Walsh and Walsh

[2015] FCCA 3590

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALSH & WALSH [2015] FCCA 3590

Catchwords:
FAMILY LAW – Property – interim application by the wife for payment of arrears of spousal maintenance, increase in spousal maintenance, payment of bond money, enforcement of previous orders made, signed authorities, release of funds to pay for legal fees and disbursements – consideration of provisions of the Family Law Act 1975 – consideration of relevant authorities – application granted.

Legislation:

Family Law Act 1975 (Cth), ss.72, 75(2), 83, 117

Cases cited:
Astbury v Astbury (1978) FLC 90-494
Caska v Caska [1998] FamCA 118
In the Marriage of Bevan (1993) 120 FLR 283
In the Marriage of Brady (1978) FLC 90-513
In the Marriage of Eliades (1980) 6 Fam LR 916
In the Marriage of Evans (1978) 30 FLR 570
In the Marriage of Gamble (1978) 32 FLR 198
In the Marriage of Mitchell (1995) 120 FLR 292
In the Marriage of Murkin (1980) 5 Fam LR 782
In the Marriage of Nutting (1978) 30 FLR 556
In the Marriage of Wilson (1989) 13 Fam LR 205

Applicant: MS WALSH

Respondent: MR WALSH

File Number: MLC 9515 of 2013

Judgment of: Judge Wilson

Hearing date: 4 December 2015

Date of Last Submission: 4 December 2015

Delivered at: Melbourne

Delivered on: 23 December 2015

REPRESENTATION

Counsel for the Applicant: Mr K. MacFarlane

Solicitors for the Applicant: Kelly & Associates Family Lawyers

Counsel for the Respondent: Mr R. Smith

Solicitors for the Respondent: Bowlen Dunstan & Associates Pty

ORDERS

1. The husband pay to the wife the sum of $36,367.81 within 14 days by way of arrears of spousal maintenance.

2. Order 1 of the Orders made on 9 December 2013 be varied to provide ongoing spousal maintenance as and from 1 December 2015 at the rate of $1,200.00 per week.

3. The husband pay to the wife the sum of $2,087.00 within 14 days by way of bond money.

4. The husband comply with Order 2 of the Orders made on

   
   

   28 September 2015 by 31 January 2016.

5. Within 7 days of being provided with same by the wife’s solicitors, the husband sign authorities to enable the wife to obtain information and documents from the following:

   (a)(omitted);

   (b)(omitted) Financial Services;

   (c)(omitted) Life;

   (d)(omitted) Life;

   (e)(omitted) Life;

   (f)(omitted) Bank;

   (g)(omitted) Chartered Accountants (the husband’s (country omitted) accountant); and

   (h)(omitted) and Mr A (Financial Director of (omitted) Bank and husband’s accountant at (omitted)).

6. The husband pay any expense incurred in obtaining information pursuant to the authorities referred to above at first instance and that the wife’s contribution to same be determined by the trial judge.

7. Order 9 of the Orders made on 9 December 2013 be varied to permit the wife to access funds from the (omitted) account (now transferred to (omitted)) to pay $60,000.00 to the wife for payment of her legal fees, with the characterisation of such payments (spousal maintenance or interim property) to be determined by the trial judge.

8. The costs of the hearing and determination of the Contravention Application filed by the wife on 6 March 2015 be reserved for determination by the trial judge.

9. The costs of and incidental to this application are reserved to the

   
   

   trial judge.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9515 of 2013

MS WALSH

Applicant

And

MR WALSH

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 4 December 2015, Ms Walsh (“the wife”) applied for orders in terms of the relief she sought in paragraph 63 of her affidavit sworn 27 November 2015. On that occasion, Mr Ken MacFarlane (“Mr MacFarlane”) appeared for the wife. Mr Robin Smith (“Mr Smith”), who appeared for the husband, sought orders adjourning the wife’s application and then, when his adjournment application was rejected, contested many of the orders sought by the wife.

Synopsis

1. In the upshot, I make the following orders –

   a)

   The husband pay to the wife the sum of $36,367.81 within

   
   

   14 days by way of arrears of spousal maintenance.

   b)Order 1 of the Orders made on 9 December 2013 be varied to provide ongoing spousal maintenance as and from 1 December 2015 at the rate of $1,200.00 per week.

   c)The husband pay to the wife the sum of $2,087.00 within 14 days by way of bond money.

   d)The husband comply with Order 2 of the Orders made on 28 September 2015 by 31 January 2016.

   e)Within 7 days of being provided with same by the wife’s solicitors, the husband sign authorities to enable the wife to obtain information and documents from the following:

   i)(omitted);

   ii)(omitted) Financial Services;

   iii)(omitted) Life;

   iv)(omitted) Life;

   v)(omitted) Life;

   vi)(omitted) Bank;

   vii)(omitted), Chartered Accountants (the husband’s (country omitted) accountant); and

   viii)(omitted) and Mr A (Financial Director of (omitted) and husband’s accountant at (omitted)).

   f)The husband pay any expense incurred in obtaining information pursuant to the authorities referred to above at first instance and that the wife’s contribution to same be determined by the trial judge.

   g)Order 9 of the Orders made on 9 December 2013 be varied to permit the wife to access funds from the (omitted) account (now transferred to (omitted)) to pay $60,000.00 to the wife for payment of her legal fees, with the characterisation of such payments (spousal maintenance or interim property) to be determined by the trial judge.

   h)

   The costs of the hearing and determination of the

   
   

   Contravention Application filed by the wife on 6 March 2015 be reserved for determination by the trial judge.

   i)The costs of and incidental to this application are reserved to the trial judge.

2. My reasons for making those orders are set out in the passages that follow.

History

1. In paragraph 62 of her affidavit sworn 27 November 2015, the wife stated “I am in a dire financial position, without income and currently without ongoing spousal maintenance. Even with spousal maintenance being paid I have a shortfall of income over expenses”.

2. Against that background, the wife swore in paragraph 63 of that

   
   

   affidavit that she sought orders that -

   (a)The Husband pay me the sum of $36,367.81 within 14 days by way of arrears of spousal maintenance.

   (b)Order 1 of the Orders made on 9 December 2013 be varied to provide ongoing spousal maintenance as and from

   
   

   1 December 2015 at the rate of $1,500 per week with such amount to be paid without deduction.

   (c)That the Husband continue to ensure that I am covered on the family health insurance policy and ensure that all payments are made as and when they fall due.

   (d)The Husband pay me the sum of $2,087 within 14 days (bond money).

   (e)The Husband forthwith comply with Order 2 of the Orders made on 28 September 2015.

   (f)The Husband sign authorities to enable me to obtain information and documents from the following: -

   (i)     (omitted)

   (ii)     (omitted) Financial Services

   (iii)    (omitted) Life

   (iv)    (omitted) Life

   (v) (omitted) Life

   (vi)    (omitted) Bank

   (vii)(omitted) Chartered Accountants (the Husband’s (country omitted) accountant)

   (viii)(omitted) and Mr A (Financial Director of (omitted) and Husband’s accountant at (omitted))

   (g)That the Husband pay any expense incurred in obtaining information pursuant to the authorities referred to above at first instance and that my contribution to same be determined by the Trial Judge.

   (h)That Order 9 of the Orders made on 9 December 2013 be varied to permit me to access funds from the (omitted) account (now transferred to (omitted)) to pay the following:

   (i)my legal fees and disbursements, including Barrister fees.

   (ii)Any shortfall between the spousal maintenance received from the Husband and my reasonable expenses.

   on the basis that I will keep a full account of monies drawn down and expenses paid from any funds drawn down.

   (i)That the Husband pay my costs of and incidental to the Contravention (Enforcement) Application filed 6 March 2015, including the costs of any adjourned dates.[1]

   [1] Affidavit of Ms Walsh sworn 27 November 2015 at pp.15-16.

3. The wife was born on (omitted) 1961. The husband, Mr Walsh (“the husband”), was born on (omitted) 1960. The parties married on (omitted) 1988. They separated on 3 August 2013.

4. W, the wife’s child from an earlier relationship, was born on (omitted) 1984.

5. The marriage between the wife and the husband bore three children, namely X born (omitted) 1988, Y born (omitted) 1995 (“Y”) and Z born (omitted) 1996 (“Z”), all of whom were adults at the date of the hearing before me.

Various interlocutory Orders in the proceeding

1. The proceeding began in November 2013, initially upon the wife seeking orders in respect of property settlement, spousal maintenance and adult child maintenance in relation to the child Y, then barely 18 years of age.[2]

   [2] Initiating Application by Ms Walsh filed on 4 November 2013.

2. A variety of interim orders have been made in this litigation. It is useful to record them.

3. On 9 December 2013, orders were made for disclosure as well as for mediation and for a trial date then set for 15 September 2014.

   
   

   Spousal maintenance was ordered in the sum of $850.00 per week.

4. On 2 June 2014, the husband was ordered to provide disclosure and information in response to a request from the wife’s solicitors dated

   
   

   19 May 2014.

5. The trial date was vacated pursuant to orders made on 2 June 2014.

6. On 28 November 2014, orders were made fixing the trial of this proceeding for 28 September 2015. Additional disclosure orders were also made on that day.

7. On 20 July 2015, orders were made in relation to the wife’s application for the enforcement of spousal maintenance orders.

8. On 7 August 2015, orders were made in relation to further disclosure and in relation to adjourning the enforcement application to the trial date.

9. A mediation of the proceeding was conducted on 30 October 2014. Suffice it to say, the proceeding did not settle.

Financial material

1. In her affidavit sworn 10 September 2015, the wife deposed to the approximate value of the asset pool as at 25 August 2015. She deposed that assets in her name included (and the following is a selection only) -

   a)(omitted)$691,308.54;

   b)(omitted) Bank Account$366.28;

   c)(omitted) Private Reserve Account £1,050.94;

   d)(omitted) Current Account £309.18;

   e)(omitted) Account £279.07;

   f)(omitted) superannuation fund that AUD$3,579.82; and

   g)Lexus motor vehicle (estimated value) $25,000.00.[3]

   [3] Affidavit of Ms Walsh sworn 10 September 2015 at [13](a).

2. In the same affidavit, the wife deposed to her liabilities as follows -

   a)(omitted) Bank Credit Card$24,969.60;

   b)(omitted) Credit Card$4,049.96;

   c)(omitted) Credit Card £8,442.08;

   d)(omitted) Bank Credit Card$25,443.52;

   e)(omitted) Overdraft £20,000.00;

   f)debt due to (omitted) £45,000.00;

   g)Australian Taxation Office AUD$25,448.20;

   h)sum due under Lexus motor vehicle lease (estimated) AUD$23,016.00; and

   i)HELP debt AUD$3,083.23.[4]

   [4] Ibid.

3. The wife further estimated the husband’s assets to be made up of the following -

   a)(omitted) superannuation (estimated) AUD$336,000.00;

   b)(country omitted) superannuation funds (estimated) AUD$1,200,000.00; and

   c)(omitted) cash savings (estimated) AUD$750,000.00.[5]

   [5] Affidavit of Ms Walsh sworn 10 September 2015 at [13](b).

4. The wife asserted that the husband had, or at one stage had, an interest (whether as a director, shareholder or as the holder of a controlling interest) in companies or businesses as are set out below.

5. The first was an entity called (omitted). This was a registered business name of which the husband described himself as ‘principal’.

6. The next was an entity called (omitted) Pty Ltd. This company was later deregistered and was said to have been connected to (omitted) Pty Ltd.

7. The husband was a director of (omitted) Pty Ltd from 23 November 2012 until 19 December 2013 when the company was the subject of a strike off action.[6]

   [6] Affidavit of Ms Walsh sworn 10 September 2015 at Annexure “W-24”.

8. (omitted) Pty Ltd was a company to which the husband was appointed as a director on 10 September 2013.[7]

   [7] Affidavit of Ms Walsh sworn 10 September 2015 at Annexure “W-25”.

9. (omitted) Pty Ltd, in which the two ordinary issued shares were and remain held by (omitted) Pty Ltd, of which the husband was a director, was another company connected to the husband. He described himself as chief executive officer of (omitted) Pty Ltd.[8]

   [8] Affidavit of Ms Walsh sworn 10 September 2015 at Annexure “W-27”.

10. (omitted) Pty Ltd, of which the husband was a director on and from 8 December 2014, had the whole of the issued shares in its capital held by (omitted) Pty Ltd.[9]

    [9] Affidavit of Ms Walsh sworn 10 September 2015 at Annexure “W-28”.

11. (omitted) Pty Ltd was directed by the husband on and from 13 May 2015.[10]

    [10] Affidavit of Ms Walsh sworn 10 September 2015 at Annexure W-30”.

12. The husband was neither a director of, nor shareholder in, (omitted) Pty Ltd. However, the wife asserted in her affidavit sworn 10 September 2015 that payments from that company totalling AUD$51,500.00 were deposited into the husband’s (omitted) Bank account.[11]

    [11] Affidavit of Ms Walsh sworn 10 September 2015 at [16](h)(iv).

13. The husband was a director of (omitted) Ltd from 3 May 2013.[12]

    [12] Affidavit of Ms Walsh sworn 10 September 2015 at Annexure “W-33”.

14. The husband was connected with a business called (business omitted).

15. (business omitted) and (business omitted) revealed the same address as the husband’s residential address.

16. The husband described himself as ‘principal’ of a business called (business omitted).[13]

    [13] Affidavit of Ms Walsh sworn 10 September 2015 at Annexure “W-38”.

17. The husband described himself as ‘proprietor’ of a business called (omitted).[14]

    [14] Affidavit of Ms Walsh sworn 10 September 2015 at Annexure “W-39”.

18. For some time, the husband is and has been involved in aspects of the business of (business omitted).

Broader factual matters

1. No real contest existed in the fact that the wife and the husband commenced a relationship in 1985. The wife deposed to owning real estate in South Australia at the commencement of her relationship with the husband, as well as furniture and a modestly valued motor vehicle, her net tangible assets amounting to a little over $32,000.00.

2. She swore that the husband commenced their relationship with minimal assets. Upon commencing to live together, the wife’s South Australian home was sold, deriving net proceeds of about $24,000.00, “a significant sum on [sic] those days”.[15] In 1985, the wife commenced full-time employment but stopped working with a particular employer in 1986. She swore that between 1987 and 1990 she worked on a full-time basis. Upon completing part-time studies over a four-year period, the wife obtained full-time employment with a (employer omitted).

   [15] Affidavit of Ms Walsh sworn 10 September 2015 at [26].

3. In the husband’s affidavit sworn 18 September 2015, the husband stated that at the commencement of his relationship with the woman who became his wife he owned a car, a trumpet and personal effects worth approximately $15,000.00. He swore that he had no liabilities. The husband said in his affidavit that until 1987 he acted as an (occupation omitted) to the (employer omitted) and to the (employer omitted).

4. The husband swore that in 1986 he established his own (business omitted) in which the wife worked as his personal assistant.

5. In 1992, the husband and wife relocated to the (country omitted), the husband’s place of birth, although in 1990 or thereabouts, the husband obtained Australian citizenship. The wife attested to the very difficult times she said she encountered while in the (country omitted). In her affidavit sworn 10 September 2015, the wife stated that the husband discouraged her from having a fulfilling career and that it was (so she swore) more convenient to him if she stayed at home to look after their children so as to enable him to focus on his career. The husband denied that assertion.

6. The wife swore that in 1994 she and her husband moved to (omitted) where they purchased a property for £180,000.00, funded partly by credit, partly by the proceeds of sale of the property in (country omitted) and partly by borrowings. The parties sold the (omitted) property in 2000.

7. The husband swore that the wife in fact worked during their marriage when in the (country omitted), inferentially seeking to dispel the notion that the wife spent all or most of her time raising children. The husband pointed to two periods between 1997 and 1998 and also between 2000 and 2001 when the wife worked for (employer omitted) as a (occupation omitted). He also pointed to her acting as a (occupation omitted) in the year 1999 or 2000 in a conference held in (country omitted). He further pointed to the wife establishing a (business omitted) in 2001. The husband referred to the wife taking a seat on the board of a particular charity. He also referred to the wife’s periodic book-keeping activities between 2003 and 2004 and between 2006 and 2007. Finally, the husband swore that the wife completed a (qualifications omitted) and that she commenced training as a (occupation omitted).

8. The wife swore that six months after the birth in 1995 of Y, she fell pregnant unexpectedly, an event that the wife said created a heightened sense of isolation, manifesting itself in suicide tendencies. The husband and wife began attending counselling in early 1996 but the sessions were relatively short-lived as the husband moved to (country omitted) and the wife plus their children followed in 1998 or thereabouts. The husband swore that during their time in the (country omitted), at what he described as “significant expense”, the wife had constant support in the form of housekeepers, full-time helpers, nannies, gardeners, cleaners and at one point, a cook.[16]

   [16] Affidavit of Mr Walsh sworn 18 September 2015 at [34].

9. In 2000, the parties and their children moved back to the (country omitted) upon the husband’s employment in (country omitted) being terminated.

10. In paragraph 49 of her affidavit sworn 10 September 2015, the wife swore that in 2002 she was diagnosed with breast cancer. The wife said she received little emotional support from her husband but received payment from the following health insurers -

    a)(omitted) (estimated) £100,431.00;

    b)(omitted) (estimated) £10,800.00;

    c)(omitted) (estimated) £144,730.00; and

    d)(omitted) (estimated) £244,300.00.[17]

    [17] Affidavit of Ms Walsh sworn 10 September 2015 at [49].

11. In or about 2002, the husband secured employment with an entity called (employer omitted). According to the wife, the husband’s employment with (employer omitted) was later terminated although no date for such termination was given in evidence.

12. In 2008, according to the wife, following a particular event in (country omitted), the details of which are not necessarily traversed here, the husband and wife cancelled joint accounts and they created separate accounts.

13. In 2009, the husband secured employment with (employer omitted). The husband, the wife and their children returned to Australia in 2010 upon selling their (country omitted) property for approximately £930,000.00. In her affidavit sworn 10 September 2015, the wife swore that the money gained from the sale of their (country omitted) property was applied in repaying debt, in relocation costs and in living expenses as the husband had lost his job with (employer omitted). No dispute arose about the husband’s termination with (employer omitted). However, the husband swore he was later compensated financially for wrongful termination.

1. The wife swore that, since returning to Australia, she and the husband have lived in rental property. She said the husband unilaterally drew down on mortgages for his spending as he lived well beyond their collective means.

2. So far as provisioning for the wife was concerned, the wife swore that, from January 2013 until the date of separation on 3 August 2013, the husband deposited about $3,000.00 per month into her (omitted) Bank account plus a further $300.00 per month. She swore that the husband paid for rent, utilities, insurance and some holidays whereas the wife paid for her living expenses such as food, petrol, clothing for the child Z, clothing for the wife, medical expenses and lunch money for Z.

3. The wife swore that prior to December 2013, Z lived with her and thereafter with the husband.

4. In paragraph 69 of her affidavit sworn 10 September 2015, the wife states that in July 2013 she transferred $50,000.00 to her sister as she feared for her financial security and she said she did not trust the husband. The husband described her version of events as “absurd”.[18]

   [18] Affidavit of Mr Walsh sworn 18 September 2015 at [58].

5. The wife swore that she estimated the husband’s annual income during the marriage to have ranged from $300,000.00 to $600,000.00.

6. It is sufficient for me to leave the background material advanced by the wife at that point.

7. That regrettably lengthy background serves to place in context the issues that were the subject of debate before me on 4 December 2015. The issues debated between Mr MacFarlane for the wife and Mr Smith for the husband were discrete issues underpinned by a collection of stand-alone factual matters which I catalogue below.

8. Before turning to them, it is useful to record that upon the application being called on for hearing before me, Mr Smith announced that he pressed the application made by his client for an adjournment of the hearing. Mr Smith relied on an affidavit sworn by the husband on

   
   

   2 December 2015. In that affidavit, the husband swore that he left for (country omitted) on or about 20 October 2015 and that, having departed Australia, he learned of the hearing listed before me on

   
   

   4 December 2015. The husband swore that he intended to return to Melbourne on 29 December 2015. He also swore that he sought the wife’s consent to adjourning the hearing listed for 4 December 2015. Mr MacFarlane announced his client’s refusal to provide that consent. The husband cited the nine-hour time difference between Melbourne and (country omitted). After giving Mr Smith an opportunity for him to attempt to reach his client by landline and mobile, Mr Smith informed me his attempts had been unsuccessful. The wife’s statements, in her affidavit sworn 27 November 2015, that she was in a dire financial position weighed heavily upon me with the consequence that I refused the husband’s application to adjourn and I commenced to hear the wife’s application for orders in terms of paragraph 63 of her affidavit sworn 27 November 2015.

Arrears in spousal maintenance

1. The wife’s claim for arrears of $36,367.81 in the form of spousal maintenance has its genesis in orders made by consent by her Honour Judge Jones on 9 December 2013. In paragraph 1 of those Orders, her Honour ordered as follows - “Until further Order the Husband will pay to the Wife, for the maintenance of the Wife, the sum of $850 per week, payable monthly in advance … on and from 1 February 2014”.

2. The husband swore in paragraph 18 of his affidavit sworn

   
   

   2 December 2015 that since 1 February 2014, he had paid the wife the sum of $48,624.25 in pursuance of paragraph 1 of the Orders made by her Honour Judge Jones on 9 December 2013. The husband conceded he should have paid the wife $81,114.29.[19] Using the husband’s arithmetic, the product of deducting $48,624.25 from an accepted obligation to pay $81,114.29 is $32,490.04. The husband conceded his obligation to pay $32,490.04. However, he asserted that he was entitled to set off amounts he paid in respect of Y that the wife ought to have paid, so he said, but which he had paid instead.

   [19] Affidavit of Mr Walsh sworn 2 December 2015 at [30].

3. Three issues arise in relation to this spousal maintenance arrears claim. The first is the sum actually due. The second is whether the husband is entitled to treat himself as being relieved of the obligation to pay arrears by reason of his so-called offsetting claim. The third is the contention that the wife withdrew the sum of $52,264.52 in breach of the orders made by consent by her Honour Judge Jones.

4. It was put on behalf of the husband that the wife had been satisfied beyond her claim for $36,367.81 in spousal maintenance arrears by reason of her appropriation of funds totalling $52,264.52.

5. Let me take in turn each basis of opposition to the application for payment of arrears of spousal maintenance.

6. In my judgment, the husband is not entitled to offset the sums he paid that he contended the wife should have paid in relation to Y. I agree with Mr MacFarlane’s submission that paragraph 1 of the Orders made by her Honour Judge Jones on 9 December 2013 were specific, precise and unambiguous. On their face, they did not permit manipulation nor did they entitle selective compliance. They said what they said. It fell to the husband to meet them, not in part but in terms.

7. The second basis of opposition to paying spousal maintenance arrears relates to the arithmetic concerned. The wife swore that the unpaid balance was $36,367.81. The husband said a different sum was payable if the arithmetic about the offset was rejected. Having rejected the offsetting basis as a reason for not paying the full amount of $850.00 per month from 1 February 2014, I find that the correct sum due by way of arrears is, as the wife contended, $36,367.81.

8. The husband’s final basis for not paying the arrears in spousal maintenance concerned paragraph 9 of the Orders made on

   
   

   9 December 2013 by her Honour Judge Jones. The husband contended that the wife wrongly appropriated an amount in excess of $50,000.00, notwithstanding the fact that she had previously been enjoined from doing so. The husband said that, by paragraph 9 of those Orders, the wife was restrained from “withdrawing or otherwise derogating from all assets held in their own or joint names, or on their behalf, including all bank deposit and investment accounts …”. The husband submitted that, contrary to that paragraph, the wife appropriated $52,264.52 from the (omitted) Investment account.

9. The husband submitted that such appropriation should be treated by the Court as satisfying the wife’s claim to spousal arrears.

10. To my way of thinking, while the husband’s approach might appear to represent a practical accountancy approach concerning the $52,264.52, nevertheless it is erroneous. To my mind, the issue must be approached in a lockstep manner. The first step is to consider whether paragraph 1 of the Orders made by her Honour Judge Jones on 9 December 2013 were satisfied. As is recorded above, in my judgment they were not. The next step is for me to make orders addressing the husband’s failure to comply with paragraph 1 of those Orders. In view of my rejection of the offsetting claim asserted by the husband, I have made orders that deal with arrears of spousal maintenance.

11. The next step is to address the appropriation by the wife of the sum of $52,264.52. At first blush, there may be a factual foundation for the husband’s assertion that the wife appropriated that sum in contravention of paragraph 9 of the Orders made by her Honour Judge Jones on 9 December 2013. The evidence of this allegation is scant, to say the least. The husband raised the issue in paragraph 33 of his affidavit sworn 2 December 2015. In that paragraph, the husband swore “[t]he wife has diminished savings of $128,814.80, and further on 9 December, 15 December 2014 and 6 March 2015 the wife withdrew from the (omitted) Investment sums totalling $52,264.52”.

12. The evidence in support of those three incidents of withdrawals from (omitted) Investments is not readily discernible. The husband did not address any one of those three transactions in his affidavit sworn 16 July 2015. Of those transactions, the husband swore in his 18 September 2015 affidavit –

    Further, the wife withdrew from the investment the sum of $10,000.00 on 9 December 2014, the sum of $16,776.04 on

    
    

    15 December 2014 and the sum of $25,498.48 on 6 March 2015. These withdrawals total $52,264.52.[20]

    That evidence represents the factual foundation for the assertion that the wife withdrew over $52,000.00 allegedly in contravention of orders enjoining her from doing so.

    [20] Affidavit of Mr Walsh sworn 18 September 2015 at [102].

13. Against that, the wife swore the following –

    The $52,264.52 was withdrawn by me with the Husband’s knowledge and consent and used to pay my legal fees and to cover any shortfall between maintenance received and expenses (noting at all times my expenses have exceeded $850.00 per week which I was supposed receive).[21]

    [21] Affidavit of Ms Walsh sworn 27 November 2015 at [42].

14. Self-evidently, a factual dispute exists as to whether or not the wife’s appropriation of the sum of $52,264.52 was with the husband’s knowledge and consent. If it was, that will bear upon the question whether the husband is entitled to assert that the wife was satisfied in full in relation to any sums owing by the husband in the form of spousal maintenance.

15. At this point in time, where the matters raised on affidavit consists of little more than the husband’s assertion of the wrongful appropriation and the wife’s counter assertion of an agreed appropriation, I am in no position to determine whose version is more probable than the other’s. Still less am I in a position to resolve the matter on the hearing of a contested interlocutory application.

16. There remains the question of whether the appropriation of the sum of $52,264.52 was itself a breach of paragraph 9 of the Orders of her Honour Judge Jones made on 9 December 2013. Despite the fact that the alleged disobedience with that paragraph of those orders occurred (according to the husband) in March and December 2014, over a year ago, no steps have been taken to address the contravention. To an extent, that suggests to me that the husband does not regard the contraventions as warranting court sanction or it suggests that there was no contravention at all because the appropriation was, as the wife asserts, with the husband’s knowledge and approval. However, I do not have enough material before me to adjudicate on that issue nor am I asked to do so and so I shall not.

17. Having regard to the considerations addressed above, I find that arrears and spousal maintenance are due from the husband to the wife in the sum of $36,367.81. I order those arrears to be paid within 14 days of the date on which my Orders herein are pronounced.

Increase in spousal maintenance

1. By paragraph 63(b) of her affidavit sworn 27 November 2015, the wife sought an increase in spousal maintenance commencing on and from

   
   

   1 December 2015. She contended that she was entitled to an increase of the sum presently ordered of $850.00 per week to the sum of $1,500.00 per week, to be paid without deduction.

2. Before addressing the factual basis of the wife’s claim for the increased amount, it is necessary to set out the relevant legal principles that guide the Court on an application such as this.

3. As the spousal maintenance Order recorded in paragraph 1 of the Orders made by her Honour Judge Jones on 9 December 2013 was made by consent, I must not make an order increasing or decreasing the consent amount previously ordered unless I am satisfied the amount ordered to be paid “is not proper or adequate”.[22]

   [22] Family Law Act 1975 (Cth), s.83(2)(ba).

4. The grounds enumerated under s.83(2) of the Family Law Act 1975 (Cth) (“the Act”) are “clearly in the alternative”.[23] Upon the hearing of an application for variation under s.83 of the Act, the requirements of s.72 of the Act still apply with the consequence that the applicant must establish that he or she is unable to adequately support himself or herself and the need for maintenance must again be determined.[24]

   [23] Caska v Caska [1998] FamCA 118 at [15].

   [24] Astbury v Astbury (1978) FLC 90-494.

5. So far as the requirements of s.72 of the Act are concerned, the Full Court of the Family Court of Australia (Nicholson CJ, Fogarty & Jordan JJ) held in In the Marriage of Mitchell[25] (“Mitchell”) that the question of whether the applicant can support himself or herself “adequately” is not determined by reference to any fixed or absolute standard but having regard to the matters referred to in s.75(2) of the Act and more specifically sub paragraphs 75(2)(a), (b) or (c).

   [25] (1995) 120 FLR 292.

6. [30] (1989) 13 Fam LR 205.

   In In the Marriage of Nutting[26] (“Nutting”), Lindenmayer J held that the word “adequately” in the context presently relevant imports a standard of living which is reasonable in the circumstances including the circumstance that the parties are no longer husband and wife and that the assets and resources which were formerly available to them both in common have now been divided between them. Support for that proposition is found in authorities such as In the Marriage of Evans,[27] In the Marriage of Brady,[28] In the Marriage of Gamble,[29]

   
   In the Marriage of Wilson[30]

   and Inthe Marriage of Bevan.[31]

   [31] (1993) 120 FLR 283.

   [26] (1978) 30 FLR 556.

   [27] (1978) 30 FLR 570.

   [28] (1978) FLC 90-513.

   [29] (1978) 32 FLR 198.

7. When consideration is given to s.72 of the Act, the Honourable

   
   

   Justice Nygh of the Family Court of Australia held in In the Marriage of Murkin[32] that the test of ability to support oneself is not identical to the test of whether one is in need, but means whether the applicant is in a position to finance herself or himself from her or his own resources. His Honour went on to say the test is whether, by reason of earning capacity, by reason of capital or by reason of other sources of income which have accrued independently to the applicant, the applicant is in a position to look after himself or herself.

   [32] (1980) 5 Fam LR 782.

8. The Honourable Justice Nygh put the requirements of s.72 of the Act slightly more simply in In the Marriage of Eliades[33] (“Eliades”). In that case, his Honour held that the words of s.72 lay down two requirements. The first is that the applicant is unable to support herself adequately and second is that the respondent is liable to the extent that he is reasonably able to do so.

   [33] (1980) 6 Fam LR 916.

9. For the purposes of this application, I proceed on the basis that I am required to assess the evidence according to whether the wife, by reason of earning capacity or by reason of capital or by reason of sources of income which have accrued independently to her, is in a position to look after herself. I am then required to assess whether the husband is reasonably able to do so.

10. For the purposes of s.83(2)(ba) of the Act, I am then required to not make an order increasing or decreasing the sum of $850.00 per week ordered by consent unless the amount previously ordered of $850.00 per week is “not proper or adequate”.[34] Further, I have kept in mind the observations of the Full Court of the Family Court of Australia in Mitchell[35] to the effect that the wife will not be disqualified under s.75 of the Act because of the age, limited earning capacity and the standard of living of the husband.

    [34] Family Law Act 1975 (Cth), s.83(2)(ba).

    [35] (1995) 120 FLR 292.

11. There was no serious dispute between Mr MacFarlane for the wife and Mr Smith for the husband that the wife was 54 years of age when this application was made, that she is currently affected by cancer and that she had not been meaningfully employed for a very significant period of time.

12. In support of her application for an increase of the sum of $850.00 as previously ordered, the wife relied on the husband’s financial statement sworn 18 September 2015. There, the husband deposed to his income of $3,900.00 per week, or $202,800 per annum.

13. The husband swore in his affidavit of 2 December 2015 that he was not in a position to pay spousal maintenance for the wife on top of the support he was providing to the child Y.

14. To better understand the husband’s assertion that he was unable to pay the wife’s maintenance, he swore that he had paid Y’s tuition fees from September 2014 to November 2015. The amounts each month varied but the husband swore in paragraph 20 of his affidavit sworn

    
    

    2 December 2015 that he paid $21,889.89 to ensure Y remained at college. He swore that he made those payments, as the wife failed to pay those sums and that payment of the wife’s share ($21,889.99) was the only way of ensuring that Y remained at her college.

15. The husband argued that he was entitled to offset the amount of Y’s college fees. When pressed for authority that authorised such an offset, Mr Smith, correctly, in my view, conceded that he was unable to support the argument with authority.

16. The issue of an increase in spousal maintenance payments therefore fell to me for determination about whether such an order should be made at all and, if so, to what monetary limit. In the absence of any evidence from the husband by which he specifically addressed the inapplicability of a variation to the earlier orders for spousal maintenance, I am left with a consideration of the matters canvassed between paragraphs 46 and 55 of the wife’s affidavit sworn 27 November 2015.

17. Relevantly paraphrased, the wife’s contentions amounted to seven separate matters[36] -

    a)first, she said the sum of $850.00 was based on the husband’s financial statement sworn 4 December 2013 in which the husband’s annual earnings were $297,960.00;

    b)second, the wife submitted that the husband deposed to annual earnings in his 18 September 2015 financial statement of $202,800;

    c)third, between 1 July 2014 and 30 June 2015 the husband received payments of $42,500.00, $297,007.00, and $53,500.00;

    d)fourth, certain bank statements disclosed payments to the husband of $393,007.00 for the period 2014 to 2015;

    e)fifth, for the period 2013 to 2014, based on the husband’s accountant’s records, the husband’s income was $277,200.00 and for the period 2014 to 2015 the husband’s income was $375,007.00;

    f)sixth, in July 2015 the husband received payments from (omitted) of $62,000.00; and

    g)seventh, since the making of orders for spousal maintenance on 13 December 2014, the husband’s income increased and over the corresponding period his child-support obligations decreased.

    [36] Affidavit of Ms Walsh sworn 27 November 2015, at [47] – [50], [52] and [53].

18. The wife swore that the husband had the ability to pay the increased amount of spousal maintenance, adding “I am in desperate need for same”.[37]

    [37] Affidavit of Ms Walsh sworn 27 November 2015, at [54].

19. For the purposes of this interlocutory application, I was prepared to receive the material adduced by the wife even though some of it could only have been admitted into evidence on a final hearing had it been adduced through the proper witness. I mention especially the material tended as Annexure “W-4”, being the husband’s accountant’s own documents, various bank records and the husband’s own tax returns.[38] The documents adduced through the wife rendered more probable than not the likelihood that the financial information stated in those records was correct. In addition, the husband did not adduce evidence to contradict the material in Annexure “W-4”.

    [38] Affidavit of Ms Walsh sworn 27 November 2015, at Annexure “W-4”.

20. Having regard to the matters to which the wife deposed in paragraphs 47 to 52 of her affidavit sworn 27 November 2015, I am persuaded that the wife is presently unable to support herself adequately in accordance with the meaning ascribed to that phrase in such authorities as Nutting.[39] Of particular application is the decision of the Honourable Justice Nygh in Eliades.[40] The two-pronged test enumerated by his Honour was whether first, the applicant was unable to support him or herself adequately and second, whether the respondent was reasonably able to support the applicant.

    [39] (1978) 30 FLR 556.

    [40] (1980) 6 Fam LR 916.

1. On both issues I am so satisfied.

2. The quantum of spousal maintenance sought by the wife is almost double the amount previously ordered. That is set against a backdrop where the husband’s expenses have abated compared with the expenses when her Honour Judge Jones made orders in December 2013. Equally, the wife’s financial needs have abated. The wife swore in paragraph 55 of her affidavit sworn 27 November 2015 that she needed to pay car registration, the estimated sum of which was $675.00; car service ($674.00); fees for medical testing and scanning; fees for neurological testing and scanning; the cost of obtaining a new passport; and the cost of the wife’s proposed flight to the (country omitted) for Y’s graduation. Many of those expenses are unquantified while others, such as the cost of an international airline ticket, can be estimated with reasonable certainty within a particular range. Accepting that the wife’s assertion in paragraph 42 of her affidavit sworn 27 November 2015 is correct in that her expenses “at all times” exceeded $850.00 per week, to my mind an amount almost double the sum originally ordered is both excessive and unsupported by the wife’s own evidence.

3. I am unwilling to make an order increasing spousal maintenance to $1,500.00. However, I am prepared to increase the sum from $850.00 to the sum of $1,200.00 per week from 1 December 2015.

Bond money

1. The wife sought an order requiring the husband to pay her $2,087.00 within 14 days. For the reasons that follow I make an order for that payment.

2. The factual basis for this component of the wife’s claim is set out in part in paragraph 4(t) of the wife’s affidavit sworn 5 August 2015. That paragraph responded to the husband’s affidavit sworn 16 July 2015, especially to the matters deposed to in paragraph 25 of that affidavit. The husband deposed to withholding an amount of bond money on account of damage to property that the wife occupied. The husband said he had departed the property when the damage allegedly occurred. The husband swore that he was forced to resolve the matter with the landlord and upon doing so, paid the wife the balance of the bond.

3. A better explanation of the facts underpinning the bond claim was given by Mr MacFarlane in his opening to me. In essence, the husband and wife were living in rented accommodation when they separated. Under the lease of that rented premises, the husband was the tenant and the husband paid an amount of money by way of bond, the precise sum of which was not given it in evidence. After separation, and on a date also not given in evidence, water damage occurred at the rented premises. The landlord was insured against loss arising from the water damage event. The insurer paid the proceeds of the insurance claim to the husband rather than to the landlord, as the insurer ought to have done. When the time came to return the bond to the husband, the insurer deducted the cost the insurer incurred in repairing the water damage and paid the balance to the wife – $313.00 in all, rather than $2,400.00.

4. Against that scenario, if the narration had stopped there, the wife would not have been heard to complain about the bond. After all, the lease was in the husband’s name, the bond was in his name and the insurer (albeit erroneously) paid the husband the value of the insurance claim instead of paying that amount to the landlord, the landlord being the party affected by the property damage. But the narration did not stop there. Pursuant to paragraph 4 of the Orders made by her Honour Judge Jones on 9 December 2013, the bond was addressed as follows –

   The rental bond held in respect of the former matrimonial home shall be applied, after deduction of an agreed or required by the landlord/agent, amounts as follows:

   a.  To pay one month’s rent in advance as bond on premises the Wife has signed a lease for; and

   b.  The balance to the Husband.

5. On its face, her Honour’s orders required the bond to be applied in the particular manner there stated. The order provided, in express terms, that the balance of the rental bond was to be paid to the husband only after the bond had been applied in paying one month’s rent in advance on premises for which the wife had signed a lease. The husband contended he was entitled to appropriate the bond amount of $2,087.00 because the wife wrongfully (on his version of events, in any event) took a sum in excess of $52,000.00 from funds to which she was not entitled. Mr Smith conceded that the money for the bond was also part of the offsetting argument referred to in the context of the other amounts the husband had been ordered to pay. Mr Smith also said he was unable to refer to authority that permitted the husband to offset sums previously ordered.

6. It is abundantly plain that the husband did not comply with paragraph 4 of the Orders made by her Honour Judge Jones. He had no licence to choose whether he would comply with that order. It was not open to him to offset the payment of the bond money in the way he did in the absence of consent, none having been given, or in the absence of orders permitting him to do so, none having been made.

7. On the wife’s application for payment of $2,087.00, I make an order in her favour, such sum to be paid within 14 days of today.

Disclosure Orders previously made

1. In paragraph 63(e) of her affidavit sworn 27 November 2015, the wife stated that she sought compliance with paragraph 2 of the Orders of her Honour Judge Jones made by consent on 28 September 2015. That Order provided that each party was to make available for inspection and for copying all documents requested of that party under Order 1 of the Orders made by her Honour that day. The wife contended that the husband had failed to meet the spirit and letter of paragraph 2 of her Honour’s Orders in that the husband had provided six separate documents only in pursuance of that Order. I inspected the documents that the husband produced. He swore in paragraph 35 of his 2 December 2015 affidavit that those six documents represented complete compliance with paragraph 2 of the Orders made by her Honour Judge Jones on 28 September 2015. After a short discussion on point with Mr Smith, he suggested a new date of compliance with paragraph 2 of the Orders made by her Honour Judge Jones, being 31 January 2016. Mr MacFarlane asked for the date of 26 January 2016 for compliance with paragraph 2 of the Orders made by her Honour Judge Jones. There being no ongoing dispute about the husband’s obligations to comply with paragraph 2 of those Orders, ultimately it became necessary to choose between 26 and 31 January 2016 for the husband’s compliance. Recognising that proper compliance is likely to be a time-consuming task and that the husband was to return from (country omitted) in late December 2015, I was willing to give the husband until 31 January 2016 in order for him to comply with his obligations under paragraph 2 of the Orders made by her Honour Judge Jones on 28 September 2015.

Authorities for information

1. The wife sought orders compelling the husband to provide written documents called authorities, expressed to be in favour of the wife, requiring information and documents to be provided to the wife from entities in which the husband was alleged to have an interest. At the hearing before me, Mr Smith indicated that he was willing to provide those authorities. That meant that no dispute existed concerning the husband’s obligation to provide those authorities. In those circumstances, I made an order in accordance with paragraph 63(f) of the wife’s affidavit sworn 27 November 2015.

2. Insofar as any expenses will be incurred in the provision of information pursuant to those authorities, the wife urged me to order that the husband should meet those expenses at first instance and that the wife’s contribution to meeting those expenses should be determined at trial. The husband did not address this issue.

3. In my view, Mr MacFarlane’s proposal set out in paragraph 6 of the Minute of Proposed Orders is sensible. Having regard to the financial exigencies suffered by the wife, upon which my reasons for making the spousal maintenance orders above are based, it seems to me that the order proposed is proper at this time.

Release of funds for legal fees

1. In paragraph 62 of her affidavit sworn 27 November 2015, the wife swore that she had been unable to pay her legal fees on an ongoing basis. The wife swore that, as at the date of that affidavit, she owed her legal representatives close to $50,000.00.

2. Both parties referred to the sum of $50,000.00 once held in a (omitted) bank account in (country omitted), more recently transferred to (omitted) Bank. On behalf of the husband, Mr Smith submitted that the appropriate order in respect of the release of funds for legal fees, if I were minded to make such an order at all, was that the $50,000.00 in the (omitted) account be released to the wife to enable her to meet legal fees and disbursements and such amount be included in the pool of assets of the parties to be adjusted at trial. On behalf of the wife, Mr MacFarlane submitted that the sum of $60,000.00 (not $50,000.00) be released to the wife from the (omitted) Bank account with the characterisation of that amount, whether in the form of spousal maintenance or interim property to be determined at trial. Aside from the amount to be released, the parties agreed that the sum was to come from the amount in the (omitted) account and that the trial judge will be called upon to make orders about the character and legal effect of that transfer.

3. At this stage of the litigation, it is not appropriate to include in the pool of assets the sum to be withdrawn from the (omitted) account in payment of legal fees. It seems to me that all questions concerning the characterisation of the wife’s withdrawal from the (omitted) account to meet her legal expenses should be reserved to the trial judge. So far as the amount for which the wife is authorised to withdraw from the (omitted) account is concerned, Mr Smith recognised that, if I were persuaded to make such an order, the figure was in the vicinity of $50,000.00. On behalf of the wife, Mr MacFarlane submitted that the appropriate amount was $60,000.00. That amount was said to address existing legal expenses which he submitted was close to $50,000.00, plus an amount for future expenditures. I am persuaded to authorise the withdrawal of $60,000.00 to enable the wife to meet legal fees. In the context of the value of the property in issue in this litigation, I am willing to proceed on the basis that the wife will ultimately be granted an order for payment to her of at least $60,000.00. In those circumstances, between the date of the making of this order and trial or further order, I will permit the sum of $60,000.00 to be withdrawn from the (omitted) Bank account. A full reconciliation of amounts withdrawn must be kept by the wife.

Costs of the Contravention Application

1. The final issue that fell for determination related to the costs of the Contravention Application filed by the wife on 6 March 2015. The relevant narrative associated with this aspect of the wife’s application may be shortly stated.

2. By application filed 6 March 2015, the wife sought orders against the husband from contraventions she alleged occurred over the period from January 2014 to February 2015. Those dates related mainly to events when the husband was required to have made maintenance payments. The Contravention Application filed on 6 March 2015 came for hearing on 7 August 2015 before his Honour Judge Young. On that date, his Honour dismissed the contravention application brought by the wife. His Honour Judge Young ordered that the costs of each party be reserved.

3. His Honour Judge Young’s orders were made at a time when the precise minutiae of the contraventions were best known. Having heard counsel (both of whom were experienced counsel, well familiar with the practice of this Court), his Honour Judge Young dismissed the Contravention Application. Having dismissed that application, unremarkably, his Honour ordered the reservation of costs. Had his Honour intended to convey his disapproval for the bringing of what turned out to be an unsuccessful application, no doubt his Honour would have ordered costs against the unsuccessful applicant. His Honour did not do that. Instead, his Honour reserved each party’s costs. Ultimately the costs of that application will have to be dealt with by the trial judge. I see no reason for, or basis to, interfere with such an order by doing as the wife urged me to do on this application in ordering the husband to pay the costs associated with the Contravention Application filed 6 March 2015. Those costs have already been addressed. In so far as the orders made by me in this application re-agitate matters canvassed by the Contravention Application, maintenance issues, the bond and other matters addressed above, I have dealt with those costs by my costs orders made herein.

Costs of this Application

1. Mr Smith submitted that I should adopt the course provided for in s.117 of the Act or that I should reserve the costs of this detailed and lengthy hearing held on 4 December 2015. In the course of debate, I indicated to Mr Smith that I proposed to do that. Having read the transcript of the application on 4 December 2015, all affidavits, the whole court file and documents germane to this case, I recognise that the wife has succeeded on a large number of her applications. Yet also s.117(2A) of the Act requires me to consider an array of matters if I entertain the notion of making a costs order against a party under s.117(2) of the Act. Having considered the elements of s.117(2A) of the Act, I remain of the view that the trial of this proceeding will reveal whether a particular application or indeed the proceeding as a whole was necessitated by the conduct of one party or another. In those circumstances, I reserved the costs of this application to the trial judge.

Trial

1. Counsel previously informed the Court that the estimated duration of the trial of this proceeding was likely to be four days. On that basis, a trial date of 26 April 2016 was earmarked. The majority of the issues in this case are likely to boil down to property adjustments.  

Orders

1. For the reasons mentioned above, I have decided to make orders in the terms outlined in paragraph 2 of these reasons.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date:  24 February 2016