MUNIR & MUNIR

[2020] FamCA 949

FAMILY COURT OF AUSTRALIA

MUNIR & MUNIR [2020] FamCA 949

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife is unable to support herself – Where the husband has the capacity to raise funds as needed – Where it is appropriate for the husband to pay spouse maintenance – Orders for the husband to pay $750 per week to the wife.

Family Law Act 1975 (Cth) s 72

APPLICANT: Ms Munir

RESPONDENT: Mr Munir

FILE NUMBER: SYC 6551 of 2020

DATE DELIVERED: 16 November 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 2 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Diamond Conway Lawyers

COUNSEL FOR THE RESPONDENT: Mr Heazelwood

SOLICITOR FOR THE RESPONDENT: Abbas Jacobs Lawyers

Orders

1. Pending further order, the husband pay to the wife interim spouse maintenance of $750 per week, with the first such payment to be made within seven days.

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 Munir & Munir 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 SYDNEY

FILE NUMBER: SYC 6551 of 2020

Ms Munir

Applicant

And

Mr Munir

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Munir and Mr Munir are parties to litigation in relation to parenting and financial issues.  Competing interim applications were listed for hearing on 2 November 2020, when the parties were able to reach agreement in relation to a number of issues.  By consent, and pending further order, I made orders in the following terms:

   1.That within 7 days, the Husband pay to the Wife by way of urgent spouse maintenance pursuant to Section 77 of the Family Law Act and pending further Order the sum of $2,170 by payment direct to an account nominated by the Wife.

   ...

   3.That within 7 days of the making of these Orders, the Wife and Husband will jointly do all acts and things and execute all documents necessary as to apply to draw down from the CBA Mortgage account No …07, $85,000 ("the loan facility") secured against the property known as G Street, Suburb J ("the Suburb J Property") being the whole of the land in Folio Identifier … and the Husband shall pay all instalments of principal and interest as and when they fall due.

   4.That until further Order the Husband be restrained by injunction from doing any act or thing as to dispose, transfer, sell or encumber each of the properties known as K Street, Suburb L being the properties in Folio B…57, C…57, 5/…59 and 6/…59 (collectively "the Suburb L Properties").

   5.That the Husband within 5 business days of the date of these Orders account to the Wife of all rentals received from the Suburb L Properties between 1 July 2019 to the date of these Orders.

   6.That the Husband within 5 business days of the date of these Orders account to the Wife of all monies drawn down by him from the CBA Home Loan Account #…07.

   7.That the Husband until further Order maintain all repayments as each repayment falls due and payable of the CBA Home Loan Account #…07 being Mortgage Dealing Number …33.

   8.That within 3 days of the date of these Orders, the Husband's solicitor select one name from the names of three expert forensic accountants and three expert real property valuers ("nominated valuers") provided by the wife, to value:

   8.1.Forensic Accountant

   8.1.1.H Pty Ltd

   8.1.2.M Pty Ltd

   "the businesses"

   8.2.Real Property Valuers

   8.2.1.K Street, Suburb L being the properties in Folio Identifiers B…57, C…57, 5/…59 and 6/…59

   8.2.2.G Street, Suburb J

   "the real property"

   and in the absence of the husband's nomination in accordance with Order 8, then Mr C appointed as the single expert forensic accountant to value the business and Mr D of F Company be appointed as the single expert valuer for the real property.

   9.That upon the Husband selecting the expert forensic accountant and expert real property valuer from the nominated valuers, a joint letter of instructions to each of the selected valuers be signed by the parties' respective solicitors.

   10.That in the event the Husband fails to nominate the respective nominated valuers within the time prescribed by Order 13, the Wife shall thereafter select the relevant nominated valuers to value the companies and the realty properties as per Order 13 and the Wife's solicitor to prepare the joint letter of instructions to each of the nominated valuers and signed by the Wife's solicitor for and on behalf of the Husband.

   11.In the event the parties are not in receipt of an $85,000 draw down as provided in Order 3 the costs of the valuation at first instance to be borne by the Husband and in the event payment of the monies referred to in Order 3 is made to the Wife, the cost of the valuers be shared equally by the Wife and the Husband.

   12.That the Husband make full and frank disclosure of financial documents particularised in Schedule annexed to letter dated 19 August 2020 from the Wife's solicitor to the Husband.

1. The remaining issue was the quantum of periodic interim spouse maintenance, if any, which the husband should pay to the wife.  According to a Case Outline dated 2 November 2020, the wife sought an order for interim spouse maintenance of $1,596 per week.  The husband contended that he has no capacity to pay spouse maintenance and opposed the making of any such order.

Background

1. The husband and the wife, who are aged 45 and 42 respectively, married in 2000 and separated on 29 March 2020 or 13 August 2020.  On 29 March 2020 the wife began to sleep in a granny flat at the rear of the former matrimonial home and she moved out of the property on 13 August 2020.

2. The parties have three children, Mr B, X and Y who are aged 19, 17 and 13 respectively.  X and Y left the former matrimonial home with the wife and Mr B remained living in the premises with the husband.  X returned to live with the husband and Mr B in about October 2020.

3. After the wife left the family home, she stayed in safe houses and Airbnb premises until she rented a two-bedroom apartment in October 2020.  She has purchased furniture and contents for approximately $14,000, which funds she withdrew from a CBA account in her sole name.

4. The husband owns and operates a business known as H Pty Ltd.  He deposed that the business has suffered a downturn in profitability due to the COVID-19 pandemic.

5. Each of the parties levelled allegations of family violence against the other and they both vehemently denied having perpetrated any such acts.  Obviously, I cannot make factual findings as to any of these allegations in the context of this interim hearing.  The wife alleged that the husband's treatment of her has had an adverse impact on her capacity to engage in gainful employment.  The husband alleged that he has been adversely affected by false allegations of violence levelled against him by the wife.

Consideration

1. Applications for spouse maintenance are to be determined by reference to section 72 of the Family Law Act 1975 (Cth), which provides relevantly as follows:

   (1)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 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).

2. The wife deposed that her income currently consists of a JobSeeker payment of $420 per week.  She contended that her weekly expenditure amounts to $2,036.  Her recurring weekly expenses include rental of $550, home insurance $33 and motor vehicle registration $24.

3. The wife annexed to her affidavit of 17 September 2020 a medical certificate dated 3 September 2020 from Dr F.  This certificate identified four medications which are currently prescribed for the wife.  Dr F opined that she "has a medical condition related to anxiety and depression and hypertension induced by family stresses."

4. The wife deposed that she was responsible for the financial affairs of the family and carried out adminstrative duties for H Pty Ltd during the marriage.  It thus seems that she has marketable skills, which may be impaired currently by her state of health.

5. The husband did not appear to dispute that the wife is unable to support herself adequately for the purposes of section 72 but contended that he has no capacity to pay spouse maintenance. The husband deposed to a total gross weekly income of $962, being rental of $385 and drawings from H Pty Ltd of approximately $577.

6. The husband claimed that his weekly expenditure amounted to $1,535, which includes mortgage repayments of $556.  It appears that several of his recurring expenses, for example motor vehicle costs, are paid by H Pty Ltd.  The husband deposed that the former matrimonial home houses vehicles and other equipment which he used in his business and it may be that some portion or all of the mortgage repayments are similarly tax deductible for the company.

7. The husband's weekly expenditure of $1,535 includes costs attributed to children of $565.  These expenses must refer to X, who earns a small income as a personal care professional.

8. The husband deposed that at the request of the wife, he deposited $100,000 into an account of the parties' son Mr B on 9 February 2020.  The husband deposed also that he purchased equipment for $167,200 in August 2020.  I accept that the husband took advantage of a favourable rebate offer from the Commonwealth Government in relation to this purchase.  The husband's evidence was that he anticipates a growth in the company's business over the next three years, as this new equipment will enable him to tender for a wider range of work.

9. The husband set out information in relation to debits and credits in one of the company's bank accounts as follows:

   65.      The statements for account number #...76 reveal that:

   a.For the period 25 October 2019 to 31 December 2019 the company banked gross credits of $78,630.00 and debits of $50,517;

   b.For the period 1 January 2020 to 31 March 2020 the company banked gross credits of $159,427 and debits of $162,619;

   c.For the period 1 April 2020 to 30 June 2020 the company banked gross credits of $60,174 which included a payment from the Australian Government on 31 May 2020 for $9,751 and debits of $68,458;

   d.For the period 1 June 2020 to 30 September 2020 the company banked gross credits of $50,081 and debits of $39,590.

10. The company has operated at a loss for the last three years.  Tax returns exhibited to the affidavit of the husband disclosed the following information:

2017	Gross Income	$110,051
Total Expenses	$110,051
Net Profit/Loss	$0
2018	Gross Income	$150,525
Total Expenses	$192,670
Net Loss	$42,145
2019	Gross Income	$566,859
Total Expenses	$629,190
Net Loss	$62,331

1. The evidence did not provide a breakdown of the expenses of the company but, as observed above, a number of the husband's recurring costs are met by H Pty Ltd.  The company's gross receipts in 2019 exceeded considerably those of the two previous years but there is no reason to doubt the husband's evidence of a recent downturn due to the COVID-19 pandemic.

2. The husband was able to access $100,000 in February 2020 and to finance the purchase of equipment of $167,200 in August 2020.  It thus appears that he has a capacity to raise capital sums from time to time.  The husband's Financial Statement of 1 November 2020 indicated that he holds a credit balance of $6,040 in a CBA account.

3. In my view, these matters indicate that the husband has a capacity to pay interim spouse maintenance, albeit not from a directly identifiable recurring income stream.  It seems to me that the wife's claim for $1,596 per week is excessive and, at the same time, the husband cannot maintain his position that he should make no contribution to the financial support of the wife.  I will order that the husband pay interim spouse maintenance of $750 per week to the wife.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 16 November 2020.

Associate: 

Date:  16 November 2020