Samaraa and Golnar
[2017] FCCA 3267
•21 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAMARAA & GOLNAR | [2017] FCCA 3267 |
| Catchwords: FAMILY LAW – interim spousal maintenance – where the need of the wife is conceded – whether the husband has the income and/or financial resources to pay – where the husband receives regular and very substantial sums of money from family overseas whenever he asks for it – where those sums exceed $250,000 in the past two years – where the husband is found to have the financial resources to pay interim spousal maintenance. |
| Legislation: Family Law Act 1975 (Cth), ss.72(1), 74(1), 75(2), 75(1) |
| Kaiser & Kaiser [2016] FCCA 1903 |
| Applicant: | MS SAMARA |
| First Respondent: | MR GOLNAR |
| File Number: | DGC 2408 of 2017 |
| Judgment of: | Judge Small |
| Hearing date: | 18 December 2017 |
| Date of Last Submission: | 18 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Boymal |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr E. Taghdir |
| Solicitors for the Respondent: | Avesta Lawyers |
ORDERS
The husband shall pay to the wife by way of interim spousal maintenance:
(a)The sum of $5000 within seven days of the date of these orders;
(b)Commencing on 1 January 2018 the sum of $500 per week until further order of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Samaraa & Ghanad is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC2408 of 2017
| MS SAMARA |
Applicant
And
| MR GOLNAR |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim spousal maintenance proceedings brought by Ms Samara (“Ms Samara” or “the wife”) against Mr Golnar (“Mr Golnar” or “the husband”).
Mr Golnar concedes that Ms Samara’s financial circumstances are such that she is in need of spousal maintenance, but it is his case that he does not have the means with which to pay.
Therefore the only issue before the court in these interim proceedings is whether the husband can afford to pay the spousal maintenance sought by the wife.
Background
The wife is 44 years old, having been born in (country omitted) on (omitted) 1973.
The husband is 59 years old having been born in (country omitted) on (omitted)1958.
The parties were married on (omitted) 1996 in (country omitted) and migrated to Australia in 2013.
They separated on 26 June 2017 when the wife and children vacated the parties’ rented family home and went into a refuge, with the wife obtaining an Intervention Order against the husband.
The parties have three children, one of whom is now adult, and two who have yet to attain the age of 18. They are [X] born (omitted) 2003, and [Y] born (omitted) 2004.
The children live with the wife and, pursuant to parenting orders made by consent on 5 October 2017, the younger children spend time with their father, although [Y] has chosen not to spend time with him.
The wife is reliant on Centrelink benefits and intermittent casual work to support herself and the children.
The husband owns a (business omitted) and has received varying substantial amounts of money from overseas sources both before and after the date of separation.
Procedural History
The husband initiated these proceedings on 2 August 2017 by filing an Initiating Application which sought only parenting orders.
The wife filed a Response on 26 September 2017 seeking parenting orders and the following order:
That pursuant to sections 72 and 74 of the Family Law Act 1975 the father (sic) pay spousal maintenance to the mother (sic), the mother have leave to particularise the quantum after the parties have complete discovery.
The matter first came before the court on 4 October 2017 and on 5 October, after a s.11F conference, parenting orders, and orders providing for the husband to make discovery in relation to his financial position, were made by consent.
On 5 October 2017 the matter was adjourned to 17 November 2017 at 3:00pm for an interim hearing in relation to spousal maintenance matters only.
On 17 November 2017 the parties and their counsel appeared before me but the hearing was unable to proceed because the husband did not have a (omitted) interpreter.
The matter was then adjourned to 18 December 2017, when both parties were represented by counsel and each had a (omitted) interpreter.
The husband gave sworn oral evidence and was cross-examined by counsel for the wife.
Each party’s counsel then made submissions to the Court and I adjourned the matter for two days for judgment on 20 December 2017.
On 20 December 2017 I made interim orders for the husband to pay spousal maintenance to the wife and said that I would provide written Reasons for Judgment within the next few days.
These are those Reasons.
The Evidence
As already stated, the wife’s need for spousal maintenance was conceded by the husband at the commencement of the hearing, and therefore the hearing concentrated only on the husband’s financial position.
The husband swore and filed a Financial Statement on 3 October 2017.
In that document, the husband deposes that he has no income at all, that he has weekly expenses totalling $2093, liabilities of $4000 in the form of a debt to the Australian Taxation Office, and that he owns no real property.
He says he owns two cars with a combined value of $6500, household contents worth $7000 and two bank accounts, one with the (bank omitted) and one with the “(banks omitted)” with total balances of $500. He also discloses that he owns an interest in a business - “Business A” which he says is worth $170,000. He does not depose to having entitlements in any superannuation fund.
In an affidavit sworn and filed on 3 November 2017, the husband deposes as follows under the heading “SPOUSAL MAINTENANCE”:
I refer to paragraphs 60 to 81 of the wife’s affidavit and say the followings (sic): –
(a)I refer to my financial statements filed in these proceedings and all my financial statements provided to the wife’s lawyer previously.
(b)I purchased a milk bar in December 2016.
(c)The business was purchased for $37,000.
(d)I am not earning any money from the business at this stage.
(e)I have been paying for rent, utilities bill (sic), grocery shopping and all other expenses since we arrived in Australia in 2012 (sic).
(f)My brother has been assisting me with my financials as the funds that I originally transferred to Australia upon migrating has (sic) long been spent. My brother lives in (country omitted) (sic) and is a successful businessman. It is not culturally unusual for siblings to assist each other in difficult times.
(g)My mother passed away earlier this year and I have inherited a sum of money. I am not aware of the total amount of my inheritance as my sister in (country omitted) is in control of the money. My sister sends me money from (country omitted) upon my request.
(h)I have deposited some $45 000 (sic) to the children’s account since June 2017 and I will continue to do so every time I have funds available.
(i)Due to my financial situation I cannot pay the wife spousal maintenance.
Although the hearing on 18 December 2017 concentrated only on the evidence of the husband in relation to his financial circumstances, I note that the wife filed an affidavit on 10 November 2017 in response to the husband’s Financial Statement sworn and filed on 3 October 2017 and his affidavit sworn and filed on 3 November 2017.
The wife’s evidence was not challenged directly at the hearing on 18 December 2017 as she was not called to give evidence, although some of its contents were put to the husband in cross-examination.
The wife’s evidence in relation to the husband’s financial situation is that he purchased the Business B, which is situated at (address omitted), in December 2016 from her friend Mr A for $22,000, and that the husband had told her he had then spent $70,000 renovating it.
It is her evidence that the husband sold his previous business, Business C at (address omitted), for $40,000 in about February 2017.
The wife deposes that the husband is in Australia on a “business visa (sub-class 163)” and that the terms of that visa require him to invest $500,000 in Australia, and specifically to show the Department of Immigration and Border Protection that his business generates $200,000 per annum in turnover, in order for him to be “eligible for his business visa and permanent residency”.
She says that the husband’s brother, Mr H, lives in the (country omitted) and is “wealthy businessman”. It is her evidence that Mr H “owns (businesses omitted)” and that she is unsure what financial assistance he is providing to his brother.
The wife also deposes that the husband “receives regular income from his (businesses omitted) that he solely owns in (country omitted). The (business omitted) has over 200 employees in (country omitted)”.
At the hearing on 18 December 2017, the husband was sworn in and asked if his Financial Statement sworn and filed on 3 October 2017 and his affidavit sworn and filed on 3 November 2017 were true and correct. He answered in the affirmative.
I then allowed his counsel to lead to further evidence in clarification of certain matters.
It was Mr Golnar’s oral evidence that his affidavit of 3 November 2017 had been wrong in that he had deposited not $45,000 but $4000 into the children’s bank accounts since separation.
In response to Ms Samara’s allegation that he owned a (business omitted) in (country omitted) that was a going concern employing 200 people, the husband tendered a document in (omitted), dated 7 November 2017, which states that it has been translated into English by a qualified interpreter who is an “Official Translator to the (omitted)”
That document, which is headed “Notice for Auction for Sale of Immovable Properties (mortgaged documents), Auction for Property No. (omitted) located in district (omitted)”, is not easy to read in English, but from what I can glean of its meaning, it states that:
(a)the company (business omitted), registration number (omitted), which has its registered office in (location omitted)[1], and Mr Golnar personally, are the owners of six apparently contiguous parcels of land (registration) (location omitted),totalling 3698.85 square metres;
(b)those parcels of land are subject to a mortgage to “mortgagee omitted”;
(c)a (business omitted) covering 630 square metres has been built on the Northern part of that land and the value of that shed, which is used as an (omitted), is (omitted);[2]
(d)three parts of the land, totalling 369.85 square metres are “held as security for good according to the order (omitted) issued by (omitted), on December 06, 2016 was held as security in favour of the (omitted)”;
(e)an auction was to be held from 9:00 a.m. to 12 noon on 28 November 2017 at the (location omitted), with the reserve price to be the appraised value of the property;
(f)payment for utilities on the property, “including water, gas and electricity, municipal duties and taxes relating to the property” would be the responsibility of the purchaser.
[1] Mr Golnar concedes that he is the owner of (business omitted)
[2] I was originally informed that (currency omitted) amounts to $250,000 AUD but was later informed that it is in fact worth $278. A perusal of currency exchange rates reveals that the value of (currency omitted) on 18 December 2017 was $277.67.
It is not at all clear from the English translation of the document whether the auction relates to the entire property - that is the six parcels of land - or only to part of it.
In any event, it was Mr Golnar’s evidence that he was unaware of the outcome of the auction set to be held on (omitted) 2017.
Another document, headed “Summons”, and dated 21 November 2017, requires Mr Golnar to attend at (country omitted) at 11:00pm (sic in the translation) on Saturday, 10 March 2018 to answer a complaint brought by (mortgagee omitted).
I note that (mortgagee omitted) is a mortgagee for the six parcels of land owned by Mr Golnar and his company.
It is Mr Golnar’s evidence that he became bankrupt in (country omitted) in early 2016 and that the government closed down his (business omitted) in June or July 2016. He says that the auction and the summons are the result of that bankruptcy.
When asked what he expected the outcome of the hearing on 10 March 2018 in (country omitted) to be, Mr Golnar simply said that the court would make an order that he owed money to the bank and the bank would keep the proceeds from the auction of the property.
His only evidence as to the extent of the debt secured by the mortgage or mortgages was to say that it was more than the property was worth. He provided no documentary evidence at all proving his allegation that he was bankrupt under (country omitted) law.
Under cross-examination, Mr Golnar conceded that he had provided no documents in relation to his purported bankruptcy in (country omitted), nor any document in relation to what he said was the government’s closing of the (business omitted) in mid-2016.
On the basis of the above evidence, I cannot come to any probable conclusion as to whether the husband currently has a business in (country omitted) from which he derives income, or whether he currently owns property in (country omitted).
However, if he continues to insist that neither proposition set out in the previous paragraph is true, he would be well advised to provide clear documents in relation to his purported bankruptcy, and the outcome of both the auction on (omitted) 2017, and the court hearing on 10 March 2018, when providing discovery for the substantive proceedings in this matter.
When questioned about his “sub-class 163” business visa and its requirements, the husband stated that he was no longer on that visa, but now held a “bridging visa”. When asked about the terms of that visa, Mr Golnar said counsel would have to ask his accountant.
I found that evidence evasive and unconvincing.
In relation to his income, which the husband deposes is nil, counsel for the wife asked him about his plan to take his son [X] to the (country omitted) for a month during the upcoming summer holidays, and more specifically about where he would find the funds for such a holiday.
Mr Golnar said that he was not sure how much the holiday would cost but that his brother in the (country omitted) was paying for his and [X]’s airfares and “pocket money” while they were there.
He conceded that in the last few months he had bought [X] an iPhone X, (omitted) clothing, (omitted) shoes and other items. He stated that he would “give him my life”.
He also admitted that he had deposited money into [X]’s bank account in sums of about $50 or $100, although he could not say how much he had deposited in that account over the last month. It was his evidence that the money he gave to [X] came from his brother in the (country omitted) “because he loves my children”.
He said that the proof in relation to his assertion that his brother sent him money was in the bank statements provided to the wife’s solicitor as part of the discovery process in the substantive proceedings.
He said that the most recent payment he had received from his brother was $19,000 which he had been deposited to his account last week.
When asked how much she had received from his brother over the past 10 months, Mr Golnar said that he did not know, that some of those monies were for his son and some for himself and that in any event, he had only received “a small amount” from his brother.
He was then shown his sworn Financial Statement which stated that he received an average of $2000 per week from his brother “on demand”. I note that if that evidence is true, Mr Golnar receives about $104,000 per year from his brother. It is not known whether he declares that sum as income on his tax return, but he certainly does not declare any such amount as a liability in his sworn Financial Statement.
Mr Golnar said that monies sent to him from (country omitted) between early and mid-2016 which were deposited into his various bank accounts, and amounting to some $269,000, were residual debts owed to him by customers of his (business omitted). I note that it is the husband’s evidence that the (business omitted) was closed by the government in mid-2016.
Under further cross-examination, he said that significant lump sums of money which had been deposited into his bank accounts in 2016 and up to May 2017 had come from three sources: his sister in (country omitted), who had inherited his mother’s estate[3], his brother in the (country omitted) who provided him with money through a company called (omitted), which is owned by his brother; and various unnamed “friends” who, he said, would provide him with money when he needed it.
[3] I note that this statement cannot be true as his mother died in July 2017.
It was his evidence that both his brother and his sister provided money essentially whenever he asked for it.
Counsel took Mr Golnar through several bank statements he had provided to her instructor by way of discovery.
Those documents were not tendered at the hearing, but I note that when he was asked about deposits made into his accounts, the husband said that the statements were correct.
At times he simply said he did not know where money deposited to his accounts had come from, or that his accountant would be able to provide that information, while at other times his answers could only be classed as non-responsive.
For instance, he agreed that the statements showed that sums totalling $33,500 had been transferred between his (bank omitted) account and his (bank omitted) Access account between 13 June 2017 and 30 June 2017.
He further agreed that at 26 May 2017, the date of the last (bank omitted) account statements provided to the wife’s solicitors, his (bank omitted) account had a balance of $66. When he was asked where the $33,500 had come from so that he was able to transfer it to his (bank omitted) Access account between 13 June and 30 June 2017, he simply said he did not know.
When the question was pressed, he said that the deposits had likely come from (country omitted), or had been borrowed from his brother in the (country omitted) or from friends in Australia.
He then stated that monies sent to him from his brother in the (country omitted) were actually loans which he would have to pay back. That was the first time such a claim had been made.
Another example of his prevarication in answering questions about the source of funds deposited into his accounts related to cash deposits into his (bank omitted) account of $16,891 on 1 February 2017 and $18,000 on 18 May 2017.
Mr Golnar’s response was that he wanted to see the statements. When they were shown to him, he said that he thought those amounts might be from money exchangers who processed the monies sent to him from his sister in (country omitted). He said he would have to look at books which he had at his home in order to be certain. He said that he recorded all monies he received in a notebook, but was unable to describe the notebook, nor even to say whether its pages were lined.
I note that that evidence is in direct contradiction to other evidence he gave at the hearing that he did not keep any records of monies borrowed from his brother.
He then said that he could only be certain of the fact that the deposits into the (bank omitted) account had not been monies sent to him by his brother.
His evidence about whether monies sent to him from (country omitted) were part of his inheritance from his mother, or merely ex gratia payments from his sister who had inherited their mother’s estate, or transfers of his own money, was garbled and appeared to change from question to question. I must say I am none the wiser about the nature of those payments after hearing Mr Golnar’s evidence, but it would appear that when he asks his sister for money, he gets it, and in very significant amounts.
In re-examination, Mr Golnar said that he had come up with the figure of $170,000 as the value of his business in his sworn Financial Statement “from his own thoughts”. He said that he based that figure on what he had paid for the business and the cost of the renovations.
He then made the rather extraordinary statement that he thought the business was now worth only $80,000, although no reason whatsoever was given for that new estimate.
He was shown his Business Activity Statement for the period April to June 2017, which showed an income of $41,500 and noncapital purchases of $59,199. However, when asked whether his business had made a profit or a loss between June 2017 and the date of the hearing, it was his evidence that he thought the business had broken even. He was nevertheless adamant that he had personally received no income from his current business since its inception in early 2017.
In relation to his property in (country omitted), Mr Golnar clarified that while his bankruptcy had been as a result of his inability to pay his mortgage on the property, he had still been owed money by customers as a result of the operation of the business conducted on the property.
When asked about the money his sister sends him from (country omitted) he stated that she did not send him large amounts, and that the money was from his mother’s will. He said that his mother died in July 2017 leaving her entire estate to his sister and that his sister had paid him various sums when he asked her. He said the money was not his inheritance and that that is why it was not paid to him in one lump sum.
I note in that regard that he conceded when it was put to him that his bank statements show the following deposits into his bank accounts in February 2016:
19 February 2016 – A deposit of $60,000
19 February 2016 - a further deposit of $40,000
19 February 2016 - yet another deposit of $90,000
23 February 2016 - a deposit of $79,000.
Those are large amounts of money in anyone’s language and amount to $269,000.
Overall, I found Mr Golnar to be a most unsatisfactory witness. His evidence appeared to change from his affidavit and sworn Financial Statement to his oral evidence, and even from question to question during his oral evidence.
However, what is very clear from his evidence, and especially that adduced in cross-examination, is that he has access to significant and substantial amounts of money which arrive in his bank accounts from either his brother or his sister whenever he asks for it.
I note that at no time in his evidence, either oral or written, does Mr Golnar explain what he has done with the very significant monies sent to him from (country omitted) and the (country omitted), nor has he provided any bank statements to the wife’s solicitors evidencing those deposits since June 2017.
While it is unclear whether those payments are gifts, loans, or transfers of monies already belonging to Mr Golnar, they are at very least a reliable financial resource in his hands.
I therefore find, on the balance of probabilities, that the husband has access to monies from which he is able to pay interim spousal maintenance to the wife.
The Law
The law in relation to spousal maintenance is found in ss.72(1), s.74(1) and s.75(2) of the Family Law Act 1975 (Cth) (“ the Act”).
Section 72(1) states:
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 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).
Section 74(1) of the Act sets out the power of the Court to make orders in relation to spousal maintenance and states:
(1)In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
Section 75(2) of the Act sets out the considerations which a court must take into account when deciding whether to make an order for spousal maintenance, and s.75(1) states that when making an order under s.74, “the court shall take into account only the matters referred to in subsection (2)”. The Act sets out those considerations as follows:
(2) The matters to be so taken into account 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.
While the hearing on 18 December 2017 concentrated on the husband’s available funds to make spousal maintenance payments, I note that the wife has the care and control of the two young children of the marriage, with minimal child support being paid by the husband.
Mr Taghdir, for the husband, submitted that it is not unusual in (country omitted) culture for family members to assist other family members when circumstances require such assistance, and that indeed was the husband’s evidence.
However, whether or not it is “usual” for family members to support each other in (country omitted) culture is not the issue for decision here. The issue for decision is whether the husband has income, property or financial resources from which he can pay spousal maintenance to the wife.
Mr Taghdir referred me to my own decision in the matter of Kaiser & Kaiser [2016] FCCA 1903 where I noted that the husband’s family were not obliged at law to provide a house for the wife.
The facts of that case were very different to those now before the court. In Kaiser, the wife was seeking a property settlement in the sum of up to $1.5 million so that she could buy a house for her and the children of the marriage to live in. She also sought ongoing periodic spousal maintenance.
The comment made in relation to the lack of obligation on the part of the husband’s family was made in relation to the property application rather than the maintenance application.
Nevertheless, it is true that the husband’s sister in (country omitted) and brother in the (country omitted) have no legal obligation to maintain the wife. That obligation falls squarely upon the husband pursuant to s.72 of the Act.
However, I have found that, on the husband’s own evidence, his brother and sister send him considerable amounts of money whenever he asks for it, and that therefore he has financial resources which would allow him to pay interim lump sum and periodic spousal maintenance.
Conclusion
As already stated, this case revolves around the husband’s income, property and financial resources, he having conceded the wife’s need for the maintenance sought.
As I have found, on the balance of probabilities, that the husband has the financial resources to meet that need, I will make orders in terms of the wife’s Application.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 21 December 2017
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