Irfan and Amin (No 2)

[2021] FamCA 162

FAMILY COURT OF AUSTRALIA

IRFAN & AMIN (NO. 2) [2021] FamCA 162

FAMILY LAW – PROPERTY SETTLEMENT – Interim orders – where the wife seeks orders for litigation funding, interim spousal maintenance and the costs of her return to Australia – where the husband resists these orders on the basis that he does not have the capacity to pay – where the evidence suggests that the husband does not have the capacity to pay – wife’s application dismissed.

Family Law Act 1975 (Cth)

Irfan & Amin [2021] FamCA 72

APPLICANT: Ms Irfan

RESPONDENT: Mr Amin

FILE NUMBER: MLC 900 of 2021

DATE DELIVERED: 25 March 2021

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: McEvoy J

HEARING DATE: 19 March 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Jones

COUNSEL FOR THE RESPONDENT: Ms Bryan

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes Lawyers

Orders

1. Orders 1, 2 and 3 of the wife’s application in a case filed 29 January 2021, as amended on 23 March 2021, are dismissed.

2. All extant interim applications of both parties be adjourned to 8 June 2021 in the Judicial Duty List before the Honourable Justice McEvoy.

3. There be liberty for the parties to apply.

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 Irfan & Amin 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 MELBOURNE

FILE NUMBER: MLC900 of 2021

Ms Irfan

Applicant

And

Mr Amin

Respondent

REASONS FOR JUDGMENT

1. By an initiating application dated 29 January 2021 the applicant wife, Ms Irfan (“the wife”) sought, amongst other things, interim orders for spousal maintenance, partial property settlement, litigation funding and an urgent in personam order requiring the husband Mr Amin (“the husband”) to take steps to remove a travel ban which had been imposed on the four children of the marriage who reside with the wife in the Country B.

2. The wife’s application for interim orders was heard in the Judicial Duty List on 16 February 2021. On that occasion the husband made an application to have the matter adjourned until he could obtain legal advice to assist him to respond to the wife’s material. Whilst the wife’s solicitor was content for the matter to be adjourned, he pressed the Court to make, on an interim basis, an order that the husband forthwith do all things and sign all documents necessary to effect the immediate removal of the travel ban presently in place pursuant to the law of the Country B which inhibits the international travel of the four children of the marriage. He further made an oral application that the husband’s name be placed on the Airport Watch List in order to prevent the husband from leaving the Commonwealth of Australia and so preserving the husband’s amenability to the process of the Court.

3. Orders were made on that day placing the husband’s name on the Airport Watch List and requiring him to do all acts and things to effect the immediate removal of the travel ban in Country B: see [2021] FamCA 72. Orders were also made adjourning the remainder of the wife’s interim application to 2 March 2021. The wife’s interim application was later administratively adjourned to 19 March 2021.

4. The husband filed responding material, including a Response to Final Orders, an affidavit, and a financial statement late on 17 March 2021. In his Response, the husband seeks, amongst other things, that the interim orders sought by the wife in her initiating application be dismissed, that his name be removed from the Airport Watch List as well as orders for costs and for valuations and a family report to be prepared. He filed a further affidavit on 18 March 2021 providing a certified translation of orders of the Religious Court in Country B dated 9 March 2021 which would seem to annul the travel ban orders which had been put in place preventing the children from leaving Country B.

5. Given the late filing of the husband’s material, the Court enquired of the wife’s solicitor by email on 18 March 2021 whether the matter was ready to proceed, or whether the wife required time to file additional material in support of the interim orders she sought. The wife’s solicitor confirmed that same day that the wife wished to proceed the following morning.   

6. On the morning of 19 March 2021 the wife’s solicitor filed an outline of submissions in support of certain orders for interim property settlement, spousal maintenance and litigation funding. These orders, which were in place of the interim relief which the wife had sought in her initiating application, were set out in the outline of submissions.

7. However after the matter was called on the wife’s solicitor requested that the matter be stood down to allow him further time to prepare a revised minute of proposed orders and a tender bundle of documents drawn from the husband’s financial disclosure which had only recently been received. The Court informed the parties that no more than two hours had been allocated for the further hearing of the wife’s interim application, but agreed to stand the matter down.

8. Just after 10:30am, the wife’s solicitor provided a further minute of proposed orders as follows:

   1.The husband direct his solicitors to transfer the sum of $5,000 held in its trust account to the wife’s solicitors.

   2.The husband pay the wife $1,000 per week by way of interim spousal maintenance.

   3.The husband pay the costs associated with the wife and children’s immediate travel to Australia, with such payment to be made as follows:

   a)the wife’s solicitor shall provide to the husband’s solicitor a proposed itinerary for flight tickets for her and the children with economy class flights to Australia in the most direct route available including pricing details and method for payment;

   b)upon receiving particulars set out at 3(a), the Husband shall make payment for those flights within 72 hours of receipt;

   4.The husband pay to the wife $60,000 by way of interim property settlement within 30 days.

   5.If payment is not made in accordance with order (4), the matter be set down for further interim hearing.

9. Upon the resumption of the hearing at 11.15am, counsel for the father informed the Court that the parties had reached an agreement to sell an apartment they jointly owned in Country B, and to orders for a family report.

10. For his part the wife’s solicitor indicated that in addition to these consent orders he pressed orders 1-3 as set out in the wife’s further proposed minute of orders (above). He conceded that there was not sufficient evidence to press for order 4 and 5 at this time, but reserved the wife’s position to agitate for relief in those terms at a later date.

11. In the time which remained the wife’s solicitor submitted that the husband should be ordered to direct his solicitors to transfer the sum of $5,000 held in its trust account to the wife’s solicitors. He did so initially on the basis of an asserted excess of funds standing to the husband’s credit in his solicitors’ trust account. The evidence of this was said to be found in a “tender bundle” of documents emailed to the Court by the wife’s solicitor. It was contended that as this financial resource was available to the husband, it would be appropriate in all the circumstances that it be applied in payment of legal fees already incurred by the wife so as to level the playing field between the parties.

12. It was submitted by the wife’s solicitor that the P Bank statements from the husband’s company, Q Pty Ltd, provided evidence that the husband was claiming a much lower income than he is actually able to derive from his company by funding his lifestyle through his business. On this basis, the wife’s solicitor submitted that the husband had a capacity to pay the relevant amount, and that these statements also provided sufficient evidence of a financial resource available to the husband to permit the making of order 3 so as to enable the repatriation of the wife and children from Country B to Australia. The wife’s solicitor also submitted that it would be appropriate that the Court have regard to a further financial resource which he contended was available to the husband in the form of a credit card facility of some $29,608. It was said that this could provide a further source of funds on the basis of which the wife and children could be repatriated to Australia.

13. Counsel for the husband submitted in response that notwithstanding the apparent excess of funds in the trust account, there was in fact considerable work in progress which had not been billed, that there were still outstanding translation fees to be paid, and that the husband’s solicitors were not in funds to pay counsel’s fees. It would seem from the husband’s financial statement that the funds to pay his legal fees are, at least in part, being drawn from a loan to him by his brother. Counsel for the husband also submitted that it was not at all clear that there were adequate funds in the account of Q Pty Ltd to fund the relevant payment or payments, and that as the husband was operating a business it is to be expected that there will be money in and money out of the relevant business account.

14. Insofar as there may be a personal line of credit which may be available to fund the repatriation of the wife and children, it was the husband’s position that there was insufficient evidence before the Court as to the nature of this line of credit, that the husband should not be required to incur credit card debt with a prohibitive rate of interest to enable the wife and children to return to Australia, and that there was no evidence as to the cost and practicability of repatriating the wife and child from Country B, particularly in circumstances where international arrivals into Australia are extremely limited and flights difficult to obtain.

15. Given that it would seem that there are legitimate creditors with a claim on the funds presently showing as excess in the husband’s solicitor’s trust account, and, at least at present, there is a considerable lack of clarity about the funds actually available in the account of Q Pty Ltd, I do not consider that it would be open to make an order requiring that a portion of these trust account funds be directed to the wife’s solicitors, or that there be an order requiring the husband to fund, from the accounts of Q Pty Ltd, the wife’s legal representation and the repatriation of the wife and the children to Australia. The existence of a line of personal credit may provide a basis for an order for repatriation of the wife and children, but not in circumstances where there is no evidence as to the cost and practicability of actually doing this.

16. Accordingly I indicated to the parties that, at the present time, I would not make orders 1 and 3 in the husband’s proposed minute of orders, although it would remain open to the wife to press for the making of such orders at another time on the basis of appropriate evidence.

17. Insofar as the wife’s application for interim spousal maintenance was concerned, there was insufficient time for the wife’s solicitor to develop arguments in addition to those in the wife’s written submissions in support of this application. Nonetheless, in circumstances where it seemed, on the basis of the documents in the wife’s tender bundle and the husband’s financial statement, that there was a lack of capacity on the part of the husband to pay, it seemed unlikely that the husband could successfully prosecute a case for interim spousal maintenance at the present time. It was also relevant that, as counsel for the husband submitted, it was not apparent on all of the evidence that there was a demonstrable need on the part of the wife. 

18. On this basis I also indicated to the parties that I would not, at this time, make an order for interim spousal maintenance, but that if so advised the wife could press this application also on a future occasion with sufficient evidence of both capacity to pay and need.

19. Accordingly, orders 1, 2 and 3 as sought by the wife will not be made at the present time, and I will dismiss the wife’s application as amended orally on 23 March 2021 for interim relief in these terms. The wife’s interim application for orders 4 and 5 will be adjourned to me in the Judicial Duty List on 8 June 2021, by which time much more should be known about the sale of the property in Country B. At that time the wife can make whatever further application she is advised, if any, in relation to litigation funding, interim spousal maintenance, and the payment of costs associated with the repatriation of herself and the children to Australia from Country B. If it is sought to make any further application before the Judicial Duty List in June, the wife has leave to approach my chambers in the first instance to obtain a suitable date.

20. Insofar as the husband’s application for the lifting of the Airport Watch List order is concerned, I indicated to counsel for the husband that it is not yet appropriate to lift that order, and that the order would not be lifted. Counsel for the husband did not seriously press any other course. Nor was it pressed on behalf of the husband that any of the other interim orders he sought should be made at the present time.

21. Accordingly the husband’s application that the Watch List order be lifted will be dismissed, and the balance of his interim application will be adjourned to me in the Judicial Duty List in June. There will be liberty to the parties to apply by email to my chambers should further matters need to be agitated before that time.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 25 March 2021.

Associate:     

Date:              25 March 2021