Ivanov and Sharma
[2008] FMCAfam 1226
•14 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IVANOV & SHARMA | [2008] FMCAfam 1226 |
| FAMILY LAW – Wife’s interim spousal maintenance application – wife’s inability to provide for her own needs – husband unemployed – husband’s capacity to pay. |
| Family Law Act 1975, ss.72(1), 74(1), 75(2), 75(3) |
| Bevan and Bevan (1995) FLC 92-600 |
| Applicant: | MS IVANOV |
| Respondent: | MR SHARMA |
| File Number: | MLC 11446 of 2007 |
| Judgment of: | McGuire FM |
| Hearing date: | 6 November 2008 |
| Date of Last Submission: | 6 November 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Steiner |
| Solicitors for the Applicant: | Raynal & Associates |
| The Respondent: | In person |
ORDERS
The wife’s application filed 4 July 2008 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Ivanov & Sharma is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11446 of 2007
| MS IVANOV |
Applicant
And
| MR SHARMA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the wife for interim spousal maintenance in the quantum of $310.00 per week.
The husband seeks that the application be dismissed.
The husband was born in India in 1971 and is 37 years of age.
The wife was born in Russia in 1978 and is 30 years of age.
The parties met in Russia and married in India in March 1997. They came to Australia in 2003. They separated in February 2006.
There is one child of the marriage namely [T] born in 2003. [T] is currently the subject of protracted child protection proceedings in the State court. In the interim, and since December 2007, [T] has been placed by the relevant government department into the care of the husband with two periods each of one hour per week of supervised time with the wife.
There is a history of litigation between the parties. On 11 May 2007 Federal Magistrate Lucev made orders after a defended hearing
in respect of property, spousal maintenance and child’s matters. At that time the wife’s application for spousal maintenance was dismissed.
The wife appealed and as a result the issues of property and spousal maintenance were remitted for hearing. The wife has since filed
a fresh application in respect of the living arrangements for [T]. I am told that these substantive issues will be heard in March 2009.
The issue before me, then, is the wife’s interim spousal maintenance application pending that final hearing.
The law
Section 72(1) of the Family Law Act 1975 (“the Act”) provides:
(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).
Section 74(1) states:
(1)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(2) provides:
(2)The matters to be so taken into account are:
(a)the age and state of health of each of the parties;
(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;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(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;
(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;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(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;
(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;
(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;
(l)the need to protect a party who wishes to continue that party’s role as a parent;
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation;
(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;
(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.
It is clear from a long line of authority[1] that an application for spousal maintenance, including interim spousal maintenance, involves:
a)a threshold finding under s.72;
b)consideration of ss.74 and 75(2);
c)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permitted; and
d)discretion exercised in accordance with the provisions of s.74, with “reasonableness in the circumstances” as the guiding principle.
[1] Bevan and Bevan (1995) FLC 92-600.
The wife’s needs
The wife relies on an affidavit of herself and financial statement both filed 4 July 2008.
The wife is unemployed. She is receiving a Centrelink supporting parent’s benefit for herself and her child, [J], who was born in 2007.
[J] is not a child of the husband. The wife was cross-examined as to the identity of [J]’s father with the suggestion or inference by the husband that the wife is, in fact, in a relationship with a Mr F and that he is [J]’s father.
There had been a previous order of this Court that the wife divulge the identity of [J]’s father. She claims that he was a transient Israeli citizen whom she met in a bar. Whilst her evidence was less than satisfactory on this issue, given two separate names in her affidavit and under cross-examination, for this Israeli gentleman, the best evidence is that [J] lives with the wife and is solely dependent upon the wife for financial support.
It is obvious that [J] is not of school age and it is the wife’s evidence that this inhibits her capacity to obtain employment or, alternatively, obligates her to childcare costs should she obtain employment.
The wife has the good fortune to reside with various members of the
F family (but not the abovementioned Mr F). She pays no rent. She does, however, contribute to her keep by payment of telephone accounts and similar for various members of this family.
The wife’s financial statement discloses weekly expenses of $685.20.
I accept the husband’s submissions, after his cross-examination of the wife, that these claimed expenses of the wife should be reduced because of the following:
a)Her own evidence that she spends $195.00 per week on [T] although [T] currently spends only two hours of supervised time per week with the wife. It eventuated during the hearing that these were “anticipatory” expenses should [T] return to live with the wife.
b)The wife no longer has an ongoing Visa card liability of $20.00 per week.
Nevertheless, it is clear from the wife’s financial statement, even after cross-examination, that she has expenses of at least $310.00 per week being the quantum of the interim spousal maintenance claimed in her application.
Counsel for the wife argued that I should take into account the expenses for [T] to be paid by the wife should [T] return to her care after the State court proceedings. I do not accept this submission. It is purely in the realm of hypothesis. I take the view that, in this particular case, I should consider the circumstances of the parties as they exist
at the date of the hearing.
Wife’s ability to adequately support herself
The wife receives a Centrelink benefit. Section 75(3) of the Act states that in exercising its jurisdiction under s.74, a Court shall disregard any entitlement of the party whose maintenance is under consideration
to an income tested pension, allowance or benefit. Consequently, I am not to regard the wife’s Centrelink benefit as “income” for the purpose of this application.
The evidence of the wife is that she has made some attempts to enter the workforce. She has completed a preliminary [omitted] course. She has made application to work in a [omitted]. She has some qualifications both as a [occupations omitted].
It is clear, however, the wife has at least some language difficulties and had the assistance of an interpreter during these proceedings. The wife was cross-examined at some length as to her ability with the English language.
The wife has the responsibility for the care of her young daughter [J].
Taking all of these matters into account, I am of the view that the wife does not have a current ability to support herself adequately.
I am of the view, therefore, that the wife has successfully discharged the “threshold” onus she has under s.72(1) of the Act. I must now move to consider the extent, if any, to which the husband is able
to contribute to the support of the wife. This again involves
a consideration of the matters under s.75(2) of the Act.
Husband’s ability to maintain the wife
The husband relied upon two affidavits, the latter being filed in Court on the day of the hearing, together with a financial statement.
The husband deposes that he is now unemployed. He says that his employment as a [omitted]with an [omitted] company was terminated as recently as 17 October 2008 being only some three weeks prior to this hearing. From that employment the husband enjoyed a salary package of $135,000.00 per annum.
The husband in his second affidavit filed in Court on 6 November 2008 annexed a letter from his former employer dated 17 October 2008 advising him of his termination without notice that very day.
Counsel for the wife cross-examined the husband and suggested
a “sham” on the part of the husband in the sense of a manipulation
of his employment so as to become unemployed solely for the purposes of defeating the wife’s claim for interim spousal maintenance. Counsel referred to a previous affidavit of the husband sworn in October 2007 in which he claimed to have lost his then employment shortly before other court proceedings between the parties. It was put to the husband that he was in fact merely in a transition between positions rather than unemployed.
However, the annexure to the husband’s affidavit is clear and unambiguous. He has lost his employment. The former employer was not brought to Court to challenge the veracity of the termination.
The proximity of that termination of employment to the time of the hearing is an unfortunate coincidence. There is, however, no probative evidence before me to support the suggestion of a “sham”. Obviously, however, should it come to the attention of the wife or her legal representatives that the husband has resumed his former or alternative employment then this would constitute a change in circumstances and allow the wife to bring a fresh application for interim spousal maintenance.
The husband currently has an income limited to Centrelink benefits for himself and his family of $65.00 per fortnight.
The husband deposes to the following ongoing commitments:
Rent
$241.00 per week
Health insurance
$37.00 per week
Motor vehicle lease
$180.00 per week
Minimum Visa card repayments
$50.00 E per week
Loan repayment to Bank of Queensland ($352.00 per month)
$81.00 per week
In addition, the husband relied on his Form 13 financial statement as to ongoing living expenses for himself and his family.
It is a relevant consideration pursuant to s.75(2) that the husband has the actual and financial care for the parties’ child [T]. He receives
no child support from the wife or, at the very least, the statutory minimum.
The husband has the responsibility for the financial support of his current wife and their child who is aged one year. The husband was not cross-examined as to the capacity of his current wife for gainful employment. The husband and his wife do, however, have a child, [K], born in 2007.
The husband received a termination benefit from his most recent employment in a net sum of $10,261.13. That payment was deposited into his account with the Bank of Queensland on 23 October 2008.
He then withdrew a sum of $17,205.00 being essentially the balance
of that account.
The husband explained his disbursement of those moneys by way of:
a)Personal loan repayments (two months) $705.00
b)Rental (two months) $2,084.00
c)Groceries (two months) $2,000.00
d)Australian Scholarship Guarantee Fund (two months) $2,112.00
e)Legal expenses – State court matter – estimated $8,000.00
f)Credit card liability $8,000.00
It was put to the husband in cross-examination that he had sent money overseas. His response was that he had done so only to repay a loan. There was no corroborative evidence of either the allegation
or response.
The husband was cross-examined as to his intentions in obtaining further employment. This is obviously relevant given that s.75(2)(b) requires me to consider the “capacity” of the parties for employment and not simply his or her current employment.
The husband’s responses to this line of cross-examination gave some cause for concern given the tenor of his evidence being that he is “not currently” looking for employment because of “the emotions of being terminated from my last employment” and “I need to spend some time with my family”. Any concern I have in this regard is heightened
by the suggestion put to the husband in cross-examination that he had manipulated his unemployed status purely to defeat the application before me.
Nevertheless, I may not be necessarily obligated to make
a determination on such a credit issue. That is, even if I was to find
a “sham” on the part of the husband or alternatively a current capacity for employment albeit without the requisite willingness to engage
in such employment, then I would be able to rely on the husband’s financial statement which, of course, set out his income and expenditure from the employment in which he was engaged until
as recently as 17 October 2008.
Prior to termination of that employment the husband deposed to a gross weekly income of $2,714.00. His stated expenses in that sworn document are $2,923.00 per week.
The husband was not substantially or successfully challenged in cross-examination as to the quantum of his expenditure. That expenditure does, of course, include his financial support for [T] without contribution by the wife. Counsel for the wife did not, quite properly in my view, suggest that the expenditure by the husband on the Australian Scholarship Guarantee Fund was unnecessary.
The best evidence before me, therefore, is that the husband’s weekly expenses were greater than his income even prior to the termination
of that employment.
Consequently, whilst I may be left with a lingering concern as to the coincidence of the husband’s termination from his employment, and his apparent unwillingness to seek alternative employment at the time
of this application being heard, I must consider the evidence at its highest.
Whilst the wife has clearly passed the threshold required by s.72 of the Act in establishing her needs and her own inability to meet those needs, the wife has not discharged her onus to the requisite degree to show that husband has a current capacity to contribute to her ongoing support.
Consequently, the application is dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of McGuire FM
Associate: Ann Creek
Date: 12 November 2008
0
0
1