GHAZI & GHAZI

[2015] FamCA 396

FAMILY COURT OF AUSTRALIA

GHAZI & GHAZI [2015] FamCA 396

FAMILY LAW – PROPERTY – Interim property – Where the wife sought an order that a property be sold and an amount of money be paid to her by way of interim property settlement – Where the husband opposes the payment to the Wife – Dispute over ownership of property – Order for sale of property and Wife to be paid a lump sum.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim – The wife seeks an interim spouse maintenance order of $400 per week – Husband opposes on the basis that the Wife can self-support – Order for $400 per week to be paid to the Wife from surplus of moneys held in mortgage account on an interim basis.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Ghazi

RESPONDENT: Mr Ghazi

FILE NUMBER: SYC 7129 of 2014

DATE DELIVERED: 22 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 15 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: Walter Madden Jenkins Solicitors

COUNSEL FOR THE RESPONDENT: Mr Maurice

SOLICITOR FOR THE RESPONDENT: Crawford Ryan Lawyers

Orders:

Pending Further Order:

1. The parties are to cause the wife to be paid the sum of $100,000 pursuant to section 79 of the Act. Such payment to be made by:

   (a)       The sale of the parties’ German sports car;

   (b)Such other source as the parties may agree upon or such other source as ordered by the court.

2. The wife is to have carriage of the sale of the German sports car subject to the following:

   (a) The wife is to cause her legal representative to endeavour to reach agreement with the husband’s legal representative as to the sale price and the method of sale. If no agreement can be reached then the wife is to determine those matters and be in a position to justify same at the final hearing of the property application.

   (b) The wife is to advise the husband forthwith upon the sale of the German sports car being completed, details of the sale price received together with name of the purchaser.

   (c) Upon a sale being effected the wife is to cause any lease or hire-purchase agreement/contract obtained for the purpose of acquiring the German sports car to be discharged or paid out.

   (d) Should the net sale proceeds provide greater than $100,000 then the excess is to be deposited into a controlled monies account held by the wife’s solicitor on behalf of both parties.

3. In order to facilitate the sale of the German sports car the husband is to forthwith deliver the vehicle to the wife together with all keys and the registration papers for the vehicle.

4. The wife has liberty to re-list the matter for the enforcement of order 1 hereof upon giving 14 days’ notice to the husband and to the court.

5. Each party otherwise has leave to relist the matter on short notice should that be required.

6. The parties are to cause the payment of $400 per week from the surplus (advance payments) currently standing in the mortgage account of the parties with Westpac Banking Corporation relating to the property at B Street, Suburb C to be paid to the wife. The characterisation of that payment as either an interim property order or an interim spouse maintenance order to be determined by the court at the time of the final determination of the financial proceedings in the court.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7129/2014

Ms Ghazi

Applicant

And

Mr Ghazi

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the court is an application by the wife seeking financial orders as set out in her Amended Application in a Case filed 8 May 2015. She also relies upon her Amended Initiating Application filed 23 March 2015, her affidavit filed 23 March 2015, her Financial Statement filed 23 March 2015 and the husband’s Response to Initiating Application filed 20 February 2015.

2. The orders pressed by the wife in this hearing seek a payment of $100,000 pursuant to s 79 of the Family Law Act. She seeks that if that payment is not made to her by the husband within 14 days, the parties cause the property at D Street, Suburb E, to be sold and the net proceeds provided as to 70 per cent to the wife and remainder to the husband. As an alternative to the sale of that property, the wife would consent to an order that the parties do all things necessary to obtain a loan of $100,000 secured over the D Street property.

3. The wife seeks an interim spouse maintenance order of $400 per week, with the order to be made initially pursuant to s 77 of the Act.

4. The husband relies on his Response to Initiating Application filed 20 February 2015, his Response to the wife’s application in a case filed 1 May 2015, his affidavit in support filed 1 May 2015, and his Financial Statement filed that same day.

Wife’s evidence

1. In her Amended Initiating Application filed 23 March 2014, the wife sought interim property orders, including the requirement for the sale of a property at B Street, Suburb C, the sale of a property at D Street, Suburb E, the sale of F Street, Suburb G, and from the net sale proceeds of all those properties, the wife receive 70 per cent of same. The wife sought other declarations in relation to chattels and a property at H Street, Suburb I. She also sought a continuing spouse maintenance order of $400 per week.

2. In her supporting affidavit filed 23 March 2015, the wife provided evidence to support her interim orders. That evidence included the following;

3. The parties were married in Country J in 1999, and separated on 8 February 2014. The wife is 42 years of age. The husband is 43 years of age. Both parties are in good health. The wife was a resident of Country J until January 2000 when she travelled to Australia.

4. There are two children of the marriage, K born in 2002 (13) and L born in 2005 (9).

5. At the commencement of cohabitation, the wife had assets comprising jewellery and personal effects which she estimates to have a value of about $5000. The husband had an interest in a warehouse at Menai, which she estimated to have a value of about $360,000, however, it was subject to a mortgage of approximate $160,000. The husband conducted his business under the corporate identity M Pty Ltd. The company operated from premises which at that time it rented at D Street, Suburb E.

6. In about August 2001 the husband purchased the residence at B Street, Suburb C (the former matrimonial home) for $617,000, secured by a mortgage to Westpac Banking Corporation. Renovations were carried out to that property. The parties thereafter commenced occupying the former matrimonial home.

7. When the wife arrived in Australia, she obtained employment with Westpac for a short period, thereafter she worked as a bookkeeper for M Pty Ltd.

8. The wife claims she has made contributions during the course of the cohabitation which fit within the description set out in s 79(4) of the Family Law Act.

9. The wife has no family in Australia. She is, since separation, the primary care giver for the children K and L. The wife wishes to continue her role in caring for the children on a daily basis.

10. Since separation the wife and children have lived in the former matrimonial home.

11. The wife’s employment with M Pty Ltd ceased in about April 2014. She had attended at that workplace two or three days each week for several hours and was otherwise able to fulfil her role as parent and homemaker.

12. Between April 2014 and 19 December 2014, the wife was employed on a casual basis with N Pty Ltd. She worked 15-20 hours per week. The hours she worked enabled her to take the children to and from school each day. In November 2014, she obtained other part-time work where she was paid $100 per day, however, that work has now ceased. Following her cessation of work in December 2014, the wife has applied for several jobs without success. She did obtain work on a commission basis, however, that only produced about $30 per week in income. She has also sold items on E-bay to raise money for her support and that of the children.

13. Both children are engaged in extra-curricular out of school hours activities which the wife takes them to.

14. In order to improve her income and obtain employment which was consistent with and permitted her ongoing care of the children, the wife has commenced a degree. She is undertaking full-time studies which requires 40-50 hours per week.

15. When the children were younger, the parties enrolled L at O School and K at P School. In 2007, K commenced kindergarten at P School. She has continued there and is now in year eight. Her fees are $6,529 per term, however, she has a music scholarship and now pays only 35 per cent of the term fee. There is an additional charge of $621.

16. In 2010 L commenced pre-kindergarten at O School. He is currently in year four. His tuition fees are $5,140 per term.

17. In February 2014, the husband expressed a view that the children should now attend public schools. Until mid-2014, the husband paid the school fees for both children. His brother and sister-in-law paid the school fees for the second half of 2014. In February 2015 the husband contacted both children’s schools and told them the children would be leaving at the end of Term one. The wife is opposed to that occurring.

18. The wife set out details of some of the husband’s business dealings during the course of cohabitation. The purpose of so doing was to emphasise the complexity of the financial arrangements of the parties. As such, the wife says she is in need of legal representation.

19. The wife annexed to her affidavit a letter from her lawyer detailing the estimated legal costs and disbursements for the proceeding. In that letter the wife was told that the costs associated with the Application in a Case, currently under consideration, would be $13,200. Further, the Final Hearing would have an estimated cost of $44,000. Presently the wife has incurred $35,390 in costs and paid only $16,052. She therefore has a current and predicted liability for legal costs of some $75,000. In addition, there will be fees required for expert real estate valuation, valuation of chattels and expert services to investigate financial transactions and provide reports.

20. The letter from the wife’s solicitors advised that they are not prepared to be responsible for payment of ongoing disbursements, experts’ fees or counsel’s fees. The solicitors are not prepared to carry the legal costs on behalf of the wife.

21. The wife has borrowed $20,000 from St George Bank, from which she paid $10,371 to her lawyers. The wife has no further capacity to raise funds to meet her legal costs.

22. Annexed to the wife’s affidavit and marked Exhibit MG4 is a letter dated 17 October 2014 whereby Mr and Ms Q seek payment from the husband and the wife of approximately $1.5 million. The wife admits that the parties are indebted to the Qs in the sum of $400,000. She notes that the husband in his Financial Statement sworn 18 February 2015 asserts a debt of $1,002,000 to the Qs.

23. Other correspondence which is attached to the wife’s affidavit advises of impending proceeding against the husband and wife by the Qs in the Supreme Court of NSW.

24. As a consequence of the indebtedness to the Qs, there is a considerable dispute between the parties as to the amount owing.

25. The wife relied on her Financial Statement sworn 23 March 2015. That shows an income of $518 per week totally comprised of government benefits. The wife discloses a payment made on her behalf covering mortgage and rates together with car lease of $1,153 per week by the husband. Her total weekly expenses amount to $1,853. She discloses savings of about $3,600. She has jewellery valued by her at $8,540.

26. In relation to her liabilities, the wife has an outstanding tax liability of $5,550. She has a loan owing to St George Bank of $10,372, and credit card liability of $2,505. She also has outstanding legal costs. The wife discloses liabilities to the children’s school for outstanding school fees.

27. As stated earlier, the wife relied on the husband’s Response to her Initiating Application. That document was filed on 20 February 2015. In particular, the wife relied on paragraph two of the final orders sought by the husband, namely “that the husband shall within three months of the date of these orders pay to the wife the sum of $510,000.”

Husband’s evidence

1. At the commencement of the proceeding, the husband identified the documents which he relied on. He also acknowledged that an order had been made on 2 March 2015 requiring him to answer requests for specific disclosure. He conceded he had not complied with the order, but will do so by close of business 19 May 2015.

2. The husband otherwise relied on his Response to the Initiating Application of the wife filed 20 February 2015, his Response to the wife’s Application in a Case filed 1 May 2015, his affidavit filed 1 May 2015 and his Financial Statement filed 1 May 2015.

3. In his Response to the wife’s Application in a Case, the husband seeks that the wife’s application be dismissed. He seeks that she pay his costs.

4. In his Financial Statement sworn 1 May 2015, the husband discloses an income of $1,771 per week and personal expenditure of $3,746 per week. He estimates his assets to be $3,150,000 and he claims liabilities of $2,100,000.

5. The husband is employed by M Pty Ltd.

6. Relevantly, one of assets disclosed by the husband is a German sports car, which the husband claimed to be the owner of. It is the wife’s case that the sports car is registered in her name. The husband estimated the sports car to have market value of about $75,000. In submissions there was indication through his counsel that the sports car may well realise a higher sum on sale than $75,000.

7. As part of the wife’s case, she tendered a Financial Statement sworn by the husband on 16 July 2014. That disclosed the husband had an income of $1,668 per week and liabilities of $1,555 per week.

8. It is noted that in each of the Financial Statements of the husband referred to in these reasons, he says he is paying no child support or maintenance. There is, however,  a child support assessment which is annexed to the affidavit of the wife disclosing that in the period 16 September 2014 to 10 March 2015 the husband’s fortnightly child support payment was assessed at $101.34.

9. The husband relied on his affidavit sworn 1 May 2015. In that document he set out matrimonial history, details of his employment, and that of the wife, details of the purchase of “the old swimming pool”. The evidence relating to the old swimming pool was given, it seems, for the purpose of disclosing a debt owing to “the Qs” of in excess of $1 million.

10. The husband then set out his evidence in relation to the acquisition of assets during the course of cohabitation. In relation to the sports car the husband says it is currently under a lease arrangement and there is approximately $46,000 owing on the vehicle.

11. The husband says he is not in a position to pay a lump sum payment of $100,000 as sought by the wife. He opposes the sale of the D Street property. That is the property from which M Pty Ltd Computers business is conducted. If the property was sold, the husband fears the business would become unprofitable.

12. The husband says that he has paid his solicitors a sum of $8,000 on account counsel’s fees and paid some other funds. He is indebted to his solicitors.

13. In relation to the periodic spouse maintenance sought by the wife, the husband claims he is not in a position to meet any such payment. He asserts that the wife can obtain employment to support herself as she has in the past.

14. Exhibit H1, tendered on behalf of the husband, is a letter from his lawyers dated 15 May 2015. That document discloses that the husband has paid $24,000 on account of legal costs as at 15 May 2015.  He owes $6,657 in outstanding costs. Other details of his estimated future costs disclose that he can expect to be billed between $100,000 and $118,000.

Submissions

1. Submissions on behalf of the wife put that the wife has a minimal entitlement to property orders in the sum of $500,000 as disclosed by the husband’s Response to Initiating Application. It is submitted that the wife now needs a lump sum, as claimed, of $100,000 in order to prosecute the litigation. There is a corporation to be valued and real estate to be valued.

2. The wife points to the sports car which is said to have a value of about $75,000, subject to a lease payment of about $40,000. There is substantial real estate and funds could be raised by borrowings against that real estate in order to provide the wife with a capital sum. Although the wife made the offer in her Application in a Case, such offer has been rejected out of hand by the husband, through his counsel, for reasons which were really unexplained.

3. The wife seeks a periodic maintenance sum. She has the predominant care of the two children. There is no child support being paid by the husband. The wife is undertaking a pre-teaching course in order to improve her financial circumstances so that she might obtain employment which is consistent with ongoing care of the children.

4. The wife says the husband does have a capacity to pay spouse maintenance and this is made evident by the fact that he has been able to afford a recent holiday trip to the United States. He can afford to run the sports car. The mortgage payments required for the mortgage on the former matrimonial home, which is occupied by the wife at B Street, Suburb C, are substantially in advance and he is not meeting those instalments.

Periodic Interim Spouse Maintenance

1. I accept the evidence of the wife that she is unable to support herself adequately at this time. I accept that it is in her interests and in the interests of the children that she undertake the course of study she is presently enrolled in, as this will give rise to employment for her in the future which will enable her to fulfil her obligations to the supervision of the children before and after school and also provide her with an income to support herself and the children. I am satisfied that the wife has established a need for spouse maintenance in the sum of $400 per week.

2. The husband’s Financial Statement discloses that he is not making the payments specified at Items 21, 23 and 28 of his Financial Statement. However, excluding these expenses still creates a circumstance where his income is less than his reasonable expenses. Further, he has not shown a payment for child support and I am advised by the parties’ counsel that there is a current child support assessment which requires the husband to make a payment.

3. No explanation has been provided by the husband as to the cost incurred of his recent holiday to the United States and how that was paid for.

4. Without specifying an amount, the evidence discloses that the mortgage payments in respect of the property at B Street, Suburb C are in advance. There appears to be no reason why the parties cannot draw $400 a week from the mortgage advance in order to meet the wife’s current immediate need for spouse maintenance. I propose to so order.

The wife’s lump sum payment application

1. The wife seeks a payment of $100,000. She seeks that be sourced from the sale of real estate. The wife will apply the $100,000 to meeting legal costs associated with the proceeding, together with other liabilities such as children’s school fees and expenses.

2. The husband by the final orders he seeks acknowledges that the wife has a substantial property case to be met. It is appropriate to make a partial property order.

3. It is clear that the sports car is surplus to the parties’ needs and can be sold. I propose to make an order for the sale of the sports car and the payment of the net sale proceeds to the wife. The sale should be under the wife’s direction, however, the mechanics of the sale should be the subject of consensus if at all possible.

1. Should the sale of the sports car not be sufficient to meet the wife’s immediate needs as specified in her affidavit material, then she has leave to seek further orders in relation to the realisation of a fund to meet that order.

2. For those reasons I make the orders set out herein.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 22 May 2015.

Associate:

Date:  22 May 2015