in December 2008 the wife filed an application seeking that the final trial not be listed until determination of her appeal, or in the alternative the husband pay the wife the sum of $3 million dollars by way of interim property settlement;
(g)in September 2009 the Full Court granted the wife’s appeal in relation to interim property settlement, set aside the order of 24 September 2008 and instead ordered that the husband pay the wife the sum of $5 million dollars by way of interim property settlement within 30 days. (Another $4 million dollars).
In February 2010, the wife, through her then solicitors, filed a further amended Application in a Case seeking interim spouse maintenance in the sum of $278,000 per month and sought that such payments be backdated to the 1 February 2005.
In the amended Application in a Case, the wife also sought an order that within 21 days the husband pay to the wife by way of interim property settlement the sum of $24 million dollars.
On 4 March 2010 a Consent Order was made in relation to costs order following upon Full Court orders of 21 December 2009 and Justice Bell’s orders of 9 July 2009, which provided for the husband to pay the wife’s solicitors $84,474.30.
The wife also sought orders in March 2010 which provided for the husband to transfer a property in Switzerland to her and to make further payments such that the interim property settlement monies received by her, including the Swiss property, total $24 million dollars.
The husband filed responses in March 2010 in which it was proposed that he pay the wife the sum of $325,000 (being a lump sum calculated at the rate of $6,254 per week) for maintenance for the wife for 12 months and seeking orders the wife not make any claim for spouse maintenance within the next 12 months following the order.
On 31 March and 1 April 2010 I heard submissions from Senior Counsel for the husband and Senior Counsel for the wife in relation to the wife’s application for interim property settlement and spouse maintenance.
On 31 May 2010, for reasons which I then published, the wife’s application for interim property settlement and departure from Child Support Assessment were dismissed. An order was also made that “by way of spousal maintenance pending the disposal of proceedings for spouse maintenance within 21 days from today the husband do pay the wife the lump sum of $325,000.”
The wife filed an Application in a Case on 21 July 2010 seeking $3.8 million dollars on account of “interim costs of the wife in preparation and prosecuting her claim to the trial”.
For reasons which were published on 13 August 2010 (following a hearing on 23 July 2010 and 4 August 2010) orders were made, inter alia, which provided for the husband to pay the wife’s solicitors the sum of $825,000 within 21 days of which the sum of $75,000 was to be paid to the Independent Children’s Lawyer on account of the Independent Children’s Lawyer’s costs.
Paragraphs 12, 13 and 14 of the order on 13 August 2010 provided:
“12.Within twenty-one [21] days from today the husband pay the wife’s solicitors the sum of EIGHT HUNDRED AND TWENTY FIVE THOUSAND DOLLARS [$825,000.00].
13.Forthwith upon receipt of monies the wife’s solicitors do pay the sum of SEVENTY FIVE THOUSAND DOLLARS [$75,000.00] to the Independent Children’s Lawyer on account of the Independent Children’s Lawyer’s costs.
14.Upon receipt of the monies the balance shall be invested in an interest bearing account to be thereafter used only for solicitor and counsel fees for the proceedings in the Family Court of Australia PROVIDED FURTHER THAT the sum of THREE HUNDRED THOUSAND DOLLARS [$300,000.00] shall be retained for solicitor and counsel fees for the final hearing in this matter.”
The wife appealed that decision.
On 10 June 2011 the order of the Full Court of the Family Court of Australia dismissed the wife’s appeal from the orders of 31 May 2010 (the interim property settlement and departure from child support dismissal orders) and further made orders in relation to future costs substituting the sum of $1,687,250 for the figure of $825,000, thereby ordering the husband to pay a further $862,250.
To make this order the Full Court re-exercised the discretion concerning the application for interim costs. Their reasons commence at paragraph 91 of the judgment of the Court of 10 June 2011. The sum ordered to be paid was calculated on the figures presented by the wife. A summary of paragraphs 91 to 97 is as follows:
(a) 23 day trial at $21,750 per day  $500,250.00
(b) 3 months preparation of documents, proofing
      witnesses solicitors and paralegal costs  $450,000.00
(c) Queens Counsel proofing witnesses  $50,000.00
(d)Counsel advice on evidence settling and matters
incidental to preparation for trial, affidavit of wife
in relation to both children’s matters and property and
spousal maintenance and child support  $300,000.00
(e)Airfares, expenses, valuation costs, disclosure costs
and other incidental matters in paragraph 95  $312,000.00
Total:  $1,612,250.00
To this is added the $75,000 payable to the Independent Children’s Lawyer making a total of $1,687,250.
The terms of paragraphs 13 and 14 of my orders of 13 August 2010 remained the same. The only change to the orders was the amount. The monies received were required to be invested in an interest bearing account and used only for solicitor and counsel fees for the proceedings in the Family Court of Australia.
Less than two weeks later on 22 June 2011 the wife filed an Application in a Case seeking urgent interim spouse maintenance of $6,254 per week.
On the 5 July 2011 a Consent Order was made which provided for each party to receive $320,000 from EI Limited to be categorised later as either interim spousal maintenance or interim property settlement.
The wife’s application for urgent spousal maintenance was dismissed.
On 25 October 2011 I dismissed the wife’s Application in a Case filed on 22 June 2011 (spouse maintenance sought $6254 per week).
The matter was listed for conclusion of trial in June 2012 for 14 days, it being indicated then that the parties anticipated filing final Consent Orders in relation to children’s issues.
On 25 October 2011 I adjourned the proceedings generally to 8 December 2011 at 9.00 am for trial directions in order to prepare the matter for trial in June 2012.
On 8 December 2011 the Court refused the oral application made on behalf of the wife to hear on that day a further application by way of interim spouse maintenance and interim property settlement. The Trial listing for June 2012 was vacated due to difficulties in preparing the financial matters for trial and single expert issues.
On 8 December 2011 the wife filed a further Application in a Case seeking the various financial orders which are the matters to be determined by this judgment.
Subsequently, the wife and the husband filed further documents.
As the above summary of interim financial orders indicates the wife has since January 2007 received lump sums totalling $12,732,250 by way of interim spouse maintenance, interim property settlement or on account of future costs (with the designation of some of the sums yet to be determined). This includes the $300,000 which is retained specifically for the costs of the final hearing.
The previous solicitors for the wife, PC Firm, did not wish to retain the funds for the wife when they ceased to act for her. Pursuant to Court orders $300,000 was paid into Court and is currently held by the Court in an interest bearing account.
The final hearing of the trial in relation to all issues is now fixed for 15 days commencing on 13 August 2012.
On 8 December 2011 it was noted that the witnesses were expected to be the husband, the wife, the wife’s brother and possible expert witnesses, details of which are yet to be determined. Specific orders have been made for the filing of all necessary documents in order to have the matter ready for final hearing in August 2012.

The Law

The relevant sections of the Family Law Act 1975 (Cth) are:
Section 72
Right of spouse to maintenance
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
Section 74
Power of court in spousal maintenance proceedings
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
(2)If:
(a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b)either of the following subparagraphs apply to a party to the marriage:
(i)     when the application was made, the party was a bankrupt;
(ii)    after the application was made but before the proceedings are finally determined, the party became a bankrupt; and
(c)the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the bankruptcy trustee as a party to the proceedings.
(3)If a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the bankrupt party to the marriage is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
(4)The court must not grant leave under subsection (3) unless the court is satisfied that there are exceptional circumstances.
(5)If:
(a)an application is made for an order under this section in proceedings between the parties to a marriage with respect to the maintenance of a party to the marriage; and
(b)either of the following subparagraphs apply to a party to the marriage (the debtor party ):
(i)     when the application was made, the party was a debtor subject to a personal insolvency agreement; or
(ii)    after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and
(c)the trustee of the agreement applies to the court to be joined as a party to the proceedings; and
(d)the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings;
the court must join the trustee of the agreement as a party to the proceedings.
(6)If the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a marriage, then, except with the leave of the court, the party to the marriage who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any property subject to the agreement.
(7)The court must not grant leave under subsection (6) unless the court is satisfied that there are exceptional circumstances.
(8)For the purposes of subsections (2) and (5), an application for an order under this section is taken to be finally determined when:
(a)the application is withdrawn or dismissed; or
(b)an order (other than an interim order) is made as a result of the application.

Section 79
Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

Section 80
General powers of court
(1)The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)order payment of a weekly, monthly, yearly or other periodic sum;
(ba)order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e)appoint or remove trustees;
(f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(g)(Repealed);
(h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i)impose terms and conditions;
(j)make an order by consent;
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.

(2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
(3)The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.
(4)If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.
(5)If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.
(6) Subsections (4) and (5) do not limit paragraph (1)(d).

The relevant sections of the Child Support (Assessment) Act 1989 (Cth) are:
Section 116(1)(g)
Application for order under Division
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
…
(b)    both of the following apply:
(i)     the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)    the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or

Section 117

Matters as to which court must be satisfied before making order
Court may make departure order
(1)Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;

the court may make the order.
Grounds for departure order
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i)     the duty of the parent to maintain any other child or another person; or
(ii)    special needs of any other child or another person that the parent has a duty to maintain; or
(iii)   commitments of the parent necessary to enable the parent to support:
(A)himself or herself; or
(B)any other child or another person that the parent has a duty to maintain; or

(iv)   high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)     because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia)   because of special needs of the child; or
(ib)   because of high child care costs in relation to the child; or
(ii)    because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(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:
(i)     because of the income, earning capacity, property and financial resources of the child; or
(ia)   because of the income, property and financial resources of either parent; or
(ib)   because of the earning capacity of either parent; or
(ii)    because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.

High costs involved in enabling parent to care for a child
(2B)A parent's costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.

(2C)If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A)The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:
(a)the costs are incurred by a parent or a non-parent carer; and
(b)the child is younger than 12 at the start of the child support period.

(3B)Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.

(3C)Child care costs for a non-parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4)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 to:
(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; or
(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; and
(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 the refusal to make, the order.

(5)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 rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

Proper needs of the child
(6)In having regard to the proper needs of the child, the court must have regard to:
(a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b)any special needs of the child.

Income, earning capacity, property and financial resources
(7)In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

(7A)In having regard to the income, property and financial resources of a parent of the child, the court must:
(a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b)disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.

(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a)     one or more of the following applies:
(i)     the parent does not work despite ample opportunity to do so;
(ii)    the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii)   the parent has changed his or her occupation, industry or working pattern; and
(b)the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i)     the parent's caring responsibilities; or
(ii)    the parent's state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.

Direct and indirect costs in providing care
(8)In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9)Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
Definition of resident child
(10)For the purposes of this section, a child is a resident child of a person only if:
(a)the child normally lives with the person, but is not a child of the person; and
(b)the person is, or was, for 2 continuous years, a member of a couple; and
(c)the other member of the couple is, or was, a parent of the child; and
(d)the child is aged under 18; and
(e)the child is not a member of a couple; and
(f)one or more of the following applies in respect of each parent of the child:
(i)     the parent has died;
(ii)    the parent is unable to support the child due to the ill-health of the parent;
(iii)   the parent is unable to support the child due to the caring responsibilities of the parent; and

(g)the court is satisfied that the resident child requires financial assistance.

The majority decision of the Full Court in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (in particular at paragraphs 79 to 113) sets out guidance for applications for litigation expenses.
Under the heading “The approach to an application for an interim property order” the Full Court also set out detailed reasons commencing at paragraph 114. In that decision it was clearly stated that it was not necessary to establish “compelling circumstances”.
In particular, the Full Court said at 85,645 – 85,647:
132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
133.In Harris at 79,930 the Full Court gave some examples of circumstances where it may be appropriate to exercise the power being “where both parties agree to the disposal of some assets pending the trial” and “[u]rgent situations” to avoid injustice. Another example is where, as in this case, one party requires funds to assist in defraying the costs of litigation without which funds an injustice may be caused.
134.Then turning to the substantive step we adopt what the Full Court said in Harris at 79,930 in relation to the second and third matters which we will now discuss.
135.In relation to the second matter, as the jurisdiction under s 79 of the Act is being exercised the provisions of that section must be considered and applied but with limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.
136.As to the third matter identified at 79,930 by the Full Court in Harris, in discussion before us it was described as the “adjustment issue” or “claw-back issue”. It was submitted by senior counsel for the Wife that it is relevant to consider whether an order would give the applicant “more than they would be indubitably entitled to on a final hearing” or alternatively “would it give them so much that it could not be adjusted on a final hearing?” As we have observed the Full Court in Zschokke at 83,220-221 stressed the importance of consideration of the “adjustment issue” if the power in s 80(1)(h) of the Act is being exercised. We accept the submission and observe that this matter is relevant because the discretion conferred by the power in s 79 is to make such order as the Court considers appropriate provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order. As Bryant CJ and Coleman J observed in Gabel v Yardley at [69] and [72] the interim order must be capable of variation or reversal without resort to s 79A of the Act or appeal. As Finn J said at [126] the interim order must be “capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power”.
137.Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant … will be likely receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought … then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.
138.The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept 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 a relevant matter to take into account at the procedural or first stage. Senior counsel for the Wife submitted that it may be relevant at the substantive or second phase in reviewing the “necessarily limited and impressionistic budget for costs” to ensure that the application is bona fide. We are of the view that it may be that any issue about the bona fides of an application is relevant at the procedural phase in the context of considering if in the interests of justice it is appropriate to make an order before the final hearing.
139.We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party. (Emphasis added)
140.As to the other matters being a position of relative financial strength on the part of the respondent to an application and the capacity of the respondent to meet his or her own litigation costs, 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. Senior counsel for the Wife submitted that all of the matters discussed by the Full Court in Zschokke are self-evident and we accept that this is so in relation to at least two of the matters being the need for funds and the financial circumstances of both parties.
141.As to the various matters discussed by Brereton J in Paris King Investments which we have discussed above, we do not propose to deal with all of what his Honour said, however we make the following observations about some of the matters. Obviously the applicant should have “at least an arguable case for substantive relief which deserves to be heard”. Further, in determining at the procedural stage whether to exercise the jurisdiction there may need to be evidence of the applicant’s “likely costs of the 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. We also accept that “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.

At 85,632 of the majority decision stated:
85.We also observe that in Kendling v Kendling [2008] FamCAFC 70; (2008) 39 Fam LR 404 (“Kendling”) the Full Court (Finn, Warnick and Boland JJ) at [35] concluded that more than one order may be made in the course of s 79 proceedings to fund the litigation expenses of a party. We accept that more than one order may be made, and it is not essential that a second order necessarily be made under the same head of power. In other words, for example, a first order may be made under s 117 and a subsequent order may be made by way of an interim property order under s 80(1)(h) provided the power is identified, and the principles applicable to the exercise of that power are observed.
In a further Full Court of Appeal from my decision of 13 August 2010, the Full Court said at paragraph 32:
32.For reasons which she detailed, the trial Judge rejected, with respect correctly, any requirement that the wife demonstrate “compelling circumstances” in order to obtain the relief she sought. Her Honour, again, with respect correctly, referred to the “balancing of the risks of unduly limiting the final orders that can be made (or even potentially defeating parties’ claims or legitimate expectations) against the circumstances said to show that it is just and equitable to make interim orders”, as discussed by Federal Magistrate Reithmuller in Wenz v Archer (2008) 40 Fam LR 212 and referred to by the Full Court (per Boland and O’Ryan JJ) in Strahan & Strahan (2009) 42 Fam LR 203.” (See Strahan & Strahan (Leave to appeal interim orders and appeal against costs order)(2011) FamCAFC 126).

Discussion and findings

In the affidavit sworn by the wife on 7 December 2011 and filed on 8 December 2011, the wife refers to her need for “financial assistance”.
In the paragraphs commencing at paragraph 26 of that affidavit the wife refers to her earlier Financial Statement as at 24 October 2011 . In paragraph 27 she asserts that on 24 October 2011 $847,000 remained in her solicitor’s Trust Account. As at 29 November 2011 only $44,950 remained in the Trust Account (paragraph 27).
The affidavit also refers to sums being claimed by former lawyers and amounts the wife claimed to be owing to her brother and sister.
Part of the affidavit also relates to monies sought by the wife in relation to the child’s care, treatment and programmes.
That affidavit does not specifically deal with the orders seeking interim property settlement of $24 million dollars, nor any other specific calculation of an amount by way of interim property settlement except for paragraph 46 which states:
46.Accordingly, I seek an amount to cover my existing liabilities, future liabilities and living expenses for a period of at least 12 months. This amount is calculated as follows:

Loan – [Ms AC]	PC Firm legals	Other legals	Other	Total
Liabilities Loans [Ms AC] para 32.a above	120,00	120,000
Other liabilities Form 13	292,836	897,434	184,123	1,374,393
120,000	292,836	897,434	184,123	1,494,393
Monies in trust
[PC Firm]	(20,000)	(20,000)
Winter & Co paid para 26	(817,311)	(817,311)
Balance remaining to pay	120,000	272,836	80,123	184,123	657,082
Twelve months maintenance
Living Costs	12,329	per week
Fees to [AC & MC]	2,308	per week
Total	14,637
Per annum	761,124
Additional for overseas holidays x 2	400,000
1,818,206
Say	2,000,000
Provision for further legal costs	2,000,000
4,000,000

The Financial Statement filed by the wife on 20 January 2012 refers to Item 43 “other personal property” see Note 10 $3,881,241. In the annexures to that Financial Statement there is a Note 10 for Item 43. There is also a Note 10A (Item 43 headed Monies in Winter & Co Trust Account): “an amount of $862,250 was received in October 2011 pursuant to a Court Order. This money is to be applied towards legal costs. An amount of $15,000 has been paid to Winter & Co on account of costs, leaving a balance of $847,250 at the present time”.
This inconsistency was apparently attempted to be explained by a further affidavit sworn and filed by the wife on 8 February 2012 and an affidavit of the wife’s present solicitor, Michael Winter, filed on 8 February 2012.
The sum of $657,082 is the “balance remaining to pay” of loans payable by the wife to her siblings, to her former and present lawyers and “other” debts.
The sum of $761,124 in paragraph 46 represents twelve months maintenance claimed for the wife for living costs and fees to her siblings.
$400,000 is claimed for two overseas holidays and $2 million dollars is sought for “provision for further legal costs”.
Part N, Item 60 of the wife’s Financial Statement also includes an amount of $692 per week for holidays, whilst paragraph 46 seeks $400,000 extra for holidays.
Whilst the wife’s claim for interim spouse maintenance needs to be seen in the context of the history of the extravagant lifestyle of the parties before separation, nonetheless the amounts claimed for one person by way of food and household supplies which total for the wife $2,493 per week appear on the face of it to be excessive.
“Other necessary commitments” being the last item of item 6 of Part N totals, $3,313 per week. This amount appears to be related to the schedules of expenditure referred to in the notes and attachment to the Financial Statement. The interaction between actual costs, the credit cards and the amounts paid by WS Nominees Pty Ltd is not clearly explained.
The husband did not concede the figures claimed by the wife by way of average weekly expenses.
The affidavit of the husband filed on 10 February 2012 sets out in paragraph 6 the amounts the husband claims the wife has retained and received since separation:
6.At the time of our separation in February 2005, the wife retained over $6.7 million in cash at bank. Since then, she has received a further $13.8 million pursuant to the following orders:
6.123 January 2007 – part property settlement         $3,000,000.00
6.227 July 2007 – part property settlement               $1,250,000.00
6.331 October 2007 – to be characterised as
Spousal maintenance or part property settlement    $375,000.00
6.425 March 2008 – part property settlement              $850,000.00
6.524 September 2008 – part property settlement     $1,000,000.00
6.614 September 2009 – part property settlement **$5,000,000.00
6.74 March 2010 – costs order  $84,474.00
6.831 May 2010 – interim spousal maintenance         $325,000.00
6.913 August 2010 – litigation funding (of which
$75,000 was used to pay the Independent
Children’s Lawyer  $825,000.00
6.1010 June 2011 – litigation funding  $862,250.00
6.115 July 2011 – to be characterised as spousal
maintenance or part property settlement                 $320,000.00
*$13,891,724.00
*Should be $12,891,724.00
The sum of $5 million dollars ** was a substitute for the $1 million dollars and therefore should only be $4 million dollars. The total is therefore $12,891,724.
In relation to payment of the child’s costs, the husband says at paragraph 18:
18.I refer to paragraphs [34] to [35]. I have always made generous financial provision for [the child], and will continue doing so. I paid approximately $11,600 per week towards [the child’s] financial support in 2011, by way of regular deposits of funds into [WS] Nominees Pty Ltd as trustee for the [Strahan] Family Trust, which meets education and other expenses. In 2012, my financial support for [the child] will be approximately $1 million, given anticipated costs for an additional carer ($146,000 per annum) and a clinical psychologist ($170,040). I also continue to pay, both for [the child’s] and the wife’s benefit, the outgoings of the real properties in South Australia, together with other expenses.
In paragraph 26 of the affidavit the husband refers to the wife’s previous allegations in relation to possible tax liability owing by the husband to the Australian Taxation Office (“ATO”). In a letter from the wife’s solicitors to the husband’s solicitors of 2 December 2011, the wife’s solicitors tells the husband’s solicitors that an associate of the husband “[Mr W]” received a tax assessment of $120 million dollars. The husband says that this letter implied a significant debt may be due by him to the ATO. That issue remains unresolved. Orders were made recently requiring the wife to disclose to the husband some correspondence with the ATO.
Annexed to an affidavit of Michael Winter (the wife’s present solicitor) filed on 1 March 2012 is correspondence from Maddocks Solicitors acting for the ATO and emails between the solicitors and the ATO.
The letter of 29 September 2011 refers to a meeting on 21 September 2011 at the ATO Melbourne between Mr Winter, the wife’s brother (Mr MC) and the solicitors for the ATO. The letter requests specific documents in relation to “an unnamed tax payer(s)”.
The letter also refers to the Family Court proceedings against the husband and “any financial documents or affidavits pertaining to the financial affairs of Mr [Strahan] that had been read into evidence in Family Court or other proceedings and where you are not aware of any reason why they could not be provided to the ATO if your client so chooses”.
The letter also requests confirmation about the existence of an undertaking given by the wife to “not approach the ATO to provide certain information”.
The husband denies having received any relevant correspondence from the ATO. If however a substantial sum is hereafter found to be due to the ATO by the husband, or any of his related entities, then this would be a significant reduction of the amount available for division by way of final property settlement between the parties.

(a) Interim property settlement

It was accepted by both parties that it was necessary to determine as an initial step whether the power to make an interim property settlement order should be exercised or whether the determination should await the final hearing.
As the Full Court in Strahan and Strahan (Interim Property Orders) (Supra) at paragraph 139:
more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.
It is necessary for the Court to determine in accordance with section 79(2) that in all the circumstances it is just and equitable to make an interim order.
The husband maintained that the available property to be brought into account as at 10 February 2012 was approximately $46 million dollars. To this there needs to be added the $19.5 million dollars already received by the wife and the $15 million dollars received by the husband which would make a total of $80.5 million dollars.
The husband’s case was, at best, the wife could expect 35 per cent, which would be an allocation to her of some $28.175 million dollars. If the $19.5 million dollars already received by the wife is deducted, then the balance payable to the wife would be $8.675 million dollars.
There was a significant dispute about the calculation of the overall figure. In particular there are disputes about the valuation of the husband’s interest in CX Company and other amounts due to him. These are matters which will need to be determined at the final hearing.
On behalf of the wife it was argued that the Court should consider the available property pool referred to in the wife’s affidavit filed in March 2010, which was approximately $78 million dollars. Counsel submitted to this should be added sums received by the husband bringing the available minimum property pool to $94 million dollars. Thirty-five per cent of this would be $33 million dollars, less $20 million dollars received by the wife, making a payment to her of $13 million dollars.
Counsel however did concede that the calculation of $78 million dollars was based upon 2010 figures and not current figures.
The Court clearly has the power to make an order by way of interim property settlement if such an order is appropriate within the provisions of section 79. Specifically, the Court is required not to make an order unless it is satisfied that in all the circumstances it is just and equitable to make the order. (Section 79(2)).
The factors which the Court is required to take into account are set out in section 79(4) in relation to contributions and section 75(2) factors cannot be determined on a final basis until the trial has been completed. Similarly, the ascertainment of the correct assets and liabilities of the parties awaits final determination.
In relation to section 75(2) factors the Court notes the financial resources of the husband and particularly that he has greater control of substantial funds than the wife.
Similarly, the Court is able to acknowledge the wife’s care and control of the child and his special needs. Whilst, some of the items claimed by the wife appear excessive, the Court nonetheless is required to take into account the standard of living that in all the circumstances is reasonable (section 75(2)(g)).
If the Australian Taxation Office does not proceed to make a claim for substantial sums to be paid by the husband (or his entities) then it is possible that, on the husband’s case, the wife may receive a further $8 million dollars by way of final property settlement.
However simply because this is possible does not establish that such an interim property settlement is just and equitable.
Carefully considering the matters which are not capable of finally being determined, taking into account the provisions of section 79 and section 75(2), the history of litigation and past financial orders, the Court is not able to be satisfied that at this interim stage that payment of any further monies by way of interim property settlement is just and equitable or appropriate.

(b) The claim for payment of the wife’s solicitor’s costs

Paragraph 4 of the Application in a Case seeks:
That the husband pays the wife for solicitors costs, the sum of $2,000,000 or such sum as the Court deems fit, such sum to be used on account of the costs of the wife in pursuing her claim in these proceedings including all relevant legal expenses and disbursements.
The sum of $2 million dollars for costs is referred to in paragraph 46 of the wife’s affidavit.
The decision of the Full Court of the Family Court of Australia of 10 June 2011 directed payment by the husband to the wife of the sum of approximately $1.6 million dollars, being an amount calculated by the Full Court in accordance with information provided by the wife (including solicitor’s and counsel fees) for the preparation of the matter for trial and hearing of trial. This amount has been paid. (In two separate amounts).
The affidavit of the wife’s current solicitor, Mr Michael Winter, filed on 8 February 2012 acknowledges that the monies have been paid by the husband (the amount due after the Full Court judgment of $862,250 not being paid until 7 October 2011). The affidavit estimates further costs, including counsel fees of $430,840 (paragraph 13), solicitor’s fees of $495,000 (paragraph 14), disbursements of $169,500 (paragraph 15) and counsel fees and solicitor’s fees for a 15 day trial (including airfares and accommodation and transcript) totalling $322,000 (paragraphs 16, 17 and 18). The sum total claimed is $1,866,274.42 (paragraph 18).
The affidavit acknowledges that the sum of $300,000 has been set aside and should be deducted from this amount.
The affidavits filed do not deal with the compliance with orders which limited the use of the monies paid. The order required that the $1,687,250 paid by the husband pursuant to the orders of 13 August 2010 and 10 June 2011 be used only for solicitor and counsel fees for the Family Court of Australia proceedings. The findings made by the Full Court calculated the sum based upon the wife’s need for those costs to the final hearing.
Since the payment of $862,250 (being the payment in October 2011) fees for solicitors, counsel and experts have been paid (including $401,626 to Winter & Co) which total $839,389.15 leaving $22,873.10 in the Trust Account as at 8 February 2012.
There is no evidence which identifies how much of the $401,626 paid to Winter & Co or $116,846 paid to Hampton Winter & Glynn was in respect of solicitor and counsel fees for the Family Court of Australia proceedings.
Comparing the information in paragraph 6 of the affidavit of Michael Winter filed on 8 February 2012 and paragraph 4 of the affidavit of the wife filed on 8 February 2012 it appears that since receiving monies pursuant to Court orders (being monies to be used “only for solicitor and counsel fees for the proceedings in the Family Court of Australia”) most of the monies have been spent but it is not at all clear that the sums paid related to solicitor or counsel fees for the Family Court of Australia proceedings. Indeed, some payments are clearly not of this type. Tony Graham SC was paid $17,000 for counsel fees relating to the wife’s Supreme Court litigation against DM Firm and F Firm (solicitors) were paid $20,000 presumably for that litigation.
The Court has the power to make an order for interim costs, whether it is pursuant to section 80 or section 117 of the Family Law Act 1975 (Cth) (“the Act”). The provisions of section 117(2A) require the Court to consider various factors. The financial circumstances of the parties and the conduct of the parties to the proceedings are relevant.
The general requirement is that the Court must be of the opinion that there are circumstances which justify the making of the order and that the Court considers it just.
In relation to the conduct of the parties to the proceedings the Court takes into account the history of the interim applications made by the wife in relation to both interim property settlement and interim costs.
The failure of the wife to fully explain the use of approximately $1.2 million dollars which was required to be used only for solicitor and counsel fees for Family Court of Australia proceedings is significant. ($1.6 million dollars less $300,000 retained by the Family Court and $75,000 paid to the Independent Children’s Lawyer is approximately $1.2 million dollars).
It is also significant that the Full Court of Australia made orders as recently as June 2011 based upon the reasonable anticipated legal costs to be incurred by the wife to the conclusion of these proceedings.
The provisions of section 117(2A)(g) and section 79(2) require the Court to consider in all the circumstances of this particular case whether a further order requiring the husband to pay more sums to the wife on account of anticipated costs would be just and equitable.
Taking into account the history of these proceedings, the order of the Full Court of 10 June 2011 and the unresolved issues concerning the available assets and financial resources of the parties, the Court does not find, on an interim basis, that the payment of a further sum on account of costs is just and equitable nor is it otherwise appropriate to make such an interim order.

(c) Interim maintenance

The wife seeks lump sum or periodic payment for 12 months of interim maintenance of “$2,000,000 or other such sum as the Court deems fit”.
The husband opposed the order. On his behalf counsel referred to the Consent Orders which were made on 5 July 2011 which dismissed the wife’s application for interim spouse maintenance filed on 22 June 2011 in which the wife sought $6,254 per week or $325,208 per annum. The Consent Order provided for both parties to received $320,000 but a designation of the sum as either maintenance or interim property settlement was reserved.

The provisions of section 74 allow the Court to make such order as it considers proper for spouse maintenance. The matters to be taken into account are set out in section 75. The Financial Statement filed by the husband on 10 February 2012, refers to his total weekly income as $112 per week and total weekly expenditure of $33,819. This includes the sum under Item 31 described as “maintenance payments/child support paid for the benefit of the child …” at estimate $11,657 per week. Amongst the items set out in Part N, Item 60 under “average weekly expenses” the husband also includes the sum of $2,124 per week for food (including restaurants), $530 for entertainment/hobbies and $5,500 per week for holidays (including airfares and gambling). Also included in this section is the sum of $1,000 for “sundry personal expenses (self and wife)”, $2,000 “[The child, S] – contact visits”, $2,000 “other necessary commitments [Ms Strahan]”.
In the affidavit filed by the husband on 10 February 2012 he says, amongst other things at paragraph 13:
13.1Our joint marital assets produce no income. I do not receive regular payments, such as salary or dividends, from my business interests. From time to time I receive winnings from my participation in [gambling]. However this is entirely unreliable and although I am an experienced [gambler], I do not consistently [win]. Further, participation in [gambling] is very expensive and I must outlay substantial amounts for travel and accommodation and to [participate]. The events which offer the more lucrative [winnings] also require large amounts for [participation]. In the financial year ended 30 June 2011, I netted approximately USD$30,000, after expenses and [participation], from [gambling], as deposed to in my affidavit filed on 30 August 2011. In the six months from 1 July 2011 to 31 December 2011, I have received approximately $350,000.
13.2I do not “freely trade in commodities”. I assume the wife is referring to my business interest in [LF] Ltd, which traded in future contracts and commodities via a broker, [FM Inc]. On or about 31 October 2011, [FM Inc] was placed into liquidation. [LF Ltd] has managed to recover USD$4 million, which is currently held with new brokers, and has submitted a claim to the liquidators for the balance. Given the uncertainty, [LF Ltd] is not trading at present, and my investment in it cannot be diluted, as otherwise I will lose control (I own 50.417%). I do not receive any remuneration, whether by way of salary or dividends, from [LF Ltd].
13.3I continue to support other assets. However, many of the investments are in small “start-up” companies or business ventures which pay no dividends and from which it is difficult to extract capital or recover the investment. As assessed by the single expert [Ms E] in October 2008, some of these investments (referred to in the report as “Loans receivable”) are unlikely to be fully recoverable. I deny that these investments have “not been properly disclosed”.
Notwithstanding this information about the husband’s income, the expenses claimed to be paid by the husband on a weekly basis would suggest that he has the capacity to pay spouse maintenance to the wife by gaining access to various assets and financial resources, particularly if the payment is on a monthly basis.
Previously the wife had sought spouse maintenance in the sum of $6,254 per week.
Part N of the Financial Statement filed on 20 January 2012 sets out what are described as the wife’s average weekly expenses. Paragraph 4 of the wife’s affidavit filed on 8 December 2011 refers to her current income and expenses and says further “… I say that reflects a drastic change in my financial position from that enjoyed by me prior to separation when I had virtually unlimited access to funds from marital income and investments.”
The husband has significantly greater control of the income, property and financial resources than the wife.
The age and state of health of the parties is not a significant factor in this interim determination. (Section 75(2)(a)).
The physical and mental capacity of each of the parties for gainful employment is not determinative in this interim hearing. (Section 75(2)(b)).
The fact that the mother has the care and control of the child (who has not attained the age of 18 years) and the child’s particular needs are relevant to the wife’s spouse maintenance claim. (Section 75(2)(c)).
Similarly, the commitments that both parties have made to provide support for the child are relevant.
Under section 75(2)(d) the Court needs to consider the commitments of each of the parties that are necessary to enable the party to support himself or herself. (Section 75(2)(d)(i)).
Emphasis must be placed upon the use of the word “necessary” in this context, while at the same time bearing in mind the provisions of section 75(2)(g) which refers to the standard of living that in all the circumstances is reasonable.
As previously indicated the wife claims in Part N to have weekly expenses for food for herself alone (not including the child or any other adult) totalling $1,283 and household supplies for herself alone $1,210, together with medical, dental and optical (not including health insurance premium) for herself alone at $351 per week, chemist/pharmaceutical for herself alone at $73 and $776 for hairdressing, toiletries for herself alone.
Under the heading “other necessary commitments” the wife claims a total of $3,313 per week or $2,711 for herself and $603 per week for the child. It is assumed that these figures are taken from the summary of expenses and bank account reconciliations which include credit card, bank fees and ATM withdrawals, although the actual figures and their interaction with other categories are hard to discern.
For the purposes of an interim order an assessment in accordance with the provisions of section 75 requires the Court to consider an amount which is reasonable and proper for the provision of maintenance based upon the commitments which would be necessary to enable the wife to support herself, taking into account the standard of living that in all the circumstances is reasonable. This should also take into account the wife’s claim to a past luxurious lifestyle.
The submissions on behalf of the husband were that the amount now claimed by the wife for spouse maintenance was manifestly excessive and unjustified.
Reducing some of the expense amounts claimed by the wife to those which could be found to be necessary and reasonable taking into account the wife’s standard of living, produces the following figures per week:
Food  $1,000.00 (*$1,283)
Entertainment  $1,000.00 (*Nil)
Household supplies  $500.00 (*$1,210)
Household repairs  $220.00
Telephone  $165.00
Petrol   $41.00
Motor vehicle maintenance  $245.00
Fares/car parking  $15.00
Clothing and shoes  $500.00 (*$1,147)
Children’s activities  $346.00
Medical, dental and optical  $351.00
Holidays  $216.00
Chemist  $73.00
Gardening  $299.00
Cleaning  $227.00
Dry-cleaning  $7.00
Books and magazines  $36.00
Gifts  $14.00
Hairdressing and toiletries  $500.00 (*$776)
Other “unknown commitments” (say)   $250.00 (*$2,711)
Total:  $6,005.00
Or $26,021 per calendar month
Items in brackets marked with an * are amounts claimed by the wife which are not accepted as reasonable. Other amounts are as claimed by the wife.
The wife received the sum of $320,000 pursuant to Consent Orders on 5 July 2011. That amount has not yet been categorised as either interim property settlement or spouse maintenance. However taking into account that sum and other sums received by the wife it is not appropriate to back-date any order for spouse maintenance at this interim stage.
Taking into account the difficulties in carrying out an assessment of an appropriate amount which could be described as necessary to enable the wife to support herself on an interim basis, the Court considers it is proper (pending the final determination of the financial circumstances of the parties) to order that the husband pay to the wife interim spouse maintenance at the rate of $26,021 per calendar month, payable on 1 May 2012 and each calendar month thereafter pending trial.

(d)Application for husband to provide the funding for the child’s “annual programme”

The application of the wife sought orders that “The husband provide the funding for [the child’s] annual programme; as detailed in the 2012 budget exhibited to my affidavit and marked “ES 8A”, to [WS] Nominees at the commencement of each calander (sic) year”.The application was filed on 8 December 2011 so it is assumed the wife was seeking an order for payment at the commencement of 2012.
“ES 8A” is an annexure to the wife’s affidavit. In paragraph 40 of her affidavit it is stated “exhibited (sic) to this affidavit and marked “ES 8A” is a copy of the budget that I have prepared with the help of Dr [HS] the details of which the husband is well aware of”.
At the end of that paragraph the wife states: “the husband in principal (sic) has agreed to pay for a clinical psychologist and for a family care worker but to date no funding has been forthcoming”.
Annexure “ES 8A” refers to estimated costs for numerous teachers, managers, psychologists, support workers, consultants and other experts, including wages, flights, travel costs, accommodation and other expenses.
The second page of the annexure is headed “Travel + Salary + Supporting Personnel + Administrative + Insurance costs + per diem = Daily allowance to cover incidental expenses”. It refers to items such as “TAFE Cooking Course per week yearly - $50,000.00; Personal Chef yearly - $62,824.00; Personal Body Guard yearly - $111,504.00”. It refers to other tutoring costs and expenses including “school holidays Interstate x 5 persons - $60,000.00 x 3 = $240,000.00 and Overseas x 5 persons – approx Yearly - $200,000.00”. It also includes figures for cleaners for the Adelaide residence and gardener for Adelaide residence. It is not clear whether these items are similar to, or the same as, items referred to in the wife’s claim for personal expenses in her Financial Statement.
The third page of the annexure “ES 8A” refers to other items and then as a final total “$2,203,428.78”.
In paragraph 18 of the husband’s affidavit he says:
18.I refer to paragraphs [34] to [35]. I have always made generous financial provision for [the child], and will continue to do so. I paid approximately $11,600 per week towards [the child’s] financial support in 2011, by way of regular deposits of funds into [WS] Nominees Pty Ltd as trustee for the [Strahan] Family Trust, which meets education and other expenses. In 2012, my financial support for [the child] will be approximately $1 million, given anticipated costs for an additional carer ($146,000 per annum) and a clinical psychologist ($170,040). I also continue to pay, both for [the child’s] and the wife’s benefit, the outgoings of the real properties in South Australia, together with other expenses.
In counsel’s submissions on behalf of the husband it was also stated that “many of the expenses claimed in annexure “ES 8A”” in the wife’s affidavit are excessive and unrealistic.
Section 114 of the Child Support (Assessment) Act 1989 (Cth) states that one of the additional objects of the Division (concerning orders for departure from administrative assessments) is that children have their proper needs met from reasonable and adequate shares in the income earning capacity property and financial resources of both of their parents and that parents share equitably in that support.
In this case there are special circumstances which primarily relate to the considerable past income of the husband, the parties’ standard of living and the child’s special needs. The provisions of section 117(2)(b)(ia) and (ib) and (ii) are relevant.
In the special circumstances of this case an administrative assessment may well result in an unjust and inequitable determination of the proper support for the child. However the financial resources of the child as provided by the husband to the companies and trusts set up for the child’s support also need to be considered.
The provisions of section 117(6)(a) and (b) are also relevant.
The husband has sworn on oath that he has voluntarily paid $600,000 per annum for the child’s support in the past and anticipates payments for the year 2012 in excess of $1 million dollars.
Whilst the special circumstances of this case enable the Court to find that there would be grounds to consider a departure (based upon the special needs of the child and the parties’ financial circumstances) the Court is still required to consider whether it would be just and equitable to make an interim order.
Taking into account the husband’s commitment to pay significant sums for the child’s needs, including the reference to expert assistance, it is not appropriate to determine, on an interim basis, that it is just and equitable to make a departure order.

Orders

For the above reasons the Court makes an order for interim spouse maintenance for the wife as set out below. I adjourn paragraphs 2 and 7 of the wife’s Application in a Case to the determination of the trial. Otherwise, save as to the question of costs, the application is dismissed.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 April 2012

Associate:

Date: 24 April 2012

[2012] FamCA 248

24 April 2012

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