Acharya and Bhatt

[2016] FamCA 374

FAMILY COURT OF AUSTRALIA

ACHARYA & BHATT [2016] FamCA 374

FAMILY LAW – PROPERTY – Interim – Spouse maintenance – Application by the wife for interim spousal maintenance – Where the wife lives in the former matrimonial home – Where the husband lives overseas – Where there is some evidence to suggest that the wife has mental health issues – Where the wife has demonstrated a need for financial assistance – Where the husband has some capacity to pay – Orders for spouse maintenance pending further order.

Family Law Act 1975 (Cth) s 117

Stein & Stein (2000) FLC 93-004

APPLICANT: Ms Acharya

RESPONDENT: Mr Bhatt

FILE NUMBER: SYC 5732 of 2015

DATE DELIVERED: 27 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 27 April 2016

REPRESENTATION

APPLICANT IN PERSON: Ms Acharya

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Doolan Wagner Family Law

Orders

1. Orders are made in terms of the document titled “Short Minutes Of Orders Sought By The Husband” (Exhibit 1 dated 27 April 2016), as set out hereunder:

1.      That Order 6 of the Orders made 10 February 2016 be discharged.

2.      That until further order and without admissions, subject to Orders 3.1 and 3.2 herein, the Husband be restrained by injunction from selling his property at B Street, Suburb C, N.S.W.

3.      That the Husband be restrained by injunction from:-

3.1Offering the property at B Street, Suburb C, N.S.W. as further security to increase his borrowings against that or any other real estate;

3.2Operating the Viridian Line of Credit account no. …other than to:-

3.2.1Meet all payments of home building insurance premiums;

3.2.2Make discretionary lump sum and/or capital payments in reduction of the said facility;

3.2.3Make discretionary withdrawals of capital and/or periodic amounts from the Viridian Line of Credit account provided that the balance of the facility does not exceed the sum of $880,000.

1. Pending further order, the husband pay to the wife or as she may direct the sum of $1,800 on the 15^th day of each month by way of interim spousal maintenance.

1. Otherwise the wife’s Further Amended Application in a Case and any responding interim document on behalf of the husband are dismissed.

1. The costs of and incidental to these proceedings are reserved.

1. The parties attend a conciliation conference on a date before or after 6 July 2016 being a date convenient to both the husband and his solicitors and the wife.

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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5732 of 2015

Ms Acharya

Applicant

And

Mr Bhatt

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in the context of proceedings for settlement of property and spousal maintenance.  The matter was before the Court on 25 February 2016 when leave was granted to the wife to bring proceedings in relation to spouse maintenance out of time.  The wife appears on her own account.  The husband is represented. 

2. The parties are about 52 or 53 years of age.  They underwent a religious ceremony of marriage in 1988 and went through a civil ceremony in Australia, I think, on 1 June 1989.  They separated on 26 November 1998 and were divorced with effect from 8 December 2001.  They have two adult children, Mr D and Ms E, who are 23 and 20 years of age respectively. 

3. The matter is listed in relation to interlocutory issues raised in the wife’s Further Amended Application dated 11 February 2016.  The wife seeks orders for spousal maintenance, interim spousal maintenance, exclusive occupation, access to a banking account, a loan account, a restraint on the husband in relation to the same account, an injunction for personal protection against the husband in favour of the wife and an application for a payment of a lump sum, the character of which was sought to be identified at a later time.

4. By way of his Response the husband sought that an order made on 10 February be discharged and that was an order that the parties give disclosure to each other and in relation to property outside the Commonwealth and restraining the husband from dealing with the property at Suburb C including selling or further encumbering the property.  I do not quite understand what the point of discharging that order is because the husband wants similar orders made, but there it is. 

5. He also sought an order against himself that he be restrained from selling the property, that he be restrained from offering the property as security or increasing his borrowings against that property or against any other real estate and that he be required to operate the line of credit home loan account only to meet payments of building insurance premiums and make payments to reduce the loan or make other payments or withdrawals, provided that the facility did not exceed $880,000, which I understood is the current level.

6. I do not quite understand the need for a difference between that and the orders of 10 February but perhaps it will become clear to me later. 

7. The wife did not press the order for exclusive occupation.  I asked her about that and she said that that was really by way of her Response to the husband’s Application that he deal with the property in some way but she acknowledges that is an Application he makes for the final hearing:  not today.  The husband lives overseas so there is no issue about anybody challenging the wife’s right to exclusive occupation of the property. 

8. Similarly, in relation to the application for an injunction for personal protection seeking that the husband be restrained from harassing, intimidating, abusing or otherwise interfering with the wife.  I asked the wife where the evidence was in support of such an order and she said that there was no such evidence before the Court.  Therefore, that application is not pressed.  In any event it will be dismissed. 

9. Finally, in relation to the application for the payment of a lump sum of $60,000, the wife indicated that she did not press that application.  Again, she could not have been successful with the application in any event because the only joint asset that would be available to meet an impost like that is the Suburb C property itself.  As I understand the wife’s case she does not want it sold or further encumbered.  There is no indication in the husband’s disclosure that he has realisable, immediately realisable, assets that could meet the payment.  As I say the wife did not press the application.  The application is framed as a payment with the characterisation to be a matter for the trial judge. 

10. Whether that is ever a good idea, the Court is still obliged to account for an order against some head of jurisdiction. I asked the wife why a payment would be made and, in summary, she said the husband has not negotiated in good faith and he is causing her to incur legal fees and therefore there should be a payment. I think probably that is an application under s 117 of the Family LawAct 1975 (Cth) (“the Act”) which deals with costs. It is unusual for a payment to be made of that character in advance of a final hearing.

11. Some of the criteria that the court is required to take into account include whether the proceedings were wholly unsuccessful, evidence of offers of settlement in writing under s 117C or otherwise, the conduct of the proceedings, so a number of matters that we will not know about until the proceedings are over. There can be an application for interim property settlement but, again, we strike the problem the matter would be determined under s 79 of the Act and I think probably it would be an agreed fact that the wife has a claim for property settlement in excess of $60,000 but the problem would come, how would the money be paid?

12. Again, the wife does not want the property sold, does not want it further encumbered, so there is a problem with that.  If the head of relief was interim spousal maintenance there are all sorts of problems.  The wife says she has a need for spousal support in any event so if I was to make that order, where would the money come from to provide for any other support for herself? And again we have the problem of there not being an available source of funds.  So there are all sorts of problems.  I can understand why the application was not pressed.

13. Turning to the remaining issues.  In simple terms the dispute between the parties is whether the husband should resume paying all or part of $10,000 a month, which he was paying to the wife for the three years leading up to 15 September 2015 and as to who should have the day to day conduct of the mortgage account on that property.  Each of the parties wants to do the same thing.  They both want to operate that account as a line of credit, putting their income into the account, drawing money out as they need to.  In each case they want to not increase the overall level of indebtedness.

14. Spousal maintenance is a remedy available between parties who have been married whether the marriage is still on foot or not.  The parties are obliged to support each other.  If one party can demonstrate that he or she cannot adequately support themselves from their own resources, the other can be required to do so to a reasonable extent.  The elements of the case are: can the wife support herself from her own resources currently; and if not what is the shortfall? We then turn to the question of whether the husband has a capacity to meet some or all of that shortfall? And, finally, what if anything would be reasonable to require him to pay?

15. The wife’s Financial Statement is distractingly misleading.  In terms of her income if it had been properly completed, her income would be identified as $269 a week by way of a Newstart Allowance and about $200 in a week in moneys she has received from tenants.  The legislation requires that I ignore the income tested benefit.  Therefore, her income is $200 a week.  As to whether the wife is fully exercising her earning capacity, her evidence is that she has not had fulltime employment in a long time. 

16. She was left caring for the family that comprised her and the children and largely through the period of separation except, I think, for a period when the husband was living with the wife and children while he was recovering from a back operation, she has been left on her own providing for the family.  Her time in the fulltime workforce was many years ago.  She puts her occupation as office work and homemaker.  She says that she has done office work on average one day a week.  There is no evidence about her earnings from that source.

17. There is no evidence about whether she could work for two days a week or three days a week or four days a week.  It is her evidence that because of her mental health and because of and/or related to these proceedings she has had to give up that employment for the time being.  There is some evidence in relation to her mental health.  There are some doctor’s certificates.  They are sort of half-references and half doctor’s certificates.  As a general pattern, the authors have ventured an opinion as to the reasons why the wife is depressed or whatever and in doing so, of course, they have relied solely on her.  Perhaps that is understandable.

18. We have a medical certificate from the F Family Medical Centre which is undated which says that she would be unfit for her normal work from 29 February to 30 May this year and somebody has added in handwriting:

    Acute depression, secondary to family problems.

19. And there is a medical certificate from a Dr G dated 29 February which was provided to Centrelink which says:

    Acute exacerbation of depression

    And:

    It is an exacerbation of an existing condition:  insomnia, poor appetite, restlessness, anxiety, poor concentration, lack of motivation.  The prognosis uncertain.

    There are certificates tendered in the wife’s case in a similar vein From December last year:

    Forest Family Psychology have recently reviewed [Ms Acharya] regarding her psychological health as a result of recent legal action initiated by her ex-husband due to the abrupt cessation by him of long-standing financial agreements.  I have previously treated her for clinical levels of depression and anxiety relating to broader family conflicts regarding financial matters exacerbated by the historical financially abusive actions of the ex-husband.  Treatment was terminated when [Ms Acharya] was able to negotiate a settlement of these historically abusive actions related to financial matters.

20. As I say some of them are a bit more in the nature of a reference then they are relying on medical observation.  From 2011:

    Receiving treatment for an adjustment disorder with depressive symptoms relating to grief. 

    2015, November, Dr G, again:

    She has been suffering from depressive symptoms since her pregnancy with her second child in 1995.

    In 2011 her depressive symptoms got worse.

    There is some evidence of a problem going back for some time and some recent evidence from practitioners who are qualified to express an opinion.  A clinical psychologist is qualified to diagnose mental health issues and whatever one might say about the attribution of the cause there is nothing before me to suggest that the diagnosis is incorrect.

21. There is no suggestion that the wife was in full time paid employment up until 2015.  There is nothing about the current proceedings and dispute that might make her better able to engage in paid employment.  We do not have anything to say why one day was a proper level of work, but there is some indication of a recent exacerbation of a condition, and a doctor’s opinion that she’s not fit for work at the moment.  In my view that is sufficient for these interim proceedings.  As to other sources of income the situation is very confusing.

22. The wife’s Financial Statement says that the wife lives with the parties’ son and that he is in paid employment.  The mother says she does not know what his income is.  She ventured in an earlier document that his income was about $1,100 a week.  She has not said that his job has changed so his income might still be of that order.  She says that he contributes a bit over $300 a week for her benefit.  He contributes $77 to support his mother by way of personal expenses and he contributes $231 to household expenses.  So this is expenses paid by him for the mother’s benefit, not money spent by him on his food or his household expenses.  That is money that he pays for her benefit.

23. The wife puts her total expenses at $3,212 a week and of that, she says $700 is paid for the benefit of the parties’ son - towards his accommodation, his living expenses, the interest on the mortgage.  He is contributing $300 a week to the wife and she pays out $700 a week for his benefit.  There is no explanation as to why that would be necessary.  In simple terms there is a lot of confusion because the claimed $3,212 includes some things that the wife does not, in fact, pay.  However, just accepting the document at face value for the moment it means that she is subsidising the parties’ son to the tune of $400 a week.

24. I suspect, all of that is wrong.  I suspect that he might not be paying $231 a week for household expenses from which she benefits exclusively.  I suspect that he is contributing to the household expenses and he benefits from those expenses.  Otherwise, the disclosure about the wife’s expenses in total is completely unfathomable.  She says that total expenses of $3,212 include $865 per week paid to the Commonwealth Bank, which she does not pay and $132 a week for the rates and unit levies.  The property is not on strata title so I assume that the expense is rates.  That is a lot of money for rates but accepting that she is right about that, the wife does not pay the rates. .

25. She pays $10 a week in CTP insurance, $19 for comprehensive motor vehicle insurance, health insurance at $59, $7 a week for registration for a motor vehicle.  She says she pays $375 on a car loan to H Finance and I Finance.  The wife does not have a debt to H Finance and I Finance and I know that because if I go over in the document to her liabilities there is no such loan.  Elsewhere there is evidence that the I Finance loan was paid out in July last year.  She pays $905 a week on a MasterCard with the Commonwealth Bank in respect of which the minimum payment requires only $120 a week.  She pays $140 a week on her son’s Visa card and the total of her other expenditure is said to be $700 a week.  That is as may be unless you refer to part N of the document where the wife says that she spends $2,610 a week on average on other weekly expenses.  Of those, $2,183 are her expenses and $427 relates to other adults.  That might be the parties’ son but the wife also says she supports Ms E, who is a student in America as to $850 a week.  $850 a week cannot be part of $427 a week.  Unfortunately part N repeats an item for mortgage payments and something called payments for levies. As I indicated, I am not aware of any relevant levies.  As I indicated above, in any event, the husband says he paid the Suburb C mortgage and the rates.  Perhaps that explains why the figures from part N are not translated into the main document because some of the expenses are duplicated.

26. Accepting for the moment, that $200 a week is the limit of the wife’s earning capacity at the moment.  There is no probative evidence to this effect but she has rented out rooms at the Suburb C property.  The tenants paid an average of $5,000 for the previous six months – making about $200 a week. 

27. As to her outgoings: dealing with Part G of the Financial Statement, ignoring the mortgage payments and the rates; the Visa card payments on Mr D’s Visa card and the H Finance and I Finance home loans; and reducing the MasterCard payments to the minimum payment per week, that leaves $215 a week in fixed expenses.  If I include all other expenditure at paragraph 32 of the document, that is $700, then her outgoings are $915 a week.  That brings the wife to a negative of $715 a week or about $3,000 a month.

28. If I ignore the claimed $700 in expenses and go to part N and accept all of the figures in part N except for the duplicated mortgage payments, rates; take out for the sake of the argument the provision for entertainment and holidays and gifts and leave everything else in, then the wife has more like $1,191 a week in outgoings.  That makes a deficit of $991 a week or about $4,300 a month.  There are many imponderables in all of that.  The case of Stein & Stein (2000) FLC 93-004, is authority for not conflating maintenance claims and child support claims.

29. I think that argument would run equally in relation to adult child maintenance.  Here there is no claim for adult child maintenance.  There could be no claim for adult child maintenance in relation to Mr D because he has an income.  As to Ms E there could be a claim but no such claim has been made.  Therefore the wife cannot include Ms E’s expenses as her needs.  Parents support adult children in many households and it is quite understandable and appropriate and sensible but it is not something that I can take into account here.

30. The current problems arise because of two agreements the parties struck some years ago under which the husband paid and the wife received payments as part of an arrangement that was arguably to effect a transfer of property between husband and wife.  Whatever their intention and expectations, those agreements are worthless.  They are unenforceable. 

31. The legislation jealously guards contracting out of your rights in relation to family law matters.  It can be done but it is to be done in a particular way with a particular agreement having certain characteristics and the parties were given express advice that the agreements they struck were not binding financial agreements.  All that is a long way of saying one cannot be too critical of the wife about wrapping up her claim with the needs of the children because, in effect, the children have been supported by the payments under this agreement. 

1. Understandable it may be but there is no room for including a claim for the children in the wife’s claim for spousal maintenance.  An application could be made by Ms E or by the wife in relation to maintenance for Ms E.  Whether it would be granted or not that is a different question altogether.  There is a suggestion that Ms E has some income by way of allowances and whatever.  She is living as a student in America.  I do not know what assets she has.  I do not know anything about her situation.

2. Coming back to the wife’s claim, we have a case that might be made for the wife having a shortfall of income over outgoings of the order of between $3,000 and $4,000 a month.  The attention turns then to the husband.  He lives and works in Asia.  He declares an income of $3,951 a week working for somebody called J Pty Ltd and the income is made up of his salary, $3,200 per week, something he calls a goods and services differential which also has a three letter acronym, at $453 a week, and superannuation provision at $296 a week.

3. He spends, he says, $4,089 a week.  That includes tax of a bit over $1,000 a week, mortgage payments in respect of the Suburb C property of $865 a week; rates and levies of $43 a week.  I do not know how that matches up with $132 a week that the wife says she pays for rates.  He pays a building and contents insurance of $31 a week and he has a total further expenditure of $2,140 a week which in his case is fully accounted for in part N of his Financial Statement.  He says that of that sum $1,142 relates to his own expenses and he has apportioned some of them to his current wife.  I gather he lives with his current wife and that she has no income. He confirms in part H that he spends $998 a week on expenses for her benefit.  There are some items in his disclosure that would give way to an obligation to support the wife.  None of the items seems particularly outrageous.  Like the wife, he claims an expenditure for gardening and an expenditure for cleaning.  They might give way to a need to support somebody but as both parties claim them, presumably that is an appropriate standard of expense.  Similarly they both claim for repairs and dry cleaning. 

4. The husband spends $150 a week on clothing and shoes.  That could be trimmed a bit.  Like the wife I would not interfere with his declaration in relation to medical, dental and optical.  He spends a lot less than the wife but, perhaps, given her evidence about mental health issues there is an explanation there.  Like her, he claims expenses for entertainment, hobbies and holidays.  I would think at this time when there are other needs, those claims, as I did with her, would give way.  There is an artificiality about all of this in that the husband’s disclosure about his income includes benefits that cannot be applied to his expenses.

5. His income includes superannuation contributions.  He cannot spend that on food or on maintenance.  He claims income by way of a goods and services allowance.  I anticipate he might not be able to spend that on clothing or electricity.  I am not sure.  He has some capacity to pay.  He has made a total claim for entertainment and hobbies and holidays of $700 a week distributed between himself and his wife.  That certainly could give way to his obligation to support the wife.  As I say probably something of the clothing allowance could give way.  There is some capacity. 

6. These are interim proceedings.  I cannot make a finding of fact on a disputed issue without evidence that excludes one version of events or wholly supports another.  The authorities allow the Court a broad brush in relation to interim proceedings.  There is some remedy available if there is a serious injustice in terms of the interim orders made.  There is a home for arguments in relation to contribution if there is a serious imbalance.  If, for example, the husband is required to provide support that he should not have, he can claim credit for that in arguments about contribution on the final property settlement.

7. If on the other hand the husband has had the benefit of assets and income and the wife has not been properly supported in the way that she might, there would be some home for that in the calculations under s 75(2) and in relation to contributions as to the ultimate property settlement.  That is a long way of saying there can be some adjustment if I get this horribly wrong.  Doing the best I can I am going to order that in addition to paying the mortgage and the rates and the insurance for the Suburb C property, the husband pay to the wife, $1,800 a month.

8. The next issue is who is going to have control of the loan account.  The only sensible solution to that is the husband.  The account is in his name.  It pleased the parties when they were on better terms to let the wife run her account the way she wanted to.  The account is in his name as a legal matter.  They have demonstrated that they cannot operate it together so it seems to me that the orders proposed on behalf of the husband would be the sensible ones. 

9. Otherwise the wife’s Further Amended Application in the Case and any responding document, interim document, on behalf of the husband are dismissed. 

10. I reserve the question of the costs of these proceedings.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 27 April 2016.

Associate: 

Date:  20 May 2016