Aheb and Aheb (No. 2)

[2007] FamCA 1073

FAMILY COURT OF AUSTRALIA

AHEB & AHEB (NO 2) [2007] FamCA 1073

FAMILY LAW – INTERIM PROCEEDINGS – Application by husband for “urgent” funding in circumstances where a similar application brought by him is adjourned to be heard by a different judge of the court already seized with the matter.  It is part-heard.  Application dismissed with costs.

APPLICANT: Mr Aheb

RESPONDENT: Mrs Aheb

FILE NUMBER: MLF 2471 of 2006

DATE DELIVERED: 29 August 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 29 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Aughtersons

COUNSEL FOR THE RESPONDENT: Ms O'Connell

SOLICITOR FOR THE RESPONDENT: Jane Baldwin

Orders

1. That the Form 2 Application in a Case of the husband filed on 13 August 2007 and the Form 2A Response of the wife filed on 28 August 2007 be dismissed.

IT IS FURTHER ORDERED

1. That the husband do pay the wife’s costs of this day fixed in the sum of $1,472 AND THAT payment of the said sum be stayed for further consideration by the Honourable Justice Bennett on 30 October 2007.

IT IS DIRECTED

1. That the ex tempore judgment delivered this day be transcribed and placed on the court file.

IT IS CERTIFIED

(4) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Aheb & Aheb.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2471  of 2006

Mr Aheb

Applicant

And

Mrs Aheb

Respondent

REASONS FOR JUDGMENT

1. I have before me a Form 2 Application in a Case brought by the husband and filed on 13 August 2007.  For the sake of precision, I set out the orders sought, namely:

   “(1) That the further hearing of the husband's Application in a Case filed on 22 February 2007 and the wife's Response to an Application in a Case filed on 20 April 2007 be listed with priority for the first available court date in August 2007.”

2. The application is supported by an affidavit filed on 13 August 2007 and affirmed by the husband on 9 August 2007.  In his affidavit, the husband claims that he is in desperate financial need and urgently requires funds to meet ongoing living expenses.  He deposed to a short, and in my view inadequate history and set out (paragraph 7) his "numerous debts" and went on to say:

   “(8) This has left me with no alternative but to live in Egypt, where I can rely upon family members and friends who have generously assisted me in my impecunious state.  This has caused me immense embarrassment and frustration, particularly given that rental income has been accumulating in accounts that I am restrained from accessing.”

3. I emphasise that the majority of the debts referred to in his affidavit were in like amounts to those set out in his Form 13 Financial Statement filed in March 2007.

4. The wife caused to be filed a Form 2A Response on 28 August 2007 in which she sought an order that the husband's application be dismissed.  The wife relied upon an affidavit also filed on 28 August 2007, detailing some previous history, including the orders of Bennett J made on 30 April 2007 and the events before Registrar Riddiford on 16 May 2007.

5. The wife complained that the husband had not complied with her Honour’s orders.  However, this was denied by the husband, through his counsel, Mr Wilson, who appears for him this day.  Ms O'Connell appears for the wife.  Details of the alleged non-compliance are set out with precision in the affidavit of the wife. 

6. The wife responded to the husband's affidavit in a comprehensive and, in my view, persuasive manner.  In particular, she pointed out that the debts detailed by the husband were mainly post-separation in character and related primarily to overseas travel and hotels.  In any event, they were extant as at the time the matter was considered by Bennett J on 30 April 2007.  Not much has changed since then.

7. Put simply, the wife claims that the "funding" application of the husband and her own interim applications have been specifically listed before Bennett J on 30 October 2007 following orders made by Registrar Riddiford on 3 August 2007.  Mr Wilson accepts that as a fact, but likens the husband's present Form 2 Application filed this day as an "urgent" funding application pending hearing of the husband's interim funding application before her Honour on 30 October 2007.  Although somewhat curious in nature, he likened it in principle to an urgent application for maintenance.  That is, as I see it, a sort of handout to the husband to tide him over till 30 October 2007, whilst in the meantime and unbeknownst to Mr Wilson, the husband will depart the Commonwealth of Australia this evening for Egypt.  That latter fact was unknown to Mr Wilson and only fleshed out in the course of argument.

8. Mr Wilson said that the husband had “exhausted all avenues” for funds and credit, a broad and sweeping assertion indeed, as are the diaphanously thin particulars provided by the husband in support of what I regard as his unmeritorious and unsustainable application.

9. In the course of a somewhat robust discussion with Mr Wilson, I was informed that, by way of history, orders were made by Mushin J on 6 November 2006, (not by consent) and which essentially comprised the husband being removed as signatory to various financial accounts.  Mr Wilson said that situation put the husband out of funds and that since November 2006 he has “lived on credit”. 

10. As it was, the husband issued his application for funding on 22 February 2007 and which came before Bennett J on 30 April 2007.  Reasons were provided by her Honour which I had the advantage of reading over the luncheon break, as I did the orders made that day which included, for example, a capital sum of $30,000 being paid to the husband.  Orders were made for discovery.  Costs were reserved to the adjourned date.

11. On that day, her Honour adjourned the matter to herself to 18 May 2007 and ordered a Conciliation Conference take place on 16 May 2007 which, in the result took place before Registrar Riddiford.  The parties negotiated.  I am informed that Heads of Agreement were signed that day and on which basis, the learned Registrar vacated the hearing date for 18 May 2007 as ordained by Bennett J. 

12. However, the husband resiled from the agreement and the matter returned to Registrar Riddiford by way of review on 3 August 2007.  Following consultation with Bennett J, the original Form 2 Application of the husband and the wife's Form 2A Response that were initially before her Honour were adjourned to be heard and determined on 30 October 2007.  Thus it is plain to me that Bennett J is seized with the matter which is, in effect, part-heard before her.

13. Ms O'Connell, in helpful submissions, referred me to the husband's affidavit of 22 February 2007 concerning his "impecunious" position.  Particular reference was made to paragraph 7 where the husband deposed to his difficult financial circumstances and also to paragraph 14 where the husband deposed to having little money and being “pressed by his creditors”.  Ms O'Connell submitted that the husband's case had not changed and that it was in fact part-heard before Bennett J.  I find merit in that submission.  She further referred me particularly to the wife's affidavit filed 28 August 2007 and maintained that paragraphs 2(b), (c), (d), (e) and (f) of the orders had not been complied with. 

14. The central and repeated thrust of Mr Wilson's submissions, however, were that since February 2007, the husband has lived "off charity of friends", and borrowings.  Mr Wilson referred to the husband's affidavit which, as I have commented thus far, is quite unhelpful and in any event, did not raise any reliable or compelling fresh information.  He submitted that the husband had complied with the court orders.  Accordingly, that is an issue I am unable to resolve at this particular stage and undoubtedly will become a matter of dispute before Bennett J on 30 October 2007.

15. Mr Wilson referred me to the fact that the assets of the parties were substantial, with the husband asserting they were in excess of $3 million.  However, he argued that even on the wife's figures set out in her Form 13 Financial Statement filed on 15 May 2007 (and in particular Annexure A), the total of the real estate amounted to $2.720 million.  He referred me to the total sum of the bank accounts (Annexure B) of $86,081.  Thus the total assets on the wife's case amounted to not less than $2.8 million.  He repeated, however, that the husband would, in the result, assert a greater asset pool. 

16. Mr Wilson informed me that one of the issues at final hearing will be the wife's claim for an add-back, namely that the husband had already accessed approximately $820,000.   In addition, there would be the potential add-back of $30,000 pursuant to the order of Bennett J to which I earlier referred.  Thus, a total of some $850,000 to be brought back into the pool.  Accordingly, on the wife's figures, the total pool could be constituted by, Mr Wilson said, assets of $2.8 million and add-backs of $850,000, or $3.650 million in all, of which $850,000 represented some 24 per cent of that pool.  Mr Wilson informed me that the $30,000 ordered to be paid pursuant to the order of Bennett J was paid to his professional advisers.

17. In the course of submissions, Mr Wilson returned to the husband's affidavit filed 13 August 2007.  It is clear to me that the terms of paragraph 6 were substantially the same as the material particulars before Bennett J on 30 April 2007.  As to paragraph 7, not a dissimilar position prevails, particularly when Mr Wilson frankly referred me to the husband's Form 13 Financial Statement filed in March 2007.  He conceded that the credit cards referred to in that latter document were in the same amount as the debt referred to in the husband's latest affidavit.

18. I regard much of what the husband had to say in his affidavit as bald, unsubstantiated assertion.  There was no corroboration.  Mr Wilson referred me to paragraph 8 of the husband's affidavit to which I have referred, that dealing with the fact that the husband is obliged to live in Egypt.  Mr Wilson then said that the husband "travels to and from Egypt".  That came as some surprise to me and following further discussion with Mr Wilson, I learned that the husband had travelled overseas quite a number of times.  I required that the husband provide details which Mr Wilson sought from the husband.

19. It transpired that, using the hearing date before Mushin J on 6 November 2006 as a launching platform, the husband travelled overseas for some three months from 28 October 2006 to 28 January 2007.  He left Australia again on 25 February 2007, returning some two months later on 25 April 2007.  He departed again for Egypt in June 2007 and returned on 25 July 2007.

20. As I said, there is no affidavit from any witness explaining, indeed corroborating the assertion of the "charity" bestowed upon the husband.  Mr Wilson emphasised that the persons from whom the husband borrowed funds were those referred to in his Form 13 Statement of Financial Circumstances.  This fact too was before Bennett J on 30 April 2007.  Mr Wilson explained that the husband was involved “in litigation” in Egypt which must, I assume, account for his travel arrangements and return to Australia on the several occasions to which I have referred.  However, none of that was disclosed in his affidavit.

21. Mr Wilson repeated that the husband “had no money” and that he had to live with friends and off charity.  He submitted that the parties had the financial resources to provide some urgent funding and went on to say that if I ruled “… against him, he will have to rely on family and friends for the next two months”.  So be it.

22. In the course of short submissions in reply, Ms O'Connell informed me that the husband was leaving Australia this evening.  This came as quite a surprise and I addressed this disclosure to Mr Wilson.  It transpired to be correct, with the husband travelling on “a return ticket” and returning to Australia "in time for the next hearing".  Ms O'Connell referred to the parties’ property and explained that there was some $59,000 in bank accounts, the $30,000 having already been paid to the husband pursuant to the order of Bennett J on 30 April 2007.

23. Ms O'Connell said that the wife lived in rented premises and received some $455 per week, being rental from properties.  She relied upon that rent and otherwise the moneys in the bank accounts to supplement her additional frugal living expenses, repairs to properties and the like.

24. Ms O'Connell submitted that the husband was in receipt of an indexed government pension of $2686 per calendar month, or some $671 per week which is applied to the mortgage on the former matrimonial home.  That property, I was told is valued at about $570,000 and upon which there is owing some $500,000, being the mortgage serviced by the husband.  The husband lives there when he is in Australia and otherwise, when he is absent from the country, and certainly for the periods of time to which I have earlier referred it is vacant. 

25. Ms O'Connell informed me that one aspect of the wife's application for determination before Bennett J on 30 October 2007 is for the sale of that property by way of an interim order.  She said, properly so, in my view, that would relieve the husband of the mortgage obligations and thus release income for his expenses.  However, for reasons best known to the husband, he refuses to do this. 

26. Ms O'Connell otherwise referred me to Annexure “SA5” to the wife's affidavit which revealed the husband's movement in and out of the Commonwealth of Australia since the date of separation.  I am informed that the parties separated under one roof in January 2005 and the wife ultimately left the former matrimonial home in February 2006.  Ms O'Connell said that she was instructed the movement requisitions would demonstrate that he is out of the country some 80 per cent of the time.  That was not conceded by Mr Wilson. He said on the husband's calculation it was 47 per cent of the time, or thereabouts.  It is not an issue that I need worry about.

27. In my view, the application of the husband is misconceived and unmeritorious.  It ought never have been brought and has subjected the wife to unnecessary legal expense.  The matter is part-heard before Bennet J.  There are no new facts or particulars of sufficient weight to support what Mr Wilson described as an “urgent funding” application.  I am not satisfied in any event that the husband had made full and frank disclosure of his true position and he certainly did, from my observation, place his counsel in an invidious and embarrassing position.  In the circumstances, I will dismiss the husband’s application.

28. Ms O’Connell made an application for costs. Albeit that section 117(1) of the Family Law Act 1975 (as amended) provides that each party bear their own costs, it is subject to section 117(2) vesting in the judge a discretion to order costs in the event there are circumstances justifying such an order. In my view, costs should follow the event given the terms of my judgment. The husband has been entirely unsuccessful and I propose to order costs in the sum of $1,472 as sought on behalf of the wife. They are reasonable. As to payment by the husband, given his current circumstances, I will leave the terms to Bennett J at the adjourned hearing, but my expectation is that the husband will pay the costs when he is placed in a financial position to do so.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  14 September 2007.