Truman and Truman

[2012] FamCA 1123

FAMILY COURT OF AUSTRALIA

TRUMAN & TRUMAN [2012] FamCA 1123

FAMILY LAW – SPOUSAL MAINTENANCE

Family Law Act 1975 (Cth)

APPLICANT: Ms Truman

RESPONDENT: Mr Truman

FILE NUMBER: SYF 4438 of 2006

DATE DELIVERED: 14 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 14 November 2012 and by written submissions in chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blackah

SOLICITOR FOR THE APPLICANT: ETD Law

COUNSEL FOR THE RESPONDENT: Ms Tzannes

RESPONDENT: Mr Truman

Orders

1. The application of the wife for lump sum spousal and child maintenance is dismissed.

2. The husband pay to the wife the sum of $200.00 per week by way of repayment of such arrears of child support as the Registrar of Child Support may find due (a sum the quantification of which is in issue between the parties) and the arrears accrued for spousal maintenance under the orders to date, said to be $12,300.00, until the earlier of further order of the Court or the said arrears are repaid.

3. The application of the wife for legal costs is dismissed.

4. The costs of and incidental to this application be reserved to the hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Truman and Truman 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 SYDNEY

FILE NUMBER: SYF 4438 of 2006

Ms Truman

Applicant

And

Mr Truman

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are proceedings between the parties to a marriage in which the wife seeks interim orders as set out in her written submissions, inter alia, in the following terms:

   2. That the husband within 7 days pay to the wife arrears of spousal maintenance and child maintenance owed pursuant to Orders made on 2 February 2008 in the sum of $26,700.00.

   3. That the husband within 7 days pay to the wife the sum of $145,000.00 by way of lump sum spousal and child maintenance.

   4. That the husband within 7 days pay to the wife the sum of $212,830.00 on account of the wife’s legal fees including the fees of expert witnesses.

   5. That the husband pay the costs of and incidental to this application.

1. The husband opposes the orders.

2. On the mention of the matter, for the purpose of dealing with objections to the affidavits filed, the parties agreed on certain orders which were subsequently made, namely:

   1. Orders are made in terms of paragraphs 1, 2, 3, 5, 6, 7 and 8 of a document titled “Minutes of Orders” dated 14 November 2012 (as amended), filed herein as set out hereunder:

   1.  By consent, the wife’s accountant [Mr B] and the single expert, [Ms C] shall confer on 29 November 2012 for the purpose of clarifying Ms C’s report.

   2.  By consent, prior to such conference [Mr B] shall provide to [Ms C] a document setting out the matters that he would like to discuss at the conference.

   3.  By consent, the husband shall co-operate with [Mr B] by way of provision of documents and information reasonably requested of him, so as to facilitate [Mr B] being able to fulfil his obligations pursuant to Orders 1 and 2.

   4.  (Omitted)

   5.  By consent, following the conference of experts in Order 1, [Ms C] shall within 14 days produce a supplementary report and provide it to the Court prior to 1 February 2013.

   6.  The parties will arrange a mediation with Ms Linden, Solicitor, at such date as can be arranged for them and their expert witnesses by agreement and in the absence of agreement on application to me I will fix a date.

   7.  If there be no settlement of the property matters at the mediation, the wife’s legal representatives are at liberty to draft further subpoenas and forward such drafts to the husband who must provide any objections and submissions within seven days after which both the drafts and the husband’s objections and submissions are to be forwarded to the Docket Judge for determination of those objections.

   8.  By consent, the parties have liberty to apply to restore the matter to the list on seven days’ notice.”

   2. The Court noted that:

   a.  the mother will file a further Amended Response to Initiating Application by 21 November 2012

   b.  the father will file a Reply by 5 December 2012.

   3. The husband shall pay the costs of the further conference of experts and the supplementary report and the fees payable to the mediator by way of partial property settlement on the wife in the sum of $3,000 together with a sum of $3,000 to be provided by him.  Any sum not expended for those purposes is to be returned to the husband.

   4. The matter is listed for mention before me at 9.30 am on Tuesday,
   12 February 2013.

   5. The matter is tentatively listed for final hearing before me for four days commencing Monday, 17 June 2013.

   6. The Court noted that four days are fixed for June tentatively for the hearing of this matter and that the parties have been advised that those dates will only be confirmed if at the February date the matter is ready to proceed and all relevant documents have been filed.

   7. The hearing of the spouse maintenance and costs claim is adjourned to chambers.

   8. The listing before the Registrar on 15 November 2012 is vacated.

1. There remained for determination the claims pressed by the wife for the payment of lump sum spousal and child maintenance, spousal and child maintenance in arrears and legal costs.

2. With respect to the wife’s claim for spousal and child maintenance in arrears, the sum of $26,700 sought by the wife is said to be based on the following calculation:

   a)$14,400 for short payments in child support over a period of 4.5 years and

   b)$12,300 for unpaid spousal maintenance over a period of 41 weeks.

3. The wife’s calculation is disputed by the husband. While the husband concedes that he has not paid spousal maintenance to the wife since 1 November 2011, he asserts that there has been no short payment of child support and, to the contrary, that there has been an overpayment.

Background Facts

1. Where in this judgment I make findings of fact they are, unless otherwise specified, my findings of fact.

2. The husband was born in 1960. He is currently 52 years old.

3. The wife was born in 1962. She is currently 50 years old.

4. The parties commenced cohabitation in 1986 and married in 1987.

5. In June 1998 the parties’ first child, D, was born.

6. In March 2001 the parties’ second child, E, was born.

7. The parties separated on 29 December 2005 on the wife’s assertion. The husband’s assertion is that the parties separated on 28 June 2006.

8. On 5 February 2008 consent orders were made in this Court by Loughnan J. With respect to parenting matters, it was ordered that the husband and wife have equal shared parental responsibility and that the children D and E live predominantly with the wife but spend substantial time with the husband at other times.

9. In relation to financial matters, the husband was ordered to:

   a.  By way of partial property settlement, pay to the solicitors for the wife the sum of $40,000 in four instalments of $10,000, with such monies to be applied only for the purpose of meeting the wife’s legal costs and disbursements incurred in these proceedings.

   b. By way of interim spousal maintenance, pay directly to the wife the sum of $300 per week, pay the rent in respect of the property rented by the wife, and pay the insurance, registration and maintenance expenses in respect of the motor vehicle in the wife’s possession.

   c.  Do all acts and things necessary to permit the wife to be registered on the husband’s family medical insurance.

   d. By way of interim child support, provide to the wife the sum of $250 per week per child and continue to pay for the existing health insurance in respect of the children together with all reasonable expenses of the children, as described in his Financial Statement filed on 5 February 2008 under the headings “Children’s activities” and “Medical, dental, optical, etc”.

1. The parties were also ordered to confer for the purpose of appointing a single expert witness to report on the value of certain assets, if the parties could not come to an agreement in relation to those assets.

2. On 18 December 2008 the husband swore an affidavit in proceedings before the Supreme Court of New South Wales (the “Supreme Court proceedings”). The husband’s affidavit was reproduced only in part in annexure GTT 2 to the affidavit of the wife in these proceedings filed on 5 April 2012.

3. The affidavit of the husband in the Supreme Court proceedings said, inter alia, at paragraph 20 (only partly reproduced):

   OK if we put the company on the deposit contract as well then that may help me shelter assets as divorce proceedings have just started!

   The Court does not know what is meant by this statement and, in the absence of the full context in which the statement was made, is unable to come to any conclusion at this time.

4. Even if the husband was, as the wife alleges, expressing a view that assets could be sheltered (the wife’s claim at paragraph 11 of her affidavit is that “he wanted to set up his affairs to protect assets from me”), there is no evidence to which the Court’s attention has been drawn that the assets were so sheltered.

5. What appears to be the case from paragraph 23 of husband’s affidavit in the Supreme Court proceedings is that the first property acquisition (“F Street”) was due to settle on 20 December 2005 and that the husband had an interest in the property jointly with another.

6. The property was purchased in a joint venture company in which each of the husband and his business partner were shareholders. It is true that such a purchase would make it perhaps more difficult to realise the interest in the property, were it to be held by the husband with his partner on title without intervening entities, but not impossible.

7. There is in any event said to have been sound reasons aliunde relating to the incidence of tax which rendered acquisition in that way desirable.

8. The husband’s view reproduced in his affidavit in the Supreme Court proceedings that “a jointly owned company structure [will] protect the assets from a possible property settlement arising from my divorce” does not represent other than what appears to be an uninformed view and is of course inaccurate.

9. It is a long way from repeating these allegations to being able to demonstrate on the balance of probabilities that the husband has indeed hidden assets or had that intention.

10. The Court is not satisfied that the evidence thus far adduced leads inescapably to a conclusion that the husband has undeclared income, property or financial resources. Clearly as the case progresses, and as the parties’ evidence is tested and perhaps other evidence garnered, that position could well change.

11. On 26 October 2011 the ATO disqualified the husband as a trustee of a superannuation entity.

12. On 31 October 2011 the wife asserts that the husband transferred funds from the Truman Family Superfund Account to Truman Superfund without the wife’s permission. The husband denies this assertion and claims that he rolled over his own benefit to another superfund. The husband asserts that the rollover funds were preserved and that they have not left the asset pool.

13. On 1 November 2011 the husband ceased making payments of spousal maintenance.

14. On 5 April 2012 the wife commenced the primary proceedings between the parties.

15. On 23 April 2012 Watts J made an order that a gross amount of approximately $88,000 be paid to the wife from the Truman Family Superannuation Fund, that being the sum that might be able to be withdrawn and paid to the wife consistent with the provisions of the relevant legislation. The proceedings were otherwise adjourned until 13 August 2012.

16. On 4 May 2012 the wife received into her bank account the net amount of $69,546.30 from her non-preserved portion of the Truman Family Superannuation Fund. On this same day, the wife was served with process by the Consumer Trader and Tenancy Tribunal in relation to a suit initiated by her former solicitors against her for unpaid fees.

17. On 5 July 2012 the husband travelled to City G.

18. On 25 July 2012 the husband travelled to City H, a trip which he asserts was in part for long-term client meetings.

19. On 6 August 2012 the wife had $16,754.61 remaining in the bank account into which the funds from the Truman Family Superannuation Fund were deposited on 4 May 2012.

20. On 27 August 2012 the wife had $7,826.49 remaining in her savings accounts and $291,529.83 remaining in the Truman Family Superannuation Fund accounts.

The Wife’s Maintenance Claims

1. The Court is asked to make orders for lump sum spousal and child maintenance to be paid to the wife. It is also asked to make an order for maintenance arrears to be paid to the wife.

2. The wife says that she has sufficiently demonstrated those matters which she is obliged to demonstrate for success in such a claim. The husband says that the wife has in her maintenance claim neither demonstrated a reasonable need nor an ability in him to pay her more than he presently pays.

3. The wife asserts that the evidence of the husband given aliunde in the Supreme Court proceedings as to his attempts to hide assets from potential family law claims is disturbing. She also asserts that she is not satisfied, and neither should the Court be satisfied, as to the nature, identity and value of the assets held by the husband. The wife relies on an affidavit in which the husband in part swears that he effected certain transactions so as to protect assets from property settlement proceedings in relation to his divorce. He did not in the paragraphs referred to assert that he had hidden those assets.

4. Notwithstanding that assertion, there is before the Court sworn evidence of the husband’s present financial situation. That evidence is the subject of challenge.

5. The wife says that the husband demonstrates a lifestyle “of a wealthy man”, particularly with respect to his expenditure on overseas travel, and one which would render it probable that he could pay maintenance if ordered to do so. The husband says that his overseas trips have been paid for with earned frequent flyer points.

6. The wife asserts that the husband cannot be trusted because of decisions he made in relation to superannuation, however the husband claims that this assertion is untenable. The husband says that he made those decisions based on advice and that, while the relevant authorities took a different view to his own, in effect he had an honest and reasonably held belief that those decisions were permissible.

7. On an interim application dealt with in accordance with usual practice, the Court is unable to test of the accuracy or otherwise of the parties’ respective assertions by cross-examination. Without the benefit of the testing of evidence by cross-examination, the Court does not at this time accept that it can or should make a ruling on matters of credit in relation to those issues.

8. The husband denies the assertions that he has an ability to pay the sum asked for by the wife and says that it is unjust for the wife to be paid a further lump sum in circumstances where the inquiries of the expert are complete and where there have been prior sums provided to her which he asserts have been the subject of waste, including an amount of over $500,000 said by the wife to be owing to her mother.

9. The Court does not find that the conditions for the payment of lump sum maintenance have been met.

10. The husband’s Financial Statement filed on 29 October 2012 evidences that he is in receipt of a small income ($444 per week) but that his outgoings ($6,737) substantially exceed that amount. His statement reflects a position where his assets do not exceed his liabilities.

11. The husband has, in particular, given evidence of the deterioration of his business as a result of his main supplier of work, the AMP Society, changing its policy on the provision of such work. Correspondence between the husband and the AMP Society in evidence before the Court makes it clear that he has persistently argued his case for the continuation of the work but that he is faced with a decision from which they will not budge. That decision has been one to not refer him work, with a consequential significant adverse effect on his business.

12. There is a clear factual issue between the parties as to the ability of the husband to pay maintenance. There is no fair or sound and tested basis of evidence on which the Court can determine, on an interlocutory basis, the issues between the parties.

13. The wife’s financial position is on her evidence equally parlous. In her Financial Statement filed on 18 October 2012, the wife attests to an income of $472 per week and outgoings of $4,311. She attests that the property of which she is possessed has a value of $1,805,363 and that her liabilities are $1,552,275. On the face of it, the wife’s position is singularly better than that of the husband.

14. The following is a balance sheet submitted by the parties:

Ownership		Description		Wife’s value ($)	Husband’s value ($)
ASSETS
1.	Joint	I Street, Suburb J		3,250,000	3,250,000
2.	Wife	Horse Float 1		15,000	15,000
3.	Wife	Horse Float 2		4,000	4,000
4.	Wife	Jewellery		16,000	16,000
5.	Hus	Jewellery		2,000	500
6.	Wife	Household contents		20,000	20,000
7.	Hus	Household contents		25,000	15,000
8.	Hus	Camper trailer		Unknown	7,000
9.	Wife	Horse Tack		5,000	10,000
10.	Joint	Ms K (boat)		100,000	85,000
11.	Joint	NAB Offset account		170,128	152,807
12.	Wife	CBA Account – Smart Access Account 1		46.83
13.	Wife	CBA Account – Netsaver Account 1		96.84
14.	Wife	CBA Account – Smart Access Account 2		48.25
15.	Hus	12 ordinary shares in Ms K Pty Ltd		Unknown	12
16.	Joint	2 ordinary shares in L Pty Ltd		2	2
17.	Hus	1 ordinary share in M Pty Ltd		Unknown	1
18.	Hus	Legal costs paid to date		Unknown	201,720
19.	Wife	Legal costs paid to date		212,496.50	Unknown
20.	Hus	Mr Truman Trust		Unknown	1,235,325
21.	Hus	Mr Truman Trust		Unknown	574,629
22.	Wife	Mr Truman Trust		Unknown	574,629
23.	Wife	CBA Account – Netsaver Account 2		47.96
24.	Wife	Boat and trailer		1,000
25.	Wife	Box trailer		1,000
26.	Wife	Motor Vehicle 1–		35,000
27.	Hus	Motor Vehicle 2–		15,000
28.	Hus	Motor Vehicle 3–		15,000
29.	Hus	N Pty Ltd		Unknown
30.	Hus	O Pty Ltd		Unknown
31.	Hus	P Pty Ltd		Unknown
32.	Hus	Insurance Policies		Unknown
33.	Hus	Frequent flyer points		Unknown
Total assets				$3,886,866	$6,161,625
ADDBACKS
34.	Hus	Monies advanced to the wife between February and May 2008 as partial property settlement		0	40,000
35.	Hus	Monies advanced to the Wife on 22 August 2008 as partial property settlement		0	25,000
36.	Hus	Monies advanced to the Wife on 24 November 2008 as partial property settlement		0	2,000
37.	Hus	Monies advanced to the Wife between 8 April and 1 September 2009 a partial property settlement		0	185,000
38.	Hus	Monies withdrawn by the Wife from a joint account in December 2006 without consent		0	200,000
39.	Hus	Monies withdrawn by the Wife from the trust account in December 2009 without authorisation		0	70,000
40.	Hus	Reimburse Dog costs February and May 2008 as partial property settlement		0	9,500
41.	Wife	Improvements to Wife’s residence in 2007		21,000	21,000
42.	Hus	Paid rent of Wife’s property 2007		0	19,170
43.	Hus	Paid rent of Wife’s property 2008		0	50,400
44.	Hus	Paid rent of Wife’s property 2009		0	50,400
45.	Hus	Paid rent of Wife’s property 2010		0	50,400
46.	Hus	Paid rent of Wife’s property 2011		0	42,000
47.	Hus	Boat maintenance 2007-2011		0	74,000
48.	Hus	Maintenance costs on I Street, Suburb J 2007-2011		0	95,000
49.	Wife	Wife’s legal costs for enforcement applications		150,000
50.	Wife	Unpaid spousal maintenance		22,833
51.	Wife	Underpaid spousal maintenance for 2008 to present at $3,200 per annum		12,800
52.	Wife	Rent from Suburb J property collected by husband		144,000
53.	Wife	Superannuation deducted by husband without authority		2,365,043
54.	Wife	Rent collected from former matrimonial home by Husband (including for Granny Flat)		Unknown
55.	Wife	Monies withdrawn by the Husband from the offset account without the Wife’s consent		1,200,000
Total add backs				$3,915,676	$933,870
Total assets plus add backs				$7,802,542	$7,095,495
LIABILITIES
56.	Hus	Mortgage to NAB account number 79 146 3844		Unknown	1,346,000
57.	Wife	Westpac Bank Mastercard		Closed	Unknown
58.	Wife	American Express		Closed	Unknown
59.	Hus	Commonwealth Bank MasterCard		Unknown	91,852
60.	Hus	Westpac Bank Visa		Unknown	7,385
61.	Hus	NAB American Express		Unknown	96,341
62.	Hus	Loan account with Mr Q Truman Trust		Unknown	170,548
63.	Hus	Est Late Mrs Truman Senior		Unknown	248,317
64.	Hus	R Pty Ltd		Unknown	85,920
65.	Hus	Mr Truman Trust Loan account (per valuation)		Unknown	2,894,369
66.	Wife	Mr Truman Trust account (per valuation)		Unknown	1,149,258
67.	Hus	Loan account with O Pty Ltd		Unknown	0
68.	Wife	Loan from the Wife’s Mother		519,500	0
69.	Wife	Adamson Lawyers		82,588.20	0
70.	Wife	Carbon Legal		27,428.40	0
71.	Wife	ETD Law		50,000	0
72.	Wife	W Pty Ltd		45,169.30	0
73.	Wife	X Pty Ltd		9,410.69	0
74.	Wife	Ms V		3,444.50	0
75.	Hus	Australian Tax Office – potential fines for improper use of a Self-managed Superannuation Fund		Unknown	0
76.	Hus	Australian Security Investment Commission – potential fines for use of a Self-managed Superannuation Fund		Unknown	0
77.	Hus	S Pty Ltd		Unknown	0
78.	Hus	M Pty Ltd		Unknown	0
79.	Hus	Mr T Truman		112,000	0
Total liabilities				$E849,541	$6,090,260
Total assets minus liabilities				$3,037,325	$71,365
Total assets plus add backs minus liabilities				$6,953,001	$1,005,235
SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife’s value	Husband’s value
80.	Wife	Truman Family Superannuation Fund	Self-managed	Unknown	397,960
81.	Hus	Truman Family Superannuation Fund –	Self-managed	Unknown	725,000
82.	Wife	Truman Superannuation Fund	Self-managed	Unknown	1,003,814
Total superannuation				$0	$2,126,774
FINANCIAL RESOURCES
Ownership		Description		Wife’s value ($)	Husband’s value ($)
83.	Wife	Westpac Bank account number …		Closed	Unknown
84.	Wife	Westpac Bank account number …		Closed	Unknown
85.	Wife	Funding sources for her business		0	Unknown apart from monies contributed by Husband and earnings from Horse Business
86.	Wife	Funding sources for her lifestyle		0	Unknown apart from monies contributed by Husband and earnings from Horse Business
87.	Wife	Funding sources for her rental property improvements		0	Unknown apart from monies contributed by Husband and earnings from Horse Business
88.	Wife	Loan to Mr U		100,000
89.	Overseas accounts		Unknown
90.	Frequent flyer points		Unknown
91.	Estate of Mrs Truman Snr		Unknown
92.	Estate of Mr Truman Snr		Unknown
Total		$100,000	$0

1. This Court does not consider that it is possible for the Court to adjust interests in notional assets. Accordingly, the so called add backs are matters which will only be taken into account in the Court’s determination of the matters required to be taken into account under section 75(2) and, in particular, section 75(2)(o).

2. Given that all that can be done on the section 75(2)(o) approach is to adjust the parties’ interests in the assets that exist (less relevant liabilities that exist), and considering that, on the husband’s evidence, the Court might be considering an adjustment to a net sum less than the wife’s present claim for costs, the Court does not find that it can make the orders for maintenance sought by the wife.

3. The husband puts clearly in issue the extent of the wife’s need for maintenance and, in particular, her need for lump sum maintenance. The husband refers to funds and property that the wife has already received pursuant to prior orders, and provision made for her by her mother and referred to in her Financial Statement.

4. The husband says that the wife’s hobby constitutes an unjustifiable expense given the present financial circumstances of the parties. The husband asserts that the cost of that hobby can no longer be borne. There is no evidence before the Court that the wife derives any income from this hobby.

5. The wife deposes in her Financial Statement to significant amounts outstanding for legal fees, notwithstanding the amounts that she has already received.

6. The wife asserts that she can no longer work but the husband puts this assertion in issue. The wife has been undergoing psychiatric treatment and, while there may be some substance to her argument that she cannot work, her capacity to work is a fact in issue between the parties. Clearly this will be a matter for final determination when the evidence is fully revealed and tested.

7. The husband has had an obligation, which he undertook, to pay child support in the sum of $250 per week per child and spousal maintenance in the sum of $300 per week. It is agreed by the husband that he has not paid any spousal maintenance since November 2011; however, the husband says that he was justified in doing so because of the wife’s receipt and application of other funds.

8. The Court intends that the obligation created by the previous maintenance orders of this Court will continue at the present time, and that the claim for lump sum maintenance of the wife be dismissed.

9. The Court will however make an order that the husband pay to the wife any maintenance arrears accrued at the rate of $200 per week, pursuant to the terms of the order set out above.

The Wife’s Claim for Costs

1. The Court is asked to make an order for interim costs in this matter.

2. Such an order is one which would be made in the exercise of a broad discretion reposed in the Court under the provisions of section 117 of the Family Law Act 1975 (Cth) (the Act).

3. Sub-section 117(1) of the Act provides that, in matters which proceed under the Act, the parties to the proceedings would ordinarily pay and meet their own legal costs and disbursements. However, sub-section 117(2) provides that the Court may make an order as to costs, whether interlocutory or otherwise, if in the circumstances the Court considers it “just”.

4. The Court in this case is asked by the wife to make an order pursuant to its power under section 117(2) at a time when the matter has not reached a final hearing. The Court is clearly empowered by the section to make orders for costs on an interim basis.

5. In its consideration of whether it is appropriate to make any order for costs, the Court must determine that the circumstances of the case justify it doing so and that, overall, it is just to make such an order. In doing so, the Court is obliged to take into account the matters referred to in the relevant provisions of section 117. Set out below are the specific matters which the Court must take into account for this case, namely those found in sub-section 117(2A).

(a)    The financial circumstances of the parties

1. The parlous financial status of the parties has been discussed above, as has the inconclusiveness of the latest balance sheet.

2. The Court cannot at this time comfortably come to a conclusion as to the net worth of the parties’ assets. As such, the Court concludes that it would not be appropriate for that sum, whatever it may presently be, to be spent in the interim on the costs of one party.

3. There may well be different findings on a hearing, however, at the present time, with consideration being given to interim proceedings on the papers, the Court cannot with a degree of satisfaction as to the accuracy of the result, determine that the position is as alleged by either party.

4. If either party to these proceedings is without further assistance unable to conduct their case with legal representation, the option they have, which is one faced by many, is that they conduct their case without it.

(b)    Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party

1. Neither party is in receipt of legal aid.

(c)    The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters

1. There has been discussion as to the production of documents as between the parties and, by consent, interim orders have been made which cover those matters.

2. There is no particular conduct in evidence before the Court which would require me to consider, based on section 117(2A)(c), that the conduct of the parties or either of them justifies the making of an order for interim costs.

(d)   Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

1. The wife claims that the husband is in arrears with payments of spousal and child maintenance that were ordered by Loughnan J on 5 February 2008.

2. The husband concedes that this is the case with respect to the orders for spousal maintenance payments only.

3. This matter is addressed by an order that the husband pay to the wife periodic payments of the arrears that he owes.

(e)    Whether any party to the proceedings has been wholly unsuccessful in the proceedings

1. Neither party to these proceedings has, as yet, been wholly unsuccessful in these proceedings.

(f)     Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer

1. There is no evidence of any offer in writing before me.

(g)    Such other matters as the Court considers relevant

1. The wife deposes as to the receipt of substantial monies in her statement of financial affairs and, without here dissecting them, claims that they have been spent, inter alia, on legal fees.

2. There are prepared it is understood reports of experts appointed by the Court as to the husband’s financial position. The wife seems to wish to attack those reports by an adverse expert. She has been given permission to make inquiry and to ask questions of the independent expert but she has yet to demonstrate that there is a body of opinion different to that expressed by the expert.

3. It seems, at least at the moment, that what the wife is saying is that the data provided to the expert was inaccurate or falsified. That will in due course be a matter for determination, inter alia, on cross-examination of the expert. If it appears that the information supplied to the expert was false, the expert can be asked to adjust the valuation. Putting that matter to one side, there seems at present to be no dispute or issue as to the method of valuation adopted by the expert.

4. Clearly the position of these parties may change. If either of them is believed when the evidence is fully tested, their positions may perhaps change significantly.

5. In the meantime, however, there is in the Court’s view nothing which makes it appropriate to depart from the general position in section 117(1). In the present circumstances, and on the present unresolved state of the evidence, there is nothing which would justify the making of an order for interim costs.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 14 December 2012.

Associate:

Date:  14 December 2012