Raman and Raman

Case [2018] FamCA 871

FAMILY COURT OF AUSTRALIA

RAMAN & RAMAN [2018] FamCA 871
FAMILY LAW – PROPERTY – Interim application – Where the wife seeks that orders be made for spousal maintenance – Where the wife seeks that orders be made for an interim property distribution in her favour – Where, in the alternative to an interim distribution, the wife seeks a dollar for dollar order in respect to legal costs – Where the husband seeks that orders be made for the sale of the parties’ former matrimonial home with a subsequent interim distribution to the wife – Where the husband is the primary financial contributor – Where the wife is the homemaker and primary carer for the parties’ children – Where the Court finds that the wife cannot reasonably support herself –Where the Court finds that the husband has financial resources which enable him to pay spousal maintenance – Where the Court finds that the wife cannot adequately fund her litigation – Where the Court considers it proper to make a dollar for dollar order – Orders made for spousal maintenance – Dollar for dollar order made.

Evidence Act 1995 (Cth) s. 140
Family Law Act 1975 (Cth) ss. 34, 72, 75, 114, 117

Family Law Rules 2004 rr. 4.15, 13.01, 13.04
Atkins & Hunt (2018) 57 Fam LR 128
Briese and Briese (1986) FLC 91-713
Brown & Brown (2007) FLC 93-316
Drysdale & Drysdale [2011] FamCAFC 85
Edgar & Strofield [2016] FamCAFC 93
Graf-Salzmann and Graf [2015] FCWA 68
Hall v Hall [2016] 257 CLR 490
In the Marriage of Farr (1976) FLC 90-133
Jefferson & Coulston [2014] FamCA 1083
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531
Livesey and Jenkins (1985) 1 All ER 106
Maroney & Maroney [2009] FamCAFC 45
Martin & Martin and Ors [2013] FamCA 222
McCrossen & McCrossen (2006) FLC 93-283
Medlow & Medlow (2016) FLC 93-692
Mitchell & Mitchell (1995) FLC 92-601
Philips & Samuels [2017] FamCA 125
Quayle & Perceval [2018] FamCA 664
Saxena and Saxena (2006) FLC 93-268
Stanford v Stanford (2012) 247 CLR 108
Stein & Stein (2000) FLC 93-004
APPLICANT: Ms Raman
RESPONDENT: Mr Raman
FILE NUMBER: SYC 5368 of 2018
DATE DELIVERED: 29 October 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: McClelland J
HEARING DATE: 17 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper
SOLICITOR FOR THE APPLICANT: Swaab Attorneys
COUNSEL FOR THE RESPONDENT: Mr Tockar
SOLICITOR FOR THE RESPONDENT: DA Law Group

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

  1. The husband pay to the wife spousal maintenance, as follows:

    (a)The sum of $241 each week by way of cleared funds, such funds to be paid into the wife's nominated bank account;

    (b)All arrears of and ongoing mortgage repayments due on real property situate at and known as B Street, Suburb C (“the Suburb C property”) as and when they may fall due;

    (c)All arrears of and ongoing council rates and water rates referable to the Suburb C property as and…

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AGLC
Raman and Raman [2018] FamCA 871
Case
[2018] FamCA 871
Decision Date

CaseChat Overview and Summary

In *Raman and Raman*, McClelland J of the Family Court of Australia was required to determine interim spousal maintenance orders. The dispute concerned the husband's obligation to provide financial support to the wife, including ongoing payments for various expenses related to a property and a motor vehicle, as well as legal costs.

The court was tasked with determining the extent of the husband's capacity to pay spousal maintenance, particularly in light of his income and financial arrangements. A key issue was the husband's disclosure of his financial position, including agreements with the Australian Taxation Office that impacted his income. The court also considered the wife's needs and the factors outlined in section 75(2) of the *Family Law Act 1975* (Cth) relevant to spousal maintenance.

McClelland J applied the principle that a court may take a "robust view" of a party's financial capacity when there has been a failure to make full and frank disclosure. The court noted that capacity to pay maintenance is not confined to income but can extend to capital or borrowings. The husband's concession regarding his capacity to borrow funds for maintenance payments was taken into account. The court also considered the wife's reasonable needs and the husband's statutory obligations under section 75(2) of the Act.

The court ordered the husband to pay the wife weekly spousal maintenance, cover arrears and ongoing mortgage repayments, council and water rates, and building and home insurance for the Suburb C property. Additionally, the husband was ordered to pay the wife's legal costs and disbursements, with specific provisions for the handling and payment of these funds through the parties' solicitors, including mechanisms for ensuring payment if initial arrangements were not met.

Orders

Orders of the court

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

1.

The husband pay to the wife spousal maintenance, as follows:

(a) The sum of $241 each week by way of cleared funds, such funds to be paid into the wife's nominated bank account;

(b) All arrears of and ongoing mortgage repayments due on real property situate at and known as B Street, Suburb C (“the Suburb C property”) as and when they may fall due;

(c) All arrears of and ongoing council rates and water rates referable to the Suburb C property as and when they may fall due;

(d) All arrears of and ongoing building insurance and home and contents insurance payments referable to the Suburb C property as and when they may fall due; and

(e) All arrears of and ongoing comprehensive motor vehicle insurance and motor vehicle registration payments for the motor vehicle in the wife's possession as and when they may fall due.

2.

Within seven (7) days after any future payment by or on behalf of the husband of any money in payment of accounts rendered by his solicitors, including in relation to the expenses associated with the preparation of his case, the husband pay or cause to be paid the same sum of money to the solicitors for the wife.

3.

Within 24 hours after the payment by or on behalf of the husband of any money referred to in order 2 herein, the husband cause to be given to the wife's solicitors a memorandum stating the amount or amounts so paid to his solicitors.

4.

The husband instruct his solicitors that all money paid to them, including on his behalf, pursuant to order 2 herein, are to be held in trust by them and not applied in payment to them until such time as the relevant amount has been paid by or on behalf of the husband to the solicitors for the wife.

5.

If the payments referred to in order 2 herein are not made within seven (7) days, the husband is to direct his solicitors to pay 50 per cent of whatever is received (as held by them in trust pursuant to order 4 herein) to the solicitors for the wife.

6.

The wife is to instruct her solicitors that amounts paid to them pursuant to these orders are to be applied by them in payment of the costs and disbursements incurred by the wife in the conduct of these proceedings.

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

Background

Background to the litigation

Clause 6 of Part 1 of Schedule 1 of the Rules relevantly provides that:(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:…(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute. Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part). [Emphasis added]. The fact that the obligation of disclosure exists as a duty to the Court, as well as to the other party, is significant. It is also significant that the obligation is in respect to the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents. It is also significant that the obligation of disclosure includes an obligation to disclose “any disposal of property” that may “affect, defeat or deplete a claim”: rule 13.04(1)(g). As noted by Walters J in Graf-Salzmann and Graf [2015] FCWA 68 at 287:… a judge is entitled to take a "robust view" in relation to findings regarding a party's financial position (including party's capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su (2002) FLC 93-117 at [71] and [72]. The agreement entered into between M Pty Ltd and the ATO clearly impacts upon the income received by the husband, potentially to the extent of $8,146 per week. In circumstances where the husband receives what is, by community standards, a very high income and there has been inadequate disclosure of the arrangements entered into by M Pty Ltd and the ATO, the Court is entitled to take a robust view of the husband’s capacity to pay spousal maintenance. Moreover, as was made clear in Maroney & Maroney [2009] FamCAFC 45 at [56], in determining the “capacity” of a party to satisfy an order for interim spousal maintenance, the Court is not confined to considering only that party’s income, but rather: Once a party…establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets. The husband acknowledges that he has the capacity to borrow funds to enable him to pay maintenance on a short term basis at the rate of $150 per week. While I propose making an order for the payment of an additional $91 per week over and above that amount, the husband’s concession is indicative of at least some residual borrowing capacity. Section 75(2) of the Act provides that, in so far as they are relevant, the matters to be taken into account in considering whether to make an order for spousal maintenance are:(a) the age and state of health of each of the parties; and(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and(d) commitments of each of the parties that are necessary to enable the party to support:(i) himself or herself; and(ii) a child or another person that the party has a duty to maintain; and(e) the responsibilities of either party to support any other person; and(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:(i) any law of the Commonwealth, of a State or Territory or of another country; or(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;and the rate of any such pension, allowance or benefit being paid to either party; and(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and(l) the need to protect a party who wishes to continue that party’s role as a parent; and(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and(n) the terms of any order made or proposed to be made under section 79 in relation to:(i) the property of the parties; or(ii) vested bankruptcy property in relation to a bankrupt party; and(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:(i) a party to the marriage; or(ii) a person who is a party to a de facto relationship with a party to the marriage; or(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and(p) the terms of any financial agreement that is binding on the parties to the marriage; and(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

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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