Baraz & Delshad
[2024] FedCFamC2F 320
•20 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baraz & Delshad [2024] FedCFamC2F 320
File number(s): MLC 11746 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 February 2024 Catchwords: FAMILY LAW – application for interim spousal maintenance – orders made in absence of the applicant for spousal maintenance – application for spousal maintenance dismissed. Legislation: Family Law Act 1975 (Cth) ss 72 & 75(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 15.19
Division: Division 2 Family Law Number of paragraphs: 11 Date of last submission/s: 20 February 2024 Date of hearing: 20 February 2024 Place: Melbourne Counsel for the Applicant: Ms Hannan Solicitor for the Applicant: Pearsons Family Law The Respondent: No Appearance ORDERS
MLC 11746 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BARAZ
Applicant
AND: MS DELSHAD
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application of Ms Delshad for interim spousal maintenance in her Response filed 23 January 2024 be and is dismissed
AND THE COURT NOTES THAT:
A.The application of Mr Baraz for an injunction restraining Ms Delshad from continuing Court proceedings against Mr Baraz in Country B will proceed and was adjourned part heard on 20 February 2024 and fixed for 15 April 2024 (part heard).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations and passages of authorities, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
The counsel for Mr Baraz (‘the Husband’) submits that I should proceed in the circumstances where Ms Delshad (‘the Wife’) has not appeared, that is proceed in her absence I accept that application because I am satisfied that the Wife has had every opportunity to participate in the hearing this day, evident in communications to and from the court and solicitors in regard to the Wife participating in the proceedings tendered and marked as exhibits H1 – H4.
Rule 15.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’) provides as follows:
15.19 Failure to attend a court event
(1)If a party to a proceeding is absent from a court event (including a first court date), the court may do one or more of the following:
…
(c) if the absent party is an applicant--dismiss the application;
(d)if the absent party is a party who has made an interlocutory application--dismiss the interlocutory application.
I take into account that the Wife has been able to appear electronically in these proceedings on two occasions, notwithstanding that she appears to currently be in Country B. I also take into account that the Wife has been able to file documents in opposition to the orders that the Husband seeks, and to file evidence, and to seek orders in these proceedings.
On this application to dismiss the spousal maintenance application under rule 15.19(1)(c) and (d), counsel for the Husband objects to any reliance on or reference to the Wife’s affidavit filed 22 January 2022 or her financial statement filed on 22 January 2024. I propose to refer to both of those documents, notwithstanding that the Wife is not available to be cross-examined on them, and this would be an interim hearing on the papers’ in any event. I do intend to have some regard to them, but the weight to be placed upon them is diminished by the circumstance that the Wife has not attended and has not explained her non-attendance.
Significant to me, apart from the rules, is that the Wife has deposed before a Justice of the Peace in City C, Country B, to not having any income, and to not having any assets, save the following:
·AUD $3000 in a Westpac bank account ending in …22;
·AUD $10,800 in a bank account ending in …38; and
·AUD $5000 worth of valuables.
The Wife deposed to otherwise not being in receipt of any income, and having what she asserts are necessary Part N expenses of $505 per week.[1] The Wife asserts total expenditure, although it is not clear upon what, of $726 per week, including rates and levies of $263. There is some disparity between the $463 of other expenditure (total expenditure less rates and levies) and the $505 claimed as Part N expenditure.
[1] Part N of the Wife’s financial statement filed on 22 January 2024, at 11.
I also consider significant that in the Wife’s affidavit, she claims that she is a member of a governing body of professionals in the United Kingdom, having 17 years professional experience in the relevant field. In my mind, that makes the Wife highly educated and highly qualified in a professional occupation. The Wife says that since early 2023, she has been surviving on her savings only, stating at paragraph 25 of her affidavit of 22 January 2024: ‘I am still not able to get a job.’ The Wife, highly qualified, asserts that she has been effectively unemployed since early 2023.
The applicable law is as set out in Sections 72 & 75(2) of the Family Law Act 1975 (Cth) and are as follows.
Section 72 Right of spouse to maintenance.
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
…
Section 75(2) Matters to be taken into consideration in relation to spousal maintenance
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
I take those circumstances into account, but nonetheless, I am satisfied that it is appropriate under Rule 15.19(1)(c) and (d) to dismiss the Wife’s application for spousal maintenance. I dismiss it on the basis that the Wife has not appeared and has not explained her absence and there is evidence within her own material that points to her being able to support herself, at least for the time being, and also the absence of any evidence as to any applications for employment or of endeavours to support herself with her highly educated and highly qualified professional experience.
I will proceed to hear the Husband’s application for an antisuit injunction.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 March 2024
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