IBRAHIM & RAAD
[2018] FCCA 3753
•19 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IBRAHIM & RAAD | [2018] FCCA 3753 |
| Catchwords: FAMILY LAW – Interim spousal maintenance – wife unable to support herself adequately – whether the husband has the income and/or financial resources to pay – order that husband pay interim spousal maintenance – husband restrained from disposing of assets which might properly be subject of proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 68(l)(2), 72, 74(1), 74, 75(1), 75(2), 75(3), 77, 80(1) |
| Cases cited: Ashton & Ashton (1982) FLC 91-285 |
| Applicant: | MS IBRAHIM |
| Respondent: | MR RAAD |
| File Number: | MLC 6009 of 2018 |
| Judgment of: | Judge C.E. Kirton QC |
| Hearing date: | 9 July 2018 |
| Date of Last Submission: | 9 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bastick |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Solicitor for the Respondent: | Mr Griffiths via telephone |
| Solicitors for the Respondent: | Griffiths Family Law |
ORDER:
Until further order the Husband pay to the Wife the sum of $350 per week periodic spousal maintenance, with the payments to commence Friday 21 December 2018 and each Friday thereafter into such bank account as the Wife may in writing direct.
The Husband pay to the Wife the sum of $15,000 lump sum spousal maintenance within 14 days.
Until further order the Husband be and is hereby restrained from selling, further encumbering or otherwise dealing with the following properties unless agreed in writing between the parties or pursuant to order of the Court:
a)Property A in the State of New South Wales.
b) Property B in the State of Queensland.
Until further order the Husband be and is hereby restrained from selling or disposing of any shareholdings in his name or any other assets which might properly be the subject of these proceedings.
The parties’ costs of and incidental to the hearing on 9 July 2018 are reserved.
The matter be adjourned to the Federal Circuit Court of Australia on 4 February 2019 at 9.30 am for Mention.
IT IS NOTED that publication of this judgment under the pseudonym Ibrahim & Raad is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6009 of 2018
| MS IBRAHIM |
Applicant
and
| MR RAAD |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property and parenting proceedings brought by the applicant (Wife) against the respondent (Husband). This interim hearing is an application by the Wife for spousal maintenance.
The Wife also seeks injunctive orders restraining the Husband from dispersing any assets in his name pending the making of final property orders.
Issues to be determined
The Wife seeks the following orders for urgent spousal maintenance:
a)An order for periodic maintenance in the sum of $350 a week.
b)An order for lump sum maintenance in the sum of $15,000 payable within 7 days.
The Wife seeks interim orders that the Husband be restrained from selling, further encumbering or otherwise dealing with two properties, these being:
a)Property A, in the State of New South Wales (Property A Property).
b)Property B, in the State of Queensland (Property B Property).
The Wife also seeks orders that the Husband be restrained from disbursing any other assets in his name including shares and any funds in any bank accounts until further order.
Synopsis
I have made orders for interim spousal maintenance:
a)In the sum of $350 a week for periodic maintenance;
b)In the sum of $15,000 payable within 14 days.
I have made an interim order restraining the Husband from selling, further encumbering or otherwise dealing with the Property A Property and the Property B Property.
I have made an interim order that the Husband be restrained from selling or disposing of any shareholdings in his name or any other assets which might properly be the subject of these proceedings.
Background
The Husband and Wife were married in Country 1 on …2012.
The Husband was born on …1979 and is aged 39. The Wife was born on …1985 and is aged 33.
There are two children of the marriage, [X], born …2015 and [Y], born …2017 (Children).
The Husband is an Australian citizen who has been living in Australia since 2003. After the marriage, the Husband remained with the Wife in Country 1 until he returned to Australia on …2012. The Wife was unable to travel to Australia until her spousal visa was approved. The Husband visited the Wife in Country 1 during the Ramadan month in August 2012.
The Wife arrived in Australia on …2013. She lived with the Husband at the Property A Property.
The Wife secured casual employment at Employer in Sydney in …2013, where she worked about 20 hours a week until …2015 prior to the birth of [X].
After the birth of [X] on …2015, the Wife became his primary carer.
The Wife travelled to Country 1 with [X] in …2015 as her father was unwell. In …2016 the Husband went to Country 1 and lived with the Wife and his family for over three months. The Wife’s father passed away on …2016. When the Husband returned to Australia in …2016 the Wife remained in Country 1.
[Y] was born in Country 1 on …2017.
The Wife and [X] have not seen the Husband since he returned to Australia in …2016.
The Wife and [X] returned to Australia on …2017. [Y] remains in Country 1 in the care of the maternal grandmother. The Wife is now a permanent resident of Australia[1].
[1] Transcript T 5:23.
Procedural History
The Wife has filed an Initiating Application[2] (Initiating Application) seeking:
[2] Wife’s Initiating Application, filed 30.5.18.
a)Interim orders that:
i)The Husband pay the Wife $15,000 as lump sum spousal maintenance within 14 days of the orders (Lump Sum Maintenance Order);
ii)The Husband pay the Wife periodic spousal maintenance in the sum of $350 per week pursuant to s.74(1) of the Family Law Act 1975 (Cth) (Act), CPI adjusted (Periodic Maintenance Order);
iii)The payments of periodic spousal maintenance commence within one week of the making of the orders and then be weekly thereafter;
iv)The Husband be restrained from disbursing any assets in his name including funds in any bank accounts until further order;
v)The Husband pay the Wife’s costs of the interim application.
b)b) Final orders that:
i)The Wife be excused from particularising her claim for of matrimonial property until the Husband has made full and frank disclosure;
ii)The Husband pay the Wife periodic spouse maintenance in the sum of $280 per week pursuant to s.74(1) of the Act, CPI adjusted;
iii)Payments of periodic spouse maintenance commence within one week of the making of the orders and then be payable weekly thereafter;
iv)The Husband pay the Wife’s costs of the application.
The Wife filed an Affidavit[3] (Wife’s Affidavit) and a Financial Statement[4] in support of the Initiating Application.
[3] Wife’s Affidavit, filed 30.5.18.
[4] Wife’s Financial Statement, filed 30.5.18.
The Husband was served with the Initiating Application, the Wife’s Affidavit and Financial Statement on 25 June 2018[5].
[5] Affidavit of Service, filed 9.7.18.
On 6 July 2018 the Husband filed a Notice of Address for Service which indicated that the Husband was self-represented.
The Husband filed a Response[6] that also indicated that the Husband was self-represented. The Husband’s Response seeks:
[6] Husband’s Response, filed 8.7.18.
a)Interim orders that:
i)The parents be restrained from removing [X] from Australia;
ii)[X] be placed on the Airport Watch List;
iii)The Wife surrender any passport that she has for [X] to the Registrar of the Federal Circuit Court;
iv)The proceeding be transferred to the Parramatta Registry of the Federal Circuit Court;
v)The Children be independently represented pursuant to s.68L(2) of the Act;
vi)The parties attend a Child Dispute Conference pursuant to s.11F of the Act at the Parramatta Registry.
b)Final orders for:
i)Parenting orders. Five and a half pages of detailed pro forma orders are included. These proposed orders include orders that the Children live with the Husband and spend substantial and significant time with the Wife;
ii)Property orders. The Husband seeks to be excused from particularising his claim for property settlement until the Wife has made full and frank disclosure of her financial.
The Husband filed an Affidavit[7] (Husband’s Affidavit), a Financial Statement[8] (Husband’s Financial Statement) and a Notice of Risk in support of his Response.
[7] Husband’s Affidavit, filed 8.7.18.
[8] Husband’s Financial Statement, filed 8.7.18.
The Husband also filed a request to appear by telephone link[9] at the first return date of this matter in the Duty List on 9 July 2918. The request was granted.
[9] Telephone/Video link Attendant Request, filed 6.7.18.
This matter came before the Court in the Duty List at 2.50 pm on 9 July 2018. The Wife was represented by Counsel. The Respondent was self-represented and appeared via telephone link. During the course of submissions by Counsel for the Wife, the telephone connection with the Husband was terminated[10]. The Court adjourned the hearing of this matter at 3.08 pm when it became apparent the telephone connection was terminated.
[10] Transcript T 7:4-6
The Court was able to re-establish the telephone connection with a solicitor appointed by the Husband to act on his behalf. The hearing then continued shortly thereafter at 3.16 pm with the Husband’s solicitor Mr Griffiths appearing on the telephone link instead of the Husband. Mr Griffiths advised the Court he had assisted the Husband in preparing the Husband’s material responding to the Initiating Application[11].
[11] Transcript T 7:40-41.
On 9 July 2018 at 2.41 pm Mr Griffiths filed a Notice of Address for Service indicating that he acted for the Husband.
The Law – Urgent Spousal Maintenance Applications
At the hearing, Counsel for the Wife sought to make an amendment to the Initiating Application by way of an oral application. Counsel made an application that the Initiating Application be amended so that the application for spousal maintenance be made pursuant to s.77 of the Act for urgent spousal maintenance in lieu of s.74(1) of the Act for interim spousal maintenance. Counsel relied upon Clague & Clague[12] as authority that an oral application for urgent spousal maintenance could be made pursuant to s.77 of the Act.
[12] (1987) FLC 91-810, at 76, 108.
Counsel also sought in a minute of proposed orders handed up to the Court that the Lump Sum Maintenance Order be made payable within 7 days.
The Court has power under s.77 of the Act to order urgent spousal maintenance without the detailed inquiry required by s.74(1). Section 77 provides:
Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.
In Ashton & Ashton[13] the court considered the differences between urgent and interim maintenance. Nygh J said:
[13] (1982) FLC 91-285.
An application for interim maintenance is basically different from an application for urgent maintenance. An application under s. 77 is heard at a time when all the evidence is not yet to hand. It may have to be made ex parte or may have to be made on such evidence as the husband is able to supply in the short period before the matter is set down for hearing. An application for interim maintenance is a creature whose exact nature has not been adequately defined but, as I understand it, differs only from an application for permanent maintenance in that the order which is sought is an order until further order.
[…]
On an application for interim maintenance, the normal procedures relating to applications for maintenance under s.74 must be observed and an application for maintenance can only be heard after each party has had the opportunity to adduce evidence, that is to say, the normal procedure for the filing of affidavits by both parties and the filing of financial statements must be observed[14].
[14] Ibid., at 77-613, 77-614.
In Malcolm & Malcolm[15] Watson SJ described the purpose of s.77 as being:
[…] to provide emergency funding in those cases where the court is unable to determine immediately what order should be made[16].
[15] (1977) FLC 90-220.
[16] Ibid., at p. 76, 145.
In Baber & Baber[17] Lambert J said:
Since both parties have placed detailed particulars of their financial circumstances before the court in affidavit form, it is, in my view, inappropriate to consider the present application under the provisions of s.77 of the Family Law Act, and a determination should be made under s.72 of the Act leading either to the making of an order of an interim nature under s. 80(h) or an order refusing the application[18].
[17] (1980) FLC 90-901.
[18] Ibid., at p.75, 672.
Consideration and Conclusion – Urgent Spousal Maintenance Applications
In this proceeding both the Wife and the Husband have filed interim and final applications supported by affidavits and financial statements.
I accept the submission by Counsel for the Wife that an application for urgent spousal maintenance may be made orally, as in Clague & Clague[19].
[19] (1987) FLC 91-810, at 76, 108.
However Ashton & Ashton[20] and Baber & Baber[21] indicate that when the Court has before it detailed particulars of the parties financial circumstances in affidavit form, a determination should not be made under s.77.
[20] (1982) FLC 91-285.
[21] (1980) FLC 90-901.
Accordingly, I have determined to refuse the Wife’s application to amend the Initiating Application to refer to s.77 of the Act in lieu of s.74(1) for spousal maintenance. I will now proceed to consider the application in accordance with s.74(1).
The Law
The law in relation to spousal maintenance is located in Part VIII of the Act. Section 80(1)(b) provides that the Court may make an order for the payment of a weekly, monthly, yearly or other periodic sum.
Section 72 of the Act sets out the requirements for an order for spousal maintenance. Section 72 provides as follows:
(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).
Therefore the first matter which must be answered in order to determine the rights of a party to spousal maintenance, in this case the Wife, is whether or not she has demonstrated that she is unable to support herself by reason of one of the factors set out in s.72(1).
In Bevan & Bevan[22] the Full Court considered the power of the court to make orders under s.74 and said the following:
[22] (1995) FLC 92-600.
Taken together then, we would state the law as being that an award of spousal maintenance requires:
1. a threshold finding under s.72;
2. a consideration of s.74 and s.75(2);
3. no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit;
4. discretion exercised in accordance with the provisions of s.74, with “reasonableness in the circumstances” as the guiding principle[23].
[23] Ibid., at pp. 81, 981-81, 982.
The Wife has the care and control of [X] who is aged 3 and her only source of income is $512 per week that she receives from the Family Tax benefit and the Special Benefit[24]. I am satisfied that the provisions of s.72(1) have been satisfied as to the first requirement.
[24] Wife’s Affidavit, at [37].
Section 74(1) of the Act provides that:
In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
Section 75 states the following:
Matters to be taken into consideration in relation to spousal maintenance
(1) in exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
Section 75(2) then sets out the matters the Court must take into account when deciding whether to make any order for spousal maintenance. The following list is an exhaustive list as the Court may only take into account the matters referred to in s.75(2).
Section 75(2) provides:
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 physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of the 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;
(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 other party; and
(g) whether 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 the party to undertake a course of education or training or to establish him 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 creditors 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 in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIAB 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 agreement 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.
Section 75(3) states that:
In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
Consideration
The Wife in this case claims that she is in need of spousal maintenance from the Husband because she has no means of support apart from any Centrelink benefits to which she is entitled. These Centrelink benefits are to be disregarded when considering an application for spousal maintenance pursuant to s.74 by reason of s.75(3).
I will now consider each of the matters referred to in s.75(2) as far as they are relevant.
Section 75(2)(a) the age and state of health of each of the parties;
The wife is 33 years of age, having been born on …1985. She has deposed that she has reasonable health but that she is suffering from anxiety as [X] is experiencing some developmental delays and because she is separated from [Y][25].
[25] Wife’s Affidavit, at [37].
The Husband is 39 years of age, having been born on …1979. The Husband was in good health during the marriage and to the best of the Wife’s knowledge remains in good health.
Section 75(2)(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;
Wife
The Wife has an income of $512 a week, comprised of $213 from the Family Tax Benefit and $299 from Special Benefits. The Wife otherwise owns no property or assets[26].
[26] Wife’s Financial Statement, at [2].
The Wife has deposed that she studied a Qualifications at Country 1,University from 2004 to 2006. She worked as a professional in Country 1 for two months from …2011 before marrying the Husband in …2012[27].
[27] Wife’s Affidavit, at [5].
The Wife completed a course at TAFE and studied subjects… in 2013. She obtained casual employment at Employer in Sydney in …2013, where she worked about 20 hours a week until …2015 prior to the birth of [X]. The Wife has not been in paid employment since …2015, as she has been the primary carer of [X] and then also [Y], whilst she was in Country 1.
Husband
The Husband works as an tradesman and occasionally as a tradesman. He has deposed that during the 2017/2018 financial year his taxable income was $40,183[28]. He has deposed that his average weekly taxable income is approximately $772.75[29]. In relation to the Husband’s income I refer to the discussion in relation to s.75(2)(na) of the Act.
[28] Husband’s Affidavit, at [8].
[29] Ibid., at [31].
The Husband completed an course at University[30].
[30] Ibid., at [9].
The Husband’s Financial Statement discloses that he is the sole owner of property to the value of $1,057,458.78, which includes:
a)The Property A Property, which he values at $425,000; and
b)The Property B Property, which he values at $620,000[31].
[31] Husband’s Financial Statement, at [35].
The total of the Husband’s liabilities is $724,927.20, leaving an equity of $332,531.58[32].
[32] Ibid., [2].
The Husband’s Financial Statement discloses a number of bank accounts. Four are held in the Husband’s name with the Commonwealth Bank and three are held with the National Australia Bank. One account with the National Australia Bank had a balance of $5,235.38 whilst the other accounts held nil balances or nominal amounts.
The Husband deposes:
I owned a small number of shares. However, I’ve not received a profit from the shares that I owned, and I’m not a share trader”[33].
[33] Husband’s Affidavit, at [8].
The Wife deposes that the Husband began trading shares in approximately May 2014[34].
[34] Wife’s Affidavit, at [14].
The Husband’s Financial Statement indicates that the Husband has disposed of shares to the value of $9,809[35].
[35] Husband’s Financial Statement, at [59].
At the hearing Counsel for the Wife produced a copy of screen shots of account details for Commonwealth Bank Account No. …(CBA Account), for the period 21 June 2018 to 8 July 2018 (CBA Account Records). Counsel for the Wife said that the CBA Account was held jointly by the Husband and the Wife[36]. The CBA Account is one of the accounts disclosed by the Husband in his Financial Statement.
[36] Transcript T 9: 26-32 and 11:1-25.
The CBA Records indicate that on Friday 29 June 2018, $17,033.14 was paid into the CBA Account from ‘Company A PL’. Company A is an online financial products trading platform.
On Sunday 1 July 2018, $2,000 was withdrawn from the CBA Account from a Commonwealth Bank automatic teller machine in Suburb P. The next day on Monday 2 July 2018, $12,000 was withdrawn from the CBA Account at a bank branch in Suburb P. On Friday 6 July 2018, $2,900 was withdrawn at a bank branch in Suburb R. In total $16,900 in large amounts were withdrawn from the CBA Account after 29 June 2018. On 7 July 2018, the Husband deposed in his Financial Statement that the balance of the CBA Account was $163.73.
Section 75(2)(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The Wife has been the primary carer of [X] since separation from the Husband. [X] has special needs and requires speech therapy. [X] has been referred to a paediatrician at the Royal Children’s Hospital, who he sees every two months for fluid in the ears and vision problems. [X] is also consulting an ophthalmologist.
The Wife intends to bring [Y] to Australia from Country 1 as soon as possible[37]. The Husband has deposed that [Y] has not been able to come to Australia because of her immigration status and that the Department of Home Affairs is processing [Y]’s visa application[38].
[37] Wife’s Affidavit, at [39].
[38] Husband’s Affidavit, at [23].
Section 75(2)(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;
After returning to Australia in …2017, the Wife and [X] lived with a friend and her family. From 12 May 2018, the Wife and [X] lived in different motels provided by Community Housing in Suburb S. In May 2018, Community Housing obtained rental accommodation for the Wife and paid the bond of $1,260 and the first month’s rent of $1,260, as the Wife could not afford to do so.[39] The weekly rental is $290, leaving the Wife $222 for all other expenses. The Wife’s Financial Statement indicates that her average weekly expenses are $375 a week, exclusive of rent. The Wife’s total weekly expenses are therefore $670 a week exclusive of utilities.
[39] Wife’s Affidavit, at [30].
The Salvation Army has assisted the Wife with some limited furniture. The Wife seeks the Lump Sum Maintenance Order so that that she can purchase items such as a washing machine, fridge, microwave oven, a cot, a pram and furniture.
The Wife deposes that she is unable to afford purchase a car, which she would like to be able to do as she will have two young children to care for. She is also unable to afford entertainment or an internet connection to her accommodation. [40]
[40] Wife’s Financial Statement, at [60].
The Husband’s Financial Statement indicates that the Husband’s weekly income is $1,397.75, which is made up of rental income of $625 and income of $772.75. The Husband’s weekly expenditure is $1,650.93.
It noted that the Husband’s expenditure as listed in his Financial Statement includes $246.58 a week for child support which he has not paid[41]. The Husband claims $330 a week in personal expenditure in the Financial Statement[42]. The Husband claims $30 a week for holidays[43].
[41] Transcript T 12:33-34.
[42] Husband’s Financial Statement, at [60].
[43] Ibid., at [60].
Section 75(2)(e) the responsibilities of either party to support any other person;
Neither party has disclosed an obligation to support any other person.
Section 75(2)(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;
any law of the Commonwealth, of a State or Territory or of another country;
The Wife has an income of $512 a week, comprised of $213 Family Tax Benefit and $299 Special Benefits[44].
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
[44] Wife’s Financial Statement, at [12].
This is not a relevant consideration.
Section 75(2)(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
The Wife deposes that prior to separation, the Husband and the Wife ate out in restaurants once every two months and occasionally went on weekend trips to the snow, beach and the Region 1[45]. The Wife is unable to afford these activities now.
Section 75(2)(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;
[45] Wife’s Affidavit, at [42].
This is not a relevant consideration.
Section 75(2)(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;
This is not a relevant consideration.
Section 75(2)(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;
Whilst the parties were living together the Wife performed household chores and was the primary carer of [X] from his birth. The Wife also contributed her income when she was working at Employer in Sydney from …2013 to …2015.
Section 75(2)(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;
The Wife relocated from Country 1 to live with the Husband in Australia after the marriage. The Wife is unable to work in Australia due to her responsibilities to care for [X]. The Wife intends to bring [Y] to Australia as soon as possible.
Section 75(2)(l) the need to protect a party who wishes to continue that party’s role as a parent;
The Wife wished to continue in her role as the Children’s primary carer.
Section 75(2)(m) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;
There is no evidence before the Court that either party is cohabitating with another person.
Section 75(2)(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;
This is not a relevant consideration.
Section 75(2)(naa) the terms of any order or declaration to be 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 defacto 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 either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
This is not a relevant consideration.
Section 75(2)(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;
Following separation in September 2016, the Husband did not pay child support for [X]. A child support assessment was made on 23 January 2018 for the amount of $60.50 per month[46]. This was based on the Husband’s 2016/17 taxable income being $28,806 per annum. The Wife received her first payment of $60 in March 2018.
[46] Wife’s Affidavit, Annexure “AI3”.
Counsel for the Wife submitted that the Wife had only received two payments of child support of $60 each[47].
[47] Transcript T 12:33-34.
In February 2018, the Wife applied for a Change of Assessment. The Change of Assessment was successful and the Wife received a Decision Regarding Change of Assessment, dated 4 May 2018 (Assessment Decision)[48]. The Assessment Decision assessed the child support to be $246.58 a week and set the Husband’s child support income at $106, 850 per annum. As a result the Husband was $3,742.22 in arrears.
[48] Wife’s Affidavit, Annexure “AI4”.
The Assessment Decision records that:
In considering this matter [the Husband] has chosen to provide limited information in relation to his financial circumstances…Overall I find that [the Husband] has not provided full and frank disclosure of his financial position[49].
[49] Ibid., at p. 4.
The Assessment Decision records that:
a)There were three active savings accounts in the Husband’s name that held savings with a balance of $28,773.
b)That the Husband was servicing loan repayments of $35,208 per annum and all the loans were up to date.
c)In obtaining recent loans the Husband had declared his income to be $106,850.
d)The Husband was “most likely involved in share market trading”[50].
e) The Husband “clearly has access to other resources which have not been disclosed”[51].
Section 75(2)(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
[50] Ibid., at p.5.
[51] Loc. cit.
All relevant considerations are included in this judgement.
Section 75(2)(p) the terms of any financial agreement that is binding on the parties to the marriage;
This is not a relevant consideration.
Section 75(2)(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage;
This is not a relevant consideration.
Conclusion
At the time of the Assessment Decision the Husband held savings of $28,733. The Husband’s Financial Statement indicates that the Husband has savings of $5,293.05. The Husband’s Affidavit does not provide an explanation as to the difference in savings of $23,439.95.
After the Husband was served with the Initiating Application on 25 June 2018, $17,033.14 was deposited into the CBA Account from “Company A Pty Ltd”. The Financial Statement, which was deposed to by the Husband on 7 July 2018, indicates that the balance of the CBA Account was $163.73. The Husband’s Affidavit does not provide an explanation as to what he has done with the $16,900 withdrawn from the CBA Account.
I rely upon the Assessment Decision and the CBA Account Records as providing independent evidence of the Husband’s financial circumstances.
I determine that for the purposes of this interim decision it is reasonable in all the circumstances to make the Lump Sum Maintenance Order and Periodic Maintenance Order. I have made orders accordingly.
I also determine that in the circumstances I will make interim orders for the injunctive relief to prevent the disbursement of any assets.
I have reserved costs, in the event that the parties have specific submissions in relation to costs.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 19 December 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Judicial Review
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Procedural Fairness
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Injunction
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Costs
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Remedies
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