Family law: August 2016

Maintenance – High Court upholds discharge of interim order – Inferred wife could call on her brothers to pay her $150,000 from father’s estate

In Hall v Hall [2016] HCA 23 (8 June 2016) the High Court dismissed the wife’s appeal against an order of the Full Court (FCA) discharging Dawe J’s interim maintenance order that the (property developer) husband pay the (medical practitioner) wife interim maintenance of $10,833 per month (at [15]). The wife had deposed that she owned two luxury motor vehicles and an interest in her father’s estate of an unknown value.

Since the order, an affidavit filed in opposition to a subpoena for production of the will disclosed that the father expressed a ‘wish’ that the wife receive from a group of companies (in which he held shares which he left to the wife’s brothers) $16,500,000 on the first to occur of a number of events including divorce and that she receive $150,000 p.a. until the date (if any) of that payment (at [20]).

Upon the Full Court allowing the husband’s appeal on the ground that the wife’s estate interest was a financial resource, the wife appealed to the High Court. French CJ, Gageler, Keane, Nettle & Gordon JJ (Gordon J dissenting) said (at [31]-[32]):

‘ … Accepting that … the annual payment … would have been voluntary, the Full Court found that the wife would have received [it] if she had requested it … In drawing that inference … the Full Court noted that the Group was controlled by the wife’s brothers and that there was no evidence that the wife had requested [them] to comply with their father’s wish once she became aware of the will. The Full Court saw nothing in the evidence to suggest that any such request, if made, would have been denied. The fact that her brothers had provided her with luxury motor vehicles indicated that the wife had a good relationship with them.’

Upon dismissing the appeal with costs, the majority said (from [45]):

‘The Full Court’s finding that the wife would have received the annual payment of $150,000 … if she had asked her brothers was well open on the evidence. ( … )

[48] True it is that the wife had not received any payment from the time of their father’s death.

The reasons for that were wholly unexplored in the evidence. That evidentiary gap was within the power of the wife to fill. It was within [her] power … to lead evidence to provide some explanation. Again, her failure to do so allows the inference to be drawn that such explanation … would not have assisted her case. ( … )

[55] Whether a potential source of financial support amounts to a financial resource of a party [under s 75(2)(b) FLA] turns in most cases on a factual inquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.’