Evanoff & Evanoff

[2021] FamCA 109

FAMILY COURT OF AUSTRALIA

Evanoff & Evanoff [2021] FamCA 109

File number(s):	SYC 4077 of 2018
Judgment of:	REES J
Date of judgment:	10 March 2021
Catchwords:	FAMILY LAW – Interim property – Application by the husband to temporarily revoke spouse maintenance orders – Application for all property proceeds to be held in the solicitor’s trust account – Where the husband hasn’t established a sufficient change in circumstances – Where the husband has not established any entitlement to that portion of the acquisition price which has been paid to his daughters – Applications dismissed.
Legislation:	Family Law Act 1975 (Cth) s 83(2)
Number of paragraphs:	26
Date of hearing:	9 March 2021
Place:	Sydney
Applicant:	In person
Solicitor for the Respondent:	Ms Golovina

ORDERS

SYC 4077 of 2018
BETWEEN:	MR EVANOFF Applicant
AND:	MS EVANOFF Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	10 MARCH 2021

THE COURT ORDERS:

1.That the Application in a Case filed by the husband on 16 September 2020 is dismissed.

2.That the Application in a Case filed by the husband on 6 August 2020 is dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Evanoff & Evanoff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. Mr Evanoff (“the husband”) and Ms Evanoff (“the wife”) are engaged in proceedings relating to their property.

2. The husband has filed two Applications in a Case. The first application, filed 6 August 2020, seeks orders in the following terms:

   Temporary revoke order imposed on 15/11/2020 to pay spousal maintenance $200.00 per/week. Until that time when the [husband] has return to work after surgery

3. The second application, filed 16 September 2020, seeks orders in the following terms:

   Applicant [wife] to transfer entire amount of $97,196.28 into the solicitor trust account. Property at address B Street, C City, Country D was sold for 97,196.28AU.

4. Both applications are opposed by the wife.

   SPOUSAL MAINTENANCE

5. The husband asserts that by reason of an injury he is unable to work and therefore unable to comply with the order.

6. The spousal maintenance order was made 15 November 2018 and requires payment of $200 per week to the wife.

7. The bases upon which a spousal maintenance order can be varied are found at s 83(2) of the Family Law Act 1975 (Cth) (“the Act”) in the following terms:

   (2)The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied

   (a)       that, since the order was made or last varied:

   (i)the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);

   (ii) the circumstances of the person liable to make payments under the order have so changed; or

   (iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;

   as to justify its so doing;

   (b)that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;

   (ba)in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;

   (c)that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.

8. The husband asserts, firstly, that he is no longer in a position to afford to pay spousal maintenance by virtue of his injury and his subsequent inability to work and, secondly, that the wife no longer needs assistance because she has the proceeds of the disposition of the apartment in Country D.

9. The latter assertion can be simply disposed of. The wife’s share of the proceeds of the apartment are held in trust by her solicitor pending the resolution of the husband’s property claim and are not available to her.

10. As to the first and primary assertion, the onus is upon the husband to demonstrate that he no longer has sufficient income to pay maintenance in accordance with the order.

11. The husband, who is a professional, injured his right knee and underwent an arthroscopy on 21 July 2020.  In relation to that injury, the husband tendered a number of documents:

    ·A document from G Organisation dated 10 February 2021 stated, inter alia, that the husband had some capacity to work.

    ·A letter dated 10 February 2021 from the husband’s doctor, stated:

    [The husband] is back at work, generally coping well but still getting some medial sided symptoms at the end of a long day.

12. In his Financial Statement sworn on 4 March 2021, the husband declared he received no income.

13. The wife tendered a number of documents:

    ·A pay advice issued to the husband showed his earnings from 1 July 2020 to 23 December 2020 to be $95,499 gross. For the week ended 23 December 2020, he earned $3,103.66.

    ·In the period 22 July 2020 to 9 December 2020, the husband banked $36,257 in wages and a further $18,955 “compensation”.

    ·A Claim Update provided by the husband’s employer, F Group showed that “[the husband] has sourced new employment & agreed to a cessation of his wages on 20 December”. The husband in the course of submissions said that he had ceased permanent employment with F Group and was now a contractor.

    ·In the financial year from 1 July 2020 to January 2021, F Group paid the husband $51,513 and a further $28,936 was owed to him.

14. The wife deposed that their daughter had told her on 26 February 2021 that the husband had just returned from work. The husband agreed that he had worked for the month before.

15. The husband has, in fact, paid the spousal maintenance which is up to date.

16. In all of those circumstances, I am not satisfied that the husband is unable to continue to pay the order in the sum of $200 per week and the application will be dismissed.

    INJUNCTION ORDER

17. The dispute relates to an apartment property in Country D.

18. The wife deposed that she and her sister occupied the apartment in 1995 and that, in 2010, the lease was passed to the wife and the two daughters of the marriage, in equal shares.

19. It is not in dispute that, in 2010, the husband signed a document in which he consented to the privatisation of the ownership of the apartment and its registration in the names of the wife and the parties’ daughters. In the document, a copy of which was in evidence, the husband specifically stated:

    By giving this consent I resign my right to privatisation of the above apartment.

20. In 2019, the wife was notified that the apartment was to be compulsorily acquired for demolition. Because the parties’ daughters were living and studying in Australia, they attended at the Country D Consulate and executed Powers of Attorney in favour of the wife, who then travelled to Country D to arrange the transfer of the apartment.

21. The wife deposed that she paid her own expenses and also was required to pay certain charges and utility bills before the transaction was completed. She did so using money borrowed from family and friends. The husband does not assert that he made any contribution.

22. The wife received $97,196.28. When she returned to Australia she arranged for one third of that amount to be transferred to each of the parties’ daughters and lodged the remaining one third share in her solicitor’s trust account.

23. The parties’ daughters are not parties to these proceedings and no order is sought by the husband in relation to their shares of the proceeds of the acquisition of the apartment.

24. In those circumstances, the husband has not established that either he or the wife has any entitlement or claim to that portion of the acquisition price which has been paid to his daughters.

25. The wife does not have control of the sum of $97,196.28.

26. The husband’s application for an order by way of injunction will be dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       10 March 2021