VITTORIO & OLIPHANT - [2017] FamCA 802

FAMILY COURT OF AUSTRALIA

VITTORIO & OLIPHANT

[2017] FamCA 802

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought orders in relation to litigation funding, partial property distribution and orders to compel the husband to pay her private health insurance – Where the Court is not satisfied that an order for costs should be made pursuant to section 117(1) of the Act – Where the husband has the capacity to sell a portion of his share portfolio in order to raise funds to satisfy a partial property distribution order – Orders made for the husband to pay to the wife the sum of $34,800 by way of partial property distribution – Orders made granting the parties liberty to apply on seven days’ notice to the other party and the Court in regards to the wife’s application for the husband to pay her private health insurance.

FAMILY LAW – SPOUSAL MAINTENANCE – INTERIM PROCEEDINGS – Where the wife sought orders for urgent spousal maintenance and interim spousal maintenance – Where the wife does not have any children and receives a gross income of $210,000 – Where there is no evidence that the wife is suffering from any disability – Court finds that in relation to urgent spousal maintenance the wife has not established that her indebtedness has given rise to an immediate need for financial assistance in terms of section 77 of the Act – Court finds that in relation to interim spousal maintenance the wife has not satisfied the requirement set out in section 72(1) of the Act – Both applications for urgent and interim spousal maintenance dismissed.

Family Law Act 1975 (Cth) ss 72(1), 75(2), 77, 79, 79(4) 80(1), 117, 117(2A)
Family Law Rules 2004 (Cth) pt 13

Ashton & Ashton (1982) 8 Fam LR 675
Antmann and Antmann (1980) FLC 90-908
Bircher and Bircher [2016] FamCAFC 123
Esdale & Schenk [2012] FamCA 111
Gabel & Yardley (2008) 40 FamLR 66
Hall & Hall (2016) 257 CLR 490
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Klearchos & Klearchos and Ors [2015] FamCAFC 217
Malcolm & Malcolm (1977) FLC 90 - 22
Medlow & Medlow (2016) FLC 93-692
Sadlier & Sadlier [2015] FamCAFC 130
Selena and Montez and Ors [2017] FamCA 583
Stanford & Stanford [2012] HCA 5

Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166

Sully & Sully(No. 2) [2016] FamCA 706
Page & Page (1987) FLC 91-806

APPLICANT:	Ms Vittorio
RESPONDENT:	Mr Oliphant
FILE NUMBER:	SYC	4127	of	2017

DATE DELIVERED:

9 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

21 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Horton Rhodes Legal

COUNSEL FOR THE RESPONDENT:

Mr Lloyd

SOLICITOR FOR THE RESPONDENT:

Clinch Long Woodbridge

Orders

THE COURT ORDERS THAT:

Within 60 days of the date of these orders the husband pay to the wife the sum of $34,800 by way of partial property distribution.
The wife’s application for orders for the husband to take all steps necessary to continue her membership with her current private health insurer is stood over.
The parties have liberty to apply on seven days’ notice to the other party and the Court in respect to the issue referred to in order 2 herein.
The wife’s Application in a Case filed on 6 July 2017 is otherwise dismissed.

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 Vittorio & Oliphant 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 SYDNEY

FILE NUMBER: SYC 4127 of 2017

Ms Vittorio

Applicant

And

Mr Oliphant

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application for urgent spousal maintenance, interim spousal maintenance and litigation funding orders, as well as an order in respect to maintenance of the wife’s current health insurance membership. The parties commenced living together in 2014 and married in 2016. The parties then lived together in a property purchased by the husband at Suburb B until June 2016. The parties subsequently resided together at a property at Suburb C until March 2017.
The husband had substantial property interests prior to the parties’ meeting. The precise amount of the husband’s property interests will be a matter to be determined at final hearing however, the husband’s Financial Statement filed 17 August 2017 acknowledges that his current property interests are in the sum of approximately $4 million. The husband acknowledged that at the commencement of the parties’ relationship the wife had savings of $250,000.[1]
[1] Affidavit of the Wife filed 6 July 2017 at Annexure A.
The wife’s application for urgent and interim spousal maintenance has been made in circumstances where, prior to commencing these proceedings, she had accepted an offer of employment for which she would be paid $210,000 gross per annum inclusive of employer superannuation contributions. In those circumstances, the wife has not satisfied the Court that orders for either urgent spousal maintenance or interim spousal maintenance are justified.
In circumstances where the husband has access to substantially greater resources than the wife, I have found that it is appropriate for a partial property distribution to be made in favour of the wife. The amount of that distribution will be sufficient to provide funding to the wife to enable her to prepare her case up until the point of the first conciliation conference.

APPLICATIONS

At the interim hearing on 21 August 2017 the wife did not press the orders in relation to the Suburb B property as set out in her case outline document.
The remaining orders pressed by the wife were as follows:
1.That within 14 days the Husband pay to the Wife the sum of $35,085 by way urgent spouse maintenance.
2.That the Husband pay to the Wife the sum of $246 per week spouse maintenance from the first Monday after the date of this Order and each Monday thereafter.
3.That within 14 days the Husband pay to the Wife the sum of $40,000 by way of interim costs.
4.That the Husband pay for all Single Expert Valuation fees for any single expert valuations required in these proceedings in the first instance.
5.That the Husband do all things and sign all documents necessary to maintain the Wife's membership on the BUPA private health insurance policy.
…
9.That the Husband pay the Wife's costs.
The only order sought by the husband in his case outline document was the dismissal of the wife’s application with costs.

BACKGROUND

The husband was born in 1967 and is currently 50 years of age.
The wife was born in 1977 and is currently 40 years of age.
The parties commenced cohabitation in November 2013, according to the wife, and in early 2014 according to the husband.
The parties were married in 2016.
The parties separated in March 2017.
There are no children of the relationship.
On 13 June 2017 the wife received an offer of employment from D Pty Ltd (“DPL”) for her to work in Canberra. The proposed commencement date was 17 July 2017. The letter offered a salary package of $210,000 per annum including employer superannuation contributions.
The wife states that since June 2017 she has not received income from a business that the parties operated which involved renting out the parties’ property at Suburb B.[2]
[2] Affidavit of the Wife filed 18 August 2017 at [15].
The wife further asserts that she has not been provided with any financial support from the husband since 15 June 2017. The wife acknowledged that the husband continued to pay the rent on the Suburb C property until 30 July 2017.[3]
[3] Ibid.
The wife further states that, as a result of not receiving income from the parties’ business or financial support from the husband, she has incurred borrowings, credit card debts and outstanding legal fees totalling $41,376.[4]
[4] Ibid at [13].
The wife asserts that the amount that she owes her lawyers is $16,282.46.[5]
[5] Ibid at [23].
The borrowings referred to by the wife appear to be an amount of $5,092 borrowed from a friend Ms E and $5,000 borrowed from a friend Ms F.[6] No details have been provided in respect to the terms of those loans.
[6] Ibid at [13].
On 17 July 2017 the wife commenced employment with DPL. She states that her relocation expenses to Canberra amounted to $3,264.63 and that she received reimbursement of out-of-pocket moving expenses from her employer totalling $1,764.63.[7]
[7] Ibid at [15].
On 27 July 2017 the wife received her first instalment of salary totalling $6,911.66.[8]
[8] Ibid at [21.1].
On 15 August 2017 the wife received gross pay of $15,981.74 which, after deductions in respect to taxation, was a net amount of $10,694.74. The wife’s payslip confirms that the wife’s annual gross salary is $210,000 per year, inclusive of employer superannuation contributions.[9]
[9] Ibid at Annexure B.

EVIDENCE

The wife relied upon the following documents:
·Application in a Case filed 6 July 2017;
·Affidavit of Ms Vittorio sworn 4 July 2017 and filed 6 July 2017;
·Financial Statement filed 18 August 2017; and
·Affidavit of Ms Vittorio sworn 4 July 2017 and filed 18 August 2017.
The husband relied upon the following documents:
·Financial Statement filed 17 August 2017; and
·Affidavit of Mr Oliphant sworn and filed 17 August 2017.

Controversy in respect to the evidentiary basis of the wife’s claimed expenditure in the period post-separation

At the hearing there was difficulty identifying the basis upon which the wife calculated the amount she was seeking for urgent spousal maintenance. Accordingly, the wife was given liberty to prepare an aide memoir referring to relevant evidence justifying the basis of her calculation. That aide memoire was to be provided to the Court within seven days of the hearing. The husband was given a further seven days to respond.
The husband objected to the Court considering the wife’s aide memoire on the basis that it was provided at 8:36pm on 28 August 2017, three hours and thirty-six minutes after close of business. In the circumstances, had it been necessary, I would have retrospectively extended the time for the electronic filing of that document by three hours and forty minutes.
However, as I have not accepted that the wife is entitled to an order for the payment of urgent spousal maintenance, it has been unnecessary to make such an order.

Application for urgent spousal maintenance

As noted, the wife seeks an order for urgent spousal maintenance in the sum of $35,085.
Section 77 of the Family Law Act 1975 (Cth) (“the Act”) provides:
Urgent spousal maintenance cases
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
There are therefore two preconditions to making an order for urgent spousal maintenance:
1. The party seeking such an order must be in “immediate need of financial assistance”; and
2.It is not practicable in the circumstances to determine immediately what order, if any, should be made.
In Sadlier & Sadlier [2015] FamCAFC 130 at paragraph 37, the Full Court referred to the reasoning of Nygh J in Ashton & Ashton (1982) 8 Fam LR 675 and said:
Urgent maintenance orders are often referred to as “stop-gap” orders which are provided to assist with an immediate need of the spouse until a hearing can be set down for spousal maintenance orders pursuant to ss 72 and 74 of the Act.[10]
[10] The Full Court also referred to Page & Page (1987) FLC 91-806.
The fact that the wife has incurred a debt, including in respect to relocation expenses does not, in itself, satisfy the requirements of section 77. In Malcolm & Malcolm (1977) FLC 90 - 226,[11] Watson SJ, sitting as a single member of the Full Court, considered an appeal against an order of the Lidcombe Court of Petty Sessions where the Magistrate had ordered the payment of urgent spousal maintenance. In so doing, the Magistrate stated at paragraph 6:
In my view it was never intended that a person otherwise in immediate need of financial assistance should without receiving any assistance deplete her assets for what might be an uncertain period.
[11][1977] FamCA 27 at [11]-[13].
Watson SJ did not agree with that reasoning, stating at paragraph 12:
With respect to his Worship that statement begs the question. This particular wife living rent free in the matrimonial home, having some income from employment with $6,000 in the bank was just not "in immediate need of financial assistance". In these circumstances the suggested dissipation of her savings was not a relevant consideration. Whatever may have been the proper view under the superseded law, sec. 77 is meant to serve a different purpose - it is to provide emergency funding in those cases where the court is unable to determine immediately what order should be made.
As previously noted, the wife states that, in the period subsequent to separation, she has incurred “borrowings, credit card debts and outstanding legal fees totalling $41,376”. Even allowing for some tolerance, having regard to the fact that these are interim proceedings, the wife has not established that her indebtedness has given rise to an immediate need for financial assistance in terms of section 77 of the Act. This is because the wife has been in well-paid employment since 17 July 2017 and the wife has not presented evidence regarding the repayment terms in respect to her borrowings, credit card debts or in respect to monies payable to her lawyers. In other words, the wife has not satisfied the Court that she will be unable to manage repayments to discharge her indebtedness from her ongoing income.
Moreover, in this matter, the wife’s application filed on 6 July 2017 also sought an order for interim spousal maintenance. That application was also heard on 21 August 2017. There was no suggestion that the wife was unable to present her contentions of law and fact in respect to that application for interim spousal maintenance. There was therefore no need to consider any “stop gap” measures pending the wife’s application for interim spousal maintenance being considered.
Accordingly, the wife’s application for urgent spousal maintenance is dismissed.

Application for Interim Spousal Maintenance

Section 72(1) of the Act provides:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason
having regard to any relevant matter referred to in subsection 75(2)
(emphasis added).
In Hall & Hall,[12] the High Court set out the appropriate approach in considering an application for interim spousal maintenance as follows:
3. … The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that "[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)".
4. The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub-section provides that, "[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part".
5. A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as "the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment". They also include, by virtue of s 75(2)(o), "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account".
…
8. Unlike a court exercising the power to make an urgent order conferred by s 77, a court exercising the power to make an interim order under s 74(1) must be satisfied of the threshold requirement in s 72(1) and must have regard to any matter referred to in s 75(2) that is relevant. No doubt, on an application for an interim order "[t]he evidence need not be so extensive and the findings not so precise" as on an application for a final order. But there is nothing to displace the applicability to an exercise of the power conferred by s 74(1) of the ordinary standard of proof in a civil proceeding now set out in s 140 of the Evidence Act 1995 (Cth). A court determining an application for an interim order under s 74(1) cannot make such an order without finding, on the balance of probabilities on the evidence before it, that the threshold requirement in s 72(1) is met having regard to any relevant matter referred to in s 75(2). (emphasis added) (footnotes omitted).
[12] (2016) 257 CLR 490.
The totality of matters set out in section 75(2) of the Act are as follows:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

Counsel for the wife was invited to articulate the basis upon which the wife asserts that she satisfies the gateway requirement set out in section 72(1) of the Act. Counsel for the wife articulated the wife’s claim as being for a closed period lump sum amount and for ongoing periodic payments representing the extent to which her outgoings exceeded her income as set out in her Amended Financial Statement filed 18 August 2017. In that respect, counsel for the wife stated:
Your Honour, there are no children under 18. Your Honour, my client has, as I’ve said, to her credit, since then, obtained employment. It’s a closed period of time for which we seek the lump sum, and your Honour has the characterisation of why she needs those funds and the explanation in the second affidavit that I’ve taken your Honour to. In terms of the period amounts she seeks, it’s simply the excess of outgoings over incoming income in her financial statement.[13]
[13] Transcript of proceedings dated 21 August 2017 at page 20.
At the risk of doing injustice to the discussion with counsel for the wife, which is set out at pages 19 to 21 of the transcript dated 21 August 2017, the wife’s argument in support of her claim for ongoing periodic payments is that, in summary, as a result of lifestyle choices, her expenditure exceeds her income and hence she is unable to adequately support herself on her current income.
I do not, with respect, accept that argument. The wife does not have any children, she is not unemployed and there is no evidence that she is suffering from any disability or has particular obligations to support any other person. She receives a gross income of $210,000 per annum including employer’s superannuation contributions. She has liabilities of $51,367.
A person in those circumstances can reasonably be expected to be able to adequately support themselves. Accordingly, the wife has not satisfied the Court that she crosses the gateway requirement set out in section 72(1) of the Act. As noted by the High Court in Hall and Hall (2016) 257 CLR 490, crossing that gateway or threshold is a precondition to the Court making an order for interim spousal maintenance.

Application for litigation funding order

As noted, the wife seeks an order that “within 14 days the Husband pay to the Wife the sum of $40,000 by way of interim costs”. At the hearing, counsel for the wife indicated that the wife sought this order under section 117 of the Act and, in the alternative, as an order for partial property distribution.
No objection was taken to the wife seeking that payment on those alternative bases. I will firstly consider the wife’s claim as an application for costs pursuant to section 117 of the Act.
Section 117 of the Act relevantly provides:
(1) Subject to subsection (2) and section 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(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 of that party;
(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;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the 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;
(g) such other matters as the court considers relevant.
In Selena and Montez and Ors,[14] I expressed doubt regarding the Court’s power to make a litigation funding order under section 117 of the Act.
[14] [2017] FamCA 583 at [73]-[84].
I recognise, however, that it is generally accepted, in this jurisdiction, that such a power exists. Even accepting that to be the case, it is important to recognise that any judicial discretion, bestowed by legislation, must be exercised in accordance with the relevant legislative criteria. This is made clear in in Esdale & Schenk[15] where Murphy J said:
While the cases in respect of matrimonial causes reveal multiple heads of power for the making of any order, those same cases also emphasise that each is much more than a convenient vehicle for achieving the same end. If the property power is relied upon, the relevant requisites of justice and equity must be complied with; if the maintenance power is to be relied upon, the relevant requisites of need, capacity and propriety must be met. So, too, where the costs power is relied upon. The majority in Strahan emphasise this very point by pointing out clearly that the relevant head of power under which the order is sought must be clearly identified.
The exercise of the costs power does not merely involve a consideration of the s 117(2A) matters. It also involves paying proper regard to s 117(1). That is, the Application must be judged by reference to the primary position that “each party shall bear his or her own costs”.
Even where proceedings involve a matrimonial cause and jurisdiction is not in issue and even where, within those proceedings, an applicant for litigation expenses can establish an entitlement to ultimate relief, it by no means follows that litigation expenses will be awarded by reference to s 117 as the head of power. Section 117(1) remains, as it were, an obstacle that must be overcome. Indeed, it might be thought that this consideration explains why it is almost invariable that applications of this type are brought in reliance upon the power to make interim property orders and not the costs power (emphasis added).
[15] [2012] FamCA 111 at [66]-[68]; see also Klearchos & Klearchos and Ors [2015] FamCAFC 217 at [85]-[91].
Counsel for the wife acknowledged that the wife was not, at this stage of the proceedings, in a position to address all of the matters set out in section 117(2A). The focus of the wife’s argument was on section 117(2A)(a) and 117(2A)(c) as justifying the making of an order for costs.
Dealing first with section 117(2A)(c), the wife argued that the Court should have regard to the fact that the husband, through his solicitors, had made various offers to the wife to provide financial support to her but those offers did not come to fruition.
The husband, on the other hand, argued that he did not follow through in respect to those offers because the wife had not disclosed to him that she had received the offer of employment from her current employer on 13 June 2017 and, further, she had not disclosed that, the day before she commenced proceedings, she had signed a contract of employment with her current employer providing for an income of $210,000 gross per annum.
There is evidence in the form of correspondence between the parties’ solicitors that is attached to the wife’s affidavits indicating that the husband did in fact make offers to pay some moneys to the wife. It was accepted that those offers have now been withdrawn.
A finding that a party had failed to negotiate in good faith may, in my view, justify making an order against that party to pay some or all of the other party’s costs. As noted, in this matter, each of the parties alleges that the other has engaged in conduct that could constitute bad faith.
In the absence of each party’s evidence being tested in cross-examination, I am not in a position to make a determination against any party that they have capriciously withdrawn offers or otherwise failed to act in good faith in respect to their dealings with other party.
In considering section 117(2A)(a), it is clear that the husband’s property and financial resources, as set out in his Financial Statement sworn on 17 August 2017 is considerably in excess of the wife’s. The disparity in the parties’ financial circumstances does not, however, in itself, justify departing from the presumption set out in section 117(1). In particular, as previously noted, the wife is receiving a gross income of $210,000 per annum. Her Amended Financial Statement asserts that the wife has debts of $51,367. Even allowing for those debts, her income is such that it can reasonably be inferred that she has the capacity to fund her legal costs incurred in respect to these proceedings from her own property and financial resources.
Accordingly, on the basis of the available evidence, at this stage of the proceedings, I am not satisfied that an order should be made that displaces the presumption set out in section 117(1) of the Act.

Application for partial property distribution

Sections 79 and 80(1)(h) of the Act confer power on the Court to make orders for interim property settlement.
The power of the Court to make orders for property settlement can be exercised prior to final hearing including through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made.[16]
[16] Gabel & Yardley (2008) 40 FamLR 66 cited in Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 at [113].
The consideration as to whether there should be an order for the interim distribution of property should not be commenced with the assumption “that one or other party has the right to have the property of the parties divided between them”.[17]
[17] Stanford v Stanford [2012] HCA 5 at [40]; Medlow & Medlow [2016] FamCAFC 34.
Senior counsel for the husband argued that the circumstances of this case are such that the Court would not, at final hearing, be satisfied that it was “just and equitable” to make an adjustment of the parties interests in property. In that context in Stanford and Stanford[18] the High Court confirmed that a precondition to making an order under section 79 of the Act is that the Court is satisfied that “in all the circumstances, it is just and equitable to make the order”.
[18] [2012] HCA 5 at [35].
The husband argued that the Court would not be so satisfied in this case because of several factors. These, it is contended, include the short duration of the parties’ marriage, the absence of direct or indirect contributions by the wife, and the fact that the wife has received benefits from managing the rental of the Suburb B property for which she has not accounted to the husband.
In a letter dated 15 June 2017, the husband’s solicitors acknowledge, on behalf of the husband, that at the commencement of the parties’ cohabitation the wife had savings of approximately $250,000.
The husband contends that the wife’s initial contribution should not be considered as a result of the fact that she has mismanaged the rental of the parties’ Suburb B property and/or that she has failed to properly account to the husband for monies received from that rental. Insofar as the husband contends that there should therefore be a reduction of the wife’s initial contribution, the husband effectively argues that the wife has made a negative contribution to the property of the parties despite her initial contribution.
However, as noted by the Full Court in Bircher and Bircher,[19] this Court has long held that “there is no room for such a consideration in s 79(4)(a) or (b) of the Act”.[20]
[19][2016] FamCAFC 123 at [86].
[20] Ibid referring to Antmann and Antmann (1980) FLC 90-908, at 75,744.
During the course of their relationship, the parties had been involved in a joint business enterprise. The wife will no longer be a part of that enterprise. The wife has moved to another city to obtain employment and it is necessary for her to obtain housing in that new city. As a result of their separation, the parties wish to sever their financial relationships. There is a dispute regarding the direct and indirect contributions of the parties to the marital property, however, it is acknowledged that the wife’s initial contribution was $250,000. In light of those circumstances, I am satisfied that at final hearing there is likely to be an adjustment of the parties’ property interests.
Having determined that initial threshold issue in favour of the wife, I will now consider the wife’s application in four stages which are as follows:
i.Firstly, insofar as it is possible in these interim proceedings, to identify “the parties’ property and of their interests in it”.[21]
ii.The second stage is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke section 80(1)(h) of the Act to make an order for interim property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice.[22]
iii.The third stage is the “substantive step” where the provisions of section 79 must be considered and applied but with limitations, given that it is not the final hearing.[23]
iv.The fourth stage is to consider whether it is just and equitable to make the order having regard to the impact of the order upon the respective parties at the point in time that the interim order is made.[24]
[21]Medlow & Medlow [2016] FamCAFC 34.
[22] Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 at [132].
[23] Ibid at [135].
[24]Sully & Sully (No. 2) [2016] FamCA 706 at [36].
In terms of the first stage, the Full Court in Medlow & Medlow[25] said:
The onus was clearly upon [the applicant] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent]’s property claim. The onus was not on [the respondent] to adduce such evidence.
[25] (2016) FLC 93-692 at 81,090.
In this matter, both parties allege that the other has not provided full and proper disclosure as is required by part 13 of the Family Law Rules 2004 (Cth) (“the Rules”). In these interim proceedings I am unable to determine questions of fact where they are disputed by the parties. However, I note that in his Financial Statement filed on 17 August 2017, the husband states that the net value of property owned by him is $6,152,000 and that his debts total $2,002,171. The wife asserts that the husband’s assets are greater than that. Accordingly, for the purpose of these interim proceedings, I will assume that the parties’ net property is a figure lower than $4 million.
It is noted that the wife’s application seeks a payment of $40,000 in respect to her legal expenses. This represents 1 per cent of the parties’ net assets. Accordingly, I am satisfied that the property of the parties exceeds the distribution sought by the wife in these proceedings.
The Full Court in Medlow & Medlow[26] referred to Strahan & Strahan (Interim Property Orders) (“Strahan”),[27] and the authorities referred to therein, in confirming that an interim order for the distribution of property must be “amenable to adjustment on a final hearing”. On the facts of this case, I am satisfied that such an adjustment in respect to the order I propose making could comfortably be accommodated within final orders for the adjustment of the parties’ property.
[26] [2016] FamCAFC 34.
[27][2009] FamCAFC 166.
In terms of the second step, as noted by the High Court in Stanford:[28]
…s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. (emphasis added)
[28] [2012] HCA 5 at [35].
In considering the second step, it has been observed that, insofar as it is reasonably possible, an attempt is made to level the litigation playing field.[29] In the context of interim property orders, in Strahan,[30] Boland and O’Ryan JJ discussed relevant authorities and noted:
In Poletti and Poletti Nygh J, when describing an application for “interim costs”, referred to the reasons of the Full Court in Wilson and Wilson and said it is a “situation where one party to the marriage controls almost exclusively what might be described as the patrimony of the parties and has control of the bulk of the assets and funds of the parties, where an order may be made to ensure that the other party, who does not have the fortune of controlling those funds, at least has an equal or near equal opportunity to present his or her case”: see also In the Marriage of Polletti at 796 per the Full Court (Ellis, Strauss and Butler JJ). The Full Court in Zschokke at 83,220 made a number of relevant remarks about the “desirability of legal representation for both parties in family law proceedings” (citations omitted).[31]
[29] Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [60].
[30][2009] FamCAFC 166.
[31] Ibid at [80].
In this matter I am satisfied that the wife will require additional funds to properly inquire into those matters which I have identified as being significant factual matters in dispute between the parties.
Annexure H to the wife’s affidavit filed on 6 July 2017 is a letter from the wife’s solicitors detailing anticipated legal fees until a conciliation conference, totalling $43,339.46. That letter notes, however, that as at 4 July 2017, the wife had paid her solicitors $3,041.20. Further, at paragraph 21.2 of the wife’s affidavit filed on 18 August 2017, the wife states that on 15 August 2017, she deposited $5,500 into her solicitor’s trust account. Accordingly, it appears that the amount that the wife will require to meet anticipated legal fees until the point of a conciliation conference is $34,798.26, which I propose to round to the amount of $34,800.
The next issue is whether an order requiring the husband to pay an amount of $34,800 to the wife by way of further partial property distribution is just and equitable having regard to those matters set out in section 79(4) of the Act.
As I have noted, the parties dispute each of the other’s direct and indirect contributions to marital property. The relationship was of short duration and, clearly, the husband had substantial assets prior to the commencement of the parties relationship. Nevertheless, I have noted that the husband acknowledges that the wife’s initial contribution included savings of $250,000. I am satisfied that at final hearing it is likely to be found that an appropriate just and equitable adjustment of the parties property is such that the wife would receive a distribution of not less than $34,800.
In terms of the fourth stage to which I have referred, in Sully & Sully(No. 2) (“Sully”),[32] Stevenson J accepted the argument of counsel for the husband that, in considering the wife’s application for orders for a partial distribution of property, it was necessary for the Court to consider the impact on the parties at the time that the order is made.[33] I respectfully agree with Her Honour’s approach.
[32] [2016] FamCA 706.
[33] Ibid at [30].
In this matter, there is a dispute between the parties concerning the nature of the husband’s property interests and the extent to which they could be accessed without adversely impacting upon the husband’s business interests. Nevertheless, I note that, in his financial statement, the husband declares a share portfolio of $148,000. Accordingly, in the event of the husband facing difficulty in borrowing against his net assets, the husband has the capacity to sell a portion of his share portfolio in order to raise funds to satisfy the order that I propose making for a partial property distribution.

I appreciate that it may take more than 14 days for the husband to raise funds necessary to pay the wife and I will allow a period of 60 days to facilitate the husband making necessary arrangements.

application for orders compelling payment of private health insurance

At paragraph 15 of her affidavit sworn on 4 July 2017 the wife states:
15.To the best of my knowledge, [Mr Oliphant] had left Sydney for Europe on 15 June, 2017. [Mr Oliphant] has not provided me with any financial support other than to:
(a)continue to rent for Suburb C until 30 July 2017; and
(b)continue to pay for my health insurance ([Mr Oliphant] and I have a joint policy with BUPA for private health cover).
I sought an undertaking from [Mr Oliphant] via my lawyer not to discontinue my private health cover as I anticipate that I will require LETZ procedure on my cervix to treat precancerous cells.
There was a only brief discussion about this matter during the course of the hearing on 21 August 2017.[34]
[34] See transcript of proceedings dated 21 August 2017 at page 33.
Clearly, irrespective of cost, basic decency should dictate that the parties co-operate to ensure that neither party is without private health insurance. One trusts that has occurred. However, the submissions presented to the Court are not sufficient to enable a determination to be made regarding the wife’s application for an order compelling the husband to continue to pay her health insurance. Accordingly, I will give the parties liberty to apply to the Court, in respect to this matter, upon giving seven days’ notice.
For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 9 October 2017.

Associate:

Date: 9 October 2017