Acharya and Bhatt

[2018] FamCA 452

FAMILY COURT OF AUSTRALIA

ACHARYA & BHATT [2018] FamCA 452

FAMILY LAW – PROPERTY – Interim – Whether one party should continue to make mortgage payments on a house – Where that party says they are unable to make the payments – Where the matter has been expedited to final hearing.

Family Law Act 1975 (Cth)

APPLICANT: Ms Acharya

RESPONDENT: Mr Bhatt

FILE NUMBER: SYC 5732 of 2015

DATE DELIVERED: 29 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 23 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

Orders

1. The wife’s application pressed on 23 March 2018 as specified in the reasons provided with these orders is dismissed.

2. The husband’s application for the wife to be found guilty of contempt of court is adjourned for mention only to 7 May 2018 at 10.00 a.m.

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 Acharya & Bhatt  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 5732/2015

Ms Acharya

Applicant

And

Mr Bhatt

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed by the wife seeking a number of interim orders. The order which is said to be urgent is set out in paragraph 1 of a document titled “Minutes of Orders Sought”. That order sought is:

   That the Respondent do all things necessary to pay the arrears of the … Line of Credit account number …71, held with the Commonwealth Bank of Australia (bank), in relation to the home loan for the property situate at [B Street, Suburb C] (folio id: …) (property), such that the Default Notice issued by the bank on 01 February 2018 is fully paid/satisfied, returning the borrowing to the allowable limit of $879,194.00, within 28 days.

2. The matter was heard by me on 23 March 2018.  Both parties are self-represented. The husband, who lives in Asia, attended by telephone. During the hearing I made directions which listed the matter for final hearing to take place over three days commencing 15 May 2018.

3. The husband opposed the order sought by the wife. The husband’s case simpliciter is that he is unable to afford to meet the order sought by the wife should it be made.

4. The wife relies on the following evidence to support her application:

   ·An affidavit filed by the wife on 23 February 2018.

   ·Affidavit of the wife filed 16 March 2018.

   ·The wife’s Financial Statement filed 25 September 2017.

   ·A Statement of Claim filed by the wife in the Supreme Court of NSW on 6 June 2016.

   ·An affidavit by Mr K filed 15 March 2018.

5. In relation to the documents set out above I state for the record that I have not read in any detail the affidavit of Mr K, nor have I read the document relied upon by the wife to ground the trust she says exists in relation to the husband’s interest in the Suburb C property. I have deliberately taken that action as I have scheduled myself to hear the final orders sought by the parties in the three days commencing 15 May 2018. As I am unsure of whether the documents will be pressed by the wife in that hearing I do not wish to affect the conduct of that hearing at this time. The wife informed me that she would be alleging a fraud (possibly a tax fraud) by the husband in relation to the acquisition of the Suburb C property. It may be that she chooses not to pursue that path.

6. The husband relied upon the following evidence to oppose the wife’s Minute of Order.

   ·Initiating Application filed by the husband on 1 September 2015.

   ·Affidavits affirmed 9 September 2017 and 22 January 2018.

7. The affidavit material specified above as relied upon by the husband are really not available for him to rely upon in this matter as the Family Law Rules do not permit a party to rely upon an affidavit filed to support an application which is not before the court unless the court grants leave. I have had regard to that evidence to see if it illuminates some aspect of the current dispute between the parties.

8. The husband also sought to pursue an application that the wife be dealt with for contempt of court. There was insufficient time to attend to that matter and so I will adjourn that application to 7 May 2018 for mention only on that day.

BACKGROUND

1. This case has an unusual fact background.

2. The husband and wife were married in 1989 and separated in 1998. A decree nisi of dissolution of marriage was granted on 7 November 2001.

3. The husband was born in 1963 and is 55 years of age. The wife was born in 1963 and is 54 years of age. Both parties were born in Asia and are now Australian residents.

4. There are two children of the marriage (now adults). Mr D is 23 and works full time. Ms E is 21. The evidence does not disclose where she lives.

5. The husband remarried in 2015.

6. The husband applied for a property order in his Initiating Application filed 1 September 2015. When the matter was before the court on 10 February 2016 he was granted leave to proceed pursuant to s 44(3) of the Act. On 25 February 2016 the wife was granted leave to commence proceedings for spouse maintenance out of time (s 44(3)).

7. On 26 April 2016 the court made orders restraining the husband from selling or further encumbering the property at B Street, Suburb C. The husband was ordered to pay the wife spouse maintenance in the sum of $1,800 per month.

8. In the wife’s affidavit filed 23 February 2018 the wife said as follows:

   ·The husband gave a verbal undertaking on 27 April 2016 that he would “maintain and manage the obligations” to the Commonwealth Bank.

   ·On 1 February 2018 the wife saw a letter from Dentons Australia, lawyers for the Commonwealth Bank addressed to the husband. The   letter stated arrears of payment in the sum of $14,314.82. The letter demanded payment by 12 March 2018. Should the payment not be made on that date the bank requires full repayment.

   ·The wife made payments totalling $15,500 on the mortgage in September 2016.

   ·Although the husband did not make payments on the mortgage at the end of 2016 he brought the mortgage within allowable limits in mid-2017.

   ·The husband has not paid the wife the spouse maintenance, ordered to be paid, since January 2018.

   ·The wife claims the benefit of an “Agreement to repay debt”. That agreement she says provided for the husband to pay her $10,000 per month “as compensation for the fraud he committed”.

   ·The payment of spouse maintenance was set by Justice Loughnan having regard to the husband’s expenses which included the payments he said he was making on the mortgage on the property occupied by the wife at B Street, Suburb C.

   ·The wife is in a desperate financial position due to the cessation of payment of spouse maintenance, failure by the husband to pay the mortgage commitment for the Suburb C property, and her inability to earn income.

   ·The husband’s financial circumstances do not prevent the payment of the spouse maintenance order or the mortgage payments.

9. In the affidavit of the wife filed 16 March 2018 she states the following evidence relevant to the application under consideration.

   ·The husband has failed to file documents and make disclosure as required by court orders.

   ·The wife has now had access to pay slips for the husband for the period ending in December 2017. She says those slips show the husband’s gross monthly income is $14,580.83

   ·The husband has misrepresented his income in earlier proceedings in the court and the wife can now establish that with documents.

   ·As at 3 January 2018 the mortgage was in arrears by $18,206. At 1 March 2018 the arrears were $26,439.

   ·As part of the employment package for the husband in Asia he receives many allowances in addition to his paid income and therefore his expenses are significantly reduced.

   ·The husband has now paid the spouse maintenance as ordered by Justice Loughnan. On 16 March 2018 the husband deposited $3,600 to the wife’s bank account.

   ·The wife’s income is now only sourced from spouse maintenance of $415 per week and “Home share rental” of $445 per week. Her expenses are $1,127 per week. After meeting her liability to Mastercard she has surplus savings of $719.

10. The wife relied upon her Financial Statement filed 25 September 2017. In that document she stated her financial position and asserted the husband had assets which he does not attest to.

11. In relation to the property at Suburb C the wife assets the husband holds the title in trust for her pursuant to an agreement she has titled “Family Agreement”. The property was purchased in 2009 (well after the parties divorce) in the husband’s name and the wife has lived in the property since that time. The wife asserts she has paid the outgoings on the property, including the mortgage, until February 2016.

12. The wife asserts the husband is the owner of a property in Asia worth about $625,000. The wife also asserts the husband has a 50 per cent interest in a successful business in Asia with a value of $1.5 million. She also says the husband has had access to funds obtained from the sale of former matrimonial assets. She says there has been no accounting for those sale funds.

13. The wife asserts that she has a liability for a share of the mortgage debt secured against the Suburb C property of $359,000. That sum has been calculated having regard to a document titled “Agreement to Repay Debt” entered into between the parties.

14. The wife relied upon an affidavit of Mr K. He is the solicitor who acted for the parties on the purchase of the Suburb C property. This affidavit is said to support, in part, the wife’s claim as set out in the “Statement of Claim” she filed in the Supreme Court of NSW against the husband on 6 June 2016. That action appears to seek a declaration of trust that the husband holds his legal interest in the Suburb C property in trust for the wife. The claim also seeks payment of $520,000 plus interest. Attached to the Statement of Claim document the wife has included a copy of a judgment of McDougall J of that court, dated 27 September 2016 which transferred the proceeding to this court.

15. The document filed by the wife which appears to state the Final Order she seeks in this court is the Further Amended Response to Initiating Application (Family Law) filed by the wife on 18 October 2016. That document states the wife seeks the court grant the orders she was pursuing in the Supreme Court of NSW proceeding transferred to this court. She also seeks spouse maintenance, superannuation splitting order for the husband’s superannuation, and other financial orders.

16. The husband relied upon the following documents:

    ·His Initiating Application filed 1 September 2015;

    ·His Response to the wife’s Application in a Case;

    ·An affidavit sworn by him on 11 March 2018;

    ·Financial Statement sworn by the husband on 22 January 2018.

17. The first thing to note in the husband’s material is that he seeks the sale of the Suburb C property and payment of 20 per cent of the net sale proceeds to the wife. The husband also seeks the wife’s Application in a Case be dismissed. Other orders are sought.

18. The husband’s case, as stated in submission on 23 March 2018 before me, is that the wife has misconceived and misrepresented his financial position. His case is that he cannot afford to meet the ongoing mortgage payments on the Suburb C property. He clearly denies any trust operating in favour of the wife in relation to the title to the Suburb C property.

19. The husband’s Financial Statement attests a gross income of $4,252 per week. All figures in the Financial Statement are expressed in Australia Dollars. He denied the allegation of the wife that the tax figure of $753 claimed by him was illusory or fictional. The wife also pointed out that although the husband claimed an expense of $855 for mortgage payments relative to the Suburb C property he was not meeting those payments.

20. The husband claimed total weekly expenditure of $5,759 per week. That included the payment of spouse maintenance to the wife of $415. That payment is agreed to be up to date, although clearly there had been some tardiness in meeting the payment.

21. Apart from his interest in the Suburb C property, $177 in a bank account and his interest in household content the husband does not show any other asset. He discloses superannuation entitlements of $343,338 and total liabilities of $961,949. The largest of those debts is the mortgage on the Suburb C property. He has a contingent interest in his late father’s estate which he values at $280,000.

22. The husband discloses no liquid asset which could be used to meet the arrears of payment on the mortgage or to meet the monthly payments for a few months while the property case is determined.

23. Part N of the husband’s Financial Statement shows he meets expenses for himself and for his wife who lives with him in Asia. His wife does not hold employment.

24. Clearly the husband’s income, as stated on his Financial Statement is insufficient to meet his needs including the payment of the mortgage monthly payments and arrears. I note, however, the wife denies the husband has truly represented what his financial position is. However, to ascertain if what the wife says is correct, the court needs to have the advantage of a full hearing. It is with that in mind that I have expedited the hearing and listed it for 15 May 2018.

25. In his affidavit the husband states he has “deteriorating health”. In his oral submissions on 23 March 2018 he repeated that assertion and said that he was not permitted to fly “long haul”.

26. The husband set out in his affidavit perhaps a glimpse of his case for final orders when he claimed the wife had occupied the Suburb C property upon a promise to pay rent and that promise was made 5 September 2013. The husband said “this is an investment property.”

27. The husband attached to his affidavit documents which he said establish the truth of the stated facts in his Financial Statement.

28. The husband made complaints about the wife being a serial litigator and sought that she be declared “vexatious”. Much of his affidavit addressed that claim.

Conclusion

1. The only matter which needs to be determined on the order sought by the wife on 23 March 2018 is whether the husband can meet the mortgage payments required on a monthly basis by the mortgagee of the Suburb C property. The husband says his Financial Statement and affidavit of 11 March 2018 clearly establish he has no current capacity to pay that commitment. The wife has taken the court to documents evidencing the amount of income received by the husband under his current employment and asserted those documents show a distorted picture. The husband in his submissions denies those allegations. 

2. I find I cannot be satisfied the husband does have the capacity to meet the mortgage payments. I propose to dismiss the wife’s application. I have set the matter down for final hearing and I have made directions for the filing of evidence. There is nothing further I can do for the parties in this matter at this time. The effect of setting the matter down for trial is to grant expedition to the matter such that the case will be listed for hearing about 18 months to two years before it would otherwise have been scheduled to be so listed. Clearly the matter needs to be determined now as if the wife’s case is correct she will lose the occupancy of the property should the mortgagee move to sell the property before the court can hear her case.

I certify that the preceding thirty-eight (38) 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