Nerad and Mugara

[2012] FamCA 42

FAMILY COURT OF AUSTRALIA

NERAD & MUGARA [2012] FamCA 42

FAMILY LAW - SPOUSAL MAINTENANCE

Family Law Act 1975 (Cth)

In the Marriage of Black and Kellner (1992) 15 Fam LR 343

APPLICANT: Ms Nerad

RESPONDENT: Mr Mugara

FILE NUMBER: SYC 5282 of 2011

DATE DELIVERED: 30 January 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 23 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Alexanders Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT: Equity Lawyers

Orders

1. Pending further Order the husband is to pay to the wife by way of spousal maintenance the sum of $2,181 per week payable on Friday of each week by direct deposit into the following account:

   Name:  Ms Nerad
   Financial Institution:          St George Bank Ltd
   BSB Number:  …
   Account Number:                …

   or such other account the wife shall nominate in writing to the husband.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nerad & Mugara has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5282 of 2011

Ms Nerad

Applicant

And

Mr Mugara

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court were proceedings commenced by the wife on an interim basis seeking orders with respect to maintenance, injunctive relief and parenting orders.  On the hearing of the matter those issues relating to parenting and injunctive relief were settled and Orders made by consent.  That left remaining the Order sought by the wife for maintenance.

2. The matter had been previously before the Court on 26 September 2011 and the matter was on that date adjourned to 23 January 2012 for hearing.  Inter alia, the husband was ordered to file a Response, Financial Statement and any affidavit on which he sought to rely by 14 November 2011.

3. Orders previously made provided that the wife would be entitled to exclusive occupation of the premises … C Street, Sydney Suburb D (the “D unit”) and that whilstsoever she remained occupying that unit the husband would be liable to pay the mortgage, strata fees and council rates as and when they fell due.

4. The wife was by the Orders entitled to move out of the unit and remove her furniture and as a consequence of that the husband would be obliged to pay her the sum of $10,000 within seven days of her vacation of the home unit.  She vacated the unit and the amount was paid.

5. Within 14 days of the Orders of 20 September 2011 the husband was obliged to pay to the wife an amount of $25,000.  That amount was paid.

6. There were other Orders made relating to files belonging to a business of the wife and a requirement that the husband disclose information as to the whereabouts of certain of those records.  The Court is informed that Order was significantly complied with.

7. It was noted that the husband, although agreeing to Orders in relation to exclusive occupancy of the D unit, did not concede or admit that he had any direct or indirect interest in it.

8. Beyond the due date the husband filed a Response to the wife’s Application and sought no interim orders and also filed an unsworn Financial Statement.

9. On the hearing the wife sought an amount of spousal maintenance of $1,500 per week together with an amount of $575 being the amount of her rental.

10. This claim was amended in the course of argument to a claim for $918 per week for the expenses set forth as her expenses in Part N of the wife’s Financial Statement together with the amount for rent of $575 together with motor vehicle expenses which she has and which are not included in the amount of $918, making a total amount of $2,181.

11. Mr Lethbridge on behalf of the husband very properly indicated that it was conceded that the affidavit material before the Court demonstrated that the wife did not have the resources with which to meet her reasonable needs and that she had established a need for maintenance.

12. The issues that remained were whether or not the husband had a demonstrable capacity to meet the need and the quantum of the need to a lesser extent.  It was asserted by the husband that any Order made by the Court should not exceed the sum of about $1,700.

13. As to the husband’s capacity to pay, the husband’s Financial Statement, originally unsworn, was replaced by a sworn version of it, amended from the original by the addition of a further liability.  In Part F it was revealed that a company, S Pty Ltd, of which the husband was the sole shareholder and director paid significant amounts to his benefit by way of expenses.  That included an allowance for a motor vehicle of $551.61 per week, and a mobile telephone and entertainment amounting to $118.50 per week and that in addition a company known as T Pty Ltd paid his insurance amounting to $36 per week.

14. In his property disclosure the husband indicated that he owned real estate in Lebanon with a net value for his share of $300,000 and a further property in Lebanon the value of his share being asserted at $10,000.  It was asserted that he has a modest bank balance held in the National Australia Bank in the amount of $1,500 and approximately $1,000 held in a Lebanese bank account.

15. His motor vehicle he said was of a value of some $10,000.  It is noted that that motor vehicle is one which is said to be registered jointly in the name of himself and one Mr M.

16. He disclosed jewellery and watches to approximately $12,000 and liabilities of $51,200.

17. The great lacuna in his statement occurred with his disclosure of an interest in S Pty Ltd of … M Street, Sydney Suburb W.  He discloses that his interest in the company was “100%” but did not file any balance sheet of the company.  No Statement of its value was provided nor was any information provided by him from which some assessment could be made of its value.  The husband had a clear and unequivocal failure in his disclosure.

18. The significance of the failure to disclose was thrown into fairly sharp relief when considered with the unchallenged evidence of the wife that the company was the owner for example of a motor vehicle driven by the husband being a luxury motor vehicle purchased on 26 July 2010 for a total cost of $527,500.

19. The wife produced evidence in the form of photographs, which were conceded, of the property in Lebanon but no conclusion can be drawn as to its value from those photographs.

20. The wife tendered bank statements from St George Bank showing payments made by the husband but little could be drawn from them in the absence of further disclosure by the husband.

21. The Court was unable to determine what portion of those entries related to expenditure by the husband for personal requirements or expenditure for the purposes of the corporation which he owns.  Many of the entries have the appearance of personal expenditure but certainly the document alone was not conclusive.

22. It appeared from documents provided that the husband held a number of executive positions in corporations in which he was not a shareholder, however it seemed that he did have an interest in two companies, namely a company called B Pty Ltd which it seems was and possibly still is a significant real estate developer.  No information was provided by the husband as to the financial position of that company nor was any information provided in respect of another company in which he had a small interest.  That company was N Pty Ltd in which the husband holds (through his company) a ¹/_1,000^th share.

23. That company it seems is one of which the husband was formerly a Director and shareholder and of which he is currently the Secretary.  The wife asserts that the value of properties in which the husband has a direct or indirect interest amounts to at least $50 million however apart from that assertion there is no evidence on which the Court could come to that conclusion before it at the present time.

24. Although the marriage was short the wife has the care of an eight month old child.  The evidence of the wife set forth in her affidavit was not challenged by any affidavit material filed by the husband.  It appears from the evidence that the husband and his company are regarded as part of a group described as the O Group which is involved in substantial continuing businesses.

25. The lifestyle and habits of the husband as described by the wife are such as to belie the information contained in his Financial Statement.  His expenditure on gambling was not a matter denied by the husband.

26. The difficulty in this case that the husband has is his failure to adequately disclose.

27. This Court time and again has stated that where there is a failure to adequately properly, fully and frankly disclose financial information relevant to the issues before the Court then the Court can and should act robustly:  In the Marriage of Black and Kellner (1992) 15 Fam LR 343. The Court takes the view in this case that the failure to disclose should give rise to an inference that a disclosure if properly and fully made would support the wife’s claim that the husband has the capacity to meet the wife’s needs and the Court intends to do that.

28. The Court has considered the wife’s claim for expenses and does not find them unreasonable.

29. It is true, as was asserted by Mr Lethbridge, that the wife cannot take into account the need for her to care for a child as an expense of hers since child support is dealt with as a separate matter.

30. Should the wife wish to vary the child support then the proper step is to make an application for departure.

31. In addition to those set out in Part N of her Financial Statement relating to her expenses there are also to be considered expenditure incurred by the wife for rent and the expenses of her motor vehicle and accordingly the Court proposes to make an Order that the husband pay to the wife weekly and every week for her maintenance and support the sum of $2,181 per week.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 30 January 2012.

Associate: 

Date:  30 January 2012