Rilak and Tsocas

[2013] FamCA 736

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS [2013] FamCA 736

FAMILY LAW – PROPERTY – the husband to make regular payments to the wife – the final categorisation of the amount paid whether it be property settlement or maintenance to be left to the trial judge

Family Law Act 1975 (Cth)

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 24 April 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 24 April 2013

REPRESENTATION

APPLICANT: Ms Rilak in person

RESPONDENT: Mr Tsocas in person

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The husband is to pay to the wife for the maintenance and support of the wife the sum of $400 per week payable monthly in advance.  The Order is to commence from today and the first payment is to be made on 1 May 2013 and thereafter on the first day of each month.

2. The nature of the payment is to be taken into account by the trial judge on the hearing of the matter and may, if the trial judge finds it appropriate, be credited in part or in whole against the wife’s entitlement towards the settlement of property.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas 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 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

1. Section 77 of the Act which is the section under which the application of the wife was brought for maintenance in the sum of $700 per week says as follows:

   Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

1. An order for maintenance arises by reason of a right of a spouse to apply for maintenance. That right is governed by the provisions of section 72 which provides that:

   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).

1. In the proceedings before the Court the child of this marriage is a young child of three years plus, is in the care of the mother and the Court is informed that the child is currently being breast fed. Although the Court is also informed that the child spends some time in child care during the week when the mother has Court commitments, otherwise apparently the child is in the full-time care of the mother except on such occasions as the child may spend time with others.

2. The mother is currently receiving income-tested pensions, allowances or benefits and under the provisions of the Act I must by law ignore the receipt of those items and consequently I have to treat the mother as having no income at all.

3. In the circumstances of this case the husband is professionally employed.  His financial disclosure says that he has an income of $1,129 per week and outgoings of $1,240 per week. He does however have property to a value of $774,522 and a liability of $515,872.

4. It is noted that in the husband's Financial Statement he refers to his liabilities and it is noted there that the husband’s direct liability to the ANZ Bank is $381,998; although it appears that he has a credit account in an ANZ mortgage offset account of some $44,579.

5. This matter is one in which the parties are engaged in litigation in relation to a number of issues. 

6. The Court is concerned that the mother has as yet failed to make full disclosure on oath in relation to property held by her in Country A in Europe and the mother asserts at least from the bar table that the husband has failed in his obligations of disclosure. 

7. Both parties are cautioned that in the event there is not a full disclosure by the time of the hearing of this matter then the Court can make inferences that a disclosure if properly made would support the other party’s case.  Consequently they are advised to comply scrupulously with their obligations to make disclosure.

8. Given the circumstances revealed by the affidavits of the wife the Court has to come to the conclusion that the wife is presently unable to support herself having regard to the fact that the Court must ignore the government allowances paid.

9. Given the credit amount held in the account of the mortgage offset account by the husband and otherwise the husband’s financial position the Court thinks it appropriate and proper that there be a maintenance payment pending the determination of the matter. 

10. The Court however in the absence of there being a full and frank disclosure takes the view that the final categorisation of the amount paid whether it be property settlement or maintenance should be left to the trial judge and accordingly the Court proposes to make the Orders set forth above.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 24 April 2013.

Associate:  26 September 2013

Date: