MEHTA & CRIMMINS - [2018] FamCA 398

FAMILY COURT OF AUSTRALIA

MEHTA & CRIMMINS

[2018] FamCA 398

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife makes application for the husband to pay her spousal maintenance – Where the wife is on a bridging visa – Where the wife has no family support in Australia – Where the wife is unable to work because of her visa status – Where the wife has no financial resources or assets in Australia – Where the wife is unable to support herself – Where the husband has significant financial resources and assets – Where the husband has the capacity to pay spousal maintenance – Orders made for the husband to pay the wife periodic and lump sum spousal maintenance.

FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – Where the husband seeks that the wife’s application for final property orders be summarily dismissed – Where there are unresolved issues as to the wife’s assets in Country B – Where the wife likely has a claim under s 75(2) of the Family Law Act 1975 (Cth) – Where it cannot be presently said that the wife’s application is doomed to fail –Husband’s application dismissed.

FAMILY LAW – COSTS – Where the wife makes application under s 117 of the Family Law Act 1975 (Cth) for interim costs to fund litigation – Where the wife has no financial resources or assets in Australia – Where the wife cannot work because of her visa status – Where the wife’s lawyers will not continue to act if an order for costs is not made – Where the husband can pay his legal costs from income alone – Where the husband is in a superior financial position – Order made for the husband to pay the wife a lump sum to fund litigation.

Family Law Act 1975 (Cth) ss 72, 74, 75(2), 79, 117, 117AA, 118
Family Law Rules 2004 (Cth) r 10.12

Beklar & Beklar [2012] FamCA 894
Bevan & Bevan (1995) FLC 92-600
Bigg v Suzi (1998) FLC 92 799
Collins and Collins (1985) FLC 91-603
Gitane and Velacruz [2007] FamCA 183
Lyndon v Commonwealth No 2, (1996) 70 ALJR 541
Penfold v Penfold (1980) FLC 98-800
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805

APPLICANT:

Ms Mehta

RESPONDENT:

Mr Crimmins

FILE NUMBER:	PAC	6104	of		2017
DATE DELIVERED:	1 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

4 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Druitt

SOLICITOR FOR THE APPLICANT:

Marsdens Law Group

COUNSEL FOR THE RESPONDENT:

Mr Fermanis

SOLICITOR FOR THE RESPONDENT:

Etheringtons Solicitors

Orders

That the order for interim spouse maintenance made on 11 December 2017 be discharged as and from the date of these Orders.
That pending further order the husband pay to the wife or as she may otherwise direct in writing interim spousal maintenance in the sum of $1,500.00 per week with the first payment to be made within seven days from the date of these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MEHTA & CRIMMINS [2018] FamCA 398
Case: [2018] FamCA 398
Decision Date: 1 June 2018

CaseChat Overview and Summary

In the matter of Mehta & Crimmins, Foster J of the Federal Circuit and Family Court of Australia considered applications by the wife for spousal maintenance and interim costs, and an application by the husband for summary dismissal of the wife's application for final property orders. The wife, who was on a bridging visa, had no family support in Australia, was unable to work due to her visa status, and possessed no financial resources or assets in Australia, rendering her unable to support herself. Conversely, the husband had significant financial resources and assets and the capacity to pay maintenance.

The court was required to determine whether to grant the wife's applications for interim spousal maintenance and interim costs to fund litigation, and whether to summarily dismiss the wife's application for final property orders. The husband sought the summary dismissal of the wife's property application, citing unresolved issues regarding her assets in another country.

Foster J reasoned that the wife's circumstances clearly demonstrated a need for spousal maintenance and funding for her legal proceedings, given her lack of financial means and inability to work. The court found that the husband had the capacity to meet these needs. Regarding the husband's application for summary dismissal, the court determined that there were unresolved issues concerning the wife's assets abroad and that she likely had a claim under section 75(2) of the *Family Law Act 1975* (Cth). Consequently, it could not be said that her application was doomed to fail, and the application for summary dismissal was refused.

The court ordered the husband to pay the wife interim spousal maintenance of $1,500.00 per week, a lump sum of $15,000.00 by way of lump sum spousal maintenance, and a further sum of $67,000.00, the characterisation of which was reserved. The husband was also ordered to pay the wife a lump sum to fund litigation, the quantum of which was to be determined by written submissions. The application for summary dismissal was dismissed.

Orders

Orders of the court

That the order for interim spouse maintenance made on 11 December 2017 be discharged as and from the date of these Orders.

That pending further order the husband pay to the wife or as she may otherwise direct in writing interim spousal maintenance in the sum of $1,500.00 per week with the first payment to be made within seven days from the date of these Orders.

That within 14 days from the date of these Orders the husband pay to the wife or as she may otherwise direct in writing the sum of $15,000.00 by way of lump sum spousal maintenance.

That within 42 days from the date of these Orders the husband pay to the wife or as she may otherwise direct in writing the sum of $67,000.00 with the characterisation of such payment to be reserved to final hearing.

That the application for summary dismissal be dismissed.

That any application for costs of the present application be by way of written submissions filed and served within 28 days from this date with any submissions in response to be filed and served within a further 14 days and judgment thereafter be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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