Agarwal & Gara

Case [2021] FCCA 1057

FEDERAL CIRCUIT COURT OF AUSTRALIA

Agarwal & Gara [2021] FCCA 1057  

File number(s): MLC 8985 of 2020
Judgment of: HER HONOUR JUDGE C. E. KIRTON QC
Date of judgment: 18 May 2021
Catchwords: FAMILY LAW – Interim spousal maintenance – where the Wife seeks that the Husband pay her spousal maintenance – where the Wife is unable to support herself adequately – where the Wife has the full-time care of the parties’ two young children – where the Husband has the capacity to pay – wilful non-disclosure of Husband’s financial circumstances – where Husband found to have access to cash and financial resources – where Husband has under declared business income – where Husband has unilaterally withdrawn significant sums of money from the matrimonial asset pool – consideration of s.75(2) factors – orders for wife to receive periodic spousal maintenance pending final hearing – appropriateness of orders for retrospective spousal maintenance – orders made for retrospective spousal maintenance.
Legislation: Family Law Act 1975 (Cth) ss 44, 72, 74, 75, 77, 79, 80
Federal Circuit Court Rules2001 (Cth) r 5.03
Cases cited:  Ashton & Ashton (1982) FLC 91-285
Baber & Baber (1980) FLC 90-901
Bevan & Bevan (1995) FLC 92-600
Brown & Brown [2007] FamCA 151; (2007) FLC 93-316
Eliades & Eliades (1981) FLC 91-022
Hall & Hall (2016) 257 CLR 490; (2016) FLC 93-709
In the Marriage of Astbury (1978) 34 FLR 173
In the Marriage of Beck (No. 2) [1983] FLC 91-318
In the Marriage of Bevan (1994) 19 Fam LR 35
In the Marriage of Burton [1979] FLC 90-610
In the Marriage of Evans (1978) 30 FLR 566
In the Marriage of Ferguson (1978) 34 FLR 342
In the Marriage of Gamble (1978) 32 FLR 198
In the Marriage of Kajewski (1978) 31 FLR 500
In the Marriage of Nutting (1978) 30 FLR 555
In the Marriage of Soblusky (1976) 28 FLR 81
Kiesinger & Padget [2008] FamCAFC 23
Malcolm & Malcolm (1977) FLC 90-220
Milankov & Milankov (2002) 28 FamLR 514; (2002) FLC 93-095
Mitchell & Mitchell (1995) FLC 92-601
Murkin & Murkin [1980] FLC 90-806
Noble & Noble [2014] FCCA 421
Number of paragraphs: 153
Date of last submission/s: 4 February 2021
Date of hearing: 4 February 2021
Place: Melbourne
Solicitor for the Applicant: Zenith Lawyers & Consultants
Solicitor for the Respondent: Joshi Lawyers

ORDERS

MLC 8985 of 2020
BETWEEN:

MS AGARWAL

Applicant
AND:

MR GARA

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

18 MAY 2021

THE COURT ORDERS THAT:

1.The Respondent Husband shall pay to the Applicant Wife by way of interim spousal maintenance:

(a)The sum of $6,225 within 7 days of the date of these Orders; and

(b)Until further Order, commencing on 21 May 2021 the sum of $415 per week, with such payments to be made each Friday by direct deposit to the Applicant Wife’s nominated bank account.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in…

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AGLC
Agarwal & Gara [2021] FCCA 1057
Case
[2021] FCCA 1057
Decision Date

CaseChat Overview and Summary

In the matter of *Agarwal & Gara*, Her Honour Judge C. E. Kirton QC of the Federal Circuit and Family Court of Australia considered an application for interim spousal maintenance. The applicant wife sought maintenance from the respondent husband following the parties' separation.

The court was required to determine whether the wife was unable to adequately support herself, and if so, what the quantum of her reasonable needs was, and whether the husband had the financial capacity to meet those needs. The court also considered the wife's current employment income, her financial resources, and her reasonable monthly expenses.

Her Honour found that the wife, despite being employed full-time, had a shortfall between her income (including child support) and her reasonable monthly expenses. The court determined that the husband had sufficient financial resources, including access to businesses with significant turnover, to meet the wife's needs. Applying the principles from *Milankov & Milankov*, the court also considered the possibility of retrospective spousal maintenance.

The court ordered that the respondent husband pay the applicant wife a lump sum of $6,225 within seven days, and thereafter $415 per week by way of interim spousal maintenance until further order.

Orders

Orders of the court

MLC 8985 of 2020

BETWEEN:

MS AGARWAL

Applicant

AND:

MR GARA

Respondent

ORDER MADE BY:

HER HONOUR JUDGE C. E. KIRTON QC

DATE OF ORDER:

18 MAY 2021

THE COURT ORDERS THAT:

1. The Respondent Husband shall pay to the Applicant Wife by way of interim spousal maintenance:

(a) The sum of $6,225 within 7 days of the date of these Orders; and

(b) Until further Order, commencing on 21 May 2021 the sum of $415 per week, with such payments to be made each Friday by direct deposit to the Applicant Wife’s nominated bank account.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I have determined that the Husband shall pay the Wife interim spousal maintenance:(a)In the sum of $6,225 within 7 days of the date of the Court’s Orders; and (b)Until further Order, commencing on 21 May 2021 the sum of $415 per week, with such payments to be made each Friday by direct deposit to the Wife’s nominated bank account. BACKGROUND Both parties were born in India, the Husband having being born in 1982 and the Wife having been born in 1985. They are aged 39 and 35 respectively. The parties married overseas in 2010.[7] [7] Wife’s Affidavit, not witnessed, filed 18.08.20 (Wife’s 18 August 2020 Affidavit), [4]. The Husband arrived in Australia in 2006 on a student visa, and was followed by the Wife in 2010 when she relocated to Australia. The parties together obtained permanent residency in 2013 and were both granted Australian Citizenship in 2015.[8][8] Wife’s 18 August 2020 Affidavit, [4]-[5]. Husband’s Affidavit, sworn and filed 18.11.20 (Husband’s 18 November 2020 Affidavit), [6]-[7]. The Wife has deposed that when she arrived in Australia in 2010 the Husband was working in casual employment and had no savings and no assets in his name.[9] The Husband has deposed that at that time he had savings of $20,000 to $25,000 in his account.[10] The parties otherwise had no other assets of significance at the commencement of their relationship.[11][9] Wife’s 18 August 2020 Affidavit, [5].[10] Husband’s 18 November 2020 Affidavit, [9].[11] Wife’s 18 August 2020 Affidavit, [21]. The Husband and Wife separated on 25 February 2020. There are two children of the marriage, a daughter X aged 8, having been born in 2013, and a son Y aged 4, having been born in 2016 (together, the Children). Since separation the Children have resided with the Wife. PROCEDURAL HISTORY This proceeding first came before me in the Duty List on 26 November 2020, following a transfer from the Discrete Property List on 24 November 2020, upon hearing before a Deputy Registrar of this Court.[12] Both parties were then represented by their Solicitors. [12] 24 November 2020 Orders. The Amended Initiating Application sought interim property orders, which may be summarised as follows: (a)The Husband be restrained from disposing of, encumbering or otherwise dealing with:(i)B Pty Ltd;(ii)C Pty Ltd (sub-paragraphs (i) and (ii) together referred to as the Husband’s Business Interests); (iii)Motor vehicles (including any trucks) in the name of the Husband or any entity in which the Husband has an interest; (iv)Any other entities, businesses or assets in the name of the Husband or the Wife, or in which the parties (or either of them) have an interest in; (b)Within 28 days the Husband make full and frank financial disclosure in accordance with Part 24 of the Federal Circuit Court Rules2001 (Cth) (Rules); (c)The Wife have sole use and occupation of the former matrimonial home situate at and known as D Street, Suburb E in the State of Victoria, (D Street, Suburb E Property) to the exclusion of the Husband; (d)The Husband be restrained from removing any furniture and/or furnishings from the D Street, Suburb E Property; (e)A non-molestation order with respect to the Wife and the Children; and(f)The Husband pay to the Wife the sum of $600 per week by way of spousal maintenance.[13] [13] Amended Initiating Application, Interim or procedural orders sought, Orders [1] - [8].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Husband’s claimed expenses pursuant to the Husband’s Expenses Table is $4,225 a month. The Husband’s claimed expenses have therefore been reduced by $508.67 a month. In addition, the Husband has an extra $800 a month by reason of the $800 that he has been paying to his Mother. This makes an additional $1,308.67 a month available on the Husband’s own calculations.CONCLUSION I have determined that the Wife receives income of approximately $817.00 per week after tax, yielding an annual net income of $42,484.00 and a monthly net income of $3,540.30. The Wife is also entitled to receive the sum of $966.33 a month from the Husband pursuant to the current child support assessment. This makes a total net monthly income for the Wife of $4,506.63. In determining the Wife’s income, pursuant to s.75(3) of the Act, I have not taken into account the approximate sum of $287 that the Wife receives each week from Services Australia for the Family Tax Benefit A and B. I have determined the Wife’s reasonable monthly expenses to be $6,165.00. I am satisfied that taking into account these reasonable monthly expenses of $6,165.00, the Wife is unable to adequately maintain herself on her monthly net income of $3,540.30 or her monthly income of $4,506.63 (including child support). The difference between the Wife’s reasonable monthly expenses of $6,165.00 and the Wife’s monthly income of $4,506.63 is a shortfall of $1,658.37. Therefore, the Wife is unable to meet her expenses each month in the amount of approximately $1,658.37, which is $414.59 a week. I have determined that the Husband has an additional $1,308.67 a month available to him on his own calculations. I have also found that the Husband, by reason of his access to B Pty Ltd trading as B Pty Ltd and C Pty Ltd trading as C Pty Ltd, has access to two businesses with a turnover of at least $600,000 per annum. This is a resource from which the Husband is able to access cash and draw an income well in excess of $1,100 a week. I therefore find that the Husband is reasonably able to pay to the Wife the sum of $415.00 a week in interim spousal maintenance, being the shortfall I have calculated in the Wife’s weekly expenses. The Full Court in Milankov & Milankov held that the Court has the discretion to make orders for retrospective spousal maintenance.[150] Having regard to the time that has elapsed since judgment was reserved in this matter (which I have calculated to be 15 weeks) and having determined that the Wife has established a need for maintenance during that period, I am inclined to make such an order. Whilst I note that this order will create a retrospective liability which has the effect of creating arrears, these arrears do not comprise lump sum maintenance. Rather, they are simply an accumulation of periodic spousal maintenance that ought to have been paid by the Husband to the Wife since the Interim Hearing of this matter and after the Court has availed itself of the opportunity to consider all the evidence. [150] Milankov & Milankov (2002) 28 FamLR 514, [100]; (2002) FLC 93-095.

Ratio Decidendi

Legal Principle Established

To determine the Wife’s application for spousal maintenance, I therefore need to consider:(a)Whether the Wife has established that she is unable to support herself adequately for any of the reasons in s.72(1)(a), (b) or (c) of the Act;(b)If yes, then what is the quantum of the Wife’s reasonable needs?; and(c)The Husband’s capacity to pay – are the financial resources of the Husband sufficient to meet the Wife’s reasonable needs?CONSIDERATION Is the Wife Unable to Support Herself Adequately? The first issue to be considered is whether the Wife is currently unable to support herself adequately for any of the reasons in s.72(1)(a), (b) or (c) of the Act. In determining whether a spouse is unable to support himself or herself adequately, the Court is required to take into account not only the applicant’s income, but any capital or other financial resources or income at his or her disposal, including the financial resources of anyone who is normally a member of his or her household.[58] Where the party to maintenance proceedings is cohabiting with another person, the third person’s income and the living expenses associated with the cohabitation are to be taken into account.[59] [58]In the Marriage of Beck (No. 2) [1983] FLC 91-318. [59] Family Law Act 1975 (Cth) s.75(2)(m).The Wife’s Income The Wife is currently employed on a full-time basis as a factory worker.[60] In the Wife’s 18 August 2020 Affidavit filed in support of her Initiating Application, the Wife deposed that she receives the sum of ‘about $780 per week net’ from this employment.[61] At Part D of the Wife’s Financial Statement, the Wife lists her total weekly salary or wages as $950.00 before tax,[62] and her total income tax as $165.00,[63] which presumably includes any Medicare Levy paid by the Wife. Shortly prior to the hearing of this application, the Wife filed the Wife’s 7 January 2021 Affidavit deposing that the information contained in Part N of the Wife’s Financial Statement had changed, and that her current income and expenses are as set out in the table below: [64][3].[60] Wife’s 18 August 2020 Affidavit, [10]. [61] Wife’s 18 August 2020 Affidavit, [10]. [62] Wife’s Financial Statement, Part D, [9]. [63] Wife’s Financial Statement, Part G, [19].[64] Wife’s 7 January 2021 Affidavit, [3]. The Wife annexed to the Wife’s 7 January 2021 Affidavit three payslips from her employer dated 10 December 2020, 17 December 2020 and 24 December 2020 (Payslips).[65] The Payslips list the Wife’s net pay for these pay periods as being $806.00,[66] $817.00[67] and $827.00,[68] respectively.[65] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 9-11. [66] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 11.[67] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 10.[68] Wife’s 7 January 2021 Affidavit, Annexure “-1”, 9. When cross-examined by the Solicitor for the Husband in relation to the Wife’s income, the Wife gave evidence that she occasionally works ‘one or two hours extra’ each day, and that she receives overtime at a rate of time-and-a-half of her usual hourly rate in the sum of $25.00.[69] The Wife, however, gave evidence that for the previous two months, she has not been receiving any extra work[70] and that she currently works from 8:00 am to 4:00 pm.[71][69] Transcript, P9:L20; Wife’s 7 January Affidavit, Annexure “-1”, 9-11. [70] Transcript, P9:L14.[71] Transcript, P9:L25.