Kalbassi & Zaidi
[2008] FMCAfam 13
•2 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KALBASSI & ZAIDI | [2008] FMCAfam 13 |
| FAMILY LAW – Property – very short marriage – no contributions by wife – s.75(2) factors more appropriately taken account of by way of spouse maintenance order – no orders for adjustment of property. SPOUSE MAINTENANCE – Wife has no current income and is dependant on the Red Cross for basic support pending determination of permanent residency application – wife has dressmaking skills and likely to find gainful employment in future – husband is medical practitioner – has failed to comply with interim orders for periodic spousal maintenance – order for capitalised spouse maintenance for 2 years to be paid from sale of husband’s property. |
| Family Law Act 1975, ss.72, 75(2), 79 |
| Hickey and Hickey (2003) FLC 93-143 |
| Applicant: | MS KALBASSI |
| Respondent: | MR ZAIDI |
| File Number: | MLC 5659 of 2007 |
| Judgment of: | Hughes FM |
| Hearing dates: | 23 & 27 November 2007 |
| Date of Last Submission: | 27 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 2 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hannan |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Respondent appeared in person: | Mr Zaidi |
ORDERS
That the wife's application for property settlement is dismissed.
That, by 1 June 2008 the husband pay to the wife:
(a)the sum of $35,203.00 representing capitalised spouse maintenance of $350.00 per week for a period of two years from 23 November 2007, discounted at 3 percent; and
(b)the sum of $3,850.00 being arrears of spouse maintenance at
23 November 2007 arising from the orders of 30 July 2007, less any payments of spouse maintenance made into the wife’s Commonwealth Bank Account number [X], between 23 November 2007 and the date of these orders.That the husband is hereby restrained from receiving any of the proceeds of sale of the property at Property [A], in Tasmania (“the [A] property”) until the wife has been paid the amounts provided in order 2 above.
That the husband shall forthwith serve a copy of these orders on any real estate agent with conduct of the sale of the [A] property.
That the wife has liberty to serve a copy of these orders on any real estate agent she reasonably believes has the conduct of the sale of the [A] property.
That, in the event the husband has not paid the amounts in orders 2 by 1 June 2008, the husband shall:
(a)immediately take all necessary steps to arrange a sale of the property by public auction on the first available date and shall instruct the auctioneer to sell the property to the highest bidder; and
(b)pay the amount owing to the wife plus interest at the Family Law scale from the proceeds of sale.
That the wife has liberty to apply in relation to enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kalbassi & Zaidi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5659 of 2007
| MS KALBASSI |
Applicant
And
| MR ZAIDI |
Respondent
REASONS FOR JUDGMENT
In these proceedings the wife seeks orders for capitalised spouse maintenance and a matrimonial property settlement.
The husband resists both applications. He says the wife is perfectly capable of supporting herself and that the only contribution she made to any matrimonial property was a negative one.
The only witnesses in the proceedings were the parties. They disagreed about almost everything and there was almost no independent evidence to assist in establishing where the truth lay.
Background
The husband was born in 1969. He is now 40 years old. The wife was born in 1984. She is aged 23 years.
The parties were married in Iran in January 2005. According to the husband they separated on 28 January 2006. According to the wife they separated on 31 January 2007. Either way, it was a very short marriage. There are no children of the marriage.
The parties came to Australia from Iran in November 2005 on the husband's temporary work visa. The husband was employed as a trainee doctor at the [M] Hospital near Devonport in Tasmania. In May 2007 the husband accepted a 12 month position at the [S] Hospital in Perth, Western Australia. As part of that employment he was required to work for an initial period in Darwin in the Northern Territory.
On 28 January 2006, less than three months after arriving in Australia, the wife left on a one-way ticket to Iran. She says she left to escape ongoing verbal and emotional abuse by the husband. She said there had been an incident of physical violence in Iran early in the marriage but no physical violence in Australia.
The wife says she stayed with the husband's mother in [T], and that she and the husband communicated daily. She says the husband then asked her to come back to Australia with his mother. She said she returned in September 2006 and that her mother-in-law followed in about November 2006.
In her affidavit filed 16 November 2007 the wife said that she supported the husband's mother during the time she lived in [T] but does not say how she did so. There is no evidence that she had any assets or income of her own and there were various pieces of contradictory evidence. In a letter to the husband’s solicitors in July 2007, for instance, the wife’s solicitors alleged that the husband had provided money to his mother for the support of the wife during the period she was overseas. The husband said he sent money for the support of his mother alone and did not support his wife.
In her oral evidence the wife described her distress when her own parents would not allow her to return to their home and the husband kept telling his mother to throw her out. Accordingly, I do not accept the wife’s evidence that she financially supported her mother in law.
The husband says that when the wife left on 28 January 2006 she told him the marriage was over. He said they had no communication until he received a telephone call from the wife on 1 October 2006 to advise she was back in Australia and asking him to make the house keys available so that she could access the former matrimonial home in [A] near Devonport.
It is common ground that the wife moved back into the former matrimonial home for about four months from September or October 2006 until the end of January 2007. The husband said he put up with the wife returning to the former matrimonial home because he was afraid that, if he refused, she would cause problems for him with the Department of Immigration. He said that in 2006 the wife had advised the Department that the husband had falsified some of his credentials. This had caused the Department to investigate his status, resulting in great difficulty and uncertainty for him. When his temporary residence visa expired on 17 November 2006 he was granted only a bridging visa. On 3 July 2007 he was given another temporary visa which was due to expire at the end of December 2007. At the time of the hearing in November 2007 the husband was clearly still somewhat nervous about his future status in the country.
The wife agreed she had made a notification to the Department of Immigration. She said she told the Department the husband had manufactured one of his documents evidencing work he had done in Iran. The husband denied falsifying any documents and said the complaint by the wife was malicious.
The husband said that he and his wife had sexual relations on two or three occasions in the few months between when she returned to the former matrimonial home and the final separation. He said he did not regard that period as a resumption of the marital relationship as the wife made it perfectly clear to him that the marriage was over and that she was intending to see other men.
The wife said that she regarded the marriage as persisting for the whole of the time she was in Iran during 2006 and up until the final separation at the end of January 2007.
At one stage during the hearing the husband claimed that there was no proof of marriage. The wife said that, in accordance with Iranian custom, the original marriage certificate was in the possession of her parents in Iran. She said she was not on good terms with her parents as they did not want her to marry the husband and her relationship with them had broken down significantly after she did. I do not place any weight on the husband’s assertion of lack of validity of the marriage because in his affidavit filed on 26 July 2007 he specifically agreed with the wife’s statement that they were married on 1 January 2005. I had the impression that he was clutching at straws in saying there was no proof of validity of marriage as he did not make that claim until the wife was unable to produce the original marriage certificate.
The husband claims the wife has property rights in Iran arising from the marriage. He says the wife had already commenced proceedings against him in Iran for divorce and property settlement. He annexed to his affidavit filed on 26 July 2007 a copy of documents he obtained from the website of the Iranian Embassy in Canberra which, he says, are a copy of the wife’s initiating application.
In her affidavit filed 16 November 2007 the wife denied commencing proceedings overseas. The relevant passage appears to be carefully worded and does not preclude the commencement of proceedings in Australia under the Islamic marriage contract. The wife’s evidence is as follows:
“4(j) In response to paragraph 29 and the documents that the husband has annexed I say that at no time have I commenced any Court proceedings overseas. I say that I do not intend to and I say that although strictly speaking the Marriage Certificate allows me to seek from the husband $100,000.00 at any point in time even after separation and this is called Mehria I say I do not intend to seek same. I say it is the Husband’s promise that he will provide this money to myself during the marriage and even after separation I can ask for same but I do not intend to do so and I do not intend to make any claim in [T].”
The issue was not explored in oral evidence. I am unable to make any finding about the matter on the affidavit evidence, other than that it appears to be common ground that the wife can, under Islamic law, seek a payment of $100,000.00 from the husband arising from the marriage contract.
At some time after separation, the husband’s mother came to Australia and now lives with him in Perth. I do not know the basis on which she came to Australia, whether she intends to remain permanently or whether she has applied to do so. At the moment she is being financially supported by her son. She still owns the property in Iran which, according to the husband, is not tenanted. She did not give evidence in the proceedings.
Property settlement
Section 79 of the Family Law Act 1975 empowers the Court to make orders altering the property interests of the parties. In making a determination about the issue, the Court is required to undertake a four step process as follows[1]:
a)Firstly, the Court is required to identify the net assets or property available for distribution at the date of hearing.
b)Secondly, the Court must assess the contributions of the parties to the acquisition, conservation or improvement of the property as provided in subsections 79(4)(a),(b) and (c) of the Act. Contributions include financial and non-financial contributions, direct and indirect contributions and contributions made to the welfare of the family in the capacity of homemaker or parent.
c)Thirdly, the Court must consider the matters set out in the remaining subsections of section 79(4) which incorporate section 75(2) of the Act. These matters broadly require a consideration of the financial position and resources of the parties, their age and state of health, their necessary commitments in supporting themselves or any other person, the effect of the marriage on the earning capacity of either party and the effect of any proposed order on the earning capacity of either party.
d)Fourthly, the Court is required to determine, in light of the findings arising from the first three steps, what order is just and equitable in the particular circumstances of the matter.
[1] Hickey and Hickey (2003) FLC 93-143 at 78,386
The property pool
There was a significant dispute about what ought to be included in the matrimonial property pool for the purpose of these proceedings.
The husband had worked in the United Kingdom for about five years from 1999 to 2004. It is common ground that during that time he saved approximately AUD$150,000.00.
In early 2003 the husband provided his mother with sufficient funds to purchase a property in Iran, registered in her name. The husband did not say what the cost of the property was but it was sold less than two years later, in late 2004, for AUD$50,000.00. The wife says that this was the approximate amount provided by the husband for its purchase.
The sale proceeds were used to buy another property in [T]. The husband says the purchase price of the second property was approximately AUD$65,000.00 and that he provided the balance of the purchase price to his mother. The wife says the purchase price was AUD$70,000.00. She says she and husband were engaged at the time this property was purchased. She says the property was purchased in the husband's name but was transferred to the name of his mother several months before the parties moved to Australia.
The husband said his mother used to be a cleaner but is now retired and has no income. He said in oral evidence there is no social security available for his mother in Iran and that he has a responsibility to look after her. This statement was not challenged.
On an unspecified date but soon after arrival in Australia, the husband purchased the former matrimonial home at Property [A], Tasmania for $225,000.00. The purchase costs of were about $10,000.00. He obtained a loan from the Commonwealth bank for $180,000.00. He said his mother lent him about $70,000.00 which was used to cover the balance of the purchase price of approximately $55,000.00 and to purchase a motor vehicle for about $15,000.00.00. He claimed he is required to repay his mother the $70,000.00.
The wife says the $70,000.00 is what remained of the husband’s savings when they arrived in Australia. This is denied by the husband who said that, as a result of paying all of the relocation expenses and the parties’ wedding, he had only approximately $10,000.00 left when he arrived in Australia. He did not say to what use he put that sum.
I do not accept the husband’s evidence about the debt to his mother. He did not explain how his mother could afford to lend him $70,000.00 when, according to his earlier evidence, he needed to buy a property for her as she had no means to support herself. No objective evidence of the loan was produced to the Court and the husband did not call his mother in relation to the issue, even though at the time of the hearing she was living with him in Perth. It is open for me to draw an inference that the evidence of his mother would not have assisted the husband.
There is no agreement about the value of the property in [A]. The wife relied on a market appraisal conducted by LJ Hooker Real Estate which assessed the property as likely to sell for between $250,000.00 and $260,000.00. The husband relied on a letter from [R] Real Estate, dated 16 November 2007, which estimates the market value of the property as being in the range of $225,000.00 to $230,000.00.
The property had been listed for sale with [R] Real Estate since 4 June 2007 and prior to that had been listed with two other real estate agents. The property was passed in at auction on 1 September 2007. After the auction an offer was received in the sum of $220,000.00 but was rejected as being too low.
No formal valuation of the property was carried out. The wife attempted to arrange for a valuation but the husband would not grant access to the property for that purpose. He said he had been advised by his former solicitors that only one valuation was required. He said he thought his letter from [R] Real Estate was sufficient evidence of value. The husband chose to represent himself during these proceedings. I am mindful of the fact that English is not his first language and that he may have failed to appreciate the difference between a single joint valuation and a market appraisal but the wife should not be prejudiced as a result of the husband’s refusal to allow entry for the purpose of valuation.
There is insufficient evidence to enable me to accurately determine the value of the property. I accept the husband's evidence that he has been trying without success to sell the property since the first half of 2007. He says the property was originally listed for sale for $279,000.00, then for $269,000.00, and most recently for $259,000.00.
It seems to me that the wife’s market appraisal is likely to be more accurate than the husband’s for two reasons: firstly, the house is currently listed for $259,000.00 which is $1,000.00 less than the top of the range of the wife’s appraisal; and secondly, the husband is apparently keen to sell but he rejected an offer of $220,000.00 after the property was passed in at auction. This offer was only $5,000.00 less than the bottom of the range of his appraisal. The fact that he rejected the offer indicates he thinks the property is worth more than that amount.
At the time of the hearing the mortgage was $177,000.00. This means that the equity in the property was somewhere in the range of $73,000.00 to $83,000.00.
Counsel for the wife submitted that an additional $10,000.00 ought to be added back as this amount had been drawn down on the mortgage since the husband filed his first financial statement in July 2007. The husband said he needed the money to pay for exams he had to sit, for relocating to Western Australia and to pay legal fees.
I do not agree that the whole amount should be added back. The husband moved to Western Australia for work. He was also required to work for some of that time in the Northern Territory. He reasonably incurred relocation costs. He tendered a letter from the Medical Council of Tasmania dated 20 September 2007 which indicated that his conditional registration in that State had expired on 8 August 2007 and his name had been removed from the Register of Medical Practitioners. He was not able to continue working in Tasmania.
It was reasonable for the husband to use some of the equity to pay for his exam fees. I will, however, add back $3,300.00 which is the amount drawn down on the mortgage and used by the husband to pay legal fees.
The husband has a 2003 Mitsubishi Magna motor vehicle. There was no agreement about the value of that vehicle. In his financial statement filed 26 July 2006 the husband estimated its value at $8,000.00. The wife estimated it's worth at $15,000.00, given it was purchased for $17,000.00 in late 2005. Neither party provided any evidence on which I could rely in determining its value. I prefer the evidence of the husband because firstly, the value of the vehicle is likely to fall at a greater rate than $1,000.00 per year and, secondly, the husband said he obtained the figure from an on line site which gives the average “red book” second hand valuation for all types of vehicles. The red book valuation is easily obtained from the internet and, if the husband did not accurately state the value it would have been a simple matter for the wife’s Counsel to confront him with the inaccuracy but this did not occur.
At the time the husband filed his financial statement in July 2007 he had approximately $4,000.00 in savings in a Commonwealth bank account. That amount of savings varied from time to time but was reasonably consistent over time. I am prepared to add that amount to the asset pool.
The husband declared household contents in the sum of $2,500.00 which I will add to the pool.
The husband also declared superannuation in the sum of $8,300.00. He had not yet received a superannuation statement in relation to his new employment in Perth. He estimated that his superannuation would have increased by $200.00 to $300.00 per month since he started working there in May 2007. His current superannuation entitlements therefore would be approximately $11,000.00. I will not add the superannuation which has accumulated since he started work in Western Australia as this was clearly well after separation and the wife cannot be said to have made any contribution to it. It is, however, relevant to an assessment of the husband's financial resources.
The wife argued that the property in [T] ought to be included in the property pool. I do not agree. The property was purchased before the marriage using money the husband had earned in the United Kingdom. The wife made no contribution to that property and I exclude it from the matrimonial property pool.
The wife has no assets of any significance. After separation she was given a computer, a sewing machine and an overlocker by charitable organisations. She uses the sewing machines to make her own clothes and may be able to make some money from dressmaking. In oral evidence she estimated the combined value of the two sewing machines as being $700.00. In her financial statement she declared no assets and no liabilities. This was not challenged by the husband, although he disputed her lack of income and income earning capacity.
The total property pool therefore is as follows:
Former matrimonial home at [A]
$250,000.00 to $260,000.00
Less mortgage
$177,000.00
Net equity
$ 73,000.00 to 83,000.00
Motor vehicle
$ 8,000.00
Husband’s savings
$ 4,000.00
Contents
$ 2,500.00
Husband’s superannuation
$ 8,300.00
Legal fees added back
$ 3,300.00
TOTAL
$99,100.00 to 109,100.00
Contributions
On the evidence before me, the husband has made all of the financial contributions towards the acquisition of the assets. In addition, on his evidence which was unchallenged, he paid for the parties’ wedding and paid for the parties to relocate to Australia.
The wife made no financial contributions. She says that she made non-financial contributions to the property. Her evidence about this however is very generalised. In paragraph 4(k) of her affidavit filed 16 November 2007 she said as follows:
“I say that throughout the time the husband and I lived together and after I came back from my stay in [T] I say that we undertook renovations to the Davonport (sic) home in that we painted, we attended to fencing, we fixed the kitchen and walls and I assisted the Husband in relation to same.”
In her oral evidence the wife said she assisted with internal painting after the house was purchased but before the parties moved in. She said that after she returned from Iran she also assisted with “painting and fencing and kitchen”.
The husband denied that any renovations were done prior to separation. He produced a tax invoice for almost $10,000.00 for work done on the kitchen in June 2007 which was well after separation. He said the walls were not painted in early 2007 as this would have been pointless shortly before the renovations in which two of the internal walls were to be knocked down. He did agree however that the wife helped him to put some sort of roll-on plastic sheet on one of the walls. I found the wife’s evidence vague. The husband’s evidence was more compelling and I prefer his evidence to that of the wife's.
The wife said she also made contributions to the welfare of the family in a homemaking role. She said she did all of the cooking, cleaning and other household chores as the husband worked all day. The husband denied the wife contributed in this manner but I find it likely she made some contribution as homemaker during periods of cohabitation.
The parties lived together initially for one year from their marriage in January 2005 until the wife left Australia for [T] on 28 January 2006. The parties then lived together for four months from late September or early October 2006 until 31 January 2007. The maximum period of cohabitation, therefore, was 16 months. The husband said that the wife was often not home during these periods and that he usually ate takeaway food.
There was some exploration in cross-examination about why the wife made the report about the husband to the Department of Immigration. The wife said that it was a condition of her marriage that she live with her husband, which is why she came with him to Australia. She said that if she were not living with the husband she could be found to be in breach of the marriage contract which could then affect her property rights under it. The wife said she returned to Iran in January 2006 to escape what she described as the husband’s harassment of her, although she did not specify the form of the harassment. She had described it earlier as verbal and emotional abuse. Her parents did not support her and she lived with the husband’s mother. She said the husband kept calling his mother to tell her to throw the wife out of the house. She said he also threatened that if she did not forego all of her property rights in Australia and Iran he would refuse to live with her but would refuse to divorce her, he would cancel her Australian visa application and she would be stuck in Iran by herself forever. She did not wish to remain in Iran and did not want to be prevented from getting a divorce if the marriage could not be reconciled.
Although it was still a little unclear, I gathered from the wife’s evidence that she made the notification to the Department in the hope that, if the husband were expelled from Australia, he would return to Iran and reconcile with her or, if there was no reconciliation, at least it would prevent any finding that she had left him in breach of the marriage contract.
An alternative explanation is that the wife simply wanted to punish him for his threats. Whatever the explanation, I accept the husband’s evidence that the report to the Department caused him a great deal of stress and threatened his residency in Australia and his earning capacity.
On one view, this action on the part of the wife can fairly be described as a negative contribution by her. On the other hand, the husband did not challenge the wife’s evidence that she left because she was unhappy with his treatment of her. Indeed, at one part of his evidence he said that, for much of the period the wife lived with him in Australia, she was “crying and making life miserable”.
The husband also did not challenge the wife’s evidence that he had made the threats she said he made when she was in Iran. Accordingly, he could be said to have directly contributed to the situation which resulted in the wife making the report which she saw as the only way to prevent the threats being carried out.
For the purpose of the current property determination, however, it is clear on the evidence that the overwhelming contributions were made by the husband. The wife’s contributions were, at best, minimal. Accordingly, there should be no adjustment of the property pool on the basis of contributions.
The section 75(2) factors
As stated earlier, the husband is 40 years of age and the wife is 23. They are both apparently in good health.
The wife has no income or income security. At the time of the trial she was not entitled to receive any form of income support from Centrelink as she did not have permanent residency status in this country. She was receiving an amount of $474.00 per fortnight from the Red Cross.
It seems to be common ground that the wife is a talented seamstress. She agreed in cross examination that the jacket that she wore on the first day of the trial had been made by her. It appeared to be very well made. The husband put to the wife that she had boasted to him in early 2007 that she could earn good money working in alteration businesses in Melbourne. The wife agreed she had said this. She said she had applied for various jobs as a seamstress but had been unsuccessful in obtaining any.
The husband said he believed the wife was already working, evidenced by, for instance, the fact that she had managed to pay for her driving lessons. The wife denied that she was earning any money other than what she was given by the Red Cross. She said she paid $35.00 per hour for driving lessons. She did not say how many she had. She said a youth organisation named YETI assisted her with the payments.
The wife says she is hampered in her income earning capacity by virtue of her poor English language skills. I accept that she has some difficulty with the English language but I do not accept that her difficulties are to the extent she alleged. The wife agreed in cross examination that she had studied English for 5 years at high school but said the lessons concentrated on grammar and were not of much assistance with conversational English.
There were several occasions during her evidence when the wife answered questions without waiting for them to be interpreted. On one such occasion, the wife was asked if she recognised a particular letter. Without waiting for the translation the wife answered in English, “Yes I do recognise it”.
The letter in question was another one written by the wife to Australian immigration officials when she was in Iran before returning to Australia. It was written in English. The husband challenged the wife saying “This sounds to me better English than myself”. The wife said through the interpreter that she did not write it herself; she gave it to someone who translated it for her. When the husband pointed out that the letter was in the form of an email and asked why the name of the person who wrote it was not on the email, the wife said she saw no need for the person’s name to be on it as she had written the letter and asked the person to translate it, which they did. She was asked whether she or the other person actually typed the email. She said “that person typed it”.
After the document was tendered I asked for the name of the person who translated and typed the document. The wife then said that it was done through an internet site. She said her brother has access to the site. She said she typed the document in Persian, sent it to her brother who sent it to the internet site and then returned to her the English language translation of her document.
I did not find this evidence of the wife very credible. If the translation was done through an internet site she could have said so when first asked about it. She had consistently spoken of the interaction as if it had been a personal one with a particular individual. I gained the impression she simply made up the evidence about the internet site when put on the spot to identify the person whom she said had typed the email. I find it more likely than not that the wife wrote the email. If so, her English language skills at that time could not be said to be polished but she was certainly well able to communicate in English.
Another piece of evidence which confirms this impression is the evidence given by the wife about what she had been told at a TAFE about what she needed to do to qualify for entry into a particular course. When asked, she said she had no interpreter with her when given the information. Clearly she has the capacity to understand and repeat fairly complex information in English.
The wife also passed her driving test in Melbourne on her second attempt. Although I accept that a significant component of that test is practical, she was obviously able to understand and follow instructions given in English and she agreed there was a written component which she passed without the assistance of an interpreter.
I note that both affidavits filed by the wife in the proceedings were executed with the assistance of interpreters. I assume that she or her legal representatives, or both, assessed that assistance as necessary in preparing her evidence.
The impression I was left with was that the wife has adequate English language skills to manage her life in Australia but quite appropriately used interpreters for the purpose of giving formal evidence in these proceedings.
I accept that the wife’s income earning capacity is likely to be enhanced if she had greater English language skills but I do not think her language skills pose a major barrier to her employment. The wife said she proposes to study English fulltime for one year to improve her language skills before looking for fulltime work. In the circumstances this seems to be a reasonable proposition, although she may well be able to obtain some work while studying.
The wife says she will have to pay for private English classes as she is not eligible for any government assistance for that purpose. If she obtains permanent residency status, however, she agreed she would be entitled to free English language classes. She hoped that her permanent residency application would be approved within about five months.
The husband has a vastly superior income and income earning capacity to the wife. He has a current salary of $68,149.00 or $1,310.00 per week. He is employed as a Resident Medical Officer Grade 4, having worked his way up from an intern and through the levels of Resident Medical Officer Grades 1, 2 and 3. The next level above his is a Registrar. The husband has applied for Registrar’s positions but has not yet been successful. The highest level is that of Consultant. The husband is clearly ambitious. I was satisfied on the evidence that he has the capacity to earn a higher income in the future and is likely to do so.
The husband is obviously feeling some financial strain as a result of having to continue to pay the mortgage on the property in [A] while renting a home for himself and his mother in Perth. Once the property in [A] is sold, however, he will be able to manage the rent and to support himself on his income. He has a strong income earning capacity by virtue of his training and experience as a medical practitioner.
The husband also has a financial resource in the form of the property in Iran. Although that property is in his mother’s name, the husband funded its purchase, his mother now lives with him, the husband says his mother has lent him money in the past and, on the evidence, I find that the equity in that property is likely to be available to him if he had a genuine need of it.
The husband has superannuation which will continue to accumulate as a result of his employment. The wife has no property or financial resources other than the computer and sewing machines given to her by the Red Cross.
Each of the parties filed financial statements setting out their commitments. The husband has financial commitments in the form of payments on the mortgage, rent, and the support of himself and his mother. He also has various expenses including the cost of various courses he is required to undertake to become fully qualified in Australia. As he is not a resident of Australia he is required to pay full fees for these courses and exams which he said are several thousand dollars each.
Some of the items that the husband claimed as necessary expenditure were, in fact, discretionary expenses. These included an allowance for the costs of travelling back to Iran and for gifts to take with him when he goes. I make no criticism of the husband for wanting to travel to Iran and take gifts but I do not take them into account as necessary expenditure in the circumstances of this case.
At the time of the trial the wife was entirely dependent upon charity for her income and her accommodation. I accept her evidence that her necessary expenditure for self support is $350.00 per week. The items she claimed which comprise this figure are modest and include a component for rent of $200.00 per week. She does not currently pay this amount but estimates she would have to if not supported by the Red Cross.
There is little evidence before me on which I can assess whether or not the wife’s income earning capacity has been affected by the marriage. I do not know what the wife was doing before she married the husband and came to Australia. There is no evidence about whether or not the parties agreed the wife would stay out of the workforce in order to carry out a homemaking role. At age 23 however her work history would not be extensive. On the other hand, it is a fact that the wife came to Australia consequent upon the marriage and has no current income. The wife said that, since separation, she has applied for various jobs including at an Aldi supermarket but that she is always asked whether or not she has permanent residency status and, when she says no, she is not offered the job. To that extent, therefore, her earning capacity could be said to have been negatively affected by the marriage.
The wife gave evidence that she was in receipt of a medicare card and both parties seemed to assume that it was simply a matter of time before she was granted permanent residency. If she is granted permanent residency it is likely the wife will find paid employment. She is young, fit and healthy and, according to her resumé which she tendered in evidence, she has skills in fashion design and construction.
These same s.75(2) factors are to be taken into account in making a determination about spouse maintenance which I will deal with shortly. On the facts of this case I am of the view that spousal maintenance is a more appropriate means of addressing the wife’s current need for support. For the reasons I will come to, I intend to order the wife be paid spouse maintenance in the sum of $350.00 per week for a period of two years. This is a total of $36,400.00 which is a significant sum considering the total property pool is less than $110,000.00. I take this into account in accordance with s.75(2)(o) of the Family Law Act and find there should be no adjustment of property on the basis of the s.75(2) factors.
This means that there will be no adjustment of the property in favour of the wife. However, having regard to the short duration of the marriage, the limited period of cohabitation, the small property pool and the foreshadowed order for spouse maintenance, I am satisfied that it is just and equitable for there to be no such adjustment.
Spouse maintenance
Section 72(1) of the Family Law Act 1975 provides as follows:
“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 whether:
(a)by reason of having the care and control of the child of the who has not obtained 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).”
In this matter the wife is clearly unable to support herself adequately in the short term. She does not have Australian residency status, has no paid employment and is dependent upon charitable support by the Red Cross for her basic needs.
The wife does not satisfy sub paragraphs (a) or (b) of section 72(1) of the Act but does come within sub paragraph (c). She came to Australia because she was married to the husband and he had work in Australia. She is neither an Australian citizen nor a permanent resident and she has no entitlement to public income support. These are adequate reasons for the inability to support herself within the meaning of subsection 72(1)(c).
For an order for spouse maintenance to be made, however, the Court must also be satisfied the husband has capacity to pay such maintenance.
The husband’s salary is $1,310.00 per week. In his financial statement filed 7 November 2007 he declared fixed weekly expenditure of $1,631.00 and discretionary weekly expenditure of $1,032.00, making total expenses of $2,663.00 per week (although there is an arithmetic error in his document at item 33 where he incorrectly records the total expenses as $3,293.00). Clearly that level of expenditure is not sustainable on his income. The husband provided no corroboration of the expenses and did not explain how he accommodates the shortfall of expenditure over income.
The husband’s evidence about his financial circumstances was most unsatisfactory. The following passage of evidence is typical of the husband’s avoidance of answering questions directly:
“MR HANNAN: Your first financial statement had in there Commonwealth Bank savings of $4,000.00, and that does not appear in your later financial statement. What happened with the $5,000.00 [sic] with the Commonwealth Bank? --- It just goes up and down. To be honest with you, four grand, now I have to pay for the certificate – my friend said I have to pay five grand for AMC certificate.
HER HONOUR: For what? --- Five grand for AMC which is Australian Medical Council. I passed the exam on 27 October, and for registration and applying for permanent residency afterwards, if I’m entitled, I need five grand. 3,000 goes to solicitor’s fee, 2,000 for immigration.”
This answer relates to anticipated future expenses, rather than what had happened to the $4,000.00. He was pressed again about his savings in the following passage of evidence:
“HER HONOUR: Sorry, before you move on, is it in the bank? Do you still have the money in the bank? --- Not 4,000.00.”
I pause here to note that this answer, in context, implies he has less than $4,000.00 in savings. If the questions had stopped there the Court would have been mislead.
“What is it?--- I just received a tax refund just…
How much is in your bank account today?---I don’t know exactly. I in total - giving you the figure in total - hold money altogether at the moment in the bank, which basically I have to take out some money again for rental and everything …
I’m not asking you what you have to take out. I’m asking you how much money is in your bank?--- Perhaps 3,000, 4,000 in this account.
What about in other accounts? --- I’ve got $3,000 I believe in savings account.
A total of between six and seven thousand dollars? --- Yes, but all of it has to go out.
… … …
Why is that not declared in your financial statement which you filed in Court on 7 November? --- Just money came in basically from tax. It just came in.”
The husband said he thought his tax return was in the sum of $5,900.00 and was received by him on 18 or 19 November 2007, four or five days before he gave the evidence. He was asked why he didn’t declare it at the beginning of his evidence when asked whether everything in his documents was true. He said he had forgotten about the tax refund because it was so recent. That was not persuasive.
At a different point in his evidence the husband said the $4,000.00 he had declared in his first financial statement had been spent on relocating from Tasmania to Perth. He had earlier said he used the money drawn down on the mortgage for this purpose. The husband did not present a comprehensive or coherent account of his financial circumstances. He kept protesting his difficult circumstances rather than answering questions properly and seemed quite prepared to misrepresent the true situation. As a result I have little confidence in his evidence about his financial circumstances.
There are some items of fixed expenditure which legitimately escalate the husband’s expenses, such as the requirement to pay rent in Perth in addition to maintaining the mortgage over the property in [A] until that property is sold. The husband declared his rental costs as $400.00 per week but in oral evidence said it was actually only $380.00 per week. The husband also included in his fixed expenditure an interim spouse maintenance liability of $350.00 per week which had been ordered on 30 July 2007 but which he rarely paid. The amount of that liability was reduced to $113.00 per week by orders made on 23 November 2007.
In his earlier financial statement filed 26 July 2007 the husband declared fixed personal expenditure of $825.00 per week. In the later financial statement filed 7 November 2007 that figure had risen to $1,631.00. The changed items of expenditure in the later financial statement, besides the rental and spouse maintenance, were the following:
i)an extra $92.00 per week in income tax, although his income had not changed. There was no need for his tax to increase, especially given the size of his recent refund;
ii)$10.00 per week for superannuation which had not been included in the earlier statement;
iii)a life insurance payment of $40.00 per week; and
iv)there had been a decrease in payments on rates, MasterCard and the mortgage which together totalled $95.00.
Besides the rent payments, I am not persuaded the increases in the husband’s costs are legitimate. He provided no evidence or explanation for the increases. Disallowing them and setting aside for the moment the spouse maintenance obligation, the husband’s fixed weekly expenditure is reduced to $1,211.00.
The husband declared discretionary expenses totalling $1,032.00 at Part N of his November 2007 financial statement. There are a number of items, however, which cannot be taken into account as legitimate expenses in circumstances in which the wife has no means of self support. These items are as follows:
i)$40.00 per week for house repairs. The husband is renting a unit in Perth and his house in Tasmania is untenanted. There is no current need for an allowance for house repairs.
ii)$70.00 per week for gas and electricity. The husband is a single man who spends long hours working at the hospital. He produced no bills to justify this very high expenditure and I do not accept it. An allowance of $25.00 per week for gas and electricity is reasonable.
iii)$50.00 per week for car maintenance. Although I accept car maintenance is expensive, this is too much to allow in the current circumstances. I will allow $20.00 per week for this item.
iv)$70.00 per week in petrol. The husband does not live far from his workplace and works long hours. In my view $40.00 per week is a more reasonable sum.
v)$50.00 per week for clothing and shoes. This may be a legitimate expenditure in normal circumstances but could be reduced in the short to medium term to $20.00 per week.
vi)$40.00 per week medical insurance. This had already been accounted for as part of his fixed expenditure at item 26.
vii)$40.00 per week for entertainment and hobbies. The husband conceded that this is not a current expense, saying he could not afford entertainment or hobbies.
viii)$100.00 per week for holidays.
ix)$10.00 for cleaning. The husband says this related to keeping the grounds of the [A] property neat in preparation for sale but he has also claimed $20.00 per week for gardening and lawn mowing which covers that expense.
x)$20.00 for repairs of furnishings and appliances.
xi)$50.00 per week for gifts.
xii)$30.00 for hairdressing and toiletries. The husband explained that he needs special shampoo for his hair but, in the circumstances it is a luxury he might have to forego in the short term. $10.00 per week is a more reasonable amount for this item.
The disallowance or reduction in these amounts reduces the husband’s discretionary expenses by $455.00 per week to $577.00 per week.
The husband also declared $100.00 per week for education expenses. He said he had to pay for medical courses and to sit exams in order to qualify to practice in an unrestricted manner in Australia. He said the courses and exams cost thousands of dollars and he averaged out the cost to $100.00 per week. Although this expenditure is legitimate, in his evidence he said at one point that he had passed his exams and could now apply for permanent residency. He said at another point that he would use the money he obtained from the tax refund to pay for the exam. He produced no evidence about any future courses or exams he had to pay for. I am not persuaded therefore that this is a legitimate ongoing expense. The husband’s discretionary expenditure is reduced to $477.00 per week by the exclusion of this item.
Of the remaining expenses, the husband declares an amount for his mother who he says he is supporting. His mother’s share of the remaining expenses is $123.50 per week. The husband did not explain when or why his mother came to Australia. Although there is no evidence that the husband’s mother has any income from which she could support herself, it is common ground that she has property in her name in Iran which could be tenanted or sold to provide funds for her support. There is no evidence that the husband has any legal obligation to support his mother, for example, as a condition of her residence in Australia. Any moral obligation for the husband to support his mother does not take precedence over his obligation to support his wife.
If the husband’s discretionary weekly expenditure is reduced by the extra amount he spends on his mother, namely $123.50, this reduces his total discretionary expenditure to $353.50 and his total weekly expenditure to $1,564.50. This is still $254.50 per week more than his income and there is no explanation as to how the shortfall is covered, except perhaps through the husband’s savings and the tax refund.
Once the husband’s property in [A] is sold the husband will have an extra $300.00 per week which he is currently paying on the mortgage. He will also be relieved of the expenses of rates, house insurance and gardening/lawn mowing which together total $38.00 per week. This will only increase the husband’s net income over expenses to $216.50 per week.
Taking these matters into account, I am unable to find on the evidence before me that the husband currently has the capacity to provide ongoing periodic spouse maintenance at the level sought by the wife.
When the [A] property is sold, however, the husband’s expenses will fall below his income and he will derive net proceeds of between $73,000.00 and $83,000.00, less the costs of sale. These funds could be used to satisfy an order for capitalised spouse maintenance.
The wife clearly has a need for support. I am satisfied that the husband is reasonably able to provide that support from the proceeds of sale of the property for a limited period which will allow her to concentrate on improving her English language skills, possibly undertake some employment training and take steps to obtain employment. In my view, support for the wife for a period of two years from the date of hearing is appropriate.
The wife’s expenses of self support, $350.00 per week, are modest. From the proceeds of sale of the property the husband will have the capacity to provide support at that level for two years. Given his failure to comply with previous orders for periodic spouse maintenance, a lump sum payment is appropriate. As a capitalised lump sum this would be $36,400.00. The husband will also have the capacity to pay the arrears owing for the period between the date of the interim spouse maintenance order on 30 July 2007 and the hearing on 23 November 2007 which amount to $3,850.00. From that amount the husband can deduct whatever maintenance he has paid since 23 November 2007.
The [A] property may well have been sold between the date of hearing and this decision. If that is so, the funds will be held on trust for both parties in accordance with the orders of 23 November 2007. If the property is not yet sold the husband may have to lower the asking price in order to affect a sale. Even if that occurs, given the offer rejected by the husband for the property, there will still be sufficient equity in the property to allow the payment to the wife.
The wife’s need for support is pressing. In the event the [A] property is not sold by 1 June 2008, it is reasonable in my view to require the husband to sell it by auction to the highest bidder. On the husband’s own evidence, he cannot meet his own weekly expenses, including the mortgage, from his income. The sale will therefore provide relief for him as well as support for the wife. I will make orders that compel the sale if it has not occurred by 1 June 2008.
Of course, if the husband finds some other way of meeting the order for spouse maintenance there will be no requirement for him to sell the property and it will be a matter for him as to when and for how much it is sold.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Hughes FM
Associate: J Commins
Date: 2 April 2008
0
0
1