Kapoor and Kapoor
[2011] FMCAfam 262
•3 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAPOOR & KAPOOR | [2011] FMCAfam 262 |
| FAMILY LAW – Spousal maintenance – spouse unable to pay – declaration of right to occupy premises. |
| Family Law Act 1975, ss.72, 74, 75, 78, 79(2) |
| Applicant: | MR KAPOOR |
| Respondent: | MS KAPOOR |
| File Number: | MLC 10273 of 2010 |
| Judgment of: | F. Turner FM |
| Hearing dates: | 2 and 3 March 2011 |
| Date of Last Submission: | 3 March 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 3 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Combes |
| Solicitors for the Applicant: | Thelma Pablas & Associates |
| Counsel for the Respondent: | Ms Baczynski |
| Solicitors for the Respondent: | John Finlayson Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mrs Mandelert |
| Solicitors for the Independent Children’s Lawyer: | Bowlen Dunstan & Associates Pty |
ORDERS MADE 2 MARCH 2011
The cost of the supervision by the Australian Turkish Association, to be born equally by the parties.
BY CONSENT THE COURT ORDERS:
Interim parenting orders are made in accordance with the Minutes of Proposed Orders dated 2 March 2011 and placed on the Court file, other than minute 3 which is made as an order of the Court without consent.
The solicitors for the Independent Children’s Lawyer file three clean typescript copies of those minutes within 7 days to be certified as a true copy of the original.
Pursuant to Rule 10.05 of the Federal Magistrates Court Rules 2001 the parties attend a Conciliation Conference with a Deputy Registrar of the Family Court of Australia at the Melbourne Registry on 3 June 2011 at 9.15am.
The parties ensure that no later than seven days prior to the date fixed for the conciliation conference, each party send to the other, and the nominated Registrar or organisation:
(a)an outline of case document;
(b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute;
(c)valuations of any superannuation interests;
(d)a copy of the actual terms of orders required to give effect to their settlement proposal;
(e)written confirmation by each party or their solicitor that:
(i)all relevant documents have been exchanged between the parties; and
(ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.
The matter be adjourned for interim hearing on property and parenting matters at 10am on 24 June 2011.
The matter be fixed for final hearing at 10am on 26 September 2011 with an estimated hearing time of two days.
The applicant shall file and serve all further affidavits and other material to be relied upon by the applicant not later than 28 days prior to the trial.
The respondent shall file and serve all further affidavits and other material to be relied upon by the respondent not later than 14 days prior to the trial.
The Independent Children’s Lawyer shall file and serve all further affidavits and other material to be relied upon by them not later than 7 days prior to the trial.
Not later than two business days prior to the trial all parties shall file and serve an Outline of Case Document including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60CC factors);
(d)a list of other contentions relevant to the decision;
(e)whether the presumption of equal shared parental responsibility applies (s.61DA), and if not the contentions relied upon;
(f)a list of the considerations relevant to considerations of equal and substantial parenting time (s.65DAA);
(g)a list of other relevant considerations (including the relevant section number, eg ss.60CG, 61F, 65DAB, 65DAC, etc);
(h)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(i)main contentions on disputes as to:
(i) inclusion in the pool; and
(ii) value of the asset;
(j)list of contributions claimed or contended for;
(k)list of other factors relied upon (s.75(2) factors) and percentage adjustment contended for;
(l)other relevant contentions to determining a ‘just and equitable’ division of property; and
(m)the actual orders sought.
The matter is adjourned until 12noon on 3 March 2011.
ORDERS MADE 3 MARCH 2011
Pursuant to s.74 of the Family Law Act 1975 (the “Act”), the husband is to pay the wife interim spousal maintenance in the amount of $90.00 per week for 25 weeks commencing on 4 March 2011.
Pursuant to r.16.05(3) of the Federal Magistrates Court Rules 2001, order 1 of the orders made 23 December 2010 is terminated.
The wife’s application for spousal maintenance is dismissed.
The application by the wife that she live in the property at Property T is dismissed.
THE COURT MAKES THE FOLLOWING DECLARATION
Pursuant to s.78(1) of the Act, the husband has the right to the exclusive possession of, and to occupy the property at Property T.
IT IS NOTED that publication of this judgment under the pseudonym Kapoor & Kapoor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10273 of 2010
| MR KAPOOR |
Applicant
And
| MS KAPOOR |
Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
On 23 December 2010, the Court ordered the applicant husband to pay the respondent wife $350.00 per week spousal maintenance. The husband has applied for an order revoking that order. The Court finds that the husband has a net disposable income of between $630.00 and $667.00 per week (that later figure comes from Exhibit A1; the earlier one from figures calculated during the hearing) plus $30.00 per week child support.
The Court adjourned the proceedings on 2 March 2011 to enable an examination of how much money the husband has access to in the bank account of his son [X] born [in] 1997. The bank statement was tendered on 3 March 2011 (Exhibit A2) showing a balance on the day of hearing, of $2,286.49. Mr Combes for the husband, stated that this equated to $90.00 per week spousal maintenance until the final hearing in September (dividing $2296.49 by 90 gives 25 weeks at $90.00 per week).
The weekly expenses of the husband, including $350.00 per week spousal maintenance, are set out in his updated Financial Statement filed on
25 February 2011 and total $2,287.00. They have increased from $1,639.00 (excluding spousal maintenance) set out in the Financial Statement filed on 15 December 2010. Ms Baczynski is critical of the figures and submits that they are inflated or not genuine. No detailed cross-examination was made of the husband about the figures. Even if the cost of fuel and parking ($90.00 per week combined) is removed, the expenses are still $2,197.00. per week. They still exceed the husband’s maximum disposable income of $697.00 per week by $1,500 per week. Revoking the order for $350.00 maintenance will leave the husband with weekly expenses, that exceed his disposable income by $1,150.00 per week. However his expenses include $253.00 per week tax. Removing that leaves expenses of $897 per week with a disposable income of $697.00 per week. Ms Baczynski is correct; the figures disclosed cannot be correct; but the wife has failed to provide evidence of other figures. In the medium to long term it is not viable to have expenses that exceed income by the level indicated. However even taking a robust view the Court cannot simply invent figures.The first criteria in s.72 of the Family Law Act 1975 (the “Act”) is whether the party from whom spousal maintenance is claimed is “reasonably able to maintain the other party”. The Court finds that the husband is not reasonably able to maintain the wife beyond the $90.00 per week that is available from Omer’s bank account. The Court finds that the wife needs spousal maintenance as she is not able to support herself adequately, is unable to speak English adequately, and has little prospect of finding paid employment, at least in the short term.
The next issue is whether the husband or the wife is to live in
Property T (the “unit”). The Court ordered by consent on 2 March 2011 that the three children are to live with the husband. The husband currently lives with his mother in her house at [address omitted]. The husband gave evidence that the unit is 20 to 25 minutes closer to the children’s school than where they live at present. The husband says that where he lives at present has bad memories for the children. He wants to give them a fresh start.
The wife says that she has no income. She pays child support of $30.00 per week, however she receives $250.00 per week from Centrelink. The Court is not required by s.75(3) of the Act to disregard that payment, as that provision relates to the exercise of power under s.74 of the Act. The wife will also, as a result of these orders, have $90.00 per week spousal maintenance. That will give her more money to live on than the husband has; and the husband needs to find or provide accommodation for four people. The wife is living with her sister rent-free. There was no evidence that she cannot continue to live there.
The wife has claimed that there is sufficient room in her sister’s house for the wife to care for the children when they spend time with her.
An order as to who is to live in the unit is an order as to possession consequential upon a declaration of rights in the property, pursuant to s.78 of the Act. The test of what is just and equitable under s.79(2) of the Act applies to orders made under s.79 of the Act. The test is therefore not required here, but in any event, it would be met here by the order the Court will make.
In considering what order should be made under s.79 of the Act, the Court would have regard to whether either party has care and control of the children (s.79(4)(e) and s.75(2)(c) of the Act). Here the husband has the care and control of the three children on every night. The Court would also have to consider the commitments necessary to enable the party to support themselves and a child (s.75(2)(d) of the Act). Here the husband needs to support the three children. He said he needs to move out of his mother’s home to give the children a fresh start and to move away from the area which has the bad memories. If he moves out of his mother’s house, he will either have to pay rent or move into the unit. He will be better able to support his children if he lives in the unit.
Applying the test of what is just and equitable to s.78 of the Act, the Court would find that an order that the husband have possession of the unit is just and equitable is otherwise an appropriate declaration to be made.
The wife has little income and little expense. The husband’s expenses outweigh his disposable income significantly. It becomes a question of which parent should be able to give up rent-free accommodation and live in the unit. If the husband moves in there so will his children; it is reasonable that that occur. The Court orders accordingly.
Pursuant to s.78(1) of the Act the Court declares that the husband has the right to the exclusive possession of, and to occupy the property at Property T.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 24 March 2011
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