WAT & LEW

[2020] FamCA 546

FAMILY COURT OF AUSTRALIA

WAT & LEW [2020] FamCA 546

FAMILY LAW – PROPERTY – Application by Husband for interim spousal maintenance – property proceedings between parties on foot – marriage of 7 years – Husband’s capacity to engage in fulltime employment in dispute – consideration of s 75(2) factors – interim spousal maintenance application dismissed.

FAMILY LAW – PROPERTY – Application by Husband for litigation funding – where the Wife seeks that both parties are in need of litigation funding – where the Wife has control over parties’ finances – where both parties have failed to transparently disclose financial circumstances – Wife’s failure to disclose of greater consequence – where the Husband has no existing resources to fund legal fees for trial – Husband would be at significant disadvantage compared to the Wife – order for litigation funding described as an interim order for settlement of property made in favour of the Husband.

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 80(1)(h), 117(2)

Strahan & Strahan (2011) FLC 93-466
Harris & Harris(1993) FLC 92-378

APPLICANT: Mr Wat

RESPONDENT: Ms Lew

FILE NUMBER: ADC 477 of 2018

DATE DELIVERED: 10 July 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 25 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson of Counsel

SOLICITOR FOR THE APPLICANT: CG Family Law

COUNSEL FOR THE RESPONDENT: Ms Lewis of Counsel

SOLICITOR FOR THE RESPONDENT: Iles Selley Lawyers

Orders

1. That the Wife forthwith do all such things and sign all such documents as shall be necessary to withdraw from her National Australia Bank account ending in #..36 the sum of $50,000.00 with such sum to be made payable to and forthwith paid into the trust account of the Husband’s solicitors on account of the Husband‘s legal fees.

2. That the said payment be by way of interim settlement of property with the nature of the payment to be characterised at trial.

3. That the interim application contained in the Initiating Application filed herein by the Husband on 8 February 2018 be otherwise dismissed.

4. That costs generally be reserved.

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 Wat & Lew 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 ADELAIDE

FILE NUMBER: ADC 477 of 2018

Mr Wat

Applicant

And

Ms Lew

Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant Husband was born in 1983 in China.  He is currently aged 37 years.

2. The Respondent Wife was born in China in 1974 and is currently aged 45 years.

3. The parties commenced cohabitation in China in or about November 2009, married in China in 2010 and have one child X born in 2010.

4. The parties arrived in Australia to live in December 2015.

5. The parties separated in or about early December 2017.

6. On 8 February 2018 the Applicant Husband filed an Application seeking final orders for settlement of property and parenting issues as well as interim orders with respect to parenting issues, urgent and interim spousal maintenance, preservation of monies and discovery.

7. Although the Respondent Wife filed an Application in a Case on 14 June 2018 (as amended on 18 June 2018) seeking parenting orders, orders for the sale of the former matrimonial home at C Street Suburb D and orders with respect to liability for mortgage payments in respect of which a Response was filed by the husband on 18 June 2018, the Wife’s Response to the substantive application both with respect to final and interim orders sought therein was not filed until 4 September 2018 and nor were the issues with respect to spousal maintenance pressed.

8. From the time proceedings were instituted until the transfer of the proceedings to the Family Court of Australia on 28 May 2019 the dispute between the parties had centred on acrimonious parenting disputes.

9. The matter was first listed before me for interim argument on 25 October 2019 at which time the Court noted that negotiations were continuing with respect to both parenting and property settlement matters and directions were adjourned to 14 November 2019.  The matter was further adjourned by consent to enable ongoing negotiations particularly with respect to parenting issues to 22 November 2019.  On that date final orders were made by consent with respect to parenting issues.

10. The final order provided for the parties’ child to live with the Wife and spend time with the Husband from after school Friday to the commencement of school Monday in each alternate week, from after school Tuesday to the commencement of school Wednesday in each week, for one half of all school holidays at times to be agreed and for specific times on Father’s Day, his birthday, during times when the Wife travelled overseas and for the first two days of the Chinese Spring Festival in each alternate year commencing in 2020.

11. On 22 November 2019 procedural orders were also made listing the Application in a Case filed by the Husband on 16 October 2018 for argument on 25 February 2020.

12. In that application the Husband sought that the Wife pay to the Husband’s solicitor’s trust account on account of the Husband the sum of $100,000.00 by way of litigation funding and the sum of $600.00 per week by way of spousal maintenance, as well as the Husband’s costs.

13. On 28 January 2020 the Wife filed a Response to that application seeking inter alia:

    ·A discharge of the order made on 21 February 2018 requiring her to pay and discharge the whole of the liability to the National Australia Bank for payment of periodic principal and interest and make good on all and any arrears of such periodic payments;

    ·An order for sale of the former matrimonial home at C Street Suburb D;

    ·An order for the sale proceeds to be utilised to discharge any mortgage liability to the National Australia Bank and thereafter be paid into an interest bearing account in the name of both parties;

    ·In the alternative to an order for sale of the former matrimonial home, that the order made on 8 January 2020 providing that the wife be restrained from dealing in any way whatsoever with funds standing to her credit or the credit of her and the Husband jointly in the National Australia Bank including but not limited to funds held by her in account number BSB … Number …36 be discharged;

    ·That in the further alternative to the order for sale of the former matrimonial home and/or discharge of the injunctive order, that a single expert value the former matrimonial home at the parties joint expense;

    ·That in the alternative to an order discharging the restraining order with respect to the Wife’s dealings with the National Australia Bank funds, it be varied so that the injunctive aspect of the order be limited to the sum of $200,000.00;

    ·That in the alternative, the Husband proffer an undertaking as to damages if the injunctive order was to continue in its existing form.

14. Following the procedural orders of 22 November 2019 listing the Husband’s Application in a Case for hearing on 25 February 2020, a further Application in a Case was filed by the Husband on 28 November 2019.  That Application resulted in orders being made on 8 January 2020, 10 January 2020 and 16 January 2020.

15. Pursuant to the procedural orders of 22 November 2019 the Husband filed an Affidavit in support of his Application in a Case together with a Statement of Financial Circumstances on 20 December 2019.  The Wife filed an Affidavit in support of her Response to that Application on 31 January 2020.  The Husband filed an Affidavit in reply on 21 February 2020 and a further Statement of Financial Circumstances on 21 February 2020.

16. The hearing on 25 February 2020 was conducted by way of submissions on the papers.  Towards the end of submissions by the Respondent’s Counsel it transpired that proceedings with respect to divorce and ownership of property in China was apparently on foot between the parties in court in China.

17. At the close of submissions the Court ordered judgment reserved but that on or before 17 March 2020 each party file and serve an Affidavit with respect to the litigation in China, providing all relevant information including but not limited to the date of the commencement of those proceedings, details of the dispute and orders sought in China.  Both parties complied with that order.

18. The Wife deposed to commencing the proceedings in China in early to mid-2018 allegedly because she wanted a divorce from the Husband and because she wanted to deal with land which she owned and which was registered in her sole name in China.

19. She deposed to seeking orders for a divorce, that the parties’ child live with her, that the Husband pay her a sum of money each month as a result of those arrangements and recognition of a prenuptial agreement with respect to various properties.

20. She deposed to further seeking an order for a division of other assets owned by the parties including one property in China and the former matrimonial home in Adelaide at C Street Suburb D.

21. She deposed in paragraph 7 of her Affidavit filed 16 March 2020 to her Application being dismissed on 24 June 2019 but being able to make a further Application for the same order after 6 months has elapsed from the date of the dismissal, to having instructed her lawyers to start those fresh proceedings but that same had not been done because of COVID-19.

22. In the Husband’s Affidavit filed 17 March 2020 he deposed to not having been served with the Wife’s Application in China and only becoming aware of it when he received a letter from her solicitors informing him that the wife would be travelling to China between 27 and 30 October 2018 to attend a hearing.  He deposed to thereafter contacting the Court on two occasions and ultimately on 26 June 2019 being advised by the Court in China that the proceedings had finalised.

23. In those circumstances there is no evidence before the Court that would suggest that there are concurrent proceedings in China.

Evidence relied on by the applicant

1. On 12 October 2018 the Applicant Husband filed an Affidavit.  His Application in a Case was filed on 16 October 2018.

2. He deposed to:

   ·being employed as on a casual basis;

   ·working approximately 10 hours per week;

   ·earning approximately $250.00 per week;

   ·receiving Family Tax Benefits of approximately $50.00 per week;

   ·having attempted to find a job utilising his experience and background gained when working as a professional in China;

   ·to not having been able to find such a position;

   ·to not working between December 2015 and May 2018;

   ·that during that period of time he was the fulltime carer of the child X;

   ·to having assumed that role in December 2015 at the Wife’s request upon their immigration in December 2015;

   ·to the Wife discouraging him from working;

   ·to the Wife working throughout the parties relationship;

   ·to her income having been “more than sufficient” to provide financial support for the family;

   ·to the Wife earning approximately $1,105.00 by way of salary or wages in connection with her employment and/or business each week before tax prior to ceasing her employment in April 2018;

   ·to her also receiving rental income from property in China in the sum of approximately $946.00 per week and dividends from her company in China in the sum of approximately $920.00 per week;

   ·to her maintaining large sums of savings in her bank accounts, currently to the value of approximately $760,000.00 in her National Australia Bank account as at 12 October 2018;

   ·to her being injuncted from utilising such funds;

   ·to extensive legal fees and costs which had increased because of the approach of the Wife to the litigation resulting in her filing Affidavits upon which she later determined she would not rely but which in the meantime had required responses from the Husband.  He deposed to legal fees including counsel fees as at 12 October 2018 in the sum of $48,000.00;

   ·to commencing casual employment around late-May/early-June 2018 and to having borrowed approximately $50,000.00 from his mother and his aunt to help pay his legal fees and for general day-to-day living expenses including household outgoings with respect to the former matrimonial home;

   ·to his mother and aunt being unable to assist him financially in the future;

   ·to his solicitors seeking litigation funding on his behalf from the Wife by correspondence dated 10 October 2018 and to not receiving a response;

   ·to seeking an order for interim spousal maintenance to enable him to meet his general day-to-day living expenses including costs relating to spending time with the parties child X, at that time being after school each day except Thursday and for half a day each Sunday;

   ·to sharing approximately 10 meals a week with X.  He deposed to the Wife continuing to service the mortgage with respect to the former matrimonial home;

   ·to being unable to support himself without spousal maintenance because of limited income, limited capacity to obtain fulltime employment in the short-term and having no friends or relatives who are able to support him or provide financial assistance;

   ·to the Wife enjoying a luxurious lifestyle;

   ·to the nett pool of assets having a value of just over $4 million as deposed to in the Wife’s Affidavit filed 14 June 2018;

   ·to the parties and X enjoying numerous holidays prior to their separation including holidays within Australia;

   ·to X travelling with the Wife to China for approximately six weeks in December 2017/January 2018;

   ·to the Wife taking up residence in the R Hotel with the child upon their return to Adelaide at the end of January 2018;

   ·to the Wife bringing large sums of cash with her whenever she visited Australia; and

   ·to seeking $600.00 per week by way of spousal maintenance.

3. On 12 October 2018 the Applicant Husband also filed a Financial Statement.  He deposed in that document to average weekly income of $300.00, comprising $250.00 from his casual employment and $50.00 by way of Family Tax Benefit.

4. He deposed to total personal weekly expenditure in the sum of $925.00.  This expenditure consisted of rates, unit levies, car insurance and registration, and $824.00 by way of “Part N” expenses.  The major component of the Part N expenses were food costs, with $200.00 of that expense being allocated to himself and $150.00 to the parties’ child X.

5. In paragraphs 26 and 27 of his Affidavit filed 12 October 2018 he deposed to being responsible for all outgoings with respect to the former matrimonial home in which he resided other than the mortgage including council rates, emergency services levy, electricity and gas, SA water, home phone and broadband, pest control, gutter cleaning and gardening expenses.  Some of those expenses were referred to in the Statement of Financial Circumstances.

6. Other than his liabilities with respect to the mortgage over the former matrimonial home at C Street Suburb D and apparently a $25,000.00 liability with respect to a joint loan with the Wife, he only deposed to a personal loan to his mother and his aunt in the sum of $50,000.00 as deposed to in his Affidavit being an amount borrowed from them for the payment of legal fees.  He deposed in the Statement of Financial Circumstances to bank savings in his sole name in the total sum of $15,754.00.

7. On 22 November 2019 the Applicant Husband was ordered to file and serve an Affidavit in support of his Application filed 16 October 2018 together with a Statement of Financial Circumstances.  Those documents were filed on 20 December 2019.

8. In that Affidavit the Husband deposed to:

   ·currently spending time with the parties son X in accordance with the orders to which I referred earlier;

   ·to the Wife requesting that he care for X during a period of three weeks when she intended to return to China over the December 2019/January 2020 period;

   ·to earning money teaching Chinese at a Chinese college other than during school holiday periods and being paid for 2 hour lessons per week at a rate of $15.00 per hour;

   ·to owning a 51 per cent share of “G Pty Ltd” but to not being paid a regular salary and working there for approximately 15 hours per week;

   ·to his business partner giving him a total of $300.00 in wages over a 3 month period;

   ·to working at another business owned by his business partner trading as “S Company” undertaking work and trying to attract Chinese clients;

   ·to that being a business and to doing most of his work in relation to that business from home;

   ·to working at F Real Estate;

   ·to being paid $25.00 per hour working approximately 20 hours per week earning approximately $500.00;

   ·to working in that business from April 2018 to mid-2019 but to not working in some weeks;

   ·to his average income over that year being approximately $326.00 per week;

   ·to having not had much work from F Real Estate since mid-2019;

   ·to having limited opportunities to find employment in Australia;

   ·to being able to understand and write in English but to being generally restricted in spoken English;

   ·to needing to be flexible so as to be able to care for X on a fulltime basis where the Respondent Wife may go to China for an extended period of time;

   ·to the parties assets in Australia having a value of $1,643,711.00 nett;

   ·to the value of Chinese assets to the best of his knowledge being $5,494,000.00;

   ·to the Wife continuing to fail, refuse or neglect to provide him with updated bank account statements;

   ·to his current outstanding legal fees being $28,894.00 with $4,000.00 owing by way of work in progress;

   ·to being advised by his solicitors of further anticipated costs of $65,000.00; and

   ·to his solicitors making enquiry of the Wife’s solicitors as to her capacity to pay her own legal fees but to receiving no response.

9. In his Statement of Financial Circumstances filed 20 December 2019 he deposed to average weekly income of $384.00 and total weekly personal expenditure of $359.00.  His weekly income comprised wages of $326.00, Family Tax Benefit of $35.00 and volunteer work from the Chinese Association of South Australia of $23.00.  His expenses comprised $272.00 by way of Part N expenses as well as $56.00 for rates and levies, $7.00 for health insurance, $10.00 for car insurance and $14.00 for motor vehicle registration.

10. He deposed to having $1,345.00 in an NAB account and $1,303.00 in a Commonwealth Bank Account, to owning a motor vehicle 1 with a value of $6,000.00 and to the value of his interest in G Pty Ltd being NIL.

11. The liabilities deposed to by the Husband continued to be his share of the mortgage over the former matrimonial home and an outstanding personal loan to Mr K in the sum on $46,000.00, being some $4,000.00 less than the amount he deposed to owing with respect to that personal loan in paragraph 50 of his Statement of Financial Circumstances filed 12 October 2018.

12. He deposed to not knowing the amount of his and the Wife’s liability in relation to properties in L City and R City, to outstanding legal fees in the sum of $28,894.00 and to a Centrelink liability in the sum of $2,100.00.  There were no other disclosed liabilities.

Evidence relied on by the respondent

1. On 28 January 2020 the Respondent Wife filed her Response to the Application in a Case as previously referred to herein and on 31 January 2020 she filed an Affidavit in support of that Response.  She did not file a Statement of Financial Circumstances as ordered.

2. In her Affidavit the Wife deposed:

   ·to the Applicant Husband being skilled and qualified to work in various fields ;

   ·to him having minimal expenses comprising utilities and food and groceries;

   ·to him not having disclosed details of a business he has started in partnership with another person;

   ·to already paying the majority of the parties joint expenses including the monthly mortgage payment with respect to the former matrimonial home at Suburb D in the sum of approximately $4,000.00;

   ·to having lost a large sum of money from an investment in China to the extent of approximately $800,000.00 at least and to the Husband being aware of that loss;

   ·to being responsible for mortgage payments with respect to the Suburb D property in the sum of approximately $4,000.00 each month, rent for the property in which she and the parties’ child X reside at the rate of $5,000.00 per month and school fees for X in the sum of approximately $1,500.00 per month;

   ·to paying for all of X’s living expenses and after school tutoring with such activities costing more than $10,000.00 per year;

   ·to paying expenses for X’s dog in the sum of approximately $3,000.00 per year, electricity bills totalling approximately $1,500.00 every 6 months, gas bills of approximately $250.00 per quarter, water bills up to $1,688.00, and telephone bills in the sum of approximately $150.00 per month;

   ·that she had always been the primary income earner but not because of a wish for the Husband to direct his efforts more domestically;

   ·to agreeing that she had retained control of the various assets held in her own name in China;

   ·to various sums having been provided to the Husband firstly to fund his visa application to come to Australia and thereafter for living expenses;

   ·to sums allegedly withdrawn by the Husband from the parties jointly held account in the months between 13 December 2016 and 8 February 2017 totalling $12,600.00;

   ·to the Husband having accessed $51,000.00 in cash from the safe in their home prior to December 2017;

   ·to paying the Husband the sum of $1,278.00 on 26 January 2018;

   ·to her knowledge of the Husband’s business interests in the business called “G Pty Ltd”, the “G Unit Trust” and to his alleged partners interest in H Pty Ltd and J Pty Ltd;

   ·to her assets including her interest in the former matrimonial home, real estate in China, a right to occupy a property in L City, various shares in China both as listed on the Stock Exchange and through her interest in various companies;

   ·to details with respect to National Australia Bank accounts, Commonwealth Bank accounts, M Bank accounts, N Bank accounts and P Bank accounts;

   ·to having had difficulty in meeting expenses in Australia after 1 January 2018 in circumstances where the Chinese Government imposed a ban on Chinese Nationals from withdrawing from their Chinese bank accounts any more than 100,000.00 in local currency in any one year and to that equating to approximately $21,000.00;

   ·to not being able to use any money she holds in China to meet her Australian expenses other than what can be brought back into Australia by way of cash;

   ·to not having finalised her 2019 Tax Return but expecting it to be similar or slightly less to the extent of approximately $2,000.00;

   ·to liabilities with respect to the NAB Mortgage over the former matrimonial home, mortgages with respect to properties in China and alleged debts in the total sum of $800,000.00 to one Mr Q;

   ·to being liable to pay the mortgage over the former matrimonial home in the sum of approximately $4,000.00 per month; and

   ·to having mortgage liabilities with respect to property in China but to those liabilities being met from funds held in China in the sum of approximately $4,500.00 per month.

3. In addition to the matters to which I have already referred and which she deposed to in paragraph 14 of her Affidavit with respect to her expenses she deposed more specifically:

   ·to her monthly food expenses for herself and X ranging between $1,000.00 to $2,000.00 per month;

   ·to further expenses of approximately $2,500.00 per year for car insurance and registration;

   ·to $326.00 per month for private medical cover for X and herself,

   in addition to the expenses to which I have already referred.

4. Although the Wife deposed in paragraph 64 under the heading “Disclosure” to a list of assets comprising real estate and interest in companies, she did not ascribe a value to any of those assets.  She deposed in paragraph 65 to a balance of $764,341.00 in NAB account ending in #..36 relating to the mortgage over the former matrimonial home and to three other credit accounts with a total value of $1,683.97.

5. She deposed to having two Commonwealth Bank accounts but did not refer to any credit or debit balance in those accounts and to having three M Bank accounts with a current balance in one account of 1,246.80 in local currency.  She deposed to N Bank accounts, one with a balance of approximately $315,000.00 and the other about $25,000.00 and to owing somewhere between $20,000.00 and $30,000.00 on a N Bank credit card.

6. Annexure “L1” to the Respondent’s Affidavit is a copy of her 2018 Individual Tax Return.  According to that Return the Respondent’s total income for the 2018 financial year comprising wages, Chinese employment income and rental income totalled $72,431.00.

7. The Affidavit filed by the Wife was of little assistance in terms of her income at the time or the value of assets owned by her or by the parties jointly at the time of swearing, and a significant part of the document comprised comment and submission.

Spousal maintenance

1. The relevant legislative provisions for the purposes of these proceedings in relation to spousal maintenance are contained in sections 72, 74 and 75 of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 72(1) is in the following terms:

   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).

3. Section 74 of the Act confers power on the Court to make “such order as it considers proper for the provision of maintenance in accordance with this Part.”

4. Section 75 of the Act specifies the only matters that the Court shall take into account in determining what order if any should be made for spousal maintenance. I will refer to the relevant subsections of section 75 in due course.

5. In making a claim for spousal maintenance it was the Husband’s case that the material contained in his Affidavits and Statements of Financial Circumstance to which I have referred established that he had a need for spousal maintenance.  It was submitted that the Wife had made a decision that she should be the primary income earner for the family, that she wanted him to be the primary caregiver for X when they came to Australia and that she discouraged him from seeking and/or obtaining employment particularly from that time.

6. It was submitted on his behalf that he had made attempts to obtain fulltime employment after the parties came to Australia to live but that it was not easy both because of lack of experience and language difficulties.

7. It was submitted on behalf of the Wife that the evidence on which the Husband relied could not sustain a finding by the Court that he was unable to support himself adequately on any basis.

8. She submitted that the parties separated on 11 December 2017.  At the time the parties separated X, who was then aged just over seven years, remained in the care of the Husband.

9. By order of 21 February 2019 the child was to live with the Wife and spend time with the Husband on each school day except Thursdays from after school until no later than 8.30 pm, on Sundays from 12 noon until 5.00 pm and between 9.00 am and 5.00pm on at least six days during the April 2018 school holidays.

10. That order continued on 20 June 2018 and a further order was made providing for X to spend time with his father from 9.00 am to 5.00 pm for six consecutive days commencing 30 June 2018.

11. The order continued on 4 October 2018 with provision for additional time from 9.00 am to 5.00 pm on three days in October 2018.

12. On 17 December 2018 provision was made for X to spend time with his father on 13 days during the December 2018/January 2019 school holidays from 9.00 am to 5.00 pm and on Christmas Day in 2018 from 1.00 pm to 7.00 pm.

13. As and from the commencement of Term 1 2019 parenting orders provided for X to spend time with his father from the conclusion of school to 7.00 pm on Tuesdays and Thursdays of each week and from 9.00 am to 5.00 pm on Sunday of each week with a further order of 21 February 2019 providing for X to spend time with his father from 9.00 am to 5.00 pm on six days during the April 2019 school holiday period.

14. Parenting issues were resolved by way of a final consent order on 22 November 2019.  The order provided for X to live with his mother, for his parents to have equal shared parental responsibility and for him to spend time with his father.  The time spending orders effectively provided for X to spend time with his father each alternate weekend from after school Friday until the commencement of school the following Monday and from Tuesday after school until the commencement of school Wednesday in each week.  The order also provided for him to spend time with his father for half of all school holiday periods, for specified times on Father’s Day and on X’s birthday, for the first two days of the Chinese’s social event in 2020 and each alternate year, and at times when the Wife was travelling overseas.

15. I am satisfied that from at least 21 February 2018, some two to three months after the parties separation in or about early December 2017, X has lived primarily in the care of the Wife.

16. Pursuant to the parenting orders to which I have referred, X spent limited time with his father primarily confined to daytime unless otherwise agreed between the parties for the period 21 February 2018 to the latter part of 2019.

17. For the most part from February 2018 until or approximate to the time of the making of final orders, X’s time with his father occurred primarily from the conclusion of school until after dinner.  Additional time spending primarily occurred between the hours of 9.00 am and 5.00 pm on weekend days save and except for school holiday periods when it also occurred on some weekdays.

18. It was submitted by the Wife’s Counsel that the time X spent with his father post-separation at least from the end of February 2018 “did not distract the Husband” with respect to his availability to seek employment.  I accept that submission and find that for the period between 21 February 2018 and 22 November 2019 X spent the overwhelming majority of his time in the care of his mother, and that subsequent to 22 November 2019 the time that he has spent with his father would not substantially impact on the ability of the Husband to undertake paid employment.

19. In making that finding I accept that on occasions X has been in the primary care of his father whilst the Wife has travelled overseas for employment reasons.  Nevertheless, I find that does not significantly enhance the Husband’s case.

20. The Husband did not claim to be either physically or mentally incapable for appropriate gainful employment.  It was the Husband’s case however that it was hard to obtain employment after the parties came to Australia because of his role as the primary caregiver for X but also because it was not easy to translate his Chinese work experience into the Australian workplace and it was not easy to obtain employment.  The Husband deposed in paragraph 2.19 of his Affidavit filed 21 February 2020 that he made attempts to obtain a fulltime position.

21. Exhibit W1 tendered by the Wife’s Counsel on 21 February 2020 were a series of text messages dated 10 October 2019, 11 October 2019 and a further document dated 16 September 2019.  It was submitted by Counsel for the Wife that on 9 October 2019 the parties and their legal representatives engaged in a “without prejudice” conference.  It was common ground that the dates 10 and 11 October on the text message pages related to 2019.

22. The 10 October 2019 message is a text message from “Mr T” who is apparently the husband to “Ms V” enquiring as to whether a job is still available.  The message of 11 October 2019 seemed to relate to an enquiry about employment in a retail outlet.  There was no other evidence adduced by the Husband to support a contention that he had made any other attempts to obtain employment following the parties’ separation in late 2017.

23. Counsel for the Husband submitted that the Wife would say that the Husband was half-hearted in terms of his attempts to obtain employment, but that it was hard for the Husband to seek employment when he had the fulltime care of X whilst the Wife was in China.  I have already referred to the very limited time that occurred in the period between late February 2018 and the hearing on 25 February 2020.

24. The Husband certainly obtained some casual employment at F Real Estate and deposes in paragraph 2.1 of his Affidavit filed 21 February 2020 to earning approximately $15,000.00 per annum from that employment.  He referred to that same employment in paragraph 2.20 of the same Affidavit.

25. In the Husband’s Statement of Financial Circumstances filed 20 December 2019 he disclosed a 51 per cent share in G Pty Ltd but deposed to that share having a NIL value.

26. In paragraph 2.51 of his Affidavit filed 21 February 2020 the Husband deposed to G Pty Ltd having not traded and to him therefore having derived no income.  In paragraph 2.52 he refers to receiving $300.00 from “S Company” in 2019 for having designed and developed the website for the business as a “one off job”.  The Husband had deposed to his interest in “G Pty Ltd” and to having done work for “S Company” in paragraphs six and seven of his Affidavit filed 20 December 2019.

27. It was submitted on behalf of the Wife that the Husband had failed to make any adequate disclosure whatsoever with respect to any interest that he may have in those businesses or either of them and I accept that submission.

28. When considering the right of a spouse to maintenance the Court is required to take into account any relevant matter in subsection 75(2) when determining the capacity of a party to support herself or himself adequately.

Section 75 factors

1. The Husband is aged 37 years.  The Wife is aged 45 years.

2. There is no evidence that either party suffer ill health.

3. I have already referred to the income, property and financial resources of each of the parties as disclosed in their Affidavits and, in the case of the Husband, his Statements of Financial Circumstance.

4. The Husband makes complaint as to a lack of transparency on the part of the Wife.  The Wife makes similar complaint against the Husband.

5. The major asset of the parties in Australia is the former matrimonial home at C Street Suburb D.

6. The primary source of the Wife’s income to which she has deposed and to which I have referred related to her business interests in China.  I have already referred to the Husband’s evidence with respect to the limited income he receives.

7. Both the Husband and the Wife have the physical and mental capacity for appropriate gainful employment.  The Wife has been engaged in appropriate gainful employment since the parties separated.  The Husband has made no genuine effort to obtain appropriate gainful employment since orders were made whereby the parties’ child X remained in the primary care of the Wife.  He has obtained some casual employment earning minimal income.  There is little information before the Court as to his capacity to earn income from G Pty Ltd.

8. It is the Wife who has the primary care and control of X such that he spends the majority of his time in his mother’s care with four overnight periods per fortnight during school term time in his father’s care including alternate weekends and half school holiday time in the care of his father.

9. It is not in dispute that the Wife continues to financially provide for herself, for X and for the majority of the Husband’s living expenses.  She deposes to expenditure in that regard in paragraph 14 of her Affidavit filed 31 January 2020.  The Wife pays the mortgage payments in the sum of approximately $4,000.00 per month with respect to the former matrimonial home in which the Husband resides and where X lives with his father pursuant to existing parenting orders.

10. In addition, the Wife deposes to paying $5,000.00 per month rent for a residence for herself and X, X’s school fees at Scotch College in the sum of approximately $19,000.00 per year and X’s extracurricular activities in the sum of approximately $10,000.00 per year.  She deposes to paying pet expenses for X’s dog to the extent of approximately $3,000.00 per year as well as paying the cost of electricity, gas, water and telephone at her and X’s residence and for herself.

11. In circumstances where the Wife’s evidence as to her income is that she earned a taxable income of $72,431.00 in the 2018 financial year and expected to earn approximately the same amount in the 2019 financial year, she deposes to having had to borrow money to cover some of those expenses.  There is no evidence from the Wife as to the details of any such borrowings.

12. The Husband deposed to personal weekly expenses of $760.00 in his Statement of Financial Circumstances filed 18 June 2018, $925.00 in the later statement filed 12 October 2018, $359.00 in his statement filed 20 December 2019 and $357.00 in his Statement of Financial Circumstances filed 21 February 2020.  His weekly incomes deposed to in the same statements in the same order were $350.00, $300.00, $384.00 and $383.00.

13. Notwithstanding that in his first Statement of Financial Circumstances his total weekly expenditure exceeded his income by $410.00 and in the second by $625.00, the only liabilities deposed to by the Husband in each of those documents related to his share of the mortgage liability over the former matrimonial home, and a share of a liability apparently over a property in China.

14. The only other liability to which he deposed was that to his mother and/or his aunt, commencing in the sum of $10,000.00 by way of a personal loan in his statement filed 18 June 2018, increasing to $50,000.00 by way of personal loan in his statement filed 12 October 2019, decreasing to $46,000.00 in his statement filed 20 December 2019 and increasing again to $60,000.00 in his statement filed 21 February 2020.

15. His evidence with respect to that liability was contained in his Affidavit filed 12 October 2018 and in his further Affidavit filed 20 December 2019 wherein he deposed to the amount of his legal fees and the necessity to borrow from his mother and his aunt for the purpose of covering those fees.

16. Notwithstanding the significant discrepancy between the Husband’s disclosed income and expenditure as deposed to in the Statements of Financial Circumstance filed 18 June 2018 and 12 October 2018, there was no evidence before the Court as to the Husband incurring debt with respect to that discrepancy.

1. In each of his Financial Circumstances Statements filed on 20 December 2019 and 21 February 2020 his average weekly income as disclosed therein exceeded his weekly expenditure by $26.00 and $25.00 respectively.

2. In the Statement of Financial Circumstances filed 20 December 2019 by the Husband he deposes to a debt to Centrelink in the sum of $2,100.00.  No other evidence was adduced with respect to that liability.

3. The Wife is solely responsible for the financial support of the parties’ child X.  The Husband does not pay any child support.

4. The Husband deposes to being eligible for a Family Tax Benefit payment starting at $50.00 per week in his Statement of Financial Circumstances filed 18 June 2018, and in the three subsequent Statements of Financial Circumstance remaining at $50.00 per week in that filed 12 October 2018, reducing to $35.00 per week in that filed 20 December 2019 and remaining at $35.00 per week in that filed 21 February 2020.

5. The terms of section 75(3) of the Act require the Court to disregard that entitlement in assessing the income of the Husband. In those circumstances his expenses in each of the first two Statements of Financial Circumstance exceed his income by $460.00 and $675.00 respectively and in the latter statements result in his income being almost exactly equal with his weekly expenditure. I note again there was no evidence with respect to any alleged Centrelink debt which did not appear in the most recent Statement of Financial Circumstances filed 21 February 2020.

6. Since the parties separated at the end of 2017, I am satisfied that both of the parties have continued to enjoy a standard of living that in all the circumstances is reasonable.

7. The Husband remains resident in the former matrimonial home at Suburb D.  He deposed in his initial Affidavit filed 12 October 2018 to significant liability with respect to household outgoings other than the mortgage but it would appear in his last two Statements of Financial Circumstance that the outgoings are met by him within the limits of his income, modest though that income is.

8. The Wife and X clearly reside in well-appointed premises in circumstances where her evidence is that the rental for those premises is $5,000.00 per month.  The Wife has travelled as between Australia and China and various other destinations in Australia and overseas both with X and for the purposes of business.

9. The Husband previously travelled with the Wife and X but there is no evidence that he has had the capacity to travel since separation.  Nevertheless, although his income is modest he has not accumulated any debt to which he has deposed save and except that to which I have already referred and there is no evidence before the Court that his standard of living is other than reasonable.

10. He deposes in paragraph 28 of his Affidavit filed 12 October 2018 to having had to limit the purchase of groceries, to putting off the purchase of essential items of clothing, having had to reduce consumption of electricity and gas, avoid movies and meals out and ensuring that the activities he undertakes with X are not expensive.

11. I am not satisfied however that such evidence would satisfy me that the Husband has been reduced to a standard of living that is not reasonable in all of the circumstances.

12. There is no evidence from the Husband that he intends to undertake a course of education or training or establish himself in a business to obtain an adequate income nor that the duration of the marriage has affected his income capacity.

13. The parties remain in dispute as to a resolution of property settlement issues between them.

14. As I have said previously the Husband has not and does not pay child support and there is no evidence before the Court that would suggest he is likely to do so in the foreseeable future.

15. I am unable to find on the evidence before me that the Husband is unable to support himself for either of the reasons referred to in paragraph 72(1)(a) and (b) of the Act or for any other adequate reason having regard to the matters to which I have referred in section 75(2).

16. I find that the Husband is young, that he has the physical and mental capacity for appropriate gainful employment and that he has chosen not to pursue such employment with any genuine intention other than the modest part-time employment to which I have referred since the parties separated in or about December 2017.

17. I find that he does not have the primary care or contribute to the financial support of the parties’ child X save and except for meeting food and entertainment expenses for X during times X spends with him and I find that he is enjoying a standard of living that in all of the circumstances of this matter is reasonable.

18. I am not satisfied that there is any adequate explanation for the ability of the Husband to meet his daily expenses since separation particularly taking into account the significant discrepancy between weekly income as deposed by him in each of his first two Financial Statements to which I have referred and the expenditure to which he has deposed in circumstances where he has not accumulated any debt nor deposed to any gifts.  His legal fees to date have been met in the main by funds advanced by his mother and aunt as deposed to in his Affidavits and Statements of Financial Circumstance.

19. Taking those matters into account and in circumstances where I find that neither of the parties have been transparent with respect to their respective financial affairs, I intend to dismiss the Husband’s application for interim spousal maintenance.

20. I accept the submission of Counsel for the Wife that spousal maintenance post the parties separation can be sought by the Husband as part of final financial orders sought and that the Application can be properly explored during a final hearing.

Litigation funding

1. The Husband also seeks an order that the Wife pay to his solicitors’ trust account on his account the sum of $100,000.00 by way of litigation funding.

2. It was submitted by Counsel for the Husband that the Court’s jurisdiction to make orders providing funds for one or both of the parties to pay legal costs or costs associated with the prosecution of their respective applications can arise under the costs power specified in section 117(2) of the Act or alternatively by way of an interim order for settlement of property pursuant to the general powers of the Court under Part VIII of the Act as defined in section 80(1)(h). He further submitted that it was open to the Court to make the order sought with the specific nature of that order to be characterised at trial.

3. It was the position of the Wife’s Counsel that both parties were in need of litigation funding and that the matter could best be addressed by an order that each of the parties received the sum of $50,000.00 from the funds standing to the Wife’s credit in the National Australia Bank in the sum of approximately $760,000.00 as previously referred to herein.

4. Both Counsel submitted that significant trial preparation work was necessary, with Counsel for the Husband submitting that further work was necessary for the purpose of investigating the extent of the asset pool and with Counsel for the Wife submitting that a joint valuation is required with respect to the Suburb D property and valuations would also be needed with respect to the Chinese properties.

5. It was submitted by the Wife’s Counsel in accordance with the evidence of the Wife as contained in paragraphs 64 to 72 of her Affidavit filed 31 January 2020, that the financial position of the Wife is extremely uncertain as is the value of the Chinese assets, and that in those circumstances her client likewise required funding for litigation.

6. In her Affidavit filed 31 January 2020 she referred to funds in Chinese banks in the sum of approximately $340,000.00.  She also deposed to having two Commonwealth Bank accounts but not to any credit or balances therein.

7. By way of final orders with respect to settlement of property the Husband seeks to retain the former matrimonial home at C Street, Suburb D freehold and unencumbered.  He seeks that the Wife discharge the mortgage over that property.  That is the basis of the order for injunction previously made herein restraining the Wife from allowing the funds standing to her credit in an account at the National Australia Bank from dropping below $760,000.00.

8. It is not in dispute in this matter that the Wife owned properties in China before the parties married, that she has been the primary income earner during the parties relationship and marriage and, save as to some limited income from part‑time employment utilised primarily for his own day-to-day living expenses and some limited expenses arising from X’s day-to-day needs, the Wife has been the only income earner subsequent to the parties separation.  It is also common ground that the Wife’s primary sources of income have been her business or businesses in China.

9. To date the evidence before the Court from both parties would suggest that the only significant asset of the marriage within the Commonwealth of Australia is the property at C Street Suburb D.  It is occupied currently by the Husband with the Wife paying the mortgage.  There is no current value of the property before the Court but in the Husband’s Statement of Financial Circumstances filed 21 February 2020 he deposes to a 50 per cent legal interest in that property valued at $600,000.00.  The Wife deposes in paragraph 64.1 of her Affidavit filed 31 January 2020 to her assets including the Suburb D property but she does not ascribe any value to that property.

10. Counsel for the Husband submitted that in circumstances where the Wife claimed expenses totalling at least $145,800.00 excluding annual water bills and day‑to‑day living expenses for herself and X (Affidavit filed 31 January 2020 – paragraph 14) the Court could place no reliance on financial evidence to which she had deposed where that suggested a taxable income of just over $70,000.00 per year.

11. Although the wife deposed in paragraph 15 of that same Affidavit to having had to borrow money to meet those expenses and in paragraph 69.4 of the same Affidavit to having incurred “further loans over the last 12 months from Mr Q in the sum of more than $400,000” she provides no further evidence to the Court as to whether the loans referred to in the said paragraph 69.4 were the same borrowings she referred to in the said paragraph 15 or the terms and conditions of any such loan or loans.  In those circumstances the Court is left with highly unsatisfactory evidence as to the true state of the Wife’s financial circumstances.

12. I repeat my earlier comments made in paragraph 105 of these reasons with respect to neither party having been transparent with respect to their financial situations.

13. There is no evidence before the Court as to the amount of the Wife’s legal fees incurred to date or those likely to be incurred in the future notwithstanding her comments in paragraphs 56 to 60 of her Affidavit filed 31 January 2020 with respect to legal fees incurred by the Husband.

14. It was the Husband’s evidence that notwithstanding requests having been made of the Wife for details of costs incurred and the method of payment of same no response has been received.

15. In paragraph 2.46 of his Affidavit filed 21 February 2020 the Husband deposes to the $50,000.00 borrowed from his mother and aunt being used towards paying his legal fees and towards general living expenses.  He deposes to the additional $10,000.00 borrowed from his mother being used towards payment of legal fees and that to that date having incurred in excess of $109,000.00 in legal fees of which approximately $39,000.00 remained outstanding.

16. There is no evidence that the Husband’s legal representatives have declined to continue to act for him where his outstanding account has not been paid and where there appears to be no money in trust for the preparation of the matter for trial.

17. Nevertheless, I find that it is the Wife who has control over the parties’ finances and I accept on the evidence that the Husband has no existing resources to fund his legal fees with respect to the preparation for and conduct of any trial with respect to the parties’ financial dispute.

18. To the contrary, the Wife has not taken the opportunity to provide the Court with any evidence with respect to the amount of her legal fees to date, whether those fees are paid or unpaid, if paid the source of funds to pay those accounts and any estimate with respect to future legal fees.  I have already referred to the serious discrepancy between the Wife’s deposed expenses and income.

19. I do not accept the submission of Counsel for the Wife that the matter would best be resolved by way of each party being able to withdraw the sum of $50,000.00 from the funds standing to the Wife’s credit in the National Australia Bank account to which I have referred which is effectively securing the mortgage over the former matrimonial home.

20. I find that in the words of the Full Court of the Family Court of Australia in Strahan & Strahan (2011) FLC 93-466 at [132]:

    …It is not necessary to establish compelling circumstances.  All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

21. The Court in those circumstances was referring in particular to the Full Court’s remarks in Harris & Harris(1993) FLC 92-378 where it was dealing with the issue of “interim” or “partial” property orders and held that the exercise of the power “should be confined to cases where the circumstances presented at that time are compelling.” In that case the Full Court also held that:

    It is an exercise of the s.79 power.  Consequently it must be performed within those parameters.  Since it is not the final hearing the Judge is unlikely to have the final findings, but the exercise must fall within that general framework and the material available at that time.

22. In that same case the Full Court further held that:

    Of necessity it is likely to be a somewhat imprecise exercise.  Consequently, it must be exercised conservatively and the Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so.

23. This matter is not without complication in that the majority of the assets held by the parties are held in the name of the Wife or associated companies in China.  The only significant asset of the parties in Australia to which I have previously referred is the former matrimonial home at Suburb D.

24. The Wife has not ascribed a value to that property and the Husband’s most recent Statement of Financial Circumstances ascribes a value of $1.2 million.  The mortgage over the property is approximately $714,000.00.

Conclusion

1. I find that in the circumstances of this case although both parties have failed to transparently disclose to each other and to the Court the particulars of their financial circumstances, the Wife’s failure is of greater consequence.  I find that that it is appropriate to exercise the Court’s discretion and to make an order providing for litigation funding for the Husband.  I find that he would otherwise be at a significant disadvantage compared to the Wife.

2. I am satisfied that the order should be described as an interim order for settlement of property, exercising the powers of the Court pursuant to section 79 and section 80(1)(h) of the Act. The nature of the payment should be more specifically determined at trial particularly when assessing any claim for past or future spousal maintenance.

3. The Husband is opposed to funds being withdrawn from the account securing the mortgage over the Suburb D property.  That account currently holds an amount of approximately $45,000.00 more than the amount owing by way of mortgage over the former matrimonial home.

4. I am unable to find another source of funds to provide for litigation funding for the Husband on the material before the Court.

5. I find that it would be appropriate to make an order that the Wife withdraw the sum of $50,000.00 from the National Australia Bank held in her name with a current balance of approximately $760,000.00 with such funds to be paid directly into the trust account of the Husband’s solicitors on account of the Husband’s legal fees.  The amount remaining in that National Australia Bank account will only be slightly less than the amount currently outstanding with respect to the mortgage.

6. For the reasons given I do not consider that there is any reason, compelling or otherwise, to justify an order that the Wife have a similar amount from that account by way of litigation funding.

7. In those circumstances I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 10 July 2020.

Associate:

Date: 10 July 2020