MEHTA & CRIMMINS
[2018] FamCA 398
•1 June 2018
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mehta & Crimmins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 6104 of 2017
| Ms Mehta |
Applicant
And
| Mr Crimmins |
Respondent
REASONS FOR JUDGMENT
In the context of ongoing proceedings for final property adjustment and spousal maintenance orders the Applicant wife makes application for interim financial orders.
On 13 April 2018 the wife filed an Application in a Case relevantly seeking, in summary, the following orders:
a)that the husband pay to the wife by way of interim spousal maintenance the sum of $1,515.00 per week together with $450.00 per week for “rental expenses” and sums totalling $13,950.00 for accommodation set up costs, dental work and medicine and health related costs together with a further sum of $1,280.00 to facilitate payment of the wife’s debt to an entity for her living expenses from 31 October 2017 to 8 January 2018;
b)that the husband pay within 42 days the sum of $10,000.00 to the wife being costs of and incidental to legal costs of proceedings in relation to her property in City A, Country B; and
c)that the husband pay within 45 days the sum of $100,000.00 to the wife on account of her legal fees of these proceedings.
In support of her Application in a Case the wife relied upon the following documents:
a)her Financial Statement filed 6 December 2017;
b)her affidavit filed 6 December 2017;
c)her affidavit filed 13 April 2018;
d)her affidavit filed 2 May 2018; and
e)the affidavit of Mr C, interpreter, filed 2 May 2018.
The husband sought that the wife’s application for financial property adjustment be summarily dismissed (his Application in a Case filed 9 April 2018).
Otherwise, the husband in response to the wife’s application for interim relief sought the following orders:
a)that the husband pay to the wife by way of interim spousal maintenance the sum of $500.00 per week until such time as the wife obtains paid employment or leaves the jurisdiction whichever first occurs; and
b)that otherwise the wife’s application for interim financial relief be dismissed.
The husband relied upon the following documents:
a)his Financial Statement filed 22 April 2018;
b)his affidavit filed 8 December 2017;
c)his affidavit filed 20 April 2018; and
d)the affidavit of Ms D filed 24 April 2018.
On 11 December 2017 interim orders were made by consent pending hearing of the wife’s interim application for financial relief. Those interim orders provided as follows:
(1)The Respondent pay to the Applicant by way of urgent spousal maintenance:
(a)The sum of $1,070.00 per week directly into the Applicant’s bank account as follows:
ANZ Bank
Account Number: …78
BSB: …
to be paid each Friday commencing 15 December 2017.
(b)The sum of $1,800.00 for Rental Bond into the Applicant’s bank account, conditional upon the Applicant obtaining a Rental accommodation by or before 9 January 2018 and into the following bank account:
ANZ Bank
Account Number: …78
BSB: …
With the Applicant to provide the Respondent, in writing the particulars of such accommodation including a copy of any proposed residential tenancy agreement prior to any such payment being made, without disclosing the exact address.
IT IS FURTHER ORDERED THAT
(2)The proceedings adjourned for interim hearing to 9.30 am on Tuesday, 24 April 2018.
(3)The proceedings are adjourned for case assessment conference before a Registrar to 9.15 am on Monday, 22 January 2018 (Order made in Chambers).
(4)The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than 18 April 2018.
Context
The wife is presently aged 32 and was born in City A, Country B. The husband is presently aged 48 and was born in Australia.
The parties met in late 2015 through a family friend.
The parties married in 2016 in Country B with the wife arriving in Australia on a Partner Visa in mid-April 2017. The husband asserts a further marriage ceremony in NSW shortly after.
The parties separated in September 2017.
There are no children of the relationship.
The wife holds a Master’s Degree from Country B where she was a professional prior to her coming to Australia. Notwithstanding her academic qualifications the wife asserts that her English is not good and she can speak only basic to intermediate English.
The wife’s evidence
The wife asserts that following her arrival in Australia the husband’s behaviour towards her changed and that she was subjected to domestic violence.
The wife asserts that the husband accepted his aberrant behaviour, apologising to her and saying “I’m not a good husband, I’m not like a normal husband”.
The wife says the husband belittled her, particularly her cultural background. He provided to the wife a list of tasks to be undertaken by her each day including having sex with him once-a-day.
The husband admitted to the wife that he was having a relationship with his brother’s girlfriend and asserted that she was pregnant to him.
The wife had no family or support in Australia to assist her.
The wife travelled to Country B in August 2017 to visit family.
The wife returned to Australia in early September 2017 and on 9 September 2017 there was a domestic violence incident at the husband’s parents’ home in which the husband pushed the wife causing her to fall down stairs holding a glass in her hand. The wife suffered cuts and ran from the husband’s parents’ home. Passers-by called police and the wife was taken by ambulance to hospital where her injuries were treated. The wife was interviewed by the police.
The wife’s complaints as to the husband’s behaviour are consistent with her report to the hospital on her presentation. The wife suffered laceration to a tendon and a nerve injury which required surgery and follow-up at the hand clinic. The wife was counselled at the hospital with the assistance of an interpreter and was assisted by the domestic violence crisis line to obtain post hospital accommodation.
Following the wife’s discharge from hospital she was accommodated in a women’s refuge accommodation until 9 January 2018. She was unable to remain in that accommodation long-term and estimates that the cost of her obtaining suitable one-bedroom accommodation would be in the range of $350.00 to $500.00 per week.
The wife is not eligible for Centrelink benefits as a consequence of her being sponsored into Australia pursuant to her current Visa by the husband. The wife has been reliant upon charity and the interim orders for her daily needs.
The husband asserts that the wife’s Partner Visa has now been cancelled and that she remains in Australia on a Bridging Visa.
The wife estimates that her reasonable weekly expenses would total $1,515.00 including rent as set out in her affidavit filed 13 April 2018 at [15]. She further asserts reasonable setup costs for her own accommodation including a bed, television, refrigerator, etcetera to be about $11,200.00.
She says that the husband is a technician and has represented to her that his income is from $120,000.00 per annum to $240,000.00 per annum. Yet the husband’s personal tax returns for the years 2015, 2016 and 2017 show taxable income of $359,762.00, $309,130.00, and $394,814.00 respectively.
She asserts that she has seen a bank statement for the husband’s account having a credit balance of about $1.5 million with the husband, otherwise, owning an unencumbered property at Suburb E.
The wife asserts that she is in need of funds by way of interim costs or, otherwise, for the purposes of funding the current litigation. She has estimated legal fees to final hearing of about $70,000.00 together with significant disbursements for counsel and expert fees. As at the date of interim hearing she had outstanding costs owing to her solicitors of $17,000.00 and no financial resources from which to meet ongoing legal fees.
There is a significant issue between the parties as to whether the wife has assets and/or financial resources in Country B. The wife asserts that as a consequence of the social stigma attached to her separation she would not be welcome should she return to Country B nor can she expect support from her family.
The husband’s evidence
The husband takes issue with the wife’s English abilities.
The husband denies any domestic violence as against the wife (asserting that the injuries suffered by the wife were wilfully inflicted by her on herself) and asserts that he provided a list of duties for the wife to undertake following his feelings of constant rejection from the wife. Notwithstanding, a provisional Apprehended Domestic Violence Order (“ADVO”) was issued against the husband on 9 September 2017. The complaint set out in the Application contained in the provisional ADVO is consistent with the allegations made by the wife.
The husband asserts that prior to the wife travelling to Country B to see family in August 2017 he sent her an email informing her of the breakdown of their marriage on or after 28 July 2017. He expresses surprise that the wife returned to Australia in September 2017.
The husband says that in July 2016 the wife entered into a contract to purchase a property in City A the purchase price of $355,000.00 that was funded by him. The husband asserts that the property has a rental value of about $350.00 per week and is empty. The wife asserts that this property has in some way been transferred out of her name by her father as a consequence of the shame and humiliation that her separation has brought upon the wife’s family in Country B. The husband asserts that the wife has wilfully transferred the property from her name to alienate it from consideration in the property proceeding. The issue awaits determination at a final hearing.
The husband has two children from a previous relationship now aged 11 and eight and he pays child support of $1,950.00 per month together with other child related expenses.
The husband has now re-partnered with a Ms F, who appears to be his brother’s former partner. He asserts that she has previously been unemployed but now has commenced employment. He further asserts income totalling $3,306.00 per week at present notwithstanding that his tax return for the 2017 tax year was indicative of an income of about $7,900.00 per week. He, otherwise, holds cash funds at bank of about $114,000.00, a Westpac bank share portfolio having a value of about $1.33 million subject to a portfolio loan of about $750,000.00 and, otherwise, has monies owing to him totalling $943,000.00.
Spousal Maintenance
Section 72 of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant provisions in relation to the right to spouse maintenance. The Court can make such order as it considers proper (s 74).
Section 72 provides that 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 a 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) of the Act.
In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said:
As Nygh J. said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order. Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.
There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle (see Bevan & Bevan (1995) FLC 92-600).
The relevant matters in s 75(2) need to be considered.
Neither party asserts any relevant health circumstance.
The husband has significant income, assets and financial resources. The wife has no income by reason of her Visa status and she asserts no financial resources.
The husband has a child support obligation for his two children from a previous relationship.
The wife is in need of support until such time as she is entitled to seek employment and thus obtain gainful employment earning an adequate income to support herself.
Whilst this marriage was short the adverse financial consequences for the wife are significant absent periodic and other support from the husband.
The husband is now cohabiting with a partner who earns about $100,000.00 per annum.
The Court is satisfied that the wife is unable to support herself adequately as contemplated by s 72 of the Act.
Otherwise, there was no issue taken with the wife’s asserted reasonable expenses that compare most favourably to those asserted by the husband for himself.
The husband clearly has capacity to meet an ongoing but interim obligation for spousal maintenance given his income and financial resources and assets outlined earlier in these Reasons.
It is proper that the husband pay to the wife by way of interim spouse maintenance the following:
a)interim periodic spouse maintenance in the sum of $1,500.00 per week pending further order; and
b)the sum of $15,000.00 by way of lump sum spousal maintenance within 14 days from the date of these orders.
Orders will be made accordingly.
Interim Costs
Section 117(1) of the Act is the basic provision concerning costs and provides the general rule that subject to s 117(2), s 117AA and s 118, each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) requires a finding of justifying circumstances as an essential prerequisite to the making of an order for costs (Penfold v Penfold (1980) FLC 98-800).
If there are circumstances that justify it in so doing, the Court may make an order for costs pursuant to s 117(2) as the Court considers just.
In considering what order, if any, should be made, regard must be had to the provisions of s 117(2A) to the extent each is relevant. The considerations are:
a)the financial circumstances of each of the parties to the proceedings;
b)whether any party has legal aid and the terms of any grant of aid;
c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)such other matters as the Court considers relevant.
In Collins and Collins (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
The wife clearly asserts that she has no financial capacity to meet her ongoing legal costs whereas the husband has a demonstrable capacity to meet his legal costs from his income alone.
The husband has substantial cash or cash equivalent assets in his share trading account to meet a modest costs order in favour of the wife.
As summarised by Ryan J in Beklar & Beklar [2012] FamCA 894:
[31]In relation to future legal expenses, whether pursuant to s 74 or s 117(2), in Strahan & Strahan (2011) FLC 93-466 per Boland and O’Ryan JJ at [96] the Full Court referred with approval to remarks made by Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 as follows:
... in addition to the three matters described in Zschokke, where the order was made pursuant to either s 74 or s 117 of the Act:
· an applicant should have “at least an arguable case for substantive relief which deserves to be heard”: Chester v Chester (1995) FLC 92-612 (“Chester”) at 82,107 per Moss J;
· there should be evidence of the applicant’s “likely costs of the litigation”: see Wilson and Chester;
· “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis: Columb and Columb (unreported, Family Court of Australia, Fogarty J, 27 November 1987); see however Coomes and Coomes [1995] FamCA 103; (1995) FLC 92-558 per Cohen J;
· an order may “make a provision for litigation expenses at a rate that appears reasonable in all the circumstances”;
· an order can be made “in respect of costs already incurred as well as of future costs”;
· “whether the order is to be in respect of costs already incurred or costs to be incurred, and whether the applicant’s lawyers will continue to act in the absence of provision for costs to be incurred, may be relevant to the discretion to make an order, and its’ quantum”;
· “any such order should be framed to protect the parties from any risk of injustice arising from the manner in which the funds are expended” and this may be done “by requiring that the funds be administered solely by the applicant's solicitors and applied only to meet the expenses referred to in the order, with detailed records being maintained to permit review by the Court at the time of the exercise of its discretion in the substantive property proceedings or on the final determination of the issue of costs”: Breen.
…
[32] Reference to the three matters referred to in Zschokke and Zschokke [1996] FamCA 79; (1996) FLC 92-693, is to:
· a position of relative financial strength on the part of the respondent;
· a capacity on the part of the respondent to meet his or her own litigation costs;
· an inability on the part of the applicant to meet his or her litigation costs.
[33]These are not preconditions but, where they exist, add considerable weight to the case for an order of this type. Strahan [90].
In the subject application the wife has a substantive application before the Court for a property adjustment order for the payment to her of $1.3 million and for periodic spouse maintenance of $2,000.00 per week for five years. It may be suggested having regard to the history of the relationship referred to above, including the issue of the Country B property that the wife’s claim is indeed an ambit claim.
Yet she clearly at present has significant s 75(2) considerations in her favour particularly as she is precluded from employment.
The wife has given evidence of the likely legal costs she will incur. They appear reasonable in the circumstances of this matter. Her solicitors have said that they will not act for her in the event that her application for litigation funding is unsuccessful.
The wife has arrears of $17,000.00 in regard to legal costs at present.
It is patent that the husband is in an absolute superior financial position to that of the wife and most likely can service his costs from his income. He has significant cash funds available to meet a modest payment to the wife’s solicitors on account of her costs.
In the circumstances of this matter an order for the payment of $67,000.00 only is appropriate and proper. Such payment will meet the wife’s outstanding costs and provide a fund of $50,000.00 to meet the costs of her proceedings. Ultimately, the characterisation of the payment in the overall scheme of proceedings will be reserved to final trial.
An order will be made accordingly.
Summary Dismissal
The husband seeks an order for the wife’s application for s 79 property adjustment orders to be “summarily dismissed”.
The applicable law is well settled.
The application is founded on Rule 10.12 of the Family Law Rules 2004 (Cth) which provides:
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
The husband contends that the wife’s claim for s 79 property orders has no reasonable likelihood of success.
The question of summary dismissal has also been considered by numerous decisions and are well settled: Lyndon v Commonwealth No 2, (1996) 70 ALJR 541 and Bigg v Suzi (1998) FLC 92 799.
In Gitane and Velacruz [2007] FamCA 183 the Full Court summarised the principles to be applied when determining an application for summary dismissal in the family law jurisdiction.
In summary those principles are:
(1)that relief for summary dismissal is rarely and sparingly provided;
(2)that it is only available if it is clear on the face of the documents of the person asserting a cause of action that there is no reasonable cause of action or that it is a frivolous or vexatious one;
(3)that it is not enough to attain summary dismissal to show that it is a weak case;
(4)that there is a defect in the pleading and it appears that the party still has a reasonable cause of action, the Court will allow the party to reframe its pleading; and
(5)that one only summarily dismisses if it is clear that the case is doomed to fail.
The context of this matter is referred to above. It is clear that, subject to unresolved evidentiary issues especially as to the Country B property, the wife at worst has a claim for adjustment under s 75(2) of the Act.
Her claim cannot on the evidence thus far be said to be clearly doomed to fail.
The application for summary dismissal will be dismissed.
Directions will be made for any application for costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 June 2018.
Legal Associate:
Date: 1 June 2018
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