YUNUSA and GILBERT (by his Case Guardian, B GILBERT)

[2020] FCWA 112

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: YUNUSA and GILBERT (by his Case Guardian, B GILBERT) [2020] FCWA 112

CORAM: SUTHERLAND CJ

HEARD: 3 JUNE 2020

DELIVERED : 7 JULY 2020

FILE NO/S: PTW 3094 of 2013

BETWEEN: MS YUNUSA

Applicant

AND

MR GILBERT (by his Case Guardian, MR B GILBERT)

Respondent

Catchwords:

PROPERTY - Interim - Applications for de facto partner maintenance and interim property settlement - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Somerville-Brown
Respondent	:	Ms McShera
Independent Children's Lawyer	:	Excused from Attendance

Solicitors:

Applicant	:	Kim Wilson & Co.
Respondent	:	Anthony R Clarke & Associates
Independent Children's Lawyer	:	Law Firm A

Case(s) referred to in decision(s):

Stein & Stein (2000) FLC 93-004

Strahan & Strahan (2011) FLC 93-466

Yunusa and Gilbert [2020] FCWA 39

Zschokke & Zschokke (1996) FLC 92-693

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yunusa and Gilbert has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

Introduction

1[Ms Yunusa] (“the mother”) and [Mr Gilbert] (“the father”) have been unable to reach agreement in relation to parenting and financial issues following the breakdown of their de facto relationship. The proceedings, including these interim proceedings, have been somewhat complicated by: (1) the father’s opposition to the mother’s successful application for leave to proceed with her application out of time; (2) the mother’s unsuccessful application for exclusive occupation of the home in which the parties formally resided; and (3) the necessity to subsequently appoint a case guardian for the father. These reasons assume that the reader is also familiar with my earlier decisions in relation to these three issues (amongst other matters also dealt with in those decisions) delivered on 11 March 2020[1] and 23 April 2020.[2]

[1] Yunusa and Gilbert [2020] FCWA 39.

[2] Reasons for Decision of Sutherland CJ delivered ex tempore on 23 April 2020. [Yunusa and Gilbert [2020] FCWA 117].

2For the purposes of this decision, the interim orders sought by the mother were set out in her amended Form 1 Application filed on 6 April 2020 (“amended Form 1”), as further amended by her counsel during the interim hearing on 3 June 2020. At that hearing, the mother’s counsel confirmed that the mother no longer sought a number of orders[3] and the father’s counsel confirmed that some orders were no longer opposed.[4] In summary, the remaining orders sought by the mother that were not agreed were as follows:

a)The father pay the mother the sum of $30,000 by way of interim lump sum maintenance, together with interim periodic de facto partner maintenance of $2,000 per week, on the basis that each party be at liberty to apply to vary the level of interim periodic de facto partner maintenance upon the mother securing employment;[5]

b)As and by way of interim property settlement, the father pay the mother the sum of $101,593.65, which sum the mother intended to use to pay her unpaid litigation costs. In addition, the mother sought orders in the nature of a “dollar for dollar” order in relation to the payment of the mother’s ongoing litigation costs.[6]

[3] The mother’s counsel confirmed that the mother no longer sought orders in the terms of paragraphs 4 and 11 of the Minute of Interim Orders Sought attached to the amended Form 1.

[4] The father’s counsel confirmed that the case guardian for the father did not opposed orders in the terms of paragraphs 1 and 2 of the amended Form 1.

[5] Refer to paragraphs 5, 6 and 7 of the amended Form 1.

[6] Refer to paragraphs 8, 9 and 10 of the amended Form 1.

3The orders sought by the father were set out in his further amended Form 1A response filed on 27 May 2020. In short, the father sought that the mother’s interim financial application be dismissed.

4Both parties have been represented by solicitors throughout the proceedings. Both parties have filed multiple affidavits and financial statements. In addition, on 1 November 2019, the father handed up a “Book of Exhibits” which unhelpfully comprised hundreds of un‑numbered pages of documents. Each party effectively alleged that the other had given false or misleading evidence in their various affidavits and had failed to give disclosure of relevant documents. As I have previously observed in my decision published in March 2020, it was clear from a perusal of the parties’ documents that there were a myriad of factual disputes between them. As one example: the parties disputed the date they commenced living together. The mother maintained it was in June 2008 whilst both parties were still in [Country A]. The father’s position was that they did not live in a committed relationship until August 2013, shortly before the mother’s three older children moved to Australia. However the father acknowledged that the mother stayed at his residence in Country A for a short period and that the mother and [Child A] lived in his apartment in [Suburb A] after their arrival in Australia in December 2010. Notably, each party appears to have asserted inconsistent positions in relation to their de facto status at different times and for different purposes. For example:

a)The father asserted that the mother made a statutory declaration on 19 September 2012 in support of her application for an Australian protection visa, the terms of which suggest that she did not consider that the parties were then in a committed relationship with each other.

b)The mother asserted that the father made a statutory declaration on 20 November 2014 in which he stated that the parties had lived together since 21 December 2010 among other matters that contradicted his evidence given in these proceedings.

c)As is evident from a perusal of the court file, in June 2013, the father urgently commenced parenting proceedings in relation to Child A. In his Case Information Affidavit sworn in support of his application, the father deposed that the parties were then in a de facto relationship and had commenced living together in January 2010.

5These factual disputes cannot be determined on an interim basis, particularly as neither party has been tested by cross-examination on their affidavit evidence. For the benefit of the parties, what this means is that I cannot make any findings of fact where the evidence is in dispute. That will be the task of the trial judge, if the matter proceeds to trial.

What are the relevant background facts?

6I set out a brief factual background in relation to this matter in my March 2020 decision. For the sake of clarity, I repeat, and where necessary, expand upon, the relevant background facts.

7The father was born in Australia in 1953. He is a retired [professional]. For nearly 20 years, the father has been separated from his first wife, [Ms A], who lives in [State A]. They are not yet divorced and have not yet finalised financial matters. The father and Ms A have three adult children from their marriage, all of whom also live in State A. In April 2020, the father was diagnosed with a [serious medical condition]. He was admitted to hospital, where he remains. On 23 April 2020, the father’s brother was appointed as his case guardian.

8The mother was born in Country A in 1977 and became an Australian citizen in 2019. She is currently occupied with home duties on a full-time basis, but has Country A tertiary qualifications in [business] and Australian tertiary qualifications in [digital marketing] (completed in late 2015) and [marketing and communication] (completed in [State B] in August 2019).

9The parties met in Country A in 2008, whilst the father was temporarily working in that country. The parties have one child of their relationship, Child A, who was born in Country A [in] 2009. By the time of Child A's birth, the father had already been transferred by his employer back to Australia. The mother and Child A moved permanently to Australia in December 2010. The mother also has three teenage children from a prior relationship: [Child B] and [Child C], who were both born in 2003 and [Child D], who was born in 2006. These children previously lived with their father in Country A, and only moved to Australia to live with the parties in late 2013.

10Irrespective of whether the parties’ de facto relationship commenced in 2008, 2010 or 2013, it appeared to be common ground that at the commencement of their de facto relationship the mother had no significant assets or liabilities, whereas the father had substantial net assets and superannuation entitlements, including real estate in State A.

11In or about October 2014, the parties purchased the home in which they formally resided in Suburb B, subject to a mortgage. The property was purchased in the father’s sole name. The mother did not suggest that she made any direct financial contribution to the purchase of the property. The father subsequently sold his Suburb A property and applied the net proceeds to reduce the mortgage over the Suburb B property.

12The parties agreed that they separated on a final basis in April 2016, but continued to live under the one roof with the children until late September 2019.

13It was also common ground that during and after the parties’ de facto relationship, the father earned a very substantial income and he was the primary financial provider for the family. In 2018, the father accepted a redundancy from his employer and retired. Thereafter, the father’s income principally comprised a substantial pension from his former employer and share dividends. The father financially supported the mother, and Child A after he was born, whilst they continued to reside in Country A. After the mother, Child A (and then later the mother’s three older children) moved to Australia, the father continued to financially support the family, including by: (1) directly paying various expenses on behalf of the family, such as the children’s private school fees, and the mortgage payments, rates and utilities for the homes in which they resided; (2) regularly transferring substantial funds into the parties’ joint account(s), to which the mother had access; and (3) transferring substantial funds directly into the mother’s sole account(s), including after separation, including regular payments for Child A's “care”, as well as other, ad hoc, lump sums.[7]

[7] For example: refer to the mother’s bank statements annexed to the father’s affidavit filed 27 May 2020 at pages 74 – 78.

14It did not appear to be in dispute that the mother was Child A's primary homemaker and carer after his birth. Although the parties disputed the extent of the father’s home maker / parent role, it was common ground that:

a)Until the mother and Child A moved to Australia in December 2010, she was effectively solely responsible for Child A's care.

b)From December 2010 until the parties separated in April 2016, the father was employed on a full-time basis and accordingly, was limited in his ability to perform any home making and parenting roles. After the parties separated in April 2016, the father continued to be employed on a full-time basis, until he retired in 2018.

c)After the mother moved to Australia, she continued her studies in digital marketing, graduating in 2015. During 2017, 2018 and 2019, the mother undertook a further tertiary degree in marketing and communication in State B. Although the mother travelled back to Western Australia on a regular basis, even on her own case, the father must have played a significant role as home maker and parent between 2017 and 2019, not only to Child A, but also to the mother’s three older children.

15The parties physically separated in late 2019, when the mother was required to leave Suburb B property after being served with an interim family violence restraining order protecting the father. The mother moved out, taking all the children with her. Although the mother maintained the father ceased his financial support of the family at around this time, I am not satisfied this is the case for the following reasons:

a)I am satisfied that the father made offers to the mother to meet the costs of rental accommodation for her and the children, which the mother declined. On 23 March 2020, I made orders dismissing the mother’s application for exclusive use and occupation of the Suburb B property, but made orders for the father to pay the mother the sum of $700 per week as a contribution towards her accommodation costs (“the Rental Costs”).

b)The bank statements for the joint account (which were annexed to the father’s affidavits) revealed that the father continued to regularly transfer funds into the joint account for the mother’s use. Although the mother elected not to access the joint account for a period of time and instead used her own resources, various payments for the benefit of the family were still made from the joint account, including the children’s weekly allowances, the mother’s regular $200 “s a” allowance (which funds were transferred to her [Bank A] share trading account), and the older children’s gym memberships.[8]

c)The bank statements for the mother’s sole Bank A account revealed that the mother received child support payments from the father, in addition to various other lump sum transfers from the father from time to time.[9]

[8] For example: refer to the father’s book of exhibits handed up 1 November 2019 at Exhibit 8: transaction history 25 September 2019 to 24 October 2019; and the father’s affidavit filed 27 May 2020 at pages 34 – 39.

[9] For example: refer to the father’s affidavit filed 27 May 2020 at pages 40 – 41.

16In the weeks before and after the father’s admission to hospital, there were significant transfers of funds from the father’s bank accounts to the mother’s sole Bank A bank account. Although there was some suggestion that the father did not authorise the transactions and/or was subjected to duress by the mother to make the transfers, I am not persuaded on the available evidence that this was the case. The mother’s evidence was that from 23 March 2020 until 27 May 2020 over $67,000 was transferred into her sole Bank A bank account, including but not limited to: (1) child support payments; (2) advance payments for the Rental Costs; and (3) other ad hoc payments.

The parties’ current financial positions

17The father is now retired and is currently an inpatient at a hospital. His future prognosis is uncertain. The father filed a financial statement on 1 November 2019 and the father’s case guardian filed an up-to-date financial statement on 27 May 2020. The case guardian deposed that the father’s total income was approximately $6,384 per week, comprising his pension payment of approximately $6,062 per week[10] and dividend payments of approximately $322 per week.[11] The case guardian deposed that the father’s total expenses were approximately $6,080 per week (including but not limited to):

a)Income tax of approximately $2,600 per week;[12]

b)Pursuant to court orders dated 23 March 2020, the amount of $700 per week for the Rental Costs;

c)Child support for Child A of $478 per week;

d)Other discretionary expenditure of approximately $2,147 per week, including approximately $935 per week for the private school fees and other educational costs for Child A and the mother’s three older children.

[10] This was a slight increase from the amount declared as at 1 November 2019.

[11] This was a significant decrease from the amount declared as at 1 November 2019. However it was not in dispute that the father sold a large number of shares in early 2020.

[12] This was a significant decrease from the amount declared as at 1 November 2019.

18The case guardian also deposed that the total property of the parties was approximately $7,561,000, including (but not limited to):

a)A property jointly owned by the father and Ms A in [Suburb C], State A, with the father’s 50% share having an estimated value of $1,375,000;

b)A property owned by the father in [Suburb D], State A, with an estimated value of $1,350,000;

c)The Suburb B property, owned by the father, with an estimated value of $1,400,000;

d)The father’s savings, shares and superannuation entitlements with an estimated value of approximately $2,800,000;

e)Additional savings in the father’s and Ms A's joint bank accounts of approximately $240,000.

f)The father’s tax and other liabilities of approximately $(200,000);

g)The mother’s block of land in Country A, savings, shares, superannuation entitlements, motor vehicles and other chattels totalling approximately $144,000.

19The father and Ms A have not yet resolved property settlement issues. The mother’s counsel appropriately conceded that this was a matter that the court would have to take into account in its assessment of the mother’s property settlement entitlements.

20The mother is currently occupied on a full-time basis as a home maker and parent. The mother filed an up-to-date financial statement on 14 April 2020. She deposed that apart from the child support payments and the Rental Costs received by her from the father, she had no other sources of income. The mother deposed that her total expenses were approximately $3,120 per week, as follows:

a)Various expenses as set out in Part G of her updated financial statement totalling $697 per week, including rent of $610 per week;

b)Other personal expenditure as set out in Part N of her financial statement totalling approximately $2,423 per week: of which $874 related to the mother’s expenses; $490 related to Child A's expenses; and $1,059 related to the expenses for her three older children.

21The mother deposed that her total property had an estimated value of $63,722, comprising:

a)A block of land in Country A worth approximately $5,000;

b)Savings totalling $41,234 as at 14 April 2020 (which included a lump sum payment made by the father in advance in relation to the Rental Costs);

c)Shares worth approximately $60,175;

d)Motor vehicles and other chattels worth approximately $32,500;

e)Superannuation entitlements of approximately $1,118; and

f)Unpaid litigation costs as at 14 April 2020 of approximately $(76,305).

School fees

22Both during and after the parties’ de facto relationship, the father paid the private school fees for Child A and the mother’s three older children. In 2020, the mother also made a payment to Child A's school in relation to the school fees, albeit the parties are in dispute as to whether that payment was necessary.[13] There was no suggestion by the father that he intended to cease these payments and the mother’s position was that the father should continue to meet them. The parties disputed the quantum of Child A's school fees. Although the evidence was presumably readily able to be obtained from Child A's school, neither the father nor the mother did so.[14] On the basis the father indicated his intention to pay the fees (and accordingly there is no expectation on the mother to meet part or all of the fees), I intend to rely upon the father’s concession against interest as to the quantum payable by him.

Litigation costs

[13] The debtor transaction listing from Child A's school dated 28 May 2020 revealed that a payment of $10,506 was made on 1 May 2020, bringing the account into credit in the amount of $5,253. Refer to Exhibit 3 handed up on 3 June 2020.

[14] The debtor transaction listing handed up by the father’s counsel during the interim hearing did not clarify the issue, given it was not clear whether the tuition fee on the schedule was for the entire school year, or only part thereof.

23The mother’s total litigation costs with her previous solicitors were $3,593.65; all of which the mother paid.

24The mother has entered into a costs agreement with her current solicitors. The mother’s total litigation costs with her current solicitors were $101,593.65; all of which remains unpaid. The mother’s solicitor’s costs notification letter indicates that she will continue to incur significant litigation costs, if the matter proceeds to trial. In particular: (1) the estimated costs for attendance at a conciliation conference were $10,000 to $20,000; (2) the estimated costs of proceeding to a readiness hearing were $20,000 to $50,000; (3) the estimated costs from readiness hearing to trial were $20,000 to $50,000; and (4) the estimated trial costs were $16,000 to $24,500. In addition, there were likely to be further valuation costs.

25As at 2 June 2020 the father had received interim accounts from his solicitor totalling $123,813.69, of which $121,473.34 had been paid. In addition, the father had also paid senior counsel’s fees totalling $833.25.[15] (There was some suggestion that in early 2020 the father had also consulted another solicitor. However, there was no evidence before the court as to the father’s additional costs in this regard). The father’s solicitor’s costs notification letter also indicates that the father will continue to incur significant litigation costs, if the matter proceeds to trial. In particular: (1) the estimated costs of proceeding to trial – in relation to financial and parenting issues – were $40,000 to $60,000, excluding GST, not including Senior Counsel’s fees; and (2) the estimated trial costs were $7,000 per day, exclusive of GST, for Senior Counsel. In addition, there were likely to be further valuation and other costs.

Mother’s application for interim de facto partner maintenance

[15] Refer to the father’s solicitor’s costs notification letter dated 2 June 2020: Exhibit 1 handed up to court on 3 June 2020.

26The mother’s application for de facto partner maintenance is made pursuant to s 205ZC and s 205ZD of the Family Court Act 1997 (WA) (“the Act”). The court has a general power to make interim orders for de facto partner maintenance under s 205ZI(1)(h) of the Act. Section 205ZC has two pre requisites: firstly that the applicant is unable to support himself/herself adequately, whether by reason of having the care and control of a child of the de facto relationship under 18 years, by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason; and secondly that the respondent is reasonably able to maintain the applicant. Section 205ZD(1) enables the court to make such order as it considers proper and the court must have regard to the provisions of s 205ZD(3).

27The mother maintained that that she had little or no capacity for appropriate gainful employment for a number of reasons, including that: (1) she had not been in paid employment since 2008; (2) she had found it difficult to obtain employment in Australia in her chosen fields of business, digital marketing and marketing and communication; (3) she has decided to prioritise these family law proceedings, her health, her living arrangements and the care of the children over attempting to secure employment, particularly given the uncertainty around her housing arrangements, and fitting in work around the children’s care; (4) she was stressed and anxious about her current circumstances and had been prescribed benzodiazepines by her doctor. However, I am not persuaded that the mother has no capacity for appropriate gainful employment, as she maintained, for the following reasons:

a)Although the mother deposed that since 2008 she had “not been in paid employment”,[16] and that she had found it difficult to obtain employment in Australia in her chosen fields, the mother's banking records revealed that in 2018 and 2019 she did work and earned an income from marketing and communication in State B. Whilst the mother maintained that she had made attempts to gain further employment in Perth since graduating in August 2019, I am not persuaded on the available evidence that she has exhausted the opportunities available to her. The mother acknowledged that provided she could obtain employment as a [marketing assistant] that fitted in around the care of the children, then she could earn between $500 and $700 per week net.[17]

b)I am not persuaded that these court proceedings, the mother’s current living arrangements or her parenting responsibilities to Child A (or her other children) preclude her from also seeking paid employment. The children are all of school age and the mother has now moved into her new accommodation. I am also not persuaded that the mother’s health is such that she is unable to work. The medical report relied upon by the mother, which was dated 26 November 2019, confirmed that her general medical practitioner diagnosed the mother as having “probable adjustment disorder with symptoms of anxiety and depression”. The doctor recommended the mother take a short course of benzodiazepines for two to three weeks and seek counselling. At her last attendance on the doctor, the mother had not yet started counselling, and her main symptoms causing disturbance related to insomnia and the doctor prescribed a short course of sleeping medication. The report did not indicate that the mother was unfit for work or that her medical condition impacted on her ability to work or care for the children.[18]

[16] Mother’s affidavit filed 14 April 2020, [29].

[17] Mother’s affidavit filed 14 April 2020 at [44].

[18] See medical report from Dr [P] dated 26 November 2019, handed up to the court on 9 January 2020.

28I am satisfied that the mother has a current income earning capacity as an employed marketing assistant of approximately $600 per week net, being the mid-point of the income range acknowledged by her. In addition, the mother receives total payments from the father of $700 per week for the Rental Costs pursuant to court order, as well as child support. For the purposes of assessing the mother’s income for her de facto partner maintenance claim, I intend to include the Rental Costs, but exclude the child support received by her. Accordingly, I am satisfied that the mother’s current total income earning capacity is $1,300 per week.

29The mother claimed total weekly expenses of approximately $3,120. However, of this amount, the sum of approximately $490 related to Child A's expenses and approximately $1,059 related to the expenses for the mother’s three older children. I am not satisfied it is appropriate to include these expenses as part of my assessment of the mother’s de facto partner maintenance claim and intend to disregard them.[19]

[19] See Stein & Stein (2000) FLC 93-004.

30The father’s counsel was critical of the mother’s claimed expenditure on a number of bases as follows. However, at the end of the day, I was not satisfied that these issues were fatal to the mother’s de facto partner maintenance claim:

a)The mother set out evidence of her “anticipated” weekly expenditure in Part N of her updated financial statement, rather than her actual expenditure. However, given that at the time the mother swore her up-to-date financial statement she had only just moved into her rental accommodation and there was likely to be some degree of uncertainty about some expenses, I considered that the approach adopted by the mother was unsurprising. The father’s counsel appropriately conceded that it was open to the court to compare the mother’s discretionary expenditure as set out in Part N of her financial statement, with that of the father’s, in forming a view as to the reasonableness of the amounts claimed. Adopting this approach, the mother’s claimed expenses for herself were approximately $874 per week, and appeared reasonable when compared with the father’s claimed expenses for himself of approximately $947 per week as set out in Part N of the case guardian’s updated financial statement.

b)Much time and energy was consumed in criticising the mother for periodically sending comparatively small amounts of funds to her family in Country A, notwithstanding that the mother did not seek to claim any specific amount as part of her reasonable expenses. I observe that: (1) it appears that this was the mother’s practice throughout the relationship, and something about which the father was well aware; and (2) the case guardian’s up-to-date financial statement, as well as the father’s recent banking records, revealed that the father has been providing significant financial benefits to Ms A and/or his adult children in State A, including through access to one of the father’s [Bank B] bank accounts.

31Having regard to my findings above, I am satisfied that the mother’s reasonable expenses total $1,571 per week, leaving her with a shortfall of $271 per week.

32As set out in the case guardian’s updated financial statement, the father’s total income was approximately $6,384 per week and the father’s total expenses were approximately $6,080 per week, leaving him with a surplus of $304 per week. Accordingly, I am satisfied that the father is reasonably able to maintain the mother to that extent and that she has satisfied the threshold tests set out in s 205ZC the Act.

33In relation to the relevant s 205ZD(3) factors: The father is 66 years old and the mother is 42 years old. I have already dealt with the parties’ health issues, employment arrangements, income earning capacities, income, expenses, property and financial resources, insofar as I am able, earlier in these reasons. Child A lives with the mother and has very limited contact with the father. Child A is still financially dependent on the parties. The mother also has an obligation to care for and financially support her three older children. The father also voluntarily assists the mother in this regard, particularly through the payment of the older children’s private school fees. There was no evidence to suggest that either the mother or the father have entered into new de facto relationships, albeit the mother had a boyfriend in 2019. The father remains married to Ms A.

34On the basis of the available evidence I am satisfied that the mother’s reasonable needs are $271 per week. Taking into account the relevant s 205ZD(3) factors canvassed by me, I am satisfied that the father is reasonably able to maintain the mother by paying the amount of $271 per week, which I intend to round down to $270 per week. In addition, I am satisfied that the father is able to continue to meet the ongoing expenses for: (1) the Rental Costs; (2) Child A's child support; and (3) all the children’s private school fees (which he continues to do on a voluntary basis). I consider that an order that he pay interim de facto partner maintenance of $270 per week is proper.

35However, I am not satisfied on the available evidence that the father should also be required to pay the mother lump sum interim de facto partner maintenance of $30,000, particularly having regard to the substantial funds paid into the mother’s sole Bank A bank account in the weeks before and after the father’s hospitalisation in April 2020, the majority of which still remain in the mother’s control.

Mother’s application for interim property settlement

36The mother seeks an interim property settlement payment of $101,593.65 to enable her to pay her unpaid litigation costs. An application for interim property settlement is made pursuant to s 205ZG and s 205ZI(1)(h) of the Act.

37In Strahan & Strahan,[20] the Full Court considered the stages for exercise of the court’s power to make an interim property order under the equivalent sections of the Family Law Act 1975 (Cth) as follows:

132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. 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.

133.In [Harris and Harris (1993) FLC 92-378] at 79,930 the Full Court gave some examples of circumstances where it may be appropriate to exercise the power being “where both parties agree to the disposal of some assets pending the trial” and “[u]rgent situations” to avoid injustice. Another example is where, as in this case, one party requires funds to assist in defraying the costs of litigation without which funds an injustice may be caused.

134.Then turning to the substantive step we adopt what the Full Court said in Harris at 79,930 in relation to the second and third matters which we will now discuss.

135.In relation to the second matter, as the jurisdiction under s 79 of the Act is being exercised the provisions of that section must be considered and applied but with the limitations given that it is not the final hearing. There is also no requirement of compelling circumstances in relation to the substantive step.

136.As to the third matter identified at 79,930 by the Full Court in Harris, in discussions before us it was described as the “adjustment issue” or “claw-back issue”. It was submitted by senior counsel for the Wife that it is relevant to consider whether an order would give the applicant “more than they would be indubitably entitled to on a final hearing” or alternatively “would it give them so much that it could not be adjusted on a final hearing?” As we have observed the Full Court in [Zschokke and Zschokke (1996) FLC 92-693] at 83,220 – 221 stressed the importance of consideration of the “adjustment issue” if the power in s 80(1)(h) of the Act is being exercised. We accept the submission and observe that this matter is relevant because the discretion conferred by the power in s 79 is to make such order as the Court considers appropriate provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order. As Bryant CJ and Coleman J observed in Gabel v Yardley [(2008) 40 Fam LR 66] at [69] and [72] the interim order must be capable of variation or reversal without resort to s 79A of the Act or appeal. As Finn J said at [126] the interim order must be “capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power”.

137.Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that … the applicant …will be likely [to] receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order to be made”: (citations omitted).

138.The legislation does not prescribe what the Full Court in Zschokke at 83,218 described as “preconditions” and nor would we seek to exhaustively prescribe matters that may be relevant to take into account in the exercise of the discretion under s 80(1)(h) of the Act. As to the three “criteria” identified by the Full Court in Zschokke, we accept that an inability on the part of an applicant for an interim property order to defray the costs of litigation to meet his or her litigation costs would be a relevant matter to take into account at the procedural or first stage…

139.We also emphasise that in order to establish an appropriate case for an interim property settlement order more is required than the mere fact that upon a final hearing the applicant would receive the property being sought (or an amount in excess of the funds being sought) from the other party.

[20] Strahan & Strahan (2011) FLC 93-466, [132] - [139].

38Thackray J, in his separate judgment in Strahan & Strahan, at [224] and [225] said:

224.In every defended case one of the parties will claim they are entitled to a payment or transfer of property from the other party. In many cases the other party will acknowledge they are likely to be ordered to transfer property or make a payment. That, however, could not of itself be sufficient to make it appropriate for the Court to make an interim order. Circumstances may change radically during the course of proceedings, as has been seen with recent severe fluctuations in the market. The personal circumstances of the parties may change dramatically. Furthermore, although a party may anticipate ultimately being ordered to transfer property or make a payment, they may legitimately expect to obtain an order for costs against the other party which will be satisfied from funds or property that would otherwise have been transferred.

225.These sorts of considerations provide a strong basis upon which the Court should maintain its traditional stance that there should ordinarily be only one hearing of disputes concerning alteration of property issues. I accept the submissions of senior counsel for the wife that something out of the usual course would need to be established before the Court could be expected to devote its resources to resolution of disputes about interim alteration of property interests. However, once the Court has determined that it is appropriate to embark upon the hearing of an interim dispute, it has no alternative other than to exercise (or decline to exercise) the power to make an interim order by application of the relevant provisions of the legislation.

39In relation to the provision of funds to a party to meet litigation costs, in Zschokke & Zschokke[21] the Full Court said that “whether the matter was determined as an interim property settlement order under section 80(1)(h), or as an interim costs (or security for costs) order under section 117(2), or indeed even a maintenance order”, three matters would all be relevant, namely:

a)A position of relative financial strength on the part of the respondent;

b)A capacity on the part of the respondent to meet his or her own litigation costs;

c)An inability on the part of the applicant to meet his or her litigation costs.

[21] Zschokke & Zschokke (1996) FLC 92-693 at 83,217.

40I have already dealt with the parties’ respective financial positions earlier in these reasons. The parties have not yet reached agreement in relation to the constitution and value of their property pool. In particular, the issue is significantly complicated by Ms A's potential claim for property settlement against the father. In addition: (1) the case guardian seeks disclosure from the mother in relation to any other bank accounts she may have, as he maintains that substantial funds provided to the mother by the father during and after their relationship remain unaccounted for;[22] and (2) valuations of real estate do not yet appear to be agreed. The father’s case guardian maintained that (subject to Child A's potential claim) the current value of the parties’ property pool was approximately $7,561,000. On the other hand, the mother did not know the total value with any certainty.

[22] The case guardian made references to various calculations in this regard in his affidavit, which were disputed by the mother. I was not satisfied that I was in a position to make any findings about the issue on an interim basis, particularly given the unsatisfactory nature of the evidence before the court.

41I am satisfied that the mother has an arguable case in relation to financial issues on a final basis. The case has a degree of complexity, particularly given Ms A's potential claim. There are also significant factual disputes between the parties and some disclosure and valuation issues that remain in contest.

42On the available evidence, whilst the mother has access to some funds and shares with which to meet some of her unpaid litigation costs, they are certainly insufficient to meet the full amount owing, as well as her estimated future litigation costs. As at April 2020, the mother had savings of approximately $40,000 (albeit a significant component related to child support and the prepayment by the father of Rental Costs), and shares worth approximately $60,000. Aside from these assets, the mother has no other significant assets with which to pay her unpaid and future litigation costs. On the other hand, the father has very substantial savings and shares available to him, including savings in his sole name of approximately $1,000,000.

43I am satisfied that overall, the father is financially in a significantly stronger position, relative to the mother. On the other hand, on the basis of the available evidence, I am satisfied that the mother has only a very limited capacity to meet her unpaid and future litigation costs. I am satisfied that it is in the interests of justice to exercise the power under s 205ZG and section s 205ZI(1)(h) on an interim basis in favour of the mother, notwithstanding that the usual order pursuant to s 205ZG is a once and for all order made after a final hearing.

44As best I can assess from the parties’ respective documents, the known net assets and superannuation entitlements of the parties are approximately $7,561,000, subject to the potential claim by Ms A. In her application, the mother sought final orders that she retain the Suburb B property, free of all encumbrances, together with her other assets and superannuation entitlements, and that the father otherwise pay her such sum as would enable her to receive 35% of the property pool of the parties. The mother also sought de facto partner maintenance from the father, either on a periodic basis or a lump sum amount, to be quantified. On the other hand, the father sought that the mother’s application be dismissed.

45The parties agree that the mother had little or no property at the commencement of their de facto relationship, whereas the father had significant property. During and after the relationship the father was the primary financial provider for the family, and the mother was the primary home maker and parent to Child A. The tenor of the father’s case appears to be that the mother received substantial financial benefits from the father during and after the parties’ de facto relationship, and therefore she should receive no further payments by way of property settlement and/or de facto partner maintenance. On the other hand, the mother made a number of submissions in reply, including that the father now retrospectively seeks to categorise his financial support of the mother and children over the years as a property settlement to her, in circumstances where there was no evidence that the parties had any such mutual intention at the relevant times.

46The assessment of s 205ZD(3) issues is also not straightforward, particularly given the uncertainties around the father’s current health situation. The father is much older than the mother and is now retired, whereas the mother still has a long working life ahead of her. However, she has a much lesser income earning capacity than that of the father, and is likely to continue to have the major responsibility for caring for Child A in the future.

47On the facts currently presented to me and assessing as best I am able the relevant factors, I consider the mother will likely receive by way of property settlement, approximately 15% to 20% of the parties’ property (assuming that the father’s property settlement with Ms A has not been finalised). I stress that this assessment is only for the purpose of this application and in no way pre-determines the final outcome of the financial proceedings.

48The mother seeks to use the interim property settlement payment to meet her unpaid litigation costs. Accordingly there will be no “asset” remaining from the funds from which an adjustment could be made. Nevertheless I am satisfied that the amount sought by the mother, which I intend to round down to $101,500, is well within the range of her likely entitlements on a final basis and that there will remain sufficient other assets with which to make any necessary adjustments to both parties on a final basis.

49The mother also sought that the court make orders in the nature of a “dollar for dollar” order in relation to her anticipated litigation costs. However, I am not satisfied that sufficient circumstances exist to warrant the making of a dollar for dollar order, particularly when: (1) the mother does have a limited capacity to meet her further litigation costs (for example, by selling part or all of her share portfolio); and (2) it is open to the mother to make a further application with respect to litigation funding, if necessary.

Proposed orders

50I propose to make the following orders:

1.Unopposed, the father do pay or cause to be paid the minimum repayments required to maintain the mortgage in favour of the [Bank B] ("the [Suburb B] property mortgage") as registered against the real property situated at [Property A] in the State of Western Australia as and when they fall due on terms and conditions as required by the bank.

2.Unopposed, the father do pay or cause to be paid as and when they fall due the utilities, rates, taxes, insurances, reasonable repairs and maintenance for the [Suburb B] property as and when they fall due and the father indemnify the mother and keep her indemnified in respect to such expenses.

3.Until further order, the father do pay or cause to be paid to the mother interim de facto partner maintenance in the sum of $270 per week, to a bank account to be nominated by the mother, with the first payment to be due and payable on the first Friday following the making of this order.

4.As and by way of interim property settlement, within 14 days of the making of this order, the father do pay or cause to be paid to the solicitors for the mother, the sum of $101,500 for her unpaid litigation costs.

5.All outstanding interim proceedings otherwise be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KV

Associate

7 JULY 2020