WERNHER & WIECK

[2018] FamCA 248

FAMILY COURT OF AUSTRALIA

WERNHER & WIECK [2018] FamCA 248

FAMILY LAW – PROPERTY – INTERIM – Where the husband seeks that the former matrimonial home be sold – Where the wife seeks to retain the home – Where the wife seeks that the husband pay certain outgoings – Where the husband has no present capacity to meet the outgoings – Where each party’s applications are dismissed.

FAMILY LAW – CHILD SUPPORT – Where the husband seeks a stay of a child support assessment – Where there was no procedural fairness given to the Registrar in accordance with rule 4.23 of the Family Law Rules – Where the application is dismissed.

FAMILY LAW – COSTS – Where the husband is ordered to pay two-third of the wife’s costs on a party and party basis.

Child Support (Registration and Collection) Act 1988 (Cth) s 111C

Family Law Act 1975(Cth) s 117(2A)

Family Law Rules 2004 (Cth) r 4.23(4)

APPLICANT: Mr Wernher

RESPONDENT: Ms Wieck

FILE NUMBER:  SYC 4155 of 2016

DATE DELIVERED: 29 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 19 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Q

SOLICITOR FOR THE APPLICANT: B Lawyers

COUNSEL FOR THE RESPONDENT: Ms T

SOLICITOR FOR THE RESPONDENT: Z Lawyers

Orders

1. The husband’s Application in a Case filed 2 February 2018 is dismissed.

2. The order sought in paragraph 2 of the wife’s Response to Application in a Case filed 15 March 2018 is dismissed.

3. The husband is to pay two thirds of the wife’s costs of his Application in a Case filed 2 February 2018. Such costs to be paid on a party and party basis as agreed or as assessed.

4. The Docket Registrar is to review this matter’s progress, if available in the last week of April 2018, otherwise as soon thereafter as the work of the court permits, AND should the matter of the South Australian litigation, in which the husband is a defendant, not have been resolved the matter is to be listed for a telephone attendance before me with the parties’ lawyers and the parties to be connected to that phone link. On that occasion I propose to make orders to prepare the matter for trial if that can be done.  On that occasion each party may raise with me the necessity for any further interlocutory or interim hearing.

5. I recommend that the husband’s solicitor discuss with the husband the necessity for him to pay for incompetently prepared documents, in particular his Financial Statement relied upon in this hearing.

6. I recommend that the wife’s solicitor discuss with the wife the necessity for her to pay for incompetently prepared documents as relied upon in this hearing and identified in the reasons given.

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 Wernher & Wieck has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 4155/2016

Mr Wernher

Applicant

And

Ms Wieck

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application in a Case filed by the husband Mr Wernher on 2 February 2018. That application seeks orders which can be described in a summarised form as:

   ·    An order for the sale the former matrimonial home at C Street, Suburb D, a property standing in the wife’s name and where the children of the marriage live (G, aged 15).

   ·    Payment of $150,000 for the purpose of enabling settlement of the claim made against the husband arising out of his directorship in a company E Limited.

   ·    A stay of collection of child support by the Child Support Agency pending the determination of an objection made by the husband against a Child Support Assessment issued by the agency which substantially increased the amount required to be paid by him.

   ·    An order for costs.

2. The wife opposes that application as she discloses in her Response to an Application in a Case filed on 15 March 2018. By that document the wife sought the husband’s application be dismissed and the husband be ordered to pay the mortgage and outgoings (as specifically stated) on the property at Suburb D occupied by the wife and children.

3. The husband relied on the following documents:

   ·Application in a Case filed 2 February 2018;

   ·Affidavit of the husband filed 2 February 2018;

   ·Financial Statement of the husband filed 29 November 2017;

   ·Response to Initiating Application filed on 19 September 2016.

4. The wife relied on the following documents:

   ·Response to Application in a Case filed 15 March 2018;

   ·Affidavit of the wife filed 15 March 2018;

   ·Financial Statement of the wife filed 15 March 2018;

   ·Initiating Application filed 4 July 2016.

Background and Argument

1. The husband and wife participated in a lengthy marriage prior their separation. The cohabitation was about 22 years. They married in 1993 and separation occurred in July 2015.

2. There are two children of the marriage namely Ms F, now 19, and G, now 15.

3. It is common ground that the property of the parties consists of the following:

   ·C Street, Suburb D. This property stands in the wife’s sole name. It was acquired with the assistance of a mortgage to the Commonwealth Bank of Australia and there is a little less than $1 million owing. The parties agree the property has a value of about $3.4 million.

   ·H Street, Suburb J. This is a one bedroom unit owned by the husband. It has a value about $750,000 and there is about $463,000 owing on the mortgage.

   ·A property at K Town which is rented. That property has a value of about $500,000 and the amount owing to the bank is more than that sum.

   ·Wernher Family Trust with a value of about $1.2 million.

   ·Superannuation: Each has $272,900 approximately.

   ·Each has personal property of some minor value.  

4. Each party has listed liabilities in addition to the mortgage liabilities attributable to each piece of real estate owned. Of significance are the following:

   ·The husband has outstanding taxation of about $80,000;

   ·The husband owes about $95,000 on credit card debt;

   ·The husband has a Hire Purchase loan of $29,000;

   ·The husband owes $9,000 to his mother and $6,000 for accounting;

   ·The husband has an estimated liability of $780,000 in relation to the E Limited litigation. (In court his counsel said that might be $150,000 based on recent advice);

   ·The wife has liabilities for the mortgage debt on the Suburb D property;

   ·The wife has a liability to her parents of about $150,000;

   ·The wife has taxation liabilities of about $12,000.

5. The husband’s application for the sale of the house at Suburb D is based upon the following submissions:

   ·The husband cannot afford to meet the ongoing expenses associated with the Suburb D property. The husband ceased paying those expenses in February 2017.

   ·The husband lives with his partner Ms L and their 18 month old child M in the one bedroom apartment at Suburb J. He says that is cramped accommodation which does not permit him to have G and Ms F stay with him overnight. He cannot afford to rent appropriate accommodation with the liabilities he currently has.

   ·The husband says that on any view of the agreed facts in this matter the wife will not be able to afford to retain the former matrimonial home and it will have to be sold. At the moment the mortgage debt is growing because he is paying nothing toward the debt and the wife is paying a token amount. He submits the Court should order the Suburb D property to be sold now.

   ·The arrears of payments for the mortgages on the Suburb D property now exceed $41,500. This debt is growing due to the non-payment of the obligation under the mortgage.

   ·The husband cannot afford to pay down his credit card debt and he suffers the consequence of very high interest. He has been unable to secure other funding to pay out the credit card debt and reduce his interest payments.

6. The wife’s submissions in relation to why the Suburb D property should not be sold is as follows:

   ·The wife seeks as a final property order that the Suburb D property remain as her property.

   ·The property is located within an easy commute for G to attend her school.

   ·If the property was sold the wife says she would be unable to rent a property in the same vicinity thus providing continuity of geographical location for G.

   ·The wife has entered into arrangements with the mortgagee to temporarily defer the payment of all funds required by the mortgage documents as periodic payments.  The mortgagee is accepting a lesser payment from her as a temporary provision. The wife can manage those payments for the present.

7. In relation to the child support stay order sought by the husband, the wife submits as follows:

   ·Rule 4.23(4) of the Family Law Rules 2004 (Cth) requires an application under s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) to be served upon the Child Support Registrar. Such application to be served 21 days before the hearing date;

   ·Order 6 as sought by the husband is really his seeking a “backdoor” departure order. His proposal is to pay $415 per week pending determination of his objection to the assessment;

   ·The evidence in relation to the husband’s financial circumstances as stated in his Financial Statement is confused and it is therefore unreliable;

   ·The stated income of the husband is unlikely to be correct because:

   oAnnexures 10, 11 and 12 to the wife’s affidavit say the husband is owed $161,000 by N Limited to be paid at $5,000 per month (I note the husband says that is a contingency provision payable so long as the conditions of the sale to that corporation are satisfied); and

   oThe Child Support Registrar has assessed the husband to pay child support (the assessment objected to by the husband) based upon a taxable income for the husband stated as $338,968. That is a much greater amount than that submitted by the husband in his Financial Statement, which states an annual income of $249,000. The husband did say he received $20,000 per annum from the Wernher Family Trust.

   ·The wife challenged the claimed payment of $129 per week stated by the husband in Item 27 of his Financial Statement for the car registration. The wife says that equates to an annual expense of $6,708 and that could not be the case. I make no finding in respect of same;

   ·The wife says Item 23 on the husband’s Financial Statement cannot be correct as he does not pay the mortgage expense for the Suburb D property and has not done so since February 2017.  The amount claimed in Item 23 of $1,256 is said to be overstated by $392 per week. The wife relies on the evidence in paragraph 21 of her Financial Statement which shows the amount which is required by monthly payment is $864;

   ·The wife submitted that Item 32 of the husband’s Financial Statement is unfathomable as no detail is given. A figure of $1,747 is attributed at Item 32 for “Total of all other expenditure”. No detail is given of that figure. There is no “Additional Information” which might have been provided in “Part O” of the Financial Statement. Part N of the Financial Statement which provides detail of “average weekly expenses” has not been provided at all by the husband notwithstanding that the heading on the form clearly requires the Part O to be completed if “Orders for maintenance, child support, financial enforcement” are sought. Experience shows that it is the detail of “all other expenditure” as required by Item 32 of the form of Financial Statement, is mainly drawn from the detail in Part N;

   ·There is confusion created by the Financial Statement of the husband in relation to the expenses claimed in Item 34 so far as it relates to the husband’s partner Ms L. The husband says that the expenses paid for the benefit of others amount to $592 per week. No explanation is given and when coupled with Item 17 and “Part F” “Expenses paid by others for your benefit” ($655 per week for her income and $200 per week paid by her for the husband’s benefit) clearly required an explanation so that the court and the wife can clearly understand what the husband is contending about his circumstances. All the explanation could have been provided in “Part O” of the Financial Statement document;

   ·The wife pointed to the claimed expense of $780,000 in Item 53 of the Financial Statement. That sum was stated by the husband to be an estimated liability contingent upon the conclusion of the litigation brought against him (and others) in relation to the E Limited litigation. That liability was said in submissions to be reduced to about $150,000 as evidenced by the order sought by the husband that such sum be made available to satisfy that potential liability. Further, in submissions the Court was informed that a mediation was to be held in April to try and settle the claim. The Court was told that the husband’s legal advisors in that case are of the view that $150,000 should satisfy such claim against the husband.

8. In relation to the inadequacies contained in the husband’s Financial Statement as set out herein, the Court notes the document was settled by the husband’s solicitor Ms O of the firm B Lawyers, a firm of solicitors of considerable and good reputation. In the circumstances, I consider the criticisms of the document specified above are basic matters which any competent lawyer could attend to. I propose to recommend that the husband’s lawyers discuss with the husband the necessity for him to pay for incompetently prepared documents. Whilst satisfied the Court does have the power to positively order that the husband’s solicitors not charge for the work performed in the preparation of the husband’s Financial Statement, I propose not to go that far at this time.

9. In relation to the order sought as “order 2” in the wife’s Response, the wife conceded the order sought is a spousal maintenance order. She put that the husband has capacity to meet the order sought as his income must be accepted as $338,968 as found in the Child Support Assessment now operative against the husband. I note it is this assessment which the husband has objected to. It is submitted the wife does not have the capacity to meet the mortgage commitments on the Suburb D property and although she has negotiated an arrangement with the mortgagee to pay a substantially reduced monthly figure, such arrangement is temporary only. Part of the consequence of paying the reduced figure is that the mortgage debt is increasing.

10. The wife submitted the Court would be satisfied her income is $62,400 per annum and that represents her capacity at this time to earn income.

The Evidence

1. I will consider the husband’s evidence first.

Husband’s Evidence

1. At the commencement of the hearing and during the time when each party was identifying the documents relied upon I informed the husband I would only have regard to specific annexures to his affidavit which are addressed in submission. The wife tendered a “tender bundle” of documents which she said supported her affidavit evidence and her case. Again I informed her counsel that I required the counsel to specifically address those documents in the tender bundle which I would need to have regard to in the determination of the case.

2. The husband relied upon his affidavit filed 2 February 2018.

3. The husband specifically referred to his updated Financial Statement filed 29 November 2017 and stated he relied upon it. I refer to this matter as it is important to have regard to in relation to the matter of costs.

4. The husband’s affidavit sets out the following evidence relevant to his application before the Court.

5. The parties separated in July 2015. That is 33 months ago. There is only one child of the marriage under 18 and that is G who is 15 years old.

6. Until January 2017 the husband met the parties’ liabilities for mortgages, loans, outgoings on the property owned by the parties, private school fees and credit card payments. The total paid is said to be $318,000.

7. The husband has paid child support at the rate of $415 per week since separation.

8. The husband has re-partnered and has a daughter now 18 months of age. His partner and daughter live with him in the Suburb J unit which has one bedroom. The husband says he cannot afford to rent larger accommodation. The cramped accommodation has meant he has been unable to have either of the children of the marriage stay with him overnight.

9. At the time of separation the husband was earning approximately $330,000 per annum together with director’s fees of $185,000 per annum. The husband now receives an income of approximately $250,000 per annum together with director’s fees of $20,000 per annum.

10. The husband now pays, as “outgoings”, in excess of $7,400 per week. The expenses he pays include the loan secured on Suburb J, the “line of credit” liability secured against the Suburb D property, credit card payments and the shortfall between the rent received for the K Town property and the liabilities attached to that property.

11. The husband relied upon annexures “A” and “B” of his affidavit. Those annexures are illegible.  

12. The husband relied upon annexure “C” to his affidavit. That annexure confirms his assertion that he has a liability for outstanding tax of $72,022.53. The income tax account statement is dated 15 December 2017. The document indicates receipt of the husband’s tax return for the year ended 30 June 2017.

13. The husband relied upon annexure “E” to his affidavit. The document does not include the first page which the Court is asked to assume is a rejection of his application for the provision of a loan facility to pay out his credit card balances. The husband did annex a copy of a letter dated 12 January 2018 from P Pty Ltd rejecting his application for a credit card.

14. The husband set out detail of the contingent liability he may have in relation to the action taken against him and others by the liquidators of E Limited (In Liquidation) in the South Australian District Court. He annexed a copy of the Statement of Claim served on him. He said in his affidavit that he is trying to settle the claim against him and he said “I might need to pay up to $150,000”.

15. The husband’s parents have assisted him to pay some school fees and legal fees. No detail is provided, however, in his Financial Statement he listed a liability to his mother of $9,066.

16. The husband says the jointly engaged single expert has valued the Suburb D property at up to $3.5 million (the wife asserts $3.4 million).  The difference is not relevant at this point.

17. In relation to the application for a stay of the collection of outstanding child support the husband says that on 5 July 2017 he lodged an objection to a Child Support Assessment. A decision was given on 8 December 2017. That decision related to periods between 4 November 2016 and 7 February 2019. The husband annexed a copy of the decision to his affidavit. The determination gave rise to an immediate liability (effectively arrears of child support) of $24,415. The husband says he does not have capacity to pay that sum.

18. On 20 December 2017 the husband lodged a further objection to a child support assessment. He annexed a copy of that objection. The husband says he can only afford to pay $415 for child support (I assume he is referring to a weekly sum as that is unstated). He indicates he cannot afford to continue to pay G’s school fees.

1. The annexure marked “L” attached to the husband’s affidavit is difficult to read as it has been copied from documents which appear to have been highlighted. The documents also have handwriting on them which I have ignored. Arising from the determination a series of Child Support Assessments issued for periods between 4 November 2016 and 7 February 2019. The first of those assessments was calculated, in part, upon the husband’s 2016 tax return which shows a taxable income for that year of $330,692. That income figure for the husband has continued through a number of assessments until the assessment for the period 1 December 2017 to 31 December 2018. For that period the 2017 taxable income figure is included at $338,968. That figure expressed is $6,519 per week, not $5,191 ($5,767 being the total income of the husband set out in his Financial Statement less $576 for rental income for K Town as that property “runs at a loss” and therefore would not be included as part of his taxable income). The husband has not annexed a copy of his 2017 tax return which could have provided detail for the Court to consider on the determination of his application.

2. The husband has not caused a copy of his application for a stay of the collection of child support to be served on the Child Support Registrar.

3. The document which sets out the final orders sought by the husband is his Response to Initiating Application filed on 19 September 2016. I note from that document that the husband seeks an order that the Suburb D property be sold as one of the final orders he seeks.

4. The husband relied upon his Financial Statement filed 29 November 2017. I have referred to significant parts of that evidence above and I do not repeat that here. In short, the husband sets out his evidence to support his contention that he cannot afford to pay any further liabilities secured against the Suburb D property and he cannot afford to pay the current Child Support Assessment nor can he afford to pay G’s private school fees.

The wife’s evidence

1. The wife’s evidence is that contained in her affidavit sworn 15 March 2018. The relevant evidence contained therein, which is directly addressing the husband’s application and also the spouse maintenance application made by her, is as follows.

2. The wife commenced proceedings on 4 July 2016 with an Initiating Application in which she sought an order, inter alia, which, if granted would see a final property order not requiring a sale of the Suburb D property which stands in her sole name.

3. Both the children of the marriage reside with the wife, albeit that Ms F is now 19 years of age.

4. The wife set out what she contends is a balance sheet for the parties’ assets, liabilities, superannuation and resources.

5. The amount payable on the three secured loans attached to the title of the Suburb D property is $864 per week. The wife applied to the mortgagee for a temporary change to the amount required to be paid on those loans and with the mortgagee’s agreement the wife has paid between $0 and $196 per week. In her Financial Statement sworn 15 March 2018 the wife attests to paying a “hardship variation” of $196 per week.

6. If the property at Suburb D is sold the wife will have to provide housing from both Ms F and G and the family dog. The accommodation preferably needs to be close to G’s school in Suburb D and be suitable for her health needs.

7. Between paragraph 25 and 39 of the wife’s affidavit she sets out evidence in relation to “the Wernher Trust”. No order was sought by the wife in relation to the Trust, nor was an order sought by the husband in respect of the Trust. Much of what is set out therein is submission and complaint about the husband not disclosing material in a timely manner. I conclude the material contained in those paragraphs was not material to any application before the Court nor was it addressed by the wife in submission. In addition, much of the material between paragraph 50 and 61 was not necessary to be included. It is inappropriate to include submission or argument in an affidavit at any time. That which the wife could give evidence about which touched upon her opposition to any order sought by the husband or an order sought by her and which was canvassed between paragraph 50 and 61 could have been said in a few sentences.  Under the heading “The [E Ltd] Claim” there are eight paragraphs of which only one could have marginal relevance. The balance is argument or submission.   I propose to make a recommendation for the wife’s solicitors to discuss with her why it is necessary for her to pay for the preparation of those portions of the evidence relied upon by her and being the subject of criticism in these reasons.

Spousal Maintenance

1. The wife set out evidence in support of her spousal maintenance order which required the husband to pay for the mortgage instalments for the Suburb D property. To the extent that the affidavit repeats evidence which is contained in the wife’s Financial Statement, sworn the same day as the affidavit, it is entirely unnecessary. The wife includes headings “[Mr Wernher’s] Financial Position” and “[Mr Wernher’s] Cessation of Payments”, “Borrowings from my Parents”, “Our Living Expenses”, “Legal Fees”, “Accounting Fees” and “Orders Sought”. Once she completed her Financial Statement (sworn the same day as her affidavit) there was no necessity for her to address the matters addressed under those headings. Documents supporting her case, to the extent they were necessary, were tendered separately.

2. Many aspects of the contest between the parties were not based upon an issue of fact. The wife repeated evidence which the husband had conceded in his affidavit and Financial Statement. To the extent she did that it was entirely unnecessary and therefore a waste of cost. 

3. Turning then to consider what evidence is contained in the wife’s affidavit relevant to her financial circumstances and therefore relevant to her application for spouse maintenance I consider the following evidence to be relevant and otherwise not set out in her Financial Statement.

4. I am satisfied the wife has established she is in need of spouse maintenance. The wife’s capacity to earn income is not challenged in any manner of moment by the husband. The issue to be determined therefore is what is the husband’s capacity to pay the spousal maintenance she seeks. The order she seeks would require the husband to make a minimum payment of $864 per week. I say minimum because the evidence does not disclose what action the mortgagee might take to recover arrears.

5. The husband’s Financial Statement is unreliable because of the deficiencies set out earlier in these Reasons. Nonetheless he asserts a weekly income of $5,767. The wife’s case and that of the Child Support Registrar, is that his weekly income (at least for the year ended 30 June 2017) was $6,519 (as calculated above). His total expenses are claimed at $7,459, however, that sum includes item 32 of “Total of all other expenditure $1,747.” That figure is completely unexplained.  The expenses also include a claim of $1,256 for mortgage payments for the Suburb D property and the K Town property, yet the husband’s own case is that he is not paying the mortgage on the Suburb D property which requires a payment of $864 per week.

6. Clearly the husband does have “other expenses” which should have been particularised in Item 32 of his Financial Statement. Likewise the detail of his expenses should have been included in “Part N” as orders were sought by the wife for spousal maintenance and the husband sought an order in relation to child support.

7. The Court could approach this case by simply determining that the husband has failed to satisfy the Court he cannot afford to pay the $864 per week as sought by the wife. In those circumstances, the Court would then simply make the order sought by the wife. If such order was made I consider it improbable that it would be complied with. I think it probable that if the husband’s evidence was properly before the Court he would probably be able to satisfy the Court he has no present capacity to meet the order sought by the wife.

Conclusion

1. To adopt the vernacular, the conclusion of the Court is that “the case is a mess”. The parties’ marriage continued for 22 years. All that is presented before the Court at this time suggests each has contributed significantly, perhaps in different ways, to the financial position the parties present at this time. All of the matrimonial pool is capable of identification and valuation at this time with the exception of the husband’s liability under the South Australian District Court claim made by the Liquidators of E Limited. The husband informed the Court that a mediation was scheduled to be conducted in that litigation in April this year (less than one month away).

2. In relation to the husband’s application for the sale of the Suburb D property I decline to make that order because the premise of the order, namely that it is inevitable that on a final hearing of the property case the Court will order the wife to sell the Suburb D property, has not been established to the satisfaction of the Court.

3. The husband’s application for a stay of any action by the Child Support Registrar to collect arrears of child support pending the determination of his objection to the December 2017 assessment is refused on a number of grounds. Firstly, the husband has not complied with the Family Law Rules and served notice upon the Child Support Registrar of his application. There is therefore a denial of procedural fairness to a party to the order he seeks. Next there is no indication or evidence that the Child Support Registrar has taken any action to recover the arrears or that he/she would do so while there is an outstanding objection to the December 2017 assessment.

4. I propose to order that the Docket Registrar for the case conduct a review of the case at the end of April 2018, by which time the outcome of the mediation to be conducted in the South Australian litigation involving the husband should have been concluded. Should the matter of the South Australian litigation not have been resolved the matter is to be listed for a telephone attendance before me with the parties’ lawyers and the parties to be connected to that phone link. On that occasion I propose to make orders to prepare the matter for trial, if that can be done having regard to the settlement or otherwise of the South Australian litigation.  On that occasion each party may raise with me the necessity for any further interlocutory or interim hearing. 

Costs orders

1. The wife seeks an order for costs. That application has to be considered in light of the provisions of section 117 of the Family Law Act 1975 (Cth). Section 117(2A) sets out the matters to be considered before a Court makes an order should it determine that it is just in the circumstances.

2. In this case each party has provided a Financial Statement. I am acquainted therefore with the financial circumstances professed by each party. The husband’s position lacks certainty because of the matters addressed in these reasons.

3. The husband has been wholly unsuccessful in his application. The wife has been partially unsuccessful in her orders which she sought.

4. The wife’s financial position I determine to be less favourable than that of the husband.

5. Each party has added unnecessary cost to the case in the manner set out above and I am proposing to recommend each parties solicitor to discuss with their client the necessity and appropriateness of the solicitor charging for work not performed in a professional manner.

6. Subject to adjustment of the wife’s costs (by her solicitor as required by the orders I will make) I find that it is just and appropriate to make an order that the husband pay two thirds of the wife’s costs, assessed on a party and party basis.

7. In the body of these reasons I have made criticisms of the way in which the Financial Statement has been completed for the husband. There are unacceptable inadequacies evident in the preparation of that document. It has been settled by Ms O of the firm B Lawyers. That firm is well known to me having seen work which has emanated from that firm over many years. The firm has, on my observation, produced legal work on behalf of their clients of high calibre.

8. The document has, in my view the following omissions and/or errors:

   ·No additional information inserted in Part O of the document. Clearly in this case additional information was required to fully explain the husband’s financial position.

   ·No Part N information was included. That information was necessary as orders in relation to child support were sought. Further it was necessary to see that inclusion to fully understand the support being provided by the husband for his partner, their child and his children of the marriage.

   ·The other problems with the document as identified in these Reasons.

9. The orders the Court makes are those set out at the commencement of these Reasons. 

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 29 March 2018.

Associate: 

Date:  29 March 2018