Meeta and Sibi (No 2)

[2011] FamCA 1002

FAMILY COURT OF AUSTRALIA

MEETA & SIBI (NO 2) [2011] FamCA 1002

FAMILY LAW – SPOUSAL MAINTENANCE - Interim orders for spousal maintenance and injunctions

Family Law Act 1975 (Cth)

APPLICANT: Ms Meeta

RESPONDENT: Mr Sibi

FILE NUMBER: MLC 9309 of 2011

DATE DELIVERED: 28 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Devries

SOLICITOR FOR THE APPLICANT: Aughtersons

THE RESPONDENT: In person

Orders

1. That all outstanding applications are adjourned to 24 January 2012 at 10.00am.

2. That the respondent file and serve a response together with an affidavit and financial statement by 4.00pm on 20 December 2011.

3. That forthwith, the respondent provide to the solicitors for the applicant, an authority signed by him to the accountants responsible for the financial affairs of all of the entities in which the respondent has an interest, such that the applicant is entitled to speak with and obtain from those accountants, whatever information she may require about the financial affairs of the respondent and the relevant corporate entities.

4. That the respondent pay to the applicant by way of spousal maintenance the sum of $715 per week, the first of such payments to be made on 5 December 2011 and weekly thereafter.

5. That paragraphs 4 and 5 of the orders made on 31 October 2011 are extended until further order.

6. That the applicant’s costs of this day are reserved to the next return date.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meeta & Sibi (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9309 of 2011

Ms Meeta

Applicant

And

Mr Sibi

Respondent

REASONS FOR JUDGMENT

1. This is an application that was filed on 14 October 2011 by the applicant Ms Meeta.  The basis upon which the application is before the court is that the parties were in a relationship between January 2002 which ended on 4 January 2010.  There has been no dispute that the parties were in a de-facto relationship and, more importantly, that the relationship came to an end after 1 March 2009.  On that basis the court has jurisdiction to deal with the issue of maintenance, or as it is called, spousal maintenance.

2. The application is based on the fact that the applicant does not have the capacity to support herself without the payment of maintenance.  In the application she sets out that she is the mother of the three year old child and is not able to adequately support herself.  She is currently living with the assistance of a Commonwealth government pension.  I am satisfied for the purposes of a threshold test that she is in need of financial support. 

3. The material relied upon by the applicant includes a financial statement filed on 14 October 2011.  The only income she has is the pension and the entitlement to child support, but I am told that child support is not being paid.  The pension under the Act is to be ignored because it is taxpayer funded.

4. The applicant relies upon Part N of the document which shows that she has weekly expenses of $595 plus $120 per week for child-minding – that is a total of $715.  When I look at all of those expenses there is nothing unusual about them and I can take some judicial notice from sitting here day-in-day-out of the sort of expenses that people have for their general living expenses.  If anything, the expenses appear to be modest, as clearly they must be having regard to the fact that the applicant is currently living within her means on a pension.

5. The respondent appeared before the court on 31 October 2011 and sought an adjournment at that stage because he had only had some days to get his house in order.  I granted the adjournment and ordered that he file all his respondent material on or before 14 November 2011.  He has not filed anything.

6. He did seek legal advice and I note that there was a Notice of Address for Service filed on 11 November 2011 and this morning a Notice of Ceasing to Act has been filed by those solicitors.

7. The respondent now seeks an adjournment of the proceedings on the basis that he has not had capacity, in terms of time and complications associated with his business relationship, to get all of the material.  Whilst there may be some justification for that, there can be no justification for not responding, at least, to the primary affidavit material, which is not long and which would have enabled me to have some idea whether he challenges what the applicant says.  In addition, I might have some idea of what his financial position was, at least in terms of what expenses he incurs and what income he has.

8. It seems to me that I can rely, at this stage, on an interim basis, on the affidavit material which was filed on 14 October 2011.  In that affidavit the applicant details quite a number of corporate entities.  One of those entities recently sold a business and the applicant says that it was for approximately between $3,000,000 and $5,000,000.   Whilst the respondent says from the bar table that that is incorrect, he has not done the applicant the courtesy of letting her know the precise details.  I see no reason, on an interim basis, why I should not accept her evidence.

9. There is also other evidence before the court of a number of real properties which are leased, and no doubt subject to mortgages, but that is a matter that the respondent needs to have sorted out.  The evidence of the applicant shows that there are regular lease payments coming in and I see no reason why I should not conclude that even if there are obligations, including obligations to split some of those payments, he cannot organise his affairs otherwise in the short term to ensure that the taxpayers of Australia are not necessarily the ones funding the applicant.

10. I am satisfied in the circumstances that the respondent has the means and ability to provide the $715 per week and I will make an order in those terms.

11. On the last occasion the applicant also sought injunctive relief and because there was some dispute about those, I only made the orders until today.  That was on the basis that the respondent would have an opportunity to respond to all of the allegations that gave rise to concerns in the applicant.  Again, because he has not filed any material I see no reason why, on an interim basis, those injunctions ought not be extended.

12. I have been asked by the applicant today to make a further order that the respondent make proper disclosure as he is required under the rules.  This court time and again has said to people that they cannot simply wander in and out of the court process.  Once proceedings have started there is a fundamental obligation on all litigants to provide to each other not only documents, but information about their relevant financial positions.  A month has gone by and nothing has occurred.  In the short term, the applicant needs the information from the respondent, and if he is not going to provide it then she will be put in a position where she will have to pursue it herself.  On the next occasion if the respondent does not file the material then the applicant can make an application to proceed on an undefended basis, without any consideration of his views.

13. One of the other matters that might assist in that is the applicant seeks an order that the respondent authorise his accountant to provide whatever information the applicant needs to enable her to prove her case in the event that he does not comply.  I see no reason why the order ought not be made having regard to the primary obligation to provide information and documents as I have indicated.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 November 2011.

Associate: 

Date:  6 January 2012