Piroozi & Piroozi
[2022] FedCFamC1F 430
Federal Circuit and Family Court of Australia
(DIVISION 1)
Piroozi & Piroozi [2022] FedCFamC1F 430
File number(s): SYC 4175 of 2019 Judgment of: SMITH J Date of judgment: 16 June 2022 Catchwords: FAMILY LAW – PROPERTY – interim application – wife seeks $150,000 either as lump sum spouse maintenance or interim partial property distribution.
FAMILY LAW – INTERIM PARTIAL PROPERTY DISTRIBUTION – husband concedes amount sought from controlled monies by wife is less than he proposes she retain on a final basis – husband opposes distribution on basis the Trial Judge may misapply discretion by not “adding-back” and otherwise accepting husband’s submissions – partial property distribution ordered.
FAMILY LAW – SPOUSE MAINTENANCE – credit issues - wife has not established incapacity to support herself – no order for spouse maintenance.
FAMILY LAW – ORDER: Wife to receive $150,000 characterised as partial property distribution, and consent order wife to receive $90,000 for litigation funding
Legislation: Family Law Act 1975 (Cth) ss 72, 79, 80 Cases cited: Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166
Trevi v Trevi [2018] FamCAFC 173
Division: Division 1 First Instance Number of paragraphs: 87 Date of hearing: 26 May 2022 Place: Sydney Counsel for the Applicant: Mr Harper Solicitor for the Applicant: Mills Oakley Counsel for the Respondent: Mr Eatey Counsel for the Respondent: Burke & Mangan ORDERS
SYC 4175 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PIROOZI
Applicant
AND: MR PIROOZI
Respondent
order made by:
SMITH J
DATE OF ORDER:
16 JUNE 2022
BY CONSENT THE COURT ORDERS THAT:
1.The Applicant and the Respondent forthwith and within twenty-four (24) hours of the date of these Orders do all such things and sign all such documents as may be necessary to authorise and direct Mills Oakley to disburse funds held in the controlled monies account on behalf of the parties as follows: the sum of $90,000 to Mills Oakley by way of the Applicant’s costs of and incidental to these proceedings.
AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
2.The Applicant and the Respondent forthwith and within twenty-four (24) hours of the date of these Orders do all such things and sign all such documents as may be necessary to authorise and direct Mills Oakley to disburse funds held in the controlled monies account on behalf of the parties as follows: the sum of $150,000 to the Applicant by way of interim partial property distribution.
3.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these orders, the Deputy Registrar or Judicial Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
AND BY CONSENT THE COURT NOTES THAT:
A.The parties have come to an agreement as to the manner in which the wife's claim for medical and gap payments is to be dealt with pursuant to existing orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Piroozi & Piroozi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
This interim decision is about whether the Applicant wife Ms Piroozi (“the wife”) should receive $150,000, or some lesser amount, by way of lump sum spouse maintenance or interim property distribution pursuant to the Family Law Act 1975 (Cth) (“the Act”) from the residue of the sale of the former matrimonial home which is held in a controlled monies account.
The Respondent husband, Mr Piroozi (“the husband”), opposes the application and says that the wife has an earning capacity she is not using, has been profligate with prior interim distributions, and that making the payment could prejudice his rights at a final hearing. His proposal is that she should receive approximately $20,000 instead.
Wife’s Application
The wife filed an Application in a Proceeding on 14 April 2022. She seeks a payment of $150,000 from joint matrimonial funds of $534,123 presently held in a controlled monies account by her solicitors. Those funds are the residue of the sale of the parties’ former matrimonial home.
There were two other claims for relief, however, at the commencement of the proceedings the parties advised the Court that they had resolved those claims articulated in the “Applicants proposed minute of order”. It was agreed that there should be a disbursement from the controlled monies account to the wife’s solicitors in the sum of $90,000 resolving her claim for litigation funding. The parties also sought a notation that “The parties have come to an agreement as to the manner in which the wife's claim for medical and gap payments is to be dealt with pursuant to existing orders” in respect of her claim for $14,887.80 for those matters. I will make the consent order and include that notation by consent.
This left only the wife’s claim that she have paid to her from the controlled monies account:
… the sum of $150,000 to the Applicant, by way of lump sum spousal maintenance or in the alternative as interim property settlement noting that the wife may seek to argue at the trial as to how the disposition of these funds ought be treated.
In support of her spouse maintenance application pursuant to s 72 of the Act the wife says she cannot presently work, for reasons set out further below, and that she has no means by which to support herself. She accepted in submissions that she could not establish to the requisite standard that the husband has an income from which he can afford to pay spouse maintenance.
That concession was in the context of mutual allegations about the failure to make full and frank financial disclosure. However, the wife submitted that the funds in the controlled monies account provided a source of funds from which spouse maintenance, including lump sum spouse maintenance, could be paid.
Further, and in the alternative, the wife submitted that there should be an interim property distribution pursuant to ss 79 and 80(1)(h) of the Act to allow her to meet her ongoing financial needs. In support of her argument the wife relied upon the husband’s Amended Response filed 24 September 2021. In his Response he agreed with the wife’s proposed final order number [8] from her Amended Initiating Application filed 27 August 2021. The wife’s order [8] seeks that she have “the balance of the funds held in the controlled monies account by Mills Oakley on behalf of the parties.”
The wife submitted that this positive proposal by the husband that she should have the entire sum held in the controlled monies account, and the fact that the sum in that account exceeds the sum sought by her, effectively counters any arguments raised by the husband concerning her likely entitlement to that sum, or as to the justice and equity or appropriateness of the making an interim property distribution, noting the principles as articulated in Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166 (“Strahan”).
Husband’s Response
By his Response to an Application in a Proceeding filed 4 May 2022, the husband proposed the following orders instead:
6. The Applicant receive the sum of $10,000 from the Mills Oakley Controlled Monies account such sum to be determined by the trial judge.
7. Commencing 3 months from the date of these Orders the Applicant receive the sum of $2,000 per month from the Mills Oakley Controlled Monies account payable on the first business day of every month.
8. The payments referred to at Order [7] cease upon the earlier of the following:
a) the Applicant's after tax employment income being greater than $2,000 per calendar month;
b) 1 January 2023.
That would be equal to a maximum total of $18,000 to $20,000 payable by December 2022.
The husband says that he cannot pay spouse maintenance from his income, and as noted the wife concedes that she cannot, presently, establish that he can. However, the husband also accepts that the controlled monies account is a source of funds available to make payments of spouse maintenance.
Central to the dispute, the husband says the wife has not established that she is not able to reasonably engage in appropriate gainful employment and adequately support herself. He further disputed the reasonableness of her overall weekly expenditure as referable to her needs.
The husband accepted that the final orders he presently seeks, if made, would result in the wife receiving the entirety of the $534,123 held in the controlled monies account. That account will be reduced by reason of the $90,000 payable through the consent orders noted above, and possibly by the approximately $14,000 in outstanding payments the subject of the consent Notation. That would leave a sum in the range of more than $430,000 in the controlled monies account. Even if the wife is paid the $150,000 sought there would approximately $280,000 left in the controlled monies account, all of which the husband says the wife should receive.
However, while making that concession, the husband’s argument was that given the wife’s history of spending interim distributions since March 2019, she is likely to expend the entire sum of $150,000 prior to the final hearing, which I am told was estimated by the anticipated Trial Judge would take place within the next 12 months.
In those circumstances, the husband’s submission continued, there is a risk that regardless of my Judgment and orders, and how I characterise any payments, the Trial Judge might exercise the discretion not to“add-back” this amount, citing Trevi v Trevi [2018] FamCAFC 173, if the Trial Judge determines that the wife’s expenditure of this money is on daily living expenses. The Trial Judge might then, wrongly the husband says, award the wife more than the totality of the controlled monies account in view of the pool at Trial. That would result in the husband not receiving all of the property he seeks to be allocated.
It is this absence of my ability to bind the Trial Judge which is said to create a situation of potential prejudice which could not be rectified once the interim orders are made, citing the principles in Strahan around the need for the interim order’s not to impede the capacity of the Trial Judge to do justice and equity between the parties.
In reply the wife submitted that the Court would not proceed on the basis that the Trial Judge will err if they do not make the orders the husband ultimately seeks, and that the husband’s submission did not bring the matter within the caveat in Strahan concerning not making interim distributions which may impede the capacity to have a fair final hearing.
The real issues were relatively narrow. There were many submissions about contested issues of fact and credit, however, as this is an interim hearing in which there was no cross-examination and where it is not open to me to make findings on disputed issues of fact. I must do the best I can weighing the evidence before me.
The relevant legal principles applicable to the application for spouse maintenance, whether on a lump sum or weekly basis, and as to interim property distribution as articulated in cases such as Strahan, were not in dispute.
Background
The parties are both 53. They commenced cohabitation in 1998. They married in 1999. They finally separated on 9 March 2019 when the husband left the former matrimonial home. They cohabited for approximately 20 years. The wife commenced proceedings for property, including spouse maintenance, and parenting on 18 June 2019. Their divorce was granted 22 May 2020 and became final 23 June 2020.
The parties have three children. Mr E is 20 and an adult, although he still resides with the wife. The twins X and Y were born in 2004 and will turn 18 this year. They also live with the wife.
The husband is a tradesman. He operated trade related businesses during cohabitation. He says in his financial statement filed 4 May 2022 that he earns $743 per week through his own business, being $673 salary and $70 in meal benefits. It is not apparent to me, particularly in the current labour market, why the husband earns less than the current minimum weekly wage when working as a tradesman. This may be a matter for final hearing.
I will consider the reasons the wife says she cannot work elsewhere.
The parties have each had significant distributions from matrimonial property since March 2019. The husband submitted that he had received approximately $1,662,000. However, he submitted that much of that went into the real property at Suburb Q which he owns, and says in his financial statement filed 4 May 2022 is worth $1,050,000 and owned mortgage free. Suburb Q is, on the evidence of the parties, the major asset in the current property pool.
The husband submitted that while the wife has had lesser sums by way of interim property distributions, in the sum of $863,000 since March 2019 as set out in her affidavit filed 14 April 2022 [WA], those sums appear to have been entirely expended. The husband submitted that this was equal to approximately $287,000 being expended on living expenses each year.
The figures referred to above do not include the significant disbursements for each parties’ costs which have also been made over this period.
For context, the wife’s balance sheet, Annexure A to her Case Outline filed 20 May 2022 [Aide-Memoire 1], asserts assets of $1,892,053, add-backs of $1,284,091, superannuation of $337,381 and liabilities of $303,666. The husband’s figures, reflected in the wife’s balance sheet, which appear reasonably consistent with his financial statement, do not appear markedly different.
Both parties make allegations against the other of financial non-disclosure and inappropriate disposition of matrimonial assets.
The wife submitted that the husband unilaterally disposed of a half interest in a business held by the Piroozi Family Trust without her prior knowledge or consent. She puts in issue the value of the Piroozi Family Trust in her Balance Sheet. The husband apparently values the trust at “Nil” and the wife says the value is unknown. The wife says that the husband [WA 85] “continues to be in breach of his obligations as to financial disclosure” requiring her to subpoena various entities.
On the same basis the husband raises the issues in his affidavit filed 4 May 2022 [HA] of what happened to [HA 57] $200,000 in “stock” from the wife’s business. The wife’s evidence [WA 51] was that she sold a Motor Vehicle 1 for $174,000 and gave the husband $87,000. The husband agrees that this is what she told him [HA 66]. However, he tendered RMS records at Annexure A to his affidavit which appears to disclose a “Buyer Declared Value” of $310,000 for the Motor Vehicle 1. He seeks an inference that the buyer paid $310,000 and the wife lied about the sale price and withheld the remainder of the monies received.
The husband also relied upon the entry in Mr E’s bank account on 3 January 2021 “F Business” for $450 [Exhibit 3] to seek the drawing of inference that the wife is receiving income from a F Business which is being directed to Mr E’s bank account to conceal it, and raised issues about the wife’s credibility in terms of her alleged need to care for Mr E, considered elsewhere.
I am not in a position to make contested findings concerning financial disclosure or dealings with assets, or credit. However, there is sufficient material provided by each party to raise very real concerns in my mind about both other parties’ credibility, conduct in the disposition of assets, and financial disclosure. These will be matters for Trial. All I can do is take the material into account and weigh it so far as permissible for an interim hearing.
Interim property distribution
Given the conclusions I have reached I will deal with this aspect of the application first.
The wife is not presently working. Whether she could be or not is considered elsewhere. In any event, in those circumstances there is no doubt that she is in need of funds to live on and has no other available source of funds.
The husband’s final orders seek that the wife be paid the entirety of the funds in the controlled monies account. Payment to her of $150,000 will leave, after payment of costs and if other medical expenses are paid, a sum in the range of $280,000 in that account which the husband still says she should also be paid.
The risk the husband raised is that the Trial Judge will not accept his argument, and will award him less of the pool than he presently seeks because the wife will probably dissipate the $150,000 on living expenses prior to the hearing.
I proceed on the basis that if that is the course the Trial Judge takes, having had the benefit of hearing all of the evidence from both parties and having had cross-examination, and noting the very significant credit issues that appear likely to arise, then they will be the appropriate orders.
Paying this money to the wife now will not, on the husband’s case, put the Trial Judge in a position where the Trial Judge cannot do justice and equity as the husband asserts it to be. The fact that the Trial Judge may not accept the entirety of husband’s submissions at Trial does not mean that making the orders sought by the wife would impair the ability of a Trial judge to justice and equity as raised in Strahan.
In the context of these proceedings and the evidence considered throughout this judgment, and given the husband’s position that the wife should have the entirety of the funds in the controlled monies account, I am satisfied that it is appropriate and just and equitable that there should be an interim property distribution to the wife in the sum of $150,000 from the funds held in the controlled monies account.
Spouse maintenance
The wife also sought lump sum spouse maintenance. The suggestion is that this was because she considers it may be forensically preferable for her to receive the sum of $150,000 by way of spouse maintenance rather than interim property distribution to avoid the issue of “adding-back” or otherwise accounting for these monies.
The essence of the wife’s case was that while her expenses listed in her financial statement are $4,439 per week, or approximately $230,000 per annum, her income is only $693 per week, coming from: “Jobseeker” in the sum of $345; and, “Family Tax Benefit A & B” in the sum of $298; and, child maintenance of $49 per week; and, $1 a week in share dividends.
The factors which the wife relies to say she cannot work are the need to care for all three of the children, her own health status, and her need for further training in the field in which she seeks to eventually work.
The wife says the obligation that arises in respect of X and Y is relevant to her capacity because she has s 72(1)(a) “the care and control of a child of the marriage who has not attained the age of 18 years” and is also required to be considered pursuant to s 75(2)(c) as it is the “care and control of a minor child of the marriage”. Her obligation in respect of Mr E was referred to in submissions as being a “moral obligation”.
The wife sets out the children’s needs from [8]-[11] of her affidavit.
In respect of X the wife said [WA 8]:
[X] was a victim of serious sexual assault at the hands of the paternal uncle, [Mr C] ("[Mr C]"). Criminal proceedings were commenced by the Police. The trial took place before the District Court, [Suburb R] for a period of two weeks, which commenced [in… 2022]. The outcome of the trial was that [Mr C] was found guilty of four charges… This is in addition to the one charge to which [Mr C] pleaded guilty. I gave evidence at the trial on behalf of the Police in support of [X]. [Mr Piroozi] gave evidence on behalf of the defence to support his brother, the convicted defendant in the criminal proceedings. [X] has no relationship with [Mr Piroozi] and suffers from significant mental health issues as a result of the various sexual assaults and the abandonment by [Mr Piroozi] when he elected to support his brother during the criminal proceedings and ultimately gave evidence in his case. [Mr C] is to be sentenced in relation to the four charges [in mid-2022], before the Court at [Suburb S]. [Emphasis added]
The wife also said [WA 76]:
I am on call with [X] to pick her up from school or [L College] at a moment's notice. At times she is anxious and cannot cope and just wants to be at home with me. This last couple of weeks she has been vomiting due to stress. [X] has been unable to attend school or [L College] consistently for the duration of March 2022, due to the listing of the District Court trial and the stress and anxiety that [X] has experienced as a result of the trial.
The husband points to the lack of independent evidence, such as from a psychologist, that X suffers from significant mental health issues, or any evidence about the nature and extent of X’s need for care and support to explain way the wife would not be able to work at all.
In respect of Y the wife said [WA 9]:
[Y] is enrolled in Year 12 at [N School]. His progress at school was affected in 2019 and 2020. At the date of this Affidavit, there are outstanding invoices for [Y’s] vocal and guitar tuition in the sum of $1,331.50. I am unable to meet the payment of these invoices in my current circumstances. [Y] suffers from mild anxiety and attends upon [Dr D], Psychologist, approximately once every five weeks as that is all that I can afford. [Y] gained weight and has been withdrawn and isolated, particularly in 2019 and 2020. He was a happy and social child up until this time. I have also become aware in May 2019 that the Respondent was violent towards [X] and [Y] for approximately a whole year in 2014 when I was away from the home for extended periods of time during the establishment of [the H Business] [emphasis added].
The husband makes the same submission about the lack of independent evidence about the way in which mild anxiety would give rise to needs for special care for Y, who attends school full time, that would impact on the wife’s capacity to work.
In respect of Mr E the wife said [WA 10-11]:
10. [Mr E] was the subject of an AVO at the Local Court at [Suburb R]. The ADVO proceedings against [Mr E] were heard, determined and dismissed by the Children's Criminal Court at [Suburb R] [in mid-2019], though the Court made conditional orders for [Mr E] to maintain his weekly psychologist appointments ($210 a session) and quarterly psychiatrist appointments ($250 a session) and monthly GP check-ups. [Mr E] is comp lying with these conditions however despite my constant requests, [Mr Prioozi] refused to pay $1,950 owing to [Mr E]'s psychiatrist in 2019 and in February 2020 the psychiatrist advised he would not see [Mr E] again in the absence of the outstanding fees being paid and my assurance that I would be responsible for the ongoing fees. After negotiations with the psychiatrist he has made arrangements through Medicare to recover the $1,950 and in the interests of [Mr E] I have no alternative but to continue to apply my capital to meet this ongoing expense.
11. [Mr E] suffers from severe anxiety and severe clinical depression. [Mr E's] condition is treated with prescription anti-depressant medication, as well as anti-psychotic medication to help him sleep, and regular attendances upon his psychologist, [Dr D] and psychiatrist, [Dr G] and most recently, [Dr P]. [Dr G] diagnosed [Mr E] with these conditions on 12 March 2019, though Mr E was under the care of [Dr D] for the same symptoms for this condition since about 2017. [Mr E] also suffers poor sleep, experiences nightmares and lack of appetite and his weight is constantly fluctuating. [Mr E] is currently attending upon [Dr D], psychologist, and [Dr P], psychiatrist, on a regular basis [emphasis added].
The husband makes the same submission about the lack of independent evidence about Mr E’s anxiety and clinical depression, and how they would give rise to needs that would impact on the wife’s capacity to work.
A significant issue was raised by the husband concerning of Mr E’s needs for care which were said to contribute the wife’s inability to undertake any work.
The husband tendered a brochure for “J Business” [Exhibit 2]. “J Business” is a business providing activities for school children. It was common ground that the brochure promoted Mr E as an employee.
The husband also tendered Mr E’s Bank account statements for the period 1 November 2020 to 7 April 2021 [Exhibit 3]. Those accounts identified payments received with the reference “J Business” on: 15, 21 and 29 December 6, 13, 22 and 25 January, 3 and 11 February, and on 1 March 2021. The inference is that this is Mr E’s remuneration from this enterprise. The total income in that approximately 3 month period was, on my calculation, $15,270.
In my view this raises real issues of credibility directly referable to the wife’s evidence of her earning capacity. The evidence that Mr E was able to work and earn $15,270 in that period does not sit comfortably with the wife’s evidence, either that she has “no alternative but to continue to apply my capital to meet” Mr E’s ongoing medical expenses, or that Mr E does not contribute to the household costs, or that Mr E’s psychological needs are such that she needs to be available for him contributing to her inability to work at all.
The husband submitted that this must raise doubts about the wife’s evidence concerning the extent to which the needs of the three children actually impact on the wife’s capacity to work.
It was further submitted for the husband that together with the other issues of credit, and in particular the issue around the sale of the Motor Vehicle 1, the Court would be cautious in accepting the wife’s evidence on these issues without independent supporting evidence.
It was also submitted that this would cause the Court to take a cautious approach with the wife’s other evidence.
I think there is merit in these submissions. The fact that I have equally significant real concerns about the reliability of the husband’s evidence of his earnings does not detract from that submission.
Wife’s Health and Transferable Skills
The wife is 53. In respect of her health the wife said [WA 72]:
On 27 March 2022, I was required to have emergency […]. There were complications during my surgery, which have ultimately hindered my recovery, and as at the date of this Affidavit, I continue to experience ongoing pain and discomfort.
The wife also said that her ability to work was restricted because [WA 82-83]:
82. In September 2019, I completed the first component of a [course], which in total comprises eight components which collectively total $16,495. I undertook the second component in November 2019. [I am now recognised consultant. It is a new field not overly common (and so largely unknown) in Australia] and so to succeed in the industry I will need to expend significant time and resources marketing and building my [business] which may take many years. Again, my ability to maintain this training, and subsequent practice, is subject to my heavy parenting commitments as deposed by me above. In addition, I have enrolled in a [Diploma] with [L College], which commenced in March 2022, which is a two year part-time online course. I have received a fee exemption for my [Diploma] course.
83. I have not been able to complete the final component of my training for [course] due to the emotional and mental stress I am under because of the sexual abuse trial, as well as the financial stress that I am under due to the Family Court case still not being determined. I also have heavy parenting commitments as a single parent responsible for three depressed and highly anxious teenagers that are suffering ongoing trauma, that have restricted me from participating in any form of training or work. As a result, I do not anticipate being able to consider any further training or work until sometime in late 2022, following the handing down of the sentencing for the District Court proceedings.
The wife also said that her ability to work was restricted because [WA 86-87]:
86. I suffer from anxiety and depression, for which I was diagnosed on 21 March 2019 by my General Practitioner, [Dr K]. I am prescribed with anti-depressant medication and was attending upon my psychologist on a monthly basis, until I had to cease due to financial restrictions. I was subpoenaed by the Crown Prosecutor as the main witness after [X] to the … trial and have been preparing myself mentally and emotionally. As a result of the enormous stress this has put me under, I have had to increase my medication by 50%. In 2016 I was diagnosed with a brain aneurysm however it has not thus far caused me any difficulties although my doctors have informed me that stress poses a particular risk to the aneurysm rupturing. I also suffer from severe rheumatoid arthritis.
87. In order for me to return to the workforce in perhaps 2022, once the criminal proceedings have concluded and, I am hopeful, the children have adjusted, I will need to undergo further training and maintain the currency of my qualification […], or to be retrained in another field where there is work availability due to the changes the world has experienced due to COVID-19.
The wife did not provide any supporting medical evidence of any physical or psychological impairment affecting her capacity for gainful employment.
While the wife only addresses the field for which she is now studying, or the need to be “retrained in another field” the husband points to the fact that the wife has substantial relevant work experience and transferable skills.
The wife set out her work experience and transferable skills in detail when itemising the tasks she says she undertook for the family business from 1999-2016 at [14] of her prior affidavit of 25 February 2020, which the husband tendered at this hearing. While that was relevant to the wife’s contributions to the family business, the husband relied upon this paragraph in relation to experience and transferable skills relevant to earning capacity.
Her evidence was:
14. From 1999 thereafter I have undertaken various duties for the family business as follows, primarily of a business administration and accounts management nature. My roles from 2001 to 2016 whilst raising five children (and then three children post-2007 when my older children moved out) I worked full-time hours. From 2016 until the day [Mr Piroozi] and I separated, I worked on a part-time basis:
(a) Attending to quotes/invoices/supporting documentation for the [companies];
(b) Corresponding with clients/suppliers/IT Support;
(c) Answering telephones;
(d) Advertising
(e) Accounting work including paying bills, MYOB entry, data entry, liaising with accountant, paying wages, lodging superannuation/long service leave/tax documents;
(f) Cleaning office;
(g) Purchasing stationary/staff supplies/office supplies;
(h) Coordinating meetings/lunches/dinners/business trips;
(i) Upon the acquisition of [the H Business] to which I depose below, assisting significantly with the initial setup of the franchise, including:
(i) Liaising with Inspirations Head Office;
(ii) Training on Pronto, EPOS & [M Company] Sales and Accounting systems;
(iii) Arranging lease of premises;
(iv) Assisting with designing and setting up the shop floor;
(v) Purchasing computer and telecommunications equipment;
(vi) Establishing all accounts including clients and suppliers and liaising with same
(vii) Training staff;
(viii) Data entry in MYOB, Pronto and [M Company] POS systems;
(ix) End of day trading reconciliation;
(x) Banking;
(xi) Daily correspondence;
(xii) Monitoring and responding email accounts;
(xiii) Attending meetings and conferences;
(xiv) Stock take;
(xv) Inventory;
(xvi) Liaise with accountant on a regular basis;
(xvii) Attend management meetings
(xviii) Management and monitoring of OH&S;
(xix) Developing and implementing Policies & Procedures;
(xx) Answering phones;
(xxi) Managing office staff
(xxii) Ordering staff uniforms;
(xxiii) Marketing;
(xxiv) Arranging and attending stalls in community expos;
(xxv) Arranging all aspects of advertising including promotions, birthday celebrations, online presence, local print and supporting schools and charities.
The wife clearly has significant experience in office administration, accounts and office management including some general marketing and business skills. This is relatively recent experience which gives her considerable transferable skills.
The wife, unlike primary carers who take a decade or more out of the workforce to raise children, worked in the family business and does not face the barrier to entry resulting from the lack of relatively recent work experience and skills, although she has now not worked for a period of time.
The extent to which such barriers impact employability also fluctuates depending on the strength of the labour market, and it was not suggested that the current reasonably accessible labour market is other than strong.
Wife’s Capacity for Appropriate Gainful Employment and Earnings
The wife who brings the application bears the evidentiary onus of establishing, on the civil standard and in the context of an interim application, that she is “unable to support herself … adequately”.
The husband points to the apparent anomaly of the wife obtaining Jobseeker allowance when the wife says she cannot work, given that the genuine search for employment is usually a condition of receipt of the allowance. I think there is some merit in that submission.
Given all of the evidence I am not satisfied that the wife has established to the requisite standard that she has any physical or psychological condition which would impair her capacity for appropriate employment.
Given the concerns noted above I give no weight to the need to care for Mr E who is an adult engaged in his own occupation. Similarly, I give no weight to the need to care for Y who is almost 18 and attending school full time.
While I am willing to infer that X is likely to be impacted by her childhood trauma, and the inherently re-traumatising impact of the criminal trial, it does not necessarily follow that X requires such constant care that the wife cannot work.
In the context of the real concerns I have around the reliability of the wife’s evidence concerning Mr E’s needs, and the other credit issues noted above, and weighing all of the evidence, on balance I am not satisfied that the wife has established that a need to care for the children impairs her capacity for appropriate gainful full time employment.
In these circumstances, I find that the wife would be able to obtain at least an administrative position similar to that she previously undertook. The experience in MYOB and accounts is a factor which adds value to her as a potential employee in an administrative role or in an accounts role. She may also be qualified for an office manager or similar role given her age and experience, that would usually attract a higher income.
If the wife wishes to study towards a career in a field in which she has no current experience or capacity to work she is entitled to do that. However, that is not the measure of her current capacity to support herself. She has significant work experience, and no reason that she has established to my satisfaction that she could not exercise those transferable skills in the current strong labour market.
The measure of her capacity to support herself is the earnings she could bring in from appropriate gainful employment for which she is a viable candidate in the reasonably accessible labour market.
Consistent with this being an interim hearing neither party sought to provide an earning capacity assessment, of the type common in workers compensation or motor accident cases quantifying current and future likely earning capacity by reference to: physical capacity or restrictions; and, psychological capacity or restrictions; and, transferrable skills; and, the assessment of suitable occupations; and, employability by reference to jobs in the reasonably accessible labour market including a consideration of barrier to entry factors; and, earning levels for such jobs. Accordingly, I must do the best I can in assessing this latent earning capacity.
Doing the best I can I find that the wife has the current capacity to be engaged in gainful employment earning at least $70,000 to $80,000 per annum, or after tax and Medicare levy in the range of $1,050 to $1,200 per week. Her capacity would appear to be greater in the longer run with her experience in office management and some aspects of small business operation, but that may be a matter for future assessment.
The wife’s Part N statement was $641 for herself and $2,274 for the children. The rent of $1,100 per week relates to rent for the family of four. Mr E is 20 and working. It is not clear why he is not contributing. The other two children will be 18 in four months.
Weighing all of these factors, and doing the best I can on an interim hearing, I am satisfied that the wife is underemployed and not exercising her true likely earning capacity. Further, I am not satisfied that the wife has established that her reasonable needs exceed her reasonable capacity to meet them from earnings should she choose to work.
There is also available to the wife’s a means to support herself by way of partial interim property distribution which order I propose to make.
While I find that the wife should have access to $150,000 from the controlled monies account, I am satisfied that this should be paid as an interim property distribution and further that it is not appropriate that this should be paid by way of spouse maintenance.
Orders
I will make the consent order and notation.
I will make an order for payment of $150,000 by way of interim property distribution and a s 106A order.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 16 June 2022
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