Thomas & Anthony (No 2) - [2011] FamCAFC 244

FAMILY COURT OF AUSTRALIA

THOMAS & ANTHONY (NO. 2)

[2011] FamCAFC 244

FAMILY LAW – APPEAL – Application for leave to appeal against interlocutory orders of a Family Court Judge – Financial proceedings – Assertion made on behalf of the appellant husband that the trial Judge had erred in obliging him to deposit, or cause to be deposited, all bonus payments received by him from his employment, into an account from which a number of expenses, about which the appellant husband has not complained to this Court, were to be met, with any surplus over and above those payments being retained in the account – Not demonstrated that the trial Judge erred in principle or that there as was any error of discretion, to the making of an interlocutory injunction with respect to the appellant husband’s bonus payment – Not established on the limited findings of fact which the trial Judge was able to make, that his Honour erred in the exercise of his discretion in making the order he did, in the terms in which he did – Where the trial Judge’s undisturbed findings as to the appellant husband’s available net surplus of funds from other remuneration received by him suggests that, in the absence of good reasons for doing so, only bonus payments over and above $547,300.00 per annum should remain invested until the conclusion of the proceedings, unless the parties agree otherwise – Where it was for the appellant husband to seek an order to have access to the Z property given that legal ownership was with the respondent wife – Where the correspondence between solicitors for the parties would have left a reasonable person in the appellant husband’s position in no doubt that he would receive no indulgence or other consideration from the respondent wife to which he was not lawfully entitled – Where the trial Judge’s order, with respect to the Z property, did no more than reflect the legal position – Where the appellant husband failed to establish either an error of principle and/or substantial injustice – Application for leave to appeal dismissed

FAMILY LAW – COSTS – Where the appellant husband’s application for leave to appeal was wholly unsuccessful – Where the obstacles to success of the application would, or should, have been readily apparent to the appellant husband and those advising him – Where the appellant husband is to pay the respondent wife’s costs of and incidental to the appellant husband’s application, including reserved costs, as agreed or assessed on a party and party basis

Family Law Act 1975 (Cth) s 93A
Child Support (Assessment) Act 1989 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Jeeves & Jeeves [2011] FamCAFC 94
Rutherford and Rutherford (1991) 105 FLR 41; (1991) 15 Fam LR 1; (1991) FLC 92-255

APPELLANT:

Mr Thomas

RESPONDENT:

Ms Anthony

FILE NUMBER:

SYC

4283

2010

APPEAL NUMBER:

EAA

2011

DATE DELIVERED:

23 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ, Coleman & Ainslie-Wallace JJ

HEARING DATE:

19 October 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 April 2011

LOWER COURT MNC:

[2011] FamCA 269

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Batey

SOLICITOR FOR THE APPELLANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

That the application for leave to appeal be dismissed.
That the husband pay the wife’s costs of and incidental to such application, including reserved costs, as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Thomas & Anthony is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 57 of 2011
File Number: SYC 4283 of 2010

Mr Thomas

Appellant

And

Ms Anthony

Respondent

REASONS FOR JUDGMENT

Introduction

On 13 May 2011 Mr Thomas (“the husband”) sought leave to appeal against interlocutory orders made by Watts J pursuant to the provisions of the Family Law Act 1975 (Cth) (“the Act”) on 15 April 2011 in financial proceedings between the husband and Ms Anthony (“the wife”).
The orders against which the husband sought leave to appeal provided that the husband cause any funds payable to him by his employer, by way of bonus, to be deposited to a bank account, and disbursed in accordance with other orders uncontroversially made by the trial Judge; and that the wife have exclusive occupation of Z, a rural property owned by the wife in southern New South Wales (“the Z property”).
The wife resisted the husband’s application and sought to maintain the trial Judge’s orders.
On 14 October 2011 the wife filed an application for leave to adduce further evidence in the appeal pursuant to section 93A of the Act in order to “buttress” the trial Judge’s decision. Counsel for the husband submitted that the evidence upon which the wife sought to rely was not relevant to the proceedings before this Court. Unless leave to appeal is granted, no question of leave to adduce further evidence in the appeal can arise. However we discern no reason in principle why the wife could not rely upon her further affidavit evidence in support of her opposition to the husband’s application for leave to appeal. Nor do we discern any reason why we should not rely upon that evidence to the limited extent that we propose doing, particularly as we do not understand that evidence to be disputed.
It is common ground that, for the husband’s application to succeed, it is necessary that an error of principle and/or substantial injustice be demonstrated (See Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Rutherford and Rutherford (1991) 105 FLR 41; (1991) 15 Fam LR 1; (1991) FLC 92-255, Jeeves & Jeeves [2011] FamCAFC 94).

Material Facts

Some material facts provide background to the proceedings and find expression in the Reasons for Judgment of the trial Judge. For present purposes these matters are not controversial.
The parties married in 1994, finally separated in April 2010, having separated under the one roof one year previously, and were divorced in August 2010.
The husband was 48 and the wife 44 years of age at the date of the trial Judge’s judgment. There are four children of the parties’ relationship who were then aged 15, 14, 10 and 9 years. The children have been in the primary care of the wife since the parties separated.
In the 2009 calendar year the husband had a gross taxable income in excess of $2,740,000.00. In the 2010 calendar year, the husband had received a gross taxable income of $1,736,000.00 by 31 July 2010. Historically, a significant proportion of the husband’s remuneration had been paid to him in the nature of bonuses, and generally so described. What remuneration the husband was likely to receive in the 2010 calendar year, and subsequently, by way of bonus, was controversial before the trial Judge.
The husband reduced his working hours subsequent to the parties’ separation, thereby significantly reducing the remuneration which he had received and was likely to continue to receive.
In December 2010 the husband received a bonus of $413,555.00 net of tax. Counsel for the husband did not dispute the wife’s evidence of 14 October 2010 that, in June 2011, the husband received a further $88,059.80 net by way of bonus from his employer.
The parties agreed before the trial Judge that an order for interim spousal maintenance of $1,475.00 should be made, and the trial Judge so ordered. No part of the application to this Court involves any challenge to that order.
Although Child Support was controversial before the trial Judge, and the husband initially challenged Departure and other orders made by the trial Judge pursuant to the Child Support (Assessment) Act 1989 (Cth), those challenges were not pursued before this Court.
For reasons which he detailed, the trial Judge concluded that the wife should have exclusive occupancy of the Z property, receive the income from farming and grazing operations on it, and pay all expenses in respect of such operations.
The husband complained to this Court that the trial Judge had erred in obliging him to deposit, or cause to be deposited, all bonus payments received by him from his employment, into an account from which a number of expenses, about which the husband has not complained to this Court, were to be met, with any surplus over and above those payments being retained in the account.
For reasons which he detailed, the trial Judge rejected the husband’s assertions that injunctive orders of that kind were unnecessary.
Before this Court, the husband continued to complain that the trial Judge had erred in making injunctive orders with respect to his bonuses; but, in the alternative, argued that, if the trial Judge had not erred in making an injunctive order of the kind he did, his Honour had erred in not limiting such injunctive order to the payments which other orders properly required to be paid out of the account into which the husband’s bonuses were deposited.

The Proposed Challenge to the Trial Judge’s Order With Respect to Bonuses Paid to the Husband.

Grounds 1 and 1A

Ground 1 and Amended Ground 1A of the husband’s proposed grounds of appeal provided:
GROUND 1. That His Honour failed to give reasons or any adequate reasons for requiring the whole of the husband’s bonus to be deposited into the home loan account.
AMENDED GROUND 1A. That His Honour’s discretion miscarried in making Orders unfairly prejudicial [to] the Husband, in that His Honour’s Orders 3 and 10 in combination, injunct [sic] the husband from the balance of his post separation income, when there was no evidence before His Honour that the final Orders sought by the wife would be prejudiced if the husband were to have the sole benefit of the balance of his bonus payments after compliance with payments provided for in Orders 4 – 7.
Although, as is clear from its terms, Ground 1 represented a “Reasons challenge”, the submissions in support of the Ground were directed more to the substance of the order than to the adequacy of the trial Judge’s revelation of the reasoning process which gave rise to the order.
As the submissions of Counsel for the husband tacitly acknowledged, the trial Judge adequately revealed why he concluded as he did with respect to the interlocutory injunctive orders he made. The issue is really, whether the trial Judge’s discretion miscarried in making the orders. The passages of his Honour’s reasoning which are relevant to that issue reinforce our conclusion that the proposed challenge to the adequacy of his Honour’s reasons fails.
Under the heading “Conflict Between The Parties Over Finances On An Interim Basis”, the trial Judge considered the wife’s application with respect to the husband’s bonuses.
His Honour recorded in that regard:
10.A reading of the affidavits makes it clear that both parties agree that there have been considerable difficulties in them successfully communicating with one another about the wife’s desired future expenditure.
11.Those difficulties have come about partly as a result of the husband voluntarily reducing his income and partly as a result of the husband requiring greater accountability by the wife and asserting that there should be a reduction in her lifestyle and the children’s lifestyle pending final determination of the property proceedings.
12.The husband concedes that up until a particular point in time well after the separation, the arrangements that had been in operation during the marriage, including the arrangements in relation to the husband’s bonus payments continued.
13.The husband seemed to stop these arrangements in order to take some control over the wife’s use of those bonus monies. The husband concedes that the wife was forced to borrow funds from her father and another person on a short term basis in order to meet expenses that she had. The husband says he subsequently provided funds to the wife to reimburse those persons from whom the wife had borrowed monies.
This Court has not been referred to any evidence which would establish that any of the findings of fact there recorded were other than reasonably open to the trial Judge.
It is common ground, as the trial Judge recorded at paragraph 14, that the husband received a bonus from his employer of $413,555.00 net of tax in December 2010. His Honour found that the husband did not disclose the receipt of such funds until approximately three months after he had received them, a finding of fact which has not been challenged before this Court.
As noted earlier, and as evidenced by the wife’s affidavit of 14 October 2011, the husband received a further $88,059.80 net by way of bonus from his employer in June 2011. The husband’s total bonuses, in the 1 July 2010 – 30 June 2011 financial year, accordingly approximate $501,614.80.
The trial Judge also recorded:
15.There are a number of other assertions made by the wife as to inappropriate behaviour by the husband, including lack of timely payments, lack of financial disclosure and assertions of deliberate non disclosure. In the context of this interim hearing, I do not intend to entertain and am unable to determine any of those matters. An assertion was made by senior counsel for the wife that I would find as inherently unbelievable the evidence by the husband that he received a tax refund cheque of $25,000 and did not bank it for a considerable period of time, during which time he was asserting to the wife that he had insufficient funds to provide to her. Although I do not have specific evidence about it, counsel for the husband asserted from the bar table that the cheque was not “put in a drawer” but rather languished in the husband’s in tray, without the husband realising the Australian Tax Office had provided the husband with that refund cheque. I am unable in the context of this hearing to make any assessment that the husband’s explanation is so inherently unbelievable that I would reject it out of hand.
His Honour further recorded:
17.The husband concedes in his affidavit of 8 March 2011 that he did not comply with the injunction which was made by the court on 8 December 2010 to the effect that he be restrained from using, drawing against or transferring any part of the bonus, performance bonus, additional award, annual award, or profit sharing received from his employer. When he received his bonus, he originally placed it in a Commonwealth Bank complete access account in his own name but then drew on it to the sum of about $100,000. That money was put back into the original account on 2 March 2011 after receiving advice from his solicitors.
Nothing to which this Court has been referred establishes that any finding of fact made by his Honour in the preceding paragraphs was not reasonably open to him.
Ultimately, his Honour concluded:
20.The arrangements suggested by the husband will only in my view lead to a continuation of debates over the appropriateness of accounts. The wife’s proposals are far cleaner in terms of defining what responsibilities each party has for making payments and giving parties access to funds in order to make those payments. I accordingly shall make orders as generally proposed by the wife.
Nothing to which we have been referred demonstrates that the trial Judge erred in principle, in his determination of the wife’s application for interlocutory injunctive relief. Nor has any error of discretion been demonstrated. The husband’s proposed challenge to the making of an interlocutory injunction with respect to his bonus payment fails.
Counsel for the husband submitted that the trial Judge could only have permissibly made an interlocutory injunctive order of the kind he made to the extent that so doing was necessary to secure payment of the outgoings which the evidence revealed to be appropriately met from the husband’s bonuses.
In support of his contentions, Counsel for the husband submitted that the trial Judge erred in requiring the husband to deposit the “residue of his bonus [over and above expenses which were appropriately to be met out of it] into the mortgage account “and that this requirement” prejudiced the husband by limiting him to a modest sum, if any, from his weekly salary on which to meet his own expenses”. Although it has no implications for present purposes, we do not understand this proposition to have been put to the trial Judge by way of alternative to the wife’s application.
On behalf of the husband, it was further submitted that:
The evidence of the husband was that without access to his bonus he would be unable to meet the whole of the cost for the loan repayments, financial support for the wife and children – whether at a level proposed by the husband, or as found by His Honour – and his own expenses. The husband’s evidence was that he would require access to his bonus payments to maintain timely and regular payments of the loans and the financial support for the wife [sic] children and himself.
The husband’s evidence was that both during the marriage and immediately after, due to his monthly salary income being insufficient, he would overdraw the home loan account to fulfil his financial obligations to the loans, financial support of the wife and children, and later his own necessary expenditure [sic] This resulted in regular draw-downs from his home loan account at times when necessary expenditure exceeded his available net salary. The husband would then reimburse the home loan draw-downs twice per annum from his bonus payments. (footnotes omitted)
In the course of his submissions, Counsel for the husband conceded that, after meeting the obligations imposed upon him by the trial Judge’s orders, and his own rent ($2,308.00 per week), personal expenses ($1,470.00 per week), and income tax ($5,215.00 per week), the husband would retain a net surplus of $4,487.00. In the light of that concession, it is difficult to see on what basis Counsel for the husband could successfully assert that the trial Judge’s orders left the husband with insufficient funds to maintain himself at a reasonable level on an interim basis.
Senior Counsel for the wife referred to the weekly outgoings of $10,525.00 which, it is not in doubt, both parties agreed were payable by way of interim spousal maintenance ($1,475.00), child support ($4,261.00), school fees and associated expenses ($1,538.00), and loan repayments ($3,251.00), an annual sum of $547,300.00 from the account to which the husband’s bonuses had historically been paid, and were obliged to be paid by the trial Judge’s orders.
It was submitted by Senior Counsel for the wife that, on the husband’s own evidence before the trial Judge, and in the light of what the husband had received in the 1 July 2010 – 30 June 2011 financial year by way of bonuses, at best, the trial Judge’s orders provided a fund equal to the agreed annual outgoings from the account to which it was ordered to be paid.
Senior Counsel for the wife referred the Court to the affidavit evidence of the husband before the trial Judge in which the husband said:
12.19.As to paragraph 40, I have no further information other than that the bonus will not be paid until some days following 20/21 December 2010. The wife did not request me to advise the name of the person at [Company 1] who informed me of this. The person who informed me of this information was the Chief Financial Officer [Mr P]. I still do not know the amount of the bonus but expect it will be in the range of $200,000 to $300,000 net of tax.
As is not in doubt, the husband was there suggesting total annual bonuses of between $400,000.00 and $600,000.00.

As we have earlier recorded, in the 1 July 2010 – 30 June 2011 financial year, the husband’s bonus payments, one of which the trial Judge referred to was in the amount of $413,555.00 (received in December 2010), the second of which was $88,059.80 (received in June 201)1 approximated in total $501,614.80. This fell within the range the husband suggested, albeit approximately, $46,000.00 less than the agreed outgoings to be met from the husband’s bonuses.
The complaints on behalf of the husband in relation to any unnecessary or unreasonable retention of bonus payments were thus submitted by Senior Counsel for the wife, on both the husband’s own evidence of his expectations, and the evidence of what it is now known that he has received, to have been unsustainable.
We accept that contention. Moreover, even if, contrary to what the evidence reveals, there was, or will be, bonus payments in excess of $547,300.00 per annum, it is open to the husband to apply to vary the trial Judge’s orders if he seeks to access such surplus. The trial Judge’s undisturbed findings as to the husband’s available net surplus of funds from other remuneration received by him suggests that, in the absence of good reasons for doing so, only bonus payments over and above $547,300.00 per annum should remain invested until the conclusion of the proceedings, unless the parties agree otherwise.
On the limited findings of fact which the trial Judge was able to make, it cannot be successfully asserted that his Honour erred in the exercise of his discretion in making the order he did, in the terms in which he did.
We are not satisfied that either of these proposed grounds has merit.

The Z Property Challenges

Ground 2

Ground 2 of the proposed Notice of Appeal provided:
GROUND 2. That the husband was denied Natural Justice and Procedural Fairness when His Honour made an Order for the wife to have exclusive occupation of “[the Z property]” without either party seeking such an Order, and without allowing the husband an opportunity [sic] be heard before making such an Order, and against the evidence that both parties had previously had the use of “[the Z property]”.
In his cogent written submissions in support of this proposed challenge, Counsel for the husband submitted that:
Neither party identified any facts or circumstances, or any inconvenience that would justify an Exclusive Occupation Order in favour of either party.
Until July 2010 the husband was the lessee of the property from the wife who was the registered proprietor. Until June 2010 the husband effectively ran and managed all aspects of the day to day operation of [the Z property] [sic]
The wife’s evidence fails to identify how an Exclusive Occupation order would compromise the operation of the farm by either party having ongoing rights to the use of the farm [sic]
There was no evidence that the occupation of [the Z property] was either necessary or vital to the management of the farm, as the evidence satisfactorily established that a part time manger [sic] was employed buying and selling stock, and managing the accounts and/or the occupation of the farm was not an integral part of the financial management of [the Z property].
The wife’s written and oral submissions do not refer to any Order sought by the wife relevant to the use and occupation of [the Z property]. The reference to the wife’s proposals were nothing more than her opposing the husband’s management of the financial affairs of [the Z property].
The husband was not advised by His Honour that he would be determining the issue of Exclusive Occupation of [the Z property] in circumstances where such an Order was not sought, and where there was no evidence to suggest such an Order was necessary. The Appellant submits by making the Order without raising the matter with the husband’s legal advisors, and in circumstances where the wife had not sought the Order, the husband was denied procedural fairness. (footnotes omitted)
It was further, and with equal cogency, also submitted by Counsel for the husband that:
In the instance case, the husband and wife enjoyed the benefits of occupation and operation of [the Z property] during the marriage. The property had been bought in the wife’s name but with funds obtained during the marriage, primarily from the husband’s earnings. The placing of the property in the wife’s name was not, and should not be a basis for bestowing to the wife any higher priority to occupation of [the Z property] when, until July 2010, the husband had been the registered lessee of the [Z] property.
The farming operation appears to have been conducted in the main by the husband with the assistance of a manager and contract help. Both parties deposed to giving instructions to the manager, and the wife gave evidence as to the refurbishment of the property. Both parties seek to retain [the Z property] as part of their final property Orders.
It is submitted that in the face of competing ownership and use of the property, where the evidence as to which party, if any, had the greater claim could not be decided on an interim basis, due in part to the absence of any, or any persuasive evidence from the wife, His Honour was not in a position to apply any of the usual tests necessary to invoke his determination for an Exclusive Occupation Order. In circumstances where no such Order was sought by the wife, then the dicta of Mason J in Kioa becomes highly relevant. His Honour’s Order deprived the husband of his right and interest and legitimate expectation of the use and operation necessary to the financial operation of [the Z property].
Senior Counsel for the wife resisted this proposed challenge on two broad bases. The first was that, the wife being the registered proprietor of the Z property, absent her permission to do so, or a court order having that effect, the husband had no legal right to enter onto the Z property. It was accordingly submitted that the trial Judge’s order did no more than recognise the legal position with respect to the Z property.
To the extent that the husband complained that he had no notice of the likelihood of such an order as the trial Judge made in relation to the Z property, it was submitted by Senior Counsel for the wife that the husband should have recognised his position at law, and the reality that the wife opposed his presence on the Z property.
We agree that the trial Judge’s order did no more than reflect the legal position with respect to the Z property. Without needing to refer to it in detail, well prior to the hearing before the trial Judge, the correspondence between solicitors for the parties would have left a reasonable person in the husband’s position in no doubt that he would receive no indulgence or other consideration from the wife to which he was not lawfully entitled. If the husband wished to enter upon the Z property, given its legal ownership, it was for the husband to have sought an order to do so. The husband knew, or should have known, that the wife opposed his presence there.
As Senior Counsel for the wife submitted, the trial Judge provided reasons which, particularly in the context of an interlocutory hearing, both adequately explained why he made the order he did, and provided a reasonable basis for doing so.
His Honour relevantly recorded:
52.The parties give irreconcilable evidence in relation to the history of the management of the [Z] property. I am unable to determine in the context of this hearing which version should be preferred. It does seem however that there are a small number of agreed facts:
52.1.         [The Z property] is registered in the sole name of the wife;
52.2.         [The Z property] is a working farm which was acquired in November 2006;
52.3.         The property was in a derelict state when it was purchased and the wife over the past four years has arranged and coordinated renovations to the property and the outbuildings. This has involved working in conjunction with the National Trust for three years. She did not engage an architect, interior decorator or building supervisor. The husband concedes the parties had agreed that the wife would look after the house and the garden. The parties are at odds in relation to what the agreement was in respect of other parts of the property. The wife visited the property weekly to supervise the renovations;
52.4.         The children and the wife spent the majority of the school holidays over the last four years at the farm. The husband, during some of these times, used the property as a base from which to travel to work; and
52.5.   In 2008 a lease arrangement was entered into between the wife and the husband with the wife as landlord and the husband as tenant. I was told from the bar table during submissions that this arrangement was entered into for the purposes of possible tax advantages which would indicate that there was some loss being generated by the farm which could be offset against the husband’s income. That loss however may have included the lease payment that was being paid by the husband to the wife in respect of the lease of the [Z] property. On 19 June 2010 the wife notified the husband that the leasing arrangement would cease from 1 July 2010. The husband did not oppose this initially as he “hoped that we could come to an amicable arrangement for sharing the farm”.
Nothing to which we have been referred establishes that any finding of fact there made by the trial Judge was not reasonably open to him. Nor was reliance upon those matters in the exercise of discretion erroneous.
The trial Judge further recorded:
53.Both parties assert that it is no longer possible to jointly manage the farm and both seek to do so. The parties are in dispute as to whether or not the income produced by the farm is sufficient to cover its operational expenses. The wife asserts that there is no operating loss and is prepared to underwrite any shortfall by paying all expenses relating to the farm on the basis that she receives the income from the farm.
54.Senior counsel for the wife asserts that to allow the husband control of the farm would be to inappropriately alter property prior to the final hearing.
His Honour ultimately concluded:
55.Considering the agreed matters as set out above in relation to [the Z property], I find that on balance it is appropriate to allow the wife to continue the operations of the farm at [the Z property], to receive the income from the farm and to pay all expenses in respect of the farm. I will make orders accordingly.
Neither as a matter of discretion or natural justice are we persuaded that this proposed challenge has merit.

CONCLUSION

No proposed Ground of Appeal being shown to have merit, the husband fails to establish either an error of principle and/or substantial injustice. His application for leave to appeal will accordingly be dismissed. Save to the extent that we have earlier indicated, we do not need to have regard to the affidavit of the wife of 14 October 2011.
Even if we are in error, and the husband has demonstrated an error in the exercise of discretion, we would be disinclined to grant leave to appeal.
Properly construed, the challenges sought to be agitated by the husband do not demonstrate an error of principle. Largely for the reasons to which the trial Judge referred, a number of which we have also referred to, in relation to the husband’s financial position, it could not be successfully asserted that refusing to grant leave to appeal could cause the husband substantial injustice.
There are a number of reasons why that is so. They include:
a)That if, contrary to the evidence before the trial Judge and this Court, the husband’s net bonuses exceed $547,300.00 per annum, he could apply for interlocutory orders in relation to such excess;
b)The trial Judge’s unchallenged findings of fact in relation to the sum the husband otherwise has for his support ($4,487.00 per week) after meeting obligations imposed by the trial Judge’s orders, payment of rent ($2,308.00 per week), income tax ($5,215.00 per week) and “personal expenses” ($1,470.00 per week); and
c)The reality that, on the estimates of both their Counsel, the net assets of the parties are amply adequate to facilitate any adjustment which, after the final hearing of the substantive proceedings, is considered appropriate to be made with respect to the impact of the interlocutory orders made by the trial Judge.

COSTS

Senior Counsel for the wife sought costs of and incidental to the husband’s application. Such application was wholly unsuccessful.
The obstacles to success of the application would, or should, have been readily apparent to the husband and those advising him.
The Court is of the opinion that the circumstances justify the making of a costs order and we will so order.
67. Such costs order should include costs reserved on 10 October 2011.

I certify that the preceding sixty seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Coleman & Ainslie-Wallace JJ) delivered on 23 December 2011.

Associate:

Date: 23.12.2011