Athan and Athan

[2020] FamCA 182

FAMILY COURT OF AUSTRALIA

ATHAN & ATHAN [2020] FamCA 182

FAMILY LAW – PROPERTY – Interim – Exclusive Occupation – Balance of Convenience – Where the wife is granted exclusive occupation – Spousal Maintenance – Where the wife does not have the capacity for paid employment – Order for spousal maintenance – Order for partial property settlement.

Family Law Act 1975 (Cth) s 114
APPLICANT:	Ms Athan

RESPONDENT: Mr Athan

FILE NUMBER: SYC 7953 of 2019

DATE DELIVERED: 24 March 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 11 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers

Orders

IT IS ORDERED

1. That within seven days of the date of these orders, the husband pay to the wife by way of partial property settlement, the sum of $300,000.

2. That, at the expiration of 14 days from the date of these orders, the wife have the exclusive occupation of the property at B Street, Suburb C (“the property”) and the husband is restrained from entering upon the property without the consent of the wife.

3. That, pursuant to section 114(1)(e) of the Family Law Act 1975 (Cth) the husband pay, as and when they fall due, the following expenses in relation to the property:

   (a)      the mortgage repayments

   (b)      the council and water rates, house and contents insurance; and

   (c)      the electricity and gas expenses.

   (d)      the cost of necessary repairs and maintenance.

4. That the husband pay to the wife the sum of $1,700 per week by way of spousal maintenance.

5. That in addition to the sum in Order above, the husband pay by way of spousal maintenance the wife’s mobile telephone account; the lease on the motor vehicle driven by the wife and the premium payments in relation to the wife’s private health insurance.

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 Athan & Athan 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 7953 of 2019

Ms Athan

Applicant

And

Mr Athan

Respondent

REASONS FOR JUDGMENT

1. Ms Athan (“the wife”) and Mr Athan (“the husband”) married in 1993 and separated in December 2019. They have two, now adult, children. The parties and their children continue to live in the former matrimonial home.

2. The proceedings before the Court are interim applications relating to the sole occupation of the home, partial property settlement and spousal maintenance.

SOLE OCCUPATION

1. Each party seeks an order for the sole occupation of the home, submitting that they cannot continue to occupy the home together.

2. In those circumstances, it is agreed that the matter falls to be determined upon the balance of convenience.

3. Each party seeks, by way of final orders, to retain the home.

4. Each party seeks to give evidence about the wishes of the adult children about with whom they would like to live. The older son has filed an affidavit in the husband’s case stating that he wants to live with his father and will leave the home if the husband moves out. I do not consider that the wishes of the adult children about where they live, and with whom, have any relevance to this decision.

5. The parties have an investment unit in the same building as one of their business premises that is available and unoccupied.

6. The wife has no income other than that which will be paid by the husband by way of spousal maintenance.

7. The husband, as is explained later in these reasons, has the whole of the income from the family trust and treats the bank accounts of the family trust as his own. This gives the husband considerable more flexibility in arranging rental accommodation to suit himself as he will be unconstrained in his choice of accommodation.

8. The wife is not in employment and spends considerably more time in the home than does the husband. This has been the situation since at least 2010.

9. The wife deposed that the husband leaves the home from 9 am each morning and returns between 3 pm and 6 pm.

10. The husband presumably also works during the evening as the trust derives its income from hospitality businesses.

11. I accept that the husband will be required to relocate his home office.

12. In the event that the husband chooses not to move into the investment unit, he will have the rent from that unit of $1,251 per week to defray his own rental expenses.

13. On behalf of the husband, it was submitted that the wife was able to move out of the family home for some months at the end of 2018 and that she can do so again.

14. The wife deposed that after she moved out of the home, she continued to return each day, working in the garden and cleaning and tidying. The wife moved back into the home in March 2019 during a period when the husband was overseas.

15. The wife’s psychotherapist, whom she has been consulting since 2018, provided a report stating that the wife has been suffering from Post Traumatic Stress Disorder (“PTSD”) for many years as a result of a violent assault that took place some years ago. She stated:

    [The wife] has attempted to separate from her husband but returned to her family home... as her home represents stability to her.

    ...the family home is the only place that allows [her] a sense of safety and helps  down regulates her anxiety...

16. Having regard to all of those matters, the balance of convenience favours the wife remaining in the home.

SPOUSAL MAINTENANCE

1. It is not in dispute that the wife is unable to support herself adequately. The husband’s position is that he should pay spousal maintenance in the sum of $1,500 per week. Senior counsel for the husband submitted on his behalf that the wife does not demonstrate a need for a greater amount but that, if such a need were demonstrated, then the wife’s capacity to earn and make a contribution to needs must be considered.

2. It is conceded that the wife, who is 57 years old, has not been in the paid work force since 2010 when she had a casual job as a retail assistant on weekends. The wife has not been in full time employment since the parties married.

3. The husband deposed that in 2019, a friend who owned a retail store spoke to him about the wife coming to “help out in the store”. He deposed that he did not know if the friend had ever approached the wife.

4. The husband deposed that in late 2019 the wife ‘helped out’ a friend who owned a business on three Saturday mornings. Whether the wife was paid for her help is not in evidence.

5. The husband deposed that in late 2019 the wife told him that she was helping a friend with her bookkeeping business. The husband deposed that the wife was not paid for this help.

6. The husband has not established that the wife has any present capacity for paid employment.

7. What, then, are the wife’s reasonable needs? 

8. The husband agrees, as a measure to preserve the asset, he will pay as they fall due the mortgage payments, council and water rates, house and contents insurance and electricity and gas expenses for the home. He also agrees to pay, by way of spousal maintenance, the wife’s health insurance; her mobile telephone account and the lease payments for her motor vehicle.

9. The husband does not agree that he should pay the “gap” between the medical insurance or other rebate and the costs of medical treatment, or that he should pay for the petrol and servicing of the wife’s vehicle.

10. There is also a dispute about the wife’s claim for repairs and maintenance to the property for which the wife claims $100 per week. There is no evidence that any repairs are currently needed or that there are any maintenance tasks to be carried out. I propose to make an order that the husband carry out any necessary maintenance and repairs as needed rather than to attempt to predict what might need to be done.

11. The wife claims necessary expenses of $3,521 per week.

12. Although I am required to have regard to the standard of living to which the parties have, in the past been accustomed, I must also have regard to the fact that the family income, which has hitherto been required only to support one residence, is now required to support two residences and the necessary fixed expenses thereby incurred mean that some economies must be applied.

13. The order for maintenance is made for a limited time only, until the property settlement proceedings have been determined and, when the wife has her own funds, she can choose how she spends her money.

14. The husband specifically queries a number of the wife’s claimed expenses, specifically:

    Holidays  $1,000 per week or $50,000 per annum

    Cosmetic surgery                $650 per week or $33,800 per annum

    Designer handbags              $150 per week or $7,800 per annum

    Total  $1,800 per week.

15. I do not consider that the costs set out above are “necessary” to enable the wife to support herself and I propose to disregard them. I will, however, allow $200 per week or $10,000 per annum for holidays.

16. The husband also objects to the cost of a gardener which was amended in submissions to be $100 per week. I note that the husband, in his Financial Statement estimates that the cost of the gardener is $76 per week. I infer this to be a concession that a gardener is necessary. It is in the interests of both parties that the garden be maintained and I propose to allow the amount claimed by the wife.

17. Thus I find that the wife needs $1,700 per week for her support.

THE HUSBAND’S CAPACITY TO PAY

1. The husband earns an income running a number of businesses using the vehicle of the Athan Family Trust (“the Trust”). The trustee of the trust is D Pty Limited and the husband is the sole director and shareholder of the trustee.

2. The husband’s brother is the appointee of the trust however, there is no evidence that he has ever sought to interfere in the day to day running of the trust or that any distribution has ever been made to him. It is conceded, for the purpose of this application, that the fact that the husband’s brother is the appointor is no bar to the making of any order relating to the assets of the trust or the payment out of funds from accounts held by the trust.

3. It is clear, and not disputed, that the husband treats the bank accounts of the trust as his own on a day to day basis.

4. The trust has three bank accounts. In his affidavit sworn 26 February 2020, the husband deposed to the balances:

   Westpac #...26  $547,856

   Westpac #...53  $283,277

   CBA #...59  $283,278

   Total  $1,114,411

5. By the hearing on 10 March 2020, the funds in the Westpac account #...26 had decreased significantly and the balances were:

   Westpac #...26  $230,717

   Westpac #...53  $283,229

   CBA #...59  $283,278

   Total  $797,224

6. A number of significant withdrawals had been made from the #...26 account in the two weeks before the hearing:

7. On 10 March 2020, the day before application was heard, $80,000 was paid to “H Pty Limited Livestock Agistment Athan Livestock Agistment”.  It was conceded by senior counsel for the husband that there has never been any investment in Livestock disclosed and that there is no asset of livestock disclosed as being held by the husband. I can find no reference to livestock being agisted in the husband’s affidavit or Financial Statement other than a reference to agistment fees which have been outstanding since February 2016. Why it has been necessary to make any payment after some three years is not explained. I do not accept that this withdrawal was for the stated purpose and I propose to deal with the sum as being paid to the husband.

8. Also on 10 March 2020 there was a withdrawal of $50,000 purporting to be to the wife. I accept that those funds were not paid to the wife and I propose to treat them as having been paid to the husband.

9. On 9 March 2020, a total of $106,146 was withdrawn for the husband’s legal fees.

10. The total withdrawn for the husband’s benefit in those two days was $236,146.

11. It is notable that between November 2018 and February 2020, the balance of the #...26 account fluctuated between about $546,000 and $715,000.

12. The husband’s Financial Statement deposes to his receiving no income from the trust and no wages. His only declared income is rent of $396 per week from a unit at Suburb F which he deposes that he does not own. Given that the trust pays PAYG tax for the husband monthly from the #...26 account, his assertion that he receives no wages is difficult to understand. The trust also pays $1,000 per week for PAYG tax for the wife. Since she does not receive any wages, I assume that any wages attributed to her are actually paid to the husband. I do not accept the husband’s evidence in relation to his income to be accurate.

13. Despite having an income of $396 per week, the husband pays expenses of $10,569 per week. How this is possible has not been explained other than for the note at Item 34 of the husband’s Financial Statement which reads:

    General living expenses, mortgage repayments – the husband meets these expenses from the [trust] bank account, into which the trust distributions for the husband and the wife are paid.

    The amount the husband spends on the wife’s weekly discretionary expenditure is estimated at $2,323... The husband also pays the fixed expenses referred to above, a portion of which is referable to the wife.

14. Thus it is clear that the husband treats the income of the trust as his own income. However, there is no evidence of the income of the trust.

15. As to the Suburb F property, in a Statement of Financial Position signed by the husband on 23 May 2017 for the Commonwealth Bank, the husband included Suburb F as his asset. In that document, the husband states that he has an excess of assets over liabilities of $12,737,500.

16. Similarly, in a Statement of Financial Position signed by the husband on 24 August 2018, Suburb F was included as an asset of his. In that document the husband stated that he had an excess of assets over liabilities of $15,494,000.

17. The husband and the wife both signed an application for personal finance to the Westpac bank on 27 June 2019. In that document, the husband says he owns a 50 per cent share of Suburb F. The name of the other asserted owner is not disclosed. Also in that document, the husband states that he has savings of $120,000 in CBA and $1,100,000 in Westpac. The husband stated that the equity in his business was $6,000,000.

18. There appears to be a significant discrepancy between the husband’s sworn evidence in these proceedings and what he tells his bankers.

19. The financial statements for the trust for the year ended 30 June 2019 are not in evidence.

20. According to the financial statements for the year ended 30 June 2018, although the husband deposes in his Financial Statement that the home is the joint property of the husband and the wife, the mortgage over the home is not a liability of the parties but is a liability of the trust.

21. As at 30 June 2018, the trust had an income from distributions of $807,571 and declared a profit of $601,511. The whole of that income was available to the husband.

22. There is no impediment to the husband’s withdrawing the funds in circumstances where he deposes that he has a present entitlement to draw $499,175.

23. I do not accept the husband’s evidence that the funds are not available.

24. In addition to the trust to which reference has been made above, the wife deposed that the G Trust, which I assume is a trust for the benefit of the parties’ adult daughter, distributed $365,376 in, I assume, the financial year ended 30 June 2018. There is no evidence before the Court of the income of the G Trust for the 2019 financial year. I can comfortably assume that the distribution of those funds did not go to the parties’ 23 year old daughter but was paid to the husband.

25. I find that the husband has the capacity to pay spousal maintenance.

PARTIAL PROPERTY SETTLEMENT

1. There is no dispute that the criteria for the making of a partial property settlement order are met.

2. Senior counsel for the husband submitted that there is no fund from which the sum of $300,000 sought by the wife can be paid.

3. I do not accept that submission.

4. The husband was able to draw $236,146 from the trust in the two days preceding the hearing of this application. Notwithstanding those withdrawals, the trust bank accounts have a balance of almost $800,000.

5. That money is available to the husband.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 March 2020.

Associate:

Date:  24 March 2020