Rasheem & Rasheem
[2022] FedCFamC1F 248
•20 April 2022
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
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 other reasonable outgoing in respect of the upkeep and maintenance of the former matrimonial home located in Suburb E (“the Suburb E property”). He also ordered the husband to pay outgoings in relation to a motor vehicle driven by Ms Rasheem (“the wife”). The husband was further ordered to pay the premiums on the existing private health insurance policy for the family and spousal maintenance in the sum of $700 per week. It is clear to the Court that the Senior Judicial Registrar had formed the view that the wife was in need of maintenance, and the husband had capacity to pay. The husband sought a review of the order, as he was entitled.
The husband contends that he does not have the capacity to make the payments that are required of him by the order. He strenuously denies the wife’s assertions that he has not fully and properly disclosed his financial circumstances to the Court. He asks the Court to dismiss any application by the wife for him to pay any type of spousal maintenance payments including in relation to the Suburb E property, private health insurance and motor vehicle expenses. The husband also seeks costs in his favour.
The wife contends that she is in need, she is unable to meet her own needs, and the husband does in fact have capacity to meet her needs. She further contends that the husband has failed to provide full and frank financial disclosure and that on a true assessment of the husband’s finances, having regard to his income, assets and available financial resources, it is clear that he has the capacity to make the payments in the order.
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
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?
DISCUSSION
Whether the wife can support herself adequately
The wife’s contended need for maintenance was put in issue by the husband. In essence, his case was that she had not demonstrated why she was not presently working and reliant on government benefits. He alleges that the wife is a professional who was previously employed in a business owned by her father. He contends that she continues to be registered to work, and is a member of the F Professional Association. He urges the Court to draw an inference that the wife continues to work as a professional, and is not declaring her income, or alternatively infer that she has the means and capacity to return to employment as a professional.
Inferences can only be drawn from facts. Facts are found from evidence. Despite the formidable legal resources available to the husband, there is no evidence to support the drawing of the inferences he asserts. By contrast, the wife’s case for interim maintenance is plausible. She is unable to support herself adequately by reason of having the care of the two children of the marriage. Her Financial Statement and her affidavit of evidence amply support her contention in this regard. The Court is satisfied that the wife is in need of maintenance.
Quantification of the wife’s needs
The Court must then determine how the wife’s needs should be quantified. The Senior Judicial Registrar quantified the wife’s needs to be the sum of $700 per week. The helpful aide memoire prepared on behalf of the wife became exhibit R1. This document, firstly, correctly quantifies the expenses payable by the husband pursuant to the order for the mortgage levies etc., and secondly, attempts to quantify the wife’s own needs for spousal maintenance. The document quantifies her needs at $1,000 per week but her counsel in submissions correctly acknowledged that this provides her with a surplus of $180 per week.
Her net position is $820 per week. There is nothing unreasonable about any of the expenses claimed by the wife; some are quite modest when one considers that the child support paid by the husband is, more likely than not, insufficient to cover the needs and expenses of the children. The Court rejects the implicit criticism of child minding expenses in circumstances where the wife is not working. The wife is entitled to have the benefit of some respite from caring for two very young children. Based on this Court’s experience, $100 does not purchase many hours of childminding, in any event.
Another measure of the reasonableness of the wife’s expenses is a comparison to those of the husband. They are curiously comparable, and of course he is only subsidising the costs of the children, not meeting them in entirety. The Court therefore assesses the wife’s needs at $820 per week.
Capacity of the husband to pay maintenance
The Court must then find whether the husband has the capacity to pay. In this regard the question is not just whether the husband can pay $820 per week, but whether he can pay the debts, expenses and outgoings identified in the order made. The wife’s aide memoire is once again a useful tool for calculating these expenses. If the husband is paying $820 per week by way of periodical maintenance, and the quantified expenses as identified in the aide memoire, his total weekly liability would be $2,323.
The issue of the husband’s capacity to pay is the central issue in this case. A number of preliminary observations are apposite. The duty of disclosure as to his financial affairs was the husband’s duty and is a continuing duty. The more complex the financial affairs, the more onerous the duty. He should not expect the wife to trawl through his complex financial affairs, or to find documents that he denies to have, in order to satisfy herself that he cannot pay; that is his duty, and is a duty owed as much to the Court as to her. The husband, before rebutting or minimising the wife’s case, ought to explain to the Court why relevant financial matters were not properly disclosed to the Court upon the wife bringing the husband’s failure to properly disclose an aspect of his financial affairs to the Court’s attention for the first time.
It is not adequate for the husband to refer to cryptocurrency dealings in disclosure in a general manner but not disclose the extent of the same. It is self-evident that past financial circumstances and transactions potentially provide to the Court an indication of present and future financial capacity, especially when those past financial circumstances and transactions have not been properly disclosed. If the non-disclosure is found as a fact, it may lead to an inference that the non-disclosure was deliberate for reasons that include that the transactions are an indication of present and future financial capacity.
One key component of the wife’s case related to evidence of the husband trading cryptocurrency through an online platform called D Online. The husband alludes to this in a general sense in his disclosure documents at Annexure A to his affidavit filed 13 December 2021. The meticulously collected and presented evidence of the wife shows the nature and extent of these dealings. The evidence shows trading of cryptocurrency from the year before the parties separated, 2019, to the year after they separated, 2021. The statements on the D Online account plausibly indicate that purchases from 2019 to 19 June 2021 totalled the sum of $220,059. On the wife’s behalf it was contended that the transactions continued well after date of separation and it was only when this litigation commenced, with its consequent pressures to disclose, that the dealings ceased. In her tender bundle, the wife attempts to calculate total sales (or income) from all dealings in the trading account for the period in question and once again plausibly calculates $2,685,780.
The husband’s response to this evidence is one of denial. Firstly, he denies that the figures represent dollar values, even though the most plausible interpretation of the source documents suggests that the aide memoire summary correctly attributes a dollar value to the transactions. He provides no other plausible explanation for what the figures mean, even though the account was his. Secondly, he explains that the account was not disclosed when it should have been, because the account had been closed. The Court does not accept this explanation. Disclosure of even closed accounts was required. Thirdly, through his counsel he submits that he has no idea what the figures referred to above mean. The Court does not accept this. It is his account. It is plainly evident that he traded cryptocurrency for at least two years. Fourthly, through his counsel’s submissions, he seeks to conflate the gambling issue (which he does not deny except, perhaps, as to quantum) and the crypto dealings. Paragraph 24 of the husband’s submissions filed 13 December 2021 state:
During the interim hearing the husband had been unable to produce [D Online] Statements although the husband states that these [D Online] transactions, as well as other gambling transactions were evident from the bank statements which had [been] produced.
(Emphasis added)
The words that have been italicised above clearly create the impression that the crypto dealing was a form of gambling, from the husband’s perspective. If the husband were correct that it was a form of gambling, the evidence before the Court suggests that it was quite successful. The Court also notes that even though the husband contends that he could not obtain the relevant statements in the period between the interim hearing before the Senior Judicial Registrar on 15 October 2021 and the date of the present hearing, there was always the material that the wife had herself placed before the Court on that occasion. A plausible inference is that for the husband’s own reasons, he chose not to pursue an inconvenient line of enquiry, but rather put the wife to proof.
The significance of this evidence in the present context is that it lends support to the wife’s contention that the husband has not properly disclosed his finances. She asks, expressly and inferentially, a number of unanswered questions: where did this money go, and are there any other undisclosed dealings? It creates an inference from the Court’s perspective that the husband has available to him assets, income or financial resources that he could use to pay the amounts that he has been ordered to pay.
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.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 20 April 2022
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