Rasheem & Rasheem

Case [2022] FedCFamC1F 248

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Rasheem & Rasheem [2022] FedCFamC1F 248

File number(s): PAC 1536 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 20 April 2022
Catchwords: FAMILY LAW – PROPERTY – Review of decision – Where Senior Judicial Registrar made spousal maintenance orders for the wife – Where the husband contends the wife can adequately support herself and denies having capacity to pay – Where the wife adduces evidence suggesting non-disclosure on the husband’s part – Finding and quantification of the wife’s reasonable needs – Finding that husband has capacity to pay – Review application dismissed – Order made increasing spousal maintenance.
Legislation: Family Law Act 1975 (Cth) ss 72, 74, 83
Cases cited:

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Saxena v Saxena (2006) FLC 93-268; [2006] FamCA 588
Division: Division 1 First Instance
Number of paragraphs: 28
Date of hearing: 12 January 2022
Place: Sydney (via videoconference)
Counsel for the Applicant: Mr Cairns
Solicitor for the Applicant: Veritas Law Firm
Counsel for the Respondent: Mr Stapleton
Solicitor for the Respondent: Keypoint Law

ORDERS

PAC 1536 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR RASHEEM

Applicant
AND:

MS RASHEEM

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

20 APRIL 2022

THE COURT ORDERS THAT:

1.The Application for Review filed by the Applicant on 21 November 2021 is dismissed.

2.Order 4 of the orders made by Senior Judicial Registrar McGrath on 1 November 2021 is varied as follows :

(a)The husband shall forthwith pay to the wife the sum of $820 each week by way of further spouse maintenance to the wife’s National Australia Bank account number …93.

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 Rasheem & Rasheem has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. Mr Rasheem (“the husband”) filed an Application for Review on 21 November 2021 of an interim decision made by a Senior Judicial Registrar on 1 November 2021 (“the order”). These reasons for judgment explain why the Court has dismissed this application. The Senior Judicial Registrar ordered the husband to pay joint mortgage payments, line of credit payments, strata building insurance, council rates, water rates, electricity accounts, gas accounts, telephone, internet, and any…

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AGLC
Rasheem & Rasheem [2022] FedCFamC1F 248
Case
[2022] FedCFamC1F 248
Decision Date

CaseChat Overview and Summary

The case of Rasheem & Rasheem before the Federal Circuit and Family Court of Australia involved a dispute regarding spousal maintenance orders made in favour of the wife. The husband contested the maintenance orders, claiming that the wife could support herself adequately and that he lacked the capacity to pay. The wife, on the other hand, presented evidence suggesting that the husband had not fully disclosed his financial situation. The Court was required to determine whether the wife was in need of support, how those needs should be quantified, and whether the husband had the capacity to meet those needs.

The Court considered the statutory framework governing spousal maintenance under section 72 of the Family Law Act 1975 (Cth) and followed the four-step process outlined in Saxena v Saxena. The Court found that the wife could not adequately support herself, primarily due to the husband’s failure to disclose his true financial position. The Court noted irregularities in the husband's financial transactions, including discrepancies in the sale of businesses and inconsistent expenditure patterns. The Court was satisfied that the husband had the capacity to meet the increased spousal maintenance payments, and it varied the original order from $700 to $820 per week.

The Court dismissed the husband's application for review but increased the spousal maintenance amount. The Court emphasised the importance of full financial disclosure and noted the significant effort and cost incurred by the wife in obtaining the necessary information. The final orders included dismissing the husband's application for review and varying the spousal maintenance payments to $820 per week.

Orders

Orders of the court

PAC 1536 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR RASHEEM

Applicant

AND:

MS RASHEEM

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

20 APRIL 2022

THE COURT ORDERS THAT:

1. The Application for Review filed by the Applicant on 21 November 2021 is dismissed.

2. Order 4 of the orders made by Senior Judicial Registrar McGrath on 1 November 2021 is varied as follows :

(a) The husband shall forthwith pay to the wife the sum of $820 each week by way of further spouse maintenance to the wife’s National Australia Bank account number …93.

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.

Background

Background to the litigation

This Court will need to establish whether the wife is in need of support, and if so, how those needs are to be quantified, and finally whether the husband has the capacity to meet those needs as identified and quantified.BACKGROUND The parties were married in 2015. They have two children aged two and three who currently live with the wife. The marriage involved family violence. On 2 November 2019 an apprehended domestic violence order (“ADVO”) was issued against the husband in protection of the wife. He was also charged with common assault. He consented to the ADVO on a final basis for two years, and was placed on a good behaviour bond in relation to the assault charge. The husband acknowledges that he had gambling issues throughout the relationship. Various businesses were operated by the husband during the marriage. The husband had the sole occupation of the Suburb E property from the date of separation in January 2020 until March 2021. Pursuant to consent orders made 23 February 2021 the wife has had exclusive occupation of that property, with the children, from 1 March 2021. There are substantive parenting and property proceedings pending. A strong impression is formed that the parties are engaged in an intense, highly conflictual and possibly intractable dispute about the circumstances and consequences of the breakdown of their relationship. The unfortunate impression formed is that both the husband and wife’s families have become involved in the dispute financially and perhaps at a personal level. Both families appear to be families of substance. All persons directly and indirectly involved in this case are warned of the potential adverse consequences, financial and emotional, of unnecessary entanglement in the affairs of the husband and wife, which might ultimately be to the detriment of the children. There are many outstanding issues between the husband and the wife, but the focus of the present application is on the issues identified above. The Court did not allow the husband to pursue a claim for $30,000 to be applied to repairing the damage which he contends the wife caused to Motor Vehicle 1. Given the concerns that have consistently, and persistently been raised by the wife about the husband’s financial disclosure, this Court formed the view, and remains of the view, that the issue of the husband’s capacity to pay should be determined before any purported financial claim by the husband against the wife. He is encouraged, with the assistance of both his counsel and lawyer, to reconsider this aspect of the claim in the context of these reasons for judgment. There has been regrettable delay in having the issue of interim spousal maintenance and consequential orders brought before the Court. The financial circumstances of the parties are complex and, as it turns out, the wife’s concerns about the husband’s disclosure is substantially vindicated. The wife was put to enormous effort and cost in putting the material before the Court so that it could objectively make an assessment of the husband’s financial capacity; despite it being his legal obligation to put these matters before the Court. There has been also been delay in delivering these reasons for judgment. This partly reflected the complexity as identified, but also partly reflects the unfortunate reality of workload pressures.THE EVIDENCE

Evidence

Evidence Before The Court

There has been regrettable delay in having the issue of interim spousal maintenance and consequential orders brought before the Court. The financial circumstances of the parties are complex and, as it turns out, the wife’s concerns about the husband’s disclosure is substantially vindicated. The wife was put to enormous effort and cost in putting the material before the Court so that it could objectively make an assessment of the husband’s financial capacity; despite it being his legal obligation to put these matters before the Court. There has been also been delay in delivering these reasons for judgment. This partly reflected the complexity as identified, but also partly reflects the unfortunate reality of workload pressures.THE EVIDENCE In support of his case, the husband relied on the following documents:(a)His Reply filed 2 October 2020;(b)His consolidated affidavit filed 15 June 2021;(c)His Financial Statement filed 15 June 2021;(d)His supplementary affidavit filed 30 June2021;(e)Affidavit of Mr B filed 30 June 2021;(f)Affidavit of Ms C filed 21 November 2021; and(g)D Online End of Financial Year Statement 2020 tendered and marked as exhibit A1. In support of her case, the wife relied on the following documents:(a)Response to Initiating Application filed 6 July 2020;(b)Her minute of orders sought filed 24 May 2021;(c)Updated Financial Statement filed 24 May 2021;(d)Her affidavit filed 24 May 2021;(e)Her affidavit filed 25 June 2021;(f)Her Response to Application for Review filed 24 December 2021;(g)Her affidavit filed 24 December 2021; and(h)Various documents tendered and marked as exhibits R1–17.THE APPLICABLE LAW Spousal maintenance is governed by s 72 of the Family Law Act 1975 (Cth) (“the Act”). In Hall v Hall (2016) 257 CLR 490 at [3], the High Court described the “gateway” requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, which provides:72 Right of spouse to maintenance(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). As noted by the High Court in Hall v Hall, the Applicant carries the onus of satisfying the Court on the balance of probabilities that she has satisfied the gateway requirement of s 72(1) of the Act. In Saxena v Saxena (2006) FLC 93-268, Coleman J explained at [39] that in determining whether to make an order for spousal maintenance, the Court should follow a four-step process, as follows:(1)Can the applicant support themselves adequately?(2)If not, what are the applicant’s reasonable needs?(3)What capacity does the respondent have to meet those needs?(4)What order is reasonable, having regard to s 75(2) of the Act?DISCUSSIONWhether the wife can support herself adequately

Decision

Reasons for decision

The wife’s case goes further, however. She points to irregularities as regards the alleged sale of the husband’s interest in four businesses, effected through share transfers. There is an irregularity as to the date of these transactions. One set of documents seems to suggest 2019 while another set of documents suggests 2020. The wife asks whether the businesses have been sold at all, a concern that is no doubt heightened by the absence of any documents produced on subpoena by the entity that allegedly purchased the shares. Perhaps of greater significance, however, are documents produced on subpoena indicating that the husband continued to be a signatory on the bank accounts of businesses that he had sold. These irregularities occur in the context of evidence from the husband’s own bank accounts indicating a pattern of expenditure and lifestyle that is quite inconsistent with the post separation impecuniosity that the husband claims.CONCLUSION There are many remaining unexplained aspects of the financial transactions of the husband. Some matters can only be dealt with at a final hearing. For present purposes, the Court is amply satisfied that the husband does have the capacity to make the payments that he was ordered to make by the learned Senior Judicial Registrar, and he has the capacity to make a higher periodical spousal maintenance payment given the evidence presented before this Court. Accordingly, whilst the Court does dismiss the Application for Review filed by the husband, it also varies the order for spousal maintenance made by increasing it from $700 per week to $820 per week. In this regard it is noted that s 83(1)(c) of the Act empowers the Court to vary the order on the basis that, for the purposes of s 83(2)(c) of the Act, material facts have been withheld from the Court that made the order, namely material facts relating to the wife’s expenses.

Ratio Decidendi

Legal Principle Established

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