Akhtari and Alghazari (No 2)

[2017] FamCA 748

FAMILY COURT OF AUSTRALIA

AKHTARI & ALGHAZARI (NO. 2) [2017] FamCA 748

FAMILY LAW – INJUNCTIONS – Interim – Where the husband does not oppose the continuation of orders previously made for the wife’s personal protection.

FAMILY LAW – EXCLUSIVE OCCUPATION – Interim – Where the wife seeks exclusive occupation of the parties’ investment property but the husband seeks that she and the parties’ two young children return to and occupy the former matrimonial home – Where the wife should have the ability to choose which occupancy is more suitable for her given she has the primary care of the parties’ two children; it is unclear what time the children will spend with the husband and she has chosen the property of lower value – Where the wife seeks orders for interim property settlement – Where there is no obvious source of funds which would enable the husband to pay the wife the amount she seeks – Where it is appropriate to make an order for the sale of the former matrimonial home on the basis that the mortgage be discharged and each party receive the same amount from the proceeds of sale with the balance placed in a controlled monies account.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Where the wife seeks an order for periodic spousal maintenance together with an order that the husband pay the mortgages and outgoings on the parties’ two properties – Where the wife satisfies the threshold test and has a need – Where the husband has a capacity to pay – Where the wife is entitled to the spousal maintenance order she seeks. 

Family Law Act 1975 (Cth)

Redman & Redman (1987) FLC 91-805

APPLICANT: Ms Akhtari

RESPONDENT: Mr Alghazari

FILE NUMBER: SYC 5412 of 2017

DATE DELIVERED: 25 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 18 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Spain

SOLICITOR FOR THE APPLICANT: KD Holmes Solicitors

COUNSEL FOR THE RESPONDENT: Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT: Manning Lawyers

Orders

1. The wife is to have sole use and occupancy of the property situated and known as B Street, Suburb C (“the Suburb C property”) and the husband is restrained by injunction from entering the Suburb C property without the written consent of the wife first had and obtained.

2. Within seven days of the date of these orders, the husband is to arrange for the wife to have unfettered access two days in a row to the property situated at D Street, Suburb E (“the Suburb E property”) for the purposes of collecting her property and belongings and the children’s property and belongings.

3. As soon as is practicable, both parties do all acts and things and sign all necessary documents to sell the Suburb E property for the best price reasonably obtainable in the following manner:

   3.1.The parties are to attempt to agree on a lawyer to conduct the sale on behalf of the parties and failing agreement, that lawyer shall be appointed by the President of the Law Society of New South Wales for the time being or her nominee;

   3.2.The parties are to attempt to agree on a real estate agent (hereinafter referred to as “the agent”) to have the conduct of the sale and failing agreement, that agent shall be appointed by the President of the Real Estate Institute of New South Wales for the time being or his nominee;

   3.3.The Suburb E property shall be listed for sale by public auction within four weeks of the date of appointment of the agent;

   3.4.The parties shall agree on the reserve price for the purpose of such auction and in the event the parties cannot agree, the agent shall set the reserve price;

   3.5.The parties shall cooperate in every way with the agent, including but not limited to:

   3.5.1.Making the key available to the agent;

   3.5.2.Allowing inspection of the Suburb E property at all reasonable times requested by the agent;

   3.5.3.Not taking any step to hinder or prevent a sale being effected;

   3.5.4.Ensuring the Suburb E property including the grounds is in a neat and clean condition at the time of inspection by the agent and any prospective purchaser;

   3.5.5.Signing all documents requested by the agent in relation to the listing of the Suburb E property, other than a contract or agreement for sale, which has not been authorised by the lawyer referred to in order 3.1.

   3.6.In the event that bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidder or any other interested person and effect the sale of the Suburb E property at a price which is not more than 10 per cent below the reserve price, or such other price as the parties shall nominate;

   3.7.In the event that the Suburb E property is not sold by public auction within eight weeks from the date of appointment of the agent, the parties shall do all acts and things and sign all documents necessary to list the said property for sale by private treaty with the agent appointed in accordance with order 3.2 above;

   3.8.The sale price at which the said property shall be listed is a price to be agreed upon between the parties and failing agreement at the price nominated by the agent from time to time.

4. Upon settlement of the sale of the Suburb E property, the proceeds of sale shall be disbursed in the following manner and priority:

   4.1.In payment of agent’s commission, marketing and legal expenses of the sale;

   4.2.In discharge of the NAB home loan;

   4.3.In payment of $170,000 to wife;

   4.4.In payment of $170,000 to the husband;

   4.5.The balance then remaining to be invested in a controlled monies account (or any other account which is mutually agreed by the parties in writing on behalf of the parties until further order).

5. Liberty granted to either party on 14 days notice to seek further orders or variation of orders in relation to the implementation of the order for sale of the Suburb E property.

6. In the event that there is a capital amount that is needed to be paid to satisfy a one off strata levy call on the Suburb C property, then that amount is to be paid from the controlled monies account.

7. The husband pay the following by way of spousal maintenance

   7.1.The outgoings on the Suburb C property including regular mortgage payments, water rates, council rates, property insurance and periodic strata levies;

   7.2.The outgoings on the property situated and known as F Street, Suburb Z (“F Street property”) including regular mortgage payments, water rates, council rates, property insurance and periodic strata levies after the wife has paid all the rent received from the tenant of the F Street property upon mortgage and outgoing payments in respect of the F Street property;

   7.3.A payment to the wife of a sum of $510 per week, first payment within seven days.

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 Akhtari &Alghazari (No. 2) 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 5412  of 2017

Ms Akhtari

Applicant

And

Mr Alghazari

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By way of Application in a Case filed 21 August 2017, the wife seeks interim orders for personal protection; exclusive occupation of a property situated at B Street, Suburb C (“the Suburb C property”); an injunctive order restraining the husband from dealing with assets; an interim property order and spousal maintenance. Whilst the spousal maintenance application was initially fashioned in the form of an application under s 77 of the Family Law Act 1975 (Cth) (“the Act”), counsel for the wife confirmed that it was an application which was pursued pursuant to s 74 of the Act.

2. The parties are both professionals..

3. The parties have two young children aged two and one.

DOCUMENTS READ

1. The documents relied upon by the parties are set out in Schedule 1.

2. Documents were also tendered during the hearing.

3. This case came on at short notice with the husband’s extensive material filed one working day before the hearing.

THE WIFE’S APPLICATION FOR INJUNCTIONS FOR HER PERSONAL PROTECTION

1. The wife sought orders pursuant to s 114 of the Act for her personal protection and an order that all officers of the NSW Police Force be requested to assist in the implementation of those orders for her personal protection.

2. The most serious allegation that the wife makes against the husband is that in a conversation on or about 6 or 7 January 2017, at a time when the parties had separated for a short period of time, the husband had directly threatened that he would have the wife killed. The husband denied the allegation.

3. This allegation by the wife does not sit comfortably with electronic communication that passed between the parties immediately and shortly after that time.

4. The wife makes other allegations of threats which the husband denies and in the context of this interim hearing, it is impossible for me to make any findings in respect of this disputed evidence.

5. The husband acknowledged his association with members of a certain organisation but only in a professional capacity.

6. In or around 2013 the husband was working for the then leader of the organisation. The husband’s address on his mail and driver’s licence was his parent’s address. In 2013 his parent’s home was the subject of a drive-by shooting.

7. The husband has filed evidence from fellow professionals that he conducts himself in a professional and upright manner.

8. There is however a significant piece of evidence upon which the wife can rely. It is a conversation between the husband and herself on 19 June 2017 (which the wife says she recorded). That conversation included the following exchange:

Husband:	You know how fiercely loyal I am and you know if someone fucken wrongs me I don’t forget it. Look what happened to [Mr G] … lucky someone else took care of it, it’s not on my neck but that is a drop in the ocean compared to what is happening now.
Wife:	Do you think that if I ask you for a divorce that I am being disloyal to you?
Husband:	No, I don’t give a fuck get a divorce do whatever you want. It’s not about disloyalty, its about what happens after it is where it gets ugly. Not the divorce point.

1. Whilst the husband’s affidavit in reply specifically denies most of the wife’s allegations about threats made, the husband does not deny this conversation.

2. The husband does not seem to deny that in 2013 he told the wife that Mr G was:

   16.1.The person who the husband suspected of the drive-by shooting at his parent’s home;

   16.2.He worked for the leader of another organisation who was the husband’s client.

   The husband also does not deny that in 2013 Mr G had been killed.

3. The conversation on 19 June 2017 contains a direct serious threat by the husband to the wife of what might happen if the wife “wrongs” him.

4. Based only on the information contained in the wife’s affidavit, Justice Loughnan on 31 August 2017, inter alia, made the following orders and notation:

   …

   5.    Until further order, an order is made in terms of the orders sought at paragraph 5 of the interim orders sought in the wife’s application, as set out hereunder:

   5. Pursuant to section 114 of the Act, the respondent, his servants and/or his agents be restrained from:

   5.1Assaulting, molesting, harassing, threatening or otherwise interfering with the applicant.

   5.2Engaging in conduct that in any way intimidates the applicant.

   5.3Stalking the applicant.

   5.4Coming within 500 metres of any property in which the applicant is living or working.

   5.5Coming within 500 metres of the [Suburb C] Early Learning Centre.

   6. The Court notes that that order is an order for the personal protection of the wife and of [H] born … 2015 and [J] born … 2016 and that as a result that order attracts the powers of arrest without warrant to a police officer pursuant to s 114AA of the Family Law Act 1975 (Cth).

5. In the husband’s response filed 14 September 2017, the husband formerly sought that the wife’s Application in a Case be dismissed in its entirety. However, senior counsel during submissions indicated that the husband did not oppose the continuation of this order and notation made by Justice Loughnan and on that basis, counsel for the wife made no further submissions in support of the continuation of order 5 and notation 6 made by Justice Loughnan on 31 August 2017 and that order will continue to be in place. It is not necessary for me to make any further comment about the allegations the wife makes about the husband’s threats given the concession that the husband made in relation to the order that has been made.

EXCLUSIVE OCCUPANCY

1. The parties own two properties. A third property situated at F Street, Suburb Z (“the F Street property”) which is the property from which the husband conducts his business is held by a trust which is controlled by the wife.

2. The two residential properties are a property at D Street, Suburb E (“the Suburb E property”) which the wife asserts has a value of $2.2 million and the husband says is worth $1.9 million. It is agreed that that property is encumbered by way of first mortgage to the NAB Bank in the vicinity of $1,250,272 and $1,272,033.

3. The second residential property is the Suburb C property. It is agreed that its value is $1.1 million. The mortgage to Bank West on that property is somewhere in the vicinity of $415,000 - $420,000.

4. The Suburb C property was a property in which the parties originally resided before moving to the matrimonial home at Suburb E.

5. At the date of separation, the Suburb C property was being held by the parties as an investment property. There was a tenant in the property paying $800 per week. The property is now vacant. In very recent times the husband has spent some time at that property.

6. It is the wife’s application that she be able to move into that two bedroom unit with herself and the parties’ two very young children.

7. The husband wishes the wife and the children to have occupancy of the former matrimonial home at Suburb E. The husband says that whilst he is living in the Suburb C property at the moment, he is able to move back in with either his sister Ms K or his sister Ms L or his parents and that each of those accommodations would provide ample room for himself and the children once the children are able to stay with him. His proposal is that the Suburb C property be sold so that the equity in that property can be released. It is the husband’s position that the property out of which he conducts his business should not be sold and that is not a matter of contention.

8. Given that the wife has the primary care of parties’ children aged two and one and given that it is currently uncertain as to what arrangements will be made in relation to the children spending time with their father, the wife should have the ability to choose which of the options for occupancy is more suitable for her. She has chosen the Suburb C property which is the less valuable property with a lower equity. The husband has made no compelling argument as to why that choice should not be accepted. I find that it is proper to make the order for occupancy that the wife seeks in respect of the Suburb C property.

THE WIFE’S PROPERTY AND BELONGINGS AND THE CHILDREN’S PROPERTY AND BELONGINGS

1. Although it was not the subject of submissions, it is appropriate given I have made an order for occupancy in the wife’s favour, that the wife be able to go to the former matrimonial home and collect her property and belongings and the children’s property and belongings so that they can be taken to the Suburb C property.

ORDER RESTRAINING THE HUSBAND FROM DEALING WITH ASSETS

1. Counsel for the wife made no submission in support of this application and no order shall be made.

INTERIM PROPERTY

1. The wife seeks orders, which I shall treat as an application for interim property settlement, that she be paid by the husband over a period of 14 days a sum of $170,000 and if the husband was unable to pay those funds to her, then the Suburb E property be sold and after the discharge of the mortgage to the NAB, $170,000 be placed into the trust account of the wife’s lawyers with the balance being invested in a power monies account on behalf of the parties until further order.

2. There is no obvious source of funds that the wife can point to (apart from alleging that the husband has hidden unknown quantities of cash) which would enable the husband to pay the wife $170,000.

3. The husband’s application for partial property settlement is that the Suburb C property be sold and that $200,000 be paid by way of partial property settlement to each of the parties from that sale.

4. The husband’s application of course is predicated on the assumption that the wife would be given occupancy of the Suburb E property and not the Suburb C property.

5. The husband, by way of application for final property orders, seeks the sale of, inter alia, the Suburb E property.

6. It is both parties’ position that real estate should be immediately sold to release funds to the parties for the purposes primarily of funding litigation.

7. Accordingly, I find that it is appropriate by way of interim property order, to make an order for the sale of the Suburb E property on the basis that the registered mortgage on the Suburb E property would be discharged and each party will receive $170,000 from the proceeds of the sale of the property with the balance to be placed in a controlled monies account or such other account as the parties agree in writing.

8. The wife has proposed detailed machinery orders in relation to the sale of the Suburb E property. Neither party made any submissions in relation to that part of the wife’s application. I have adopted the machinery orders proposed by the wife with some modification so that both parties are to be involved in the decision making needed during the sale process.

9. There is some indication in the evidence that a one off payment may be needed to satisfy a call by the body corporate of the Suburb C property. The proceeds of the sale of the Suburb E property can be used to satisfy any such requirement.

10. I am mindful that the husband has in his evidence set out debts that he says are payable to various people (mainly relatives) who have lent money for particular purposes to the parties on an unsecured basis and repayable at an unspecified date. Those claims obviously are a matter that will be subject of further examination at a final property hearing should the parties not otherwise agree on a final property settlement order.

11. The wife’s application also sought that the husband pay:

    16.3 M Child Care unpaid fees.

    16.4 Unpaid fees to State Debt Recovery Office for J’s ambulance fee.

    16.5 Unpaid fees to Mr N.

    16.6 Toll account in the name of the applicant and/or joint names.

12. However, this was not subject of submissions and I adopt a similar to these unsecured debts.

SPOUSAL MAINTENANCE

1. The wife’s application for spousal maintenance is for an amount of $1,229 per week together with an order that the husband pay the mortgages and outgoings on the Suburb C and F Street properties.

2. The wife has also sought an order that the husband continue to make mortgage repayments on the Suburb E property. Given that there is to be an immediate sale of that property there is no need for that order to be made and any arrears in relation to the mortgage will be discharged from the proceeds of sale.

1. The wife asserts that she is currently only able to work a very limited amount of time on the basis that she has the primary responsibility for looking after the parties’ very young children (aged two and one).

2. Senior counsel for the husband submits that the wife has not satisfactorily satisfied the threshold test under s 72 because she has not properly set out what is her earning capacity currently.

3. At the commencement of her relationship with the husband, the wife was earning approximately $80,000 per annum. The wife says she is currently working on a casual basis earning approximately $5,000 - $10,000 per annum. The wife says when she only had one child she returned to work about two to three days per week and her mother assisted her with the care of the elder child. She ceased work altogether however in early 2016 leading up to the birth of the second child as a result of a number of health issues she experienced during the second pregnancy.

4. Although senior counsel for the husband submitted that the wife has a clear facility to be assisted with the care of the children. The wife’s mother assisted her to care for the first child as well as employing a nanny from time to time so that the wife could return to work two to three days a week. There is no evidence that the wife could currently call upon her mother or other relatives for more extensive assistance in relation to the two young children.

5. The wife in her financial statement sets out her expenses at $3,412 per week. That total needs to be discounted in a number of ways. Firstly it contains weekly expenses for the children estimated at an amount of $465 per week. The wife has made an application to the Child Support Agency but has not yet received an assessment. She made no application before me for urgent child support. The figure of $3,412 also includes an amount of $1,807 being the whole of the mortgage payments on F Street property ($720 per week) and half of the mortgage payments on the Suburb C and Suburb E properties (in the sum of $287 and $800 per week respectively). The wife also claims an amount of $478 in respect of rates and levies in relation to 100 per cent on the F Street property and 50 per cent on both the Suburb C and Suburb E properties. Given the sale of the Suburb E property, the obligations in respect of that property will not be continuing. The wife seeks separate orders be made for the husband to ensure that the outgoings on the Suburb C property continue to be paid and any shortfall in the outgoings on F Street continue to be paid. The wife claims $83 per week income tax on an income of $96 per week. That claim for tax is not an amount that could be accepted and in fact no tax would be payable on the income asserted by the wife. The wife claims credit card payments on her Visa card of $37 per week. The wife’s outstanding Visa card stands at $9,066 and her weekly claim for repayment is not unreasonable.

6. A calculation of the wife’s needs for spousal maintenance, assuming that she has no expenses in relation to the occupancy of the Suburb C property, are as follows:

   Income   $ 96.00

   Less expenses:

   Health insurance   ($ 95.00)

   Credit card payments   ($ 37.00)

   Weekly expenses for the wife          ($ 474.00)         ($ 606.00)

   ($ 510.00)

7. Senior counsel for the husband, whilst putting in issue the wife’s earning capacity, did not put in issue the need that the wife asserted for the amount of spousal maintenance she sought (apart from suggesting that that need could be met from the wife’s earning capacity or savings).

8. In relation to capital in the wife’s hands, senior counsel for the husband also pointed to the money the wife had currently in her bank account as a reason as to why the wife did not have a need for a spousal maintenance order. The wife has currently on her financial statement a bit over $10,000 in a bank account. Exhibit 7 indicates that that is the amount owed to her lawyers by the end of this interim hearing.

9. The wife will also receive $170,000 by way of partial property settlement. That money however is earmarked for the future costs of litigation if it is needed. The wife is also entitled to retain some capital to cover the exigencies of life.

10. Whilst senior counsel for the husband made no reference to it, the husband in his affidavit alleges the wife took $25,500 in cash from the home at separation and $35,500 from a bank account in January 2017 and $40,000 in June 2017. This does not correspond with the wife’s evidence and in this interim hearing I can take the husband’s assertions no further. The husband also asserts that the wife has an outstanding account for legal fees that she could pursue. Again, senior counsel for the husband made no reference to this evidence and I am unable to place great weight upon that assertion by the husband.

11. I find that the wife has satisfied the threshold test and is entitled to the spousal maintenance order in the sum of $510 in the event that the husband is found to have the capacity to make those payments.

12. That figure is predicated upon the husband also making all mortgage payments, water rates, council rates, land tax and strata fee payments in respect of the Suburb C property and in respect of the F Street property (after income from the tenant has been used to first satisfy those liabilities in respect of the F Street property). The figure includes no child support for the children.

THE HUSBAND’S EARNING CAPACITY

1. In his financial statement filed 14 September 2017 the husband says that his salary is $1,442 per week (roughly $75,000 per annum). He receives that salary from O Pty Ltd. That is a company which is the husband’s alter-ego. The tax return for that company for the 2015 financial year (part of Exhibit 3) indicates that the gross income of the company in that year was $204,707. Expenses (which I infer would have included the husband’s wages at $75,000) were said to be $192,376. The company made a declared profit of $12,331 in the 2015 financial year. The husband has not provided the wife with any financial statements for the company and so the wife is unable to provide any further analysis of the expenses claimed by the company. When the company profits are added to the husband’s income, the husband’s declared income increases to in excess of $87,000 per annum as at 2015.

2. At paragraph 179 of her affidavit, the wife provides the following evidence:

   In June 2017 [the husband] and I applied for a loan with Bankwest for the new purchase in [P Street, Suburb E]. In support of the loan application, we submitted [the husband’s] personal tax return for the year ended 30 June 2016, which showed an income of $75,000 and a draft company return showing a profit of $197,000.

3. The husband does not specifically dispute that evidence in his affidavit in reply. At paragraph 90 of his affidavit he simply says:

   On our return from Brisbane, the Wife and I prepared a loan application to BankWest for the purchase price [of the P Street property].

4. The weight to be placed on the wife’s evidence about the husband’s admission in the loan application is reduced by two considerations:

   59.1.An actual copy of the loan application has not been provided;

   59.2.Sometimes some people are not absolutely candid with financial institutions when making applications for loans although in this case the husband asserts he is a man of absolute integrity

   but it is some evidence that might point to the husband’s actual current level of income.

5. A matter of great contention between the parties related to cash income that the wife asserted the husband received from clients facing criminal charges. It is the wife’s case that cash was used to maintain their lifestyle and significantly reduce mortgages on properties. It is the husband’s evidence (and somewhat curiously expressed) that upon the advice of his accountant, he declares the cash in his tax returns. In context the husband says:

   I admit that I have received cash from clients. At times there can be several months between when I receive the cash and when it is banked. On the advice of my accountant the cash is declared in my tax returns. It was not unusual for the Wife and I to have cash in the former matrimonial home.

6. The wife in her affidavit sets out a significant number of conversations that she has had with the husband about the receipt of cash funds. All of those conversations are denied by the husband.

7. The wife has photographed wads of cash that the husband kept at their home from time to time (Exhibit 1). There is evidence (Exhibit 2) that the husband at one point communicated with the wife’s sister asking the wife to make available about $70,000 that was in the Suburb E property in a jar, a noodle packet, a toy horse, door stoppers, a printer cartridge and the like for the purposes of making a payment to a real estate agent.

8. The husband does not deny that he kept significant amount of cash from clients in his home from time to time. He absolutely denies however that any part of the cash he received was put to one side and not accounted for when tax returns were prepared.

9. Counsel for the wife points to the fact that on 28 November 2011 there was a cheque deposited into the husband’s personal account of $186,058.86 and the wife does not know where that came from (Exhibit 5). It is a deposit by way of cheque. It is unlikely to be relevant to the issue of the receipt of cash although the wife asserts that the husband from time to time gave cash to third parties who provided him with cheques back. I place no weight on that entry in that bank statement.

10. The wife points to the fact that at the time the parties purchased the Suburb C property in July 2013, the mortgage was about $500,000. The mortgage currently is about $418,000. Counsel for the wife submitted $235,000 had been paid off the mortgage in four years but I am unable to understand the basis of that submission given the wife’s evidence.

11. The F Street property which had a mortgage of about $400,000 in 2014 is now $300,000, so $100,000 has been paid off in a three year period.

12. The wife also points to the fact that the husband in July 2016 purchased a prestige car and was able to pay $20,000 as a cash deposit in respect of the car.

13. The husband says that his immediate income earning capacity has been affected firstly by:

    68.1.Three major matters in respect of which he expected to receive substantial fees settling;

    68.2.Him being emotionally affected by the separation;

    68.3.Him not taking on work on the basis that the wife might make the two younger children available for him to spend time with them from time to time.

14. I do not place any great weight on that evidence by the husband. He has been in working as a professional now for a significant period of time and spousal maintenance is not a matter of assessing a circumstance based on a moment in time but rather looking over what is more likely in the future given the longer relevant history.

15. I take into account the husband will have an obligation to pay child support and the wife currently assesses her need for support at $465 per week.

CONCLUSION IN RELATION TO SPOUSAL MAINTENANCE

1. Necessarily in the context of this interim application, I adopt a very broad brush approach (Redman & Redman (1987) FLC 91-805) to the assessment of proper amounts by way of interim spousal maintenance payments for various purposes (including a periodic cash sum to the wife).

2. Pending determination of the final property orders, some arrangements have to be made to cater for the day to day financial needs of the parties. The sale of the Suburb E property will relieve the parties of the mortgage payments on that property. The mortgage is around $1,250,000. The wife says the weekly repayments are $1,600 a week. The husband somewhat unbelievably asserts the mortgage payments are $296 per week ($148 x 2). I accept that the sale of the Suburb E property will relieve the parties of $1,600 per week in mortgage payments.

3. The mortgage on the Suburb C property is in the sum of $574 per week. Water council rates, land tax and strata fees on the Suburb C property are in the approximate sum of $97 per week. The mortgage on F Street is $720 per week and other outgoings total $292 per week.

4. I find that the husband has the capacity to make the following payments:

   74.1.The outgoings on the Suburb C property;

   74.2.Payment of any shortfall to maintain the F Street property after the wife has fully expended rent received (an amount of $470 per week) from the tenant of the F Street property upon mortgage and outgoing payments in respect of the F Street property;

   74.3.A payment to the wife of a sum of $510 per week.

   The effect of the orders are that the husband will be paying about $1,723 per week ($510 + $574 + $97 + $720 + $292 - $470) plus child support but there will no longer be a payment in relation to the mortgage on the Suburb E property.

5. In the event that there is a capital amount that is needed to be paid to satisfy a one off strata levy call on the Suburb C property, then that amount can be paid from the controlled monies account created after the sale of Suburb E.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 25 September 2017.

Associate: 

Date:  25.9.2017

SCHEDULE 1

1. Wife’s Initiating Application filed 21.8.17

2. Wife’s affidavit filed 31.8.17

3. Wife’s financial statement filed 21.8.17

4. Husband’s Response filed 14.9.17

5. Husband’s affidavit filed 14.9.17

6. Husband’s financial statement filed 14.9.17

7. Affidavit Ms Q Alghazari filed 15.9.17

8. Affidavit Mr R filed 15.9.17

9. Affidavit Mr S filed 15.9.17

10. Affidavit Mr T filed 15.9.17

11.Affidavit Ms U Alghazari filed 15.9.17

1. Affidavit Mr V filed 15.9.17

2. Affidavit Ms K Alghazari filed 15.9.17

3. Affidavit Mr W filed 15.9.17

4. Affidavit Mr X filed 15.9.17

5. Affidavit Ms L filed 15.9.17