TOLARNO & TOLARNO
[2018] FamCA 836
•18 October 2018
FAMILY COURT OF AUSTRALIA
| TOLARNO & TOLARNO | [2018] FamCA 836 |
| FAMILY LAW – PROPERTY SETTLEMENT – where the wife seeks money by way of partial property settlement for litigation funding where there is a bundle of assets probably around the $6 million mark over which the husband seems to have immediate control – where the husband seeks an order that he too have the same sort of money that the wife seeks – where there is no basis to make an order in favour of the husband but there is a basis to make an order in favour of the wife. FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks spousal maintenance either on a periodic basis or on a lump sum basis – where the wife satisfies the test in s 72 of the Act but the payment should be a lump sum to avoid further confrontation and argument between the parties – where the husband seeks $2000 per week by way of partial property settlement but effectively to live on, there is no basis to make such an order in this case have regard to the access to funds that the husband has. FAMILY LAW – ANCILLARY ORDERS – where the husband seeks costs but there is no basis for such an order departing from the principal in s 117 of the Act – where the wife seeks an order under s 106A of the Act but there is no indication that the orders will not be complied with at this stage. |
| Family Law Act 1975 (Cth) |
| Kendling v Kendling[2008] FamCAFC 70 Strahan & Strahan [2009] FamCAFC 166 |
| APPLICANT: | Ms Tolarno |
| RESPONDENT: | Mr Tolarno |
| FILE NUMBER: | MLC | 4394 | of | 2018 |
| DATE DELIVERED: | 18 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 15 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr North S.C. |
| SOLICITOR FOR THE APPLICANT: | Nicholes Family Lawyers |
| SOLICITOR-ADVOCATE FOR THE RESPONDENT: | Ms Barbayannis |
| SOLICITOR FOR THE RESPONDENT: | Barbayannis Lawyers Pty Ltd |
Orders
That within 30 days, the husband pay to the wife by way of partial property settlement the sum of $120,000.
That within 30 days husband pay to the wife the sum of $80,000 by way of spousal maintenance capitalised at the rate of $2,000 per week.
That the parties instruct B Accountants to complete all outstanding taxation returns up and until 30 June 2018 and the necessary professional costs be paid from the parties resources other than the sums already mentioned above.
That the husband and wife obtain valuations of the relevant real estate properties that are subject to any dispute in those expenses be paid from the parties joint resources other than the funds referred to above.
That upon the completion of the taxation returns and valuations of all properties, the parties engage an appropriate expert for the purposes of a valuation of their business interests.
That the parties forthwith engage counsel experienced in taxation matters for the purpose of obtaining advice to assist B Accountants as to what course of action should be taken in respect of accounting matters.
That all parties provide discovery in accordance with the Family Law Rules (2004) (Cth) immediately.
That the parties have liberty to apply.
That all interim applications are otherwise dismissed.
That the court certifies that it was appropriate in the circumstances for the wife to be represented by senior counsel.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tolarno & Tolarno has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4394 of 2018
| Ms Tolarno |
Applicant
And
| Mr Tolarno |
Respondent
REASONS FOR JUDGMENT
The interlocutory issues between Mr Tolarno (the husband) and Ms Tolarno (the wife) focus on the following:
a)A partial property distribution for litigation funding purposes where each party seeks $120,000;
b)A claim by the wife for spousal maintenance in either the sum of $2,500 per week or a lump sum of $80,000, whilst the husband seeks that each receives $2,000 per week but that it be by way of partial property settlement (the latter being opposed by the wife);
c)The parties agree to instruct B Accountants to complete all outstanding tax returns to 30 June 2018 but there is disagreement about how the professional costs be paid;
d)Upon completion of (c), the wife seeks that valuations of the parties’ real estate properties be undertaken (a proposition that the husband opposes);
e)if (d) is ordered and completed, the values obtained be provided to a single expert witness to enable the valuation of the parties various entities to be undertaken (that is opposed by the husband);
f)That counsel be engaged to deal with taxation issues (the husband opposing that proposal, indicating that B Accountants ought be the appropriate source of advice); and
g)Both husband and wife seek discovery orders.
There are then canvassed a small number of ancillary orders concerning directions to mediation, an order under s 106A of the Family Law Act 1975 (Cth) (“the Act”), the husband’s claim for costs and the husband also seeks the appointment of a conciliation conference.
For the reasons that follow, orders should be made for:
a)The husband paying the wife $120,000 by way of partial property settlement;
b)The husband paying the wife of $80,000 by way of a lump sum payment of spousal maintenance;
c)The instructions should be given to B Accountants as has been agreed; and
d)There be consequential orders for valuations both as to the real property and as to the entities as well as directions that the parties brief taxation counsel and the costs of (c) and (d) should come from joint resources;
e)Discovery.
I decline to order a conciliation conference because of the absence of readiness for that but application may be made in the future to waive that requirement under s 79 of the Act if, after all valuations are completed, the mediation is then undertaken.
I also decline to order the parties to attend mediation on the basis that in my view, the court does not have power to make such an order. If the parties are really serious about resolving their dispute and consider that negotiations between themselves would be unlikely to be successful, mediation makes perfect sense.
The background of the litigation
Despite the amounts of money each has spent on legal fees, this dispute is not complicated. Each party needs to make comprehensive disclosure of not only what documents are within their possession or control (and which are not otherwise common to them both because they have one accountant), but they need to do it quickly.
This is a long marriage and the nature of the parties’ respective contributions should be simple to identify. There is undoubtedly a dispute over the husband’s interest in his late mother’s estate but that too is what it is and the husband needs to identify the commercial reality of that dispute bearing in mind the significant loss the parties have already sustained as a result of unsuccessful supreme court proceedings.
There are also impending proceedings in the magistrates’ court of Victoria about an assault and contested intervention order claims but those can be dealt with while the matters associated with a division of their property in this court progress.
Despite having ended a long marriage, the wife sought vague relief identified as 55 per cent of the “total nett property pool”. That needs to be narrowed and confined to precise orders relating to specific property.
The husband’s response was no better. He seeks just that there be a property settlement. The logic behind the husband’s position was that he wanted the wife to make discovery of documents. She should do that but the parties well know the overall financial position and what assets they have having lived it for over 20 years.
The importance of particularising their respective claims can be seen in that the ambit of the dispute has not been quantified in any real way. After such a long marriage where the wife was the parties’ bookkeeper, it should not be difficult to make that quantification. In the wife’s case, she needs to identify which properties she wants rather than some form of percentage. On the husband’s side, it is not clear from his response whether or not he desires to keep the farming property.
All of these matters are relevant in determining whether it is just and appropriate to exercise the powers under the Act here where the parties’ own cases are fluid. It is not just the amount of money they are spending which is of concern but also the courts valuable time.
The parties
The husband is 52 years of age and described himself as a company director but in reality, he is a farmer. His solicitor-advocate raised the question of the extent of his literacy. He has been psychologically affected by the breakdown of the marriage and his consequent (and recent) view is that he wants to reconcile the marriage. That has no doubt contributed to the troubling approach he took to money obtained by the parties’ entities from the farm work but it also affected his physical capacity to work on the farm. It would be unfortunate if this profitable farm was not working.
The wife is 49 years of age and described herself as a farmer and while she has undertaken that work, her role was also to manage the finances of the various entities.
The wife is currently without income and living in rented premises. There was a suggestion of her moving to live in one of the parties’ properties but nothing in the evidence indicates how that would assist. She does not want a reconciliation but her counsel suggested that if the husband was going to allow the farm to remained unmanaged, she should be given the opportunity to intervene.
The husband and the wife married in 1991 and separated in February 2018. From their relationship, three adult children exist. There appears to be a rift within the children as well as between their parents.
None of those matters assists bearing in mind the discrete nature of the matters in issue but it is immediately important to observe that with strenuously defended and disputed facts, the court can only make findings to assist its determination on those matters that are hardly controversial. To the extent that findings can be made here, they are made on the balance of probabilities.
Past orders
The parties have already had court appearances earlier in 2018 at which orders for distribution of money were made. It would seem that the husband kept his amount of money but the wife has spent hers on legal fees. The quarantining of the husband of his share of that money can be adjusted at trial if indeed it is now still seen as money under his control.
The present application
The present application was listed in the judicial duty list just on a week ago and the parties negotiated all day unsuccessfully.
Counsel then appearing for the husband said his client would most likely seek money in the same way that the wife was seeking, albeit that at that hearing, the husband opposed the wife’s application. During the intervening adjournment period, the husband did seek a distribution of funds. Fundamentally, what is apparent from the husband’s documentation, and in particular the submissions put by his solicitor-advocate, he sees this exercise as a balancing or levelling up of money so that what the wife gets, he should also get as a matter of fairness. That was not his position one week ago and I see no legitimate basis in law for adopting that approach now. The wife either proves her case or she does not and the same applies to the husband.
Other background
The other background evidence which gives context to these discrete applications is as follows. The parties have operated a farming business which has been profitable over the years sufficiently to enable them to buy a number of real properties. The farming operation is conducted by Tolarno Proprietary Limited and both husband and wife are directors and shareholders. The company is the Trustee for the Tolarno Family Trust and that holds several landholdings in the area around which the parties live. There is also a unit trust called the Tolarno Unit Trust which receives the income from the farm and then makes distributions to various entities including a self-managed superannuation fund. It will therefore be seen that the parties have prepared their financial and wealth affairs carefully. From the wife’s perspective, there is equity arising from all of that operation in between $8 million and $10 million. That is subject to a taxation issue to which I turn in a moment.
When the parties separated, the wife took $74,000 from the joint bank account and in her affidavit, she set out a whole raft of uses to which that money was put. The husband says there is more money involved and no doubt discovery will resolve that issue.
The wife said that the husband had refused to allow her to draw further funds whilst at the same time he was drawing money. She was unable to access funds without his signature. When she asked for access to money, he was abusive.
Having been accused of drawing monies herself, the wife then accused the husband of drawing what she saw as $125,000 from term deposits.
When examined, the husband’s money situation meant that, on the wife’s analysis, he had control of $394,000. In his October 2018 affidavit, his three accounts were shown to have balances totalling $56,000. Undoubtedly, some of the money has gone on legal fees but I am unable to calculate where all of this money has gone with any precision. In addition to the legal fees associated with his family law solicitor, he has also paid the solicitor acting in the supreme court proceedings.
To compound the confusion, after separation, the husband opened an account in his name with $559,000. The way the wife ascertained details about that money was by issuing subpoenae on the basis that the husband had not provided comprehensive discovery. By July 2018, of the $559,000, $443,000 had been withdrawn and it only became clear in the present proceedings that he explained that payment being made in favour of the parties’ adult son who had operated the farm. The husband describe that money is being “in trust for” his son. In addition to that money being the receipt from farming crops, the husband said that the son had had to pay expenses. Just what has happened to all of that money needs to be part of an accounting exercise. How the husband justified that “trust” for the son, is mystifying bearing in mind that it was the husband and wife who had worked the farm prior to the breakdown of the relationship and their entity owned it.
The husband’s evidence in October 2018 was to note that despite the wife being the manager of the books of account, taxation returns had not been completed for 10 years. That beggars belief. It was that issue that justified the husband’s position that neither party should draw any funds until the position was clarified. The flaw in that logic is that the husband has adopted the view that the parties “could” owe in excess of $2 million in taxation. Even if that is so, there are still substantial assets to be divided.
The curious position adopted by the husband about the taxation is that the wife wanted to seek specific advice from an experienced taxation counsel and the husband resisted it on the basis that the accountant could undertake that work. In my view, the vagueness of the husband’s position about the debt needs more than the accountant’s calculations to sort out whether these parties have what the wife asserts is the equity. Clarity here is critical.
I turn then to the wife’s part property claim. Her evidence is that she now has $24,000 left of all of the money that she took and was subsequently given in the proceedings earlier in the year. In her solicitor’s affidavit filed 15 October 2018, the wife’s legal fees were extensively set out. Having regard to the distance that this case has travelled, those costs are frightening. The amounts for the existing hearing which include senior counsel’s fees are substantial. They will be ongoing as there are intervention order proceedings still to be conducted and any negotiations about how to divide the parties’ assets let alone the use to which they are currently being put.
In her affidavit filed 24 April 2018, the wife set out all of the matters necessary to found an application for a distribution of assets under s 79 of the Act. I turn to those matters now.
The primary farming business is the distribution of certain produce around Australia which are produced on the parties’ properties. As I have already set out, the parties had a web of entities for distribution of wealth. Ultimately there had been a joint bank account that had been used to pay the family’s living expenses and personal bills and they were not paid wages. Each of them had a debit card attached to the bank account but of course, the wife was denied access to that as a result of the breakdown of the marriage. That breakdown has been bitter culminating in the intervention order proceedings and as I understand it, there are assault issues pending.
There are two properties in the parties’ own names and the others which together form the farm, are owned by entities under the parties’ control.
When the parties married, the husband had a modest interest but no land and he was farming in a portion of his parents’ property. The wife was working full-time in office position.
After the parties married in 1991, they rented property and then over the years thereafter, purchased various farms using funds either borrowed or drawn from profits as the business expanded. When each of the children was born, the wife took time off but continued to manage the company’s books. Her unchallenged evidence is that she was the primary homemaker and parent and undertook all of those tasks. The business was sufficiently profitable to enable the parties to set up a superannuation fund and the husband and wife are the joint trustees.
In 2004, the husband’s father died and he received an inheritance but there was then a Supreme Court dispute which commenced in 2015 and was resolved as I have earlier described. As the wife described it, over $1 million in legal fees alone was spent on that dispute.
There is no challenge to the wife’s role along the way save that he added that the wife was primarily involved in the care of the three children and that she did “undertake some packing” and then there was the book work. He described himself as tirelessly working to build up the entities.
It will therefore be seen that the evidence about the parties’ respective contributions is largely uncontroversial.
In respect of the husband’s present pursuit of relief for $120,000 the husband said that he was proposing each receive that amount of money as a partial property settlement. He justified that position as follows:
[13] Given the wife’s assertion that our asset pool is in the vicinity of $8 million-$10 million, court time ought not to be wasted in an investigation as to the matters set out in our various interim affidavits. If the monies are categorised as part settlement, in due course, and in an appropriate and proper manner, if this matter is not resolved, then evidence can be adduced to ascertain what funds the wife and I each already have had access to.
Having regard to the unexplained conduct about allowing the son to have the money, and his own diminution of the accounts, I see no basis to make an order of the type that he seeks even if he wants the funds for his own litigation. I gave no idea from any of the credible evidence how he justifies his proposal other than that it is an equalisation of payments in circumstances where he very recently opposed the wife receiving anything.
Property alteration: The legal issue
In written submissions prepared by the husband’s solicitor, she made the point that the “test” as to whether an interim property order should be made is “well settled”. She correctly made reference to the fact that compelling circumstances were not necessary and went on to say that all that was necessary was for the circumstances to be an appropriate exercise of the power in s 79 and s 80 of the Act. Whilst I generally agree with that statement, it is more complicated. The power must be exercised judicially once it is established. That comes from Strahan & Strahan [2009] FamCAFC 166.
In Strahan, reference was made to the decision of Brereton J in Paris King Investments Pty Ltd v Rayhill[2006] NSWSC 578 where his Honour observed at [29], “[t]he juridical bases for an order for preliminary provision for litigation costs in matrimonial proceedings are diverse”. His Honour went on to refer to the power to make any such order, the Court had identify the relevant source of power because that determined the necessary preconditions and relevant considerations for making the order. It is that difficulty that the husband faces here because his position is that if the wife gets something, then so should he. That does not meet the preconditions but it also highlights in this case that, as I have set out, the wife has met them.
The husband’s early approach had been that the wife had already had access to money and should not be given more albeit that was not the way the matter was ultimately argued. For the sake of clarity, it is also relevant to observe 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 (Kendling v Kendling[2008] FamCAFC 70). That is what the wife desires to do here. The Full Court went on to say that once the head of power was identified, then the court may make such order as it considers just provided there are justifying circumstances.
Here, the wife initially began by reference to the characterisation of what it was at trial but senior counsel sought partial property orders using s 79 of the Act. The husband sought s 79 and s 80 of the Act be used but I remain unsatisfied about the appropriateness of the exercise of that power in the case of the husband based on his control of assets and the fact that he wanted equality to be the basis of an order.
If an order is sought under s 79 of the Act, the court must be satisfied that it is just and equitable to make the particular order. Here, in the case of the wife, I have no such difficulty having regard to her current financial circumstances but I could not say the same for the husband.
It was not suggested by the husband that s 74 of the Act should be used.
To the extent that the husband wanted to rely on the power under s 80 of the Act, it could presumably only be for the purposes of litigation funding. As the Full Court observed, if the order is to be made under s 80(1)(h) of the Act, regard should be had to justice and equity having regard to the requirements of s 79 of the Act. Having said that, the Full Court also observed that s 80 of the Act is intended to be a wide, enabling provision and there is no justification for imposing limitations upon its normal or ordinary meaning and operation when applied to s 79 of the Act.
Here, the husband not only has not identified what outcome should be pursued but also has provided limited evidence directed to the matters under s 79 of the Act. To the extent that he does not dispute the wife’s evidence about those matters, I could infer that he agrees and that could be used as a basis for an order. His evidence is very limited but there is also the question of whether it is appropriate to exercise the discretion having regard to what I have already mentioned the husband has done and currently controls.
It remains unclear also what anticipated costs he has for the purposes of contemplating what order should be made in any event for litigation funding purposes. Curiously, he complained about the fact that he had received money under an order previously and had kept that aside but still managed to pay various lawyers. I could not conclude on the present evidence that his costs are likely to be similar to those of the wife. I have the affidavits of the wife’s solicitors but not from the solicitor for the husband.
Thus, in order to determine whether it is appropriate to exercise the power, the evidence must be analysed as required by s 79 of the Act which includes identifying the legal and equitable interests of the parties, considering whether it is just and equitable to make an order, and if so, to consider the parties’ contributions and the relevant factors under s 75 of the Act.
As I have said, I might be able to construct such evidence from what the husband said but it is difficult here to identify what property he concedes the parties own. They might be keen to lift the corporate veil but there are taxation implications as the husband describes and also shareholdings and trust entitlements that I do not understand.
What I do glean from the affidavit material, and it was not really disputed by the husband, the wife does not have access to funds for litigation purposes and of the amount she is seeking, her entitlements to that amount already exist it is just that the husband will not permit her access to those monies.
In Strahan (supra), Thackray J observed a two-step approach was appropriate in which the Court had to identify the circumstances making it appropriate to exercise the relevant power and once it was determined that the interests of justice required that exercise to be undertaken, the conditions on which the power is to be exercised were governed only by the obligation to make an order that is “appropriate” and to ensure that the proposed order is “just and equitable” by reference to the matters set out in s 79 of the Act.
For the reasons outlined, I do consider it appropriate to exercise the power but only in favour of the wife for the reasons already given.
Spousal maintenance
Section 72 of the Act provides that a party (in this case the wife) is only entitled to claim maintenance if she is unable to support herself adequately by reason of such matters as capacity for appropriate gainful employment or, as the section provides, “any other adequate reason” but all that must be having regard to the relevant matters set out in s 75(2) of the Act. However, the entitlement to maintenance only becomes an obligation for the husband if he is “reasonably able” to make that support.
The wife’s evidence is contained in her affidavit and her financial statement. In relation to her affidavit, she deposes to the fact that she has always worked on the farm and has been excluded from it. In the circumstances, I consider it is reasonable to assume that with the threats asserted against the husband and the impending intervention order proceedings, it would not be appropriate to say that what the wife asserts the husband maintains (namely that she should go back to the farm and work), is appropriate. Her refusal to undertake that course of action, in my view can be seen as an adequate reason to seek maintenance. There is no other evidence of her capacity to obtain gainful employment but on an interim basis, the court is taking a truncated view of the evidence having regard to the pressing need that the wife has in circumstances where there are millions of dollars here tied up in property. It is the control of that source of funds that contributes to the wife’s incapacity to support herself adequately. In my view the circumstances of the wife are therefore sufficient to satisfy the ground in s 72 of the Act.
On behalf of the husband, the written submission prepared by his solicitor asserted that the wife’s financial statement was highly inflated in so far as it related to her weekly expenses. It was asserted that she had for example, already acquired furniture and therefore was “double dipping”. It was asserted that many of her other expenses were “overinflated” also. The solution as proposed by the solicitor for the husband was that to avoid a protracted interim hearing, the best way to solve the problem was that weekly payments sought by each party of $2,000 should be treated as part property settlement.
For the reasons already articulated in relation to the property matter, I am not satisfied that the husband is impecunious or does not have access to funds. I have already given the example of him approaching his son. I have also given thought to the fact that he should be able to continue the operation of the farm either with or without the benefit of the parties’ son, and an income stream will then continue. In the meantime, the wife does not have access to any of the streams of income. Whether the husband contemplated it or not, the very fact that the matter was again before the court required a protracted interim hearing because the husband wanted $2,000 per week and the wife will not agree.
The assertion of inflated figures also does not assist me because I have not been able to test the evidence. As senior counsel for the wife observed, there are many facts in this case which are in dispute.
In terms of the wife’s expenditure, she is currently paying modest rent of $143 per week. It is her expense associated with living that is the subject of the husband’s assertion. However, much of that depends on what view one takes of discretionary expenditures such as replacement furniture, household items, purchase of stationery, entertainment/hobbies and clothing and shoes. There does not appear to be any restriction on the husband in the same area because he is living in the former home but he also spends $1,423 per week which is very close to what the wife does, save for the discretionary items to which I have referred. It is trite therefore to say that the husband attacks the wife’s discretionary expenditure when he has control of the main assets in the home but otherwise spends money of a similar nature, to the wife. How the husband does that is perplexing because in his statement of financial circumstances, he describes his income as “not known”. He says he has no income.
Spousal maintenance is not payable only from income. It is payable from income, property and financial resources. There are ample financial resources as well as cash sums here but it is just the difficulty of how the parties have described them.
I am satisfied that the wife cannot adequately support herself without maintenance and the husband has the control of the funds to enable those payments to be made in one form or another. As to the quantum of that maintenance, there is undoubtedly room for reduction of discretionary expenditure but to the extent that some of these items are “inflated” or more appropriately, more generous than they need to be, I am mindful of the fact that I am obliged to take into account the matters set out in s 75(2) of the Act in determining the relevant standard.
Section 75(2) of the Act sets out a raft of factors including the age and state of health of each of the parties. Particularly relevant here is where the parties have separated, the standard of living that in all of the circumstances is reasonable. It is relevant that when people are affluent as they are here, although they may argue that they are cash poor, it is reasonable that they have a lifestyle to which they have otherwise become accustomed. That is particularly so when they are using capital for that standard of living. Here, the wife is bereft of funds and living in rented accommodation. In my view, the factors in s 75(2) of the Act favour her. It is also significant that s 75(2) of the Act requires the court to take into account the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration. The wife has clearly been engaged on the farm to the detriment of any other occupation and it would be inappropriate in the circumstances on an interim basis for the court to say that she should go and look for work. She resides in the country area and there is no evidence to indicate the potential for her to obtain regular employment anyway. In those circumstances, it seems the appropriate course of action is to say that she should have the sum of $2,000 per week rather than the sum that was otherwise contemplated.
I am very concerned in this case that the arguments between the parties over where the money comes from will continue. There are certainly problems associated with drawing funds from trust accounts and company accounts. However, the husband certainly has access to funds. Having regard to the position that he adopted until the morning of the hearing, I have little confidence that further disputes will not arise. The one solution to that problem is to have the payment made in advance upon which the wife is obliged to live until the trial. Senior counsel for the wife suggested that the appropriate some of the maintenance was $80,000 and that seems sensible to me on the basis that it is not quite one year’s maintenance and at the rate the parties are progressing, it is unlikely that a trial will occur prior to that time expiring. That means that the wife must be frugal in her living expenses in the meantime.
Absent some very clear picture portrayed by the husband that he would pay regularly, capitalisation is the appropriate method of ensuring the wife receives her entitlement. It is also important to note that the husband was proposing that the wife and he draw $2,000 per week so it is clear that the husband sees that the funds are there and available.
As to how that money is drawn, I am of the view that the Court should not be drawn into dedicating particular accounts or sources as those are matters of enforcement. Clearly, if the husband indicated that the money was not available from any particular source, the wife has her remedies and the husband would be facing the prospect of being excluded from all access to property including bank accounts.
In my view the orders for the spousal maintenance in the lump sum are therefore appropriate.
other orders
Senior counsel for the wife also sought an order under s 106A the Act. Notwithstanding my reservations, I take the view that that particular provision in the act should only apply in circumstances where there is clear default. Notwithstanding what I have said about the need to capitalise the spousal maintenance to avoid argument, I am not prepared to make an order under s 106A of the Act at this time on the basis that I expect the parties to comply.
Senior counsel for the wife also sought certification. There being no objection to that order, it is appropriate to make such an order.
Finally, amongst the list of orders sought by the husband, he specifically sought that the wife pay his costs.
Section 117 of the Act provides that in proceedings under the Act, each party shall pay their own costs unless there are circumstances to justify departure from that principle. Having regard to what I have said, and particularly having regard to the conduct of the husband to date in making these proceedings necessary, I could find there is no basis to make an order that would depart from the principle that each party pays their own costs at this stage. There being no other submissions put on behalf of the party, I decline to make such an order for costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 18 October 2018.
Acting Associate:
Date: 18 October 2018
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