TAHA & TAHA
[2016] FamCA 1155
•22 December 2016
FAMILY COURT OF AUSTRALIA
| TAHA & TAHA | [2016] FamCA 1155 |
| FAMILY LAW – CHILDREN – Where consent orders were made resolving most of the outstanding issues – Whether existing arrangements for religious holidays should be varied to allow the children to spend an hour with their paternal family during celebrations – Whether the existing changeover location should be changed – Orders made as sought by the father – No variation to changeover – Whether the father should contribute to the children’s private school fees – Where the mother has been paying the school fees and is reliant upon social security benefits and child support – Where the Court finds it is in the children’s best interests to continue attending their school and for the father to contribute to half of the fees. FAMILY LAW – PROPERTY – Where the husband has gambled the net proceeds of sale of the former matrimonial home – Whether a superannuation splitting order should be made in favour of the wife – Whether the wife should receive spouse maintenance each month for ten years – Where the Court finds the wife is unable to support herself adequately – Where the Court is unable to find that the husband has the capacity to pay the amount sought by the wife – Where the Court orders the husband to pay a lesser sum and for a period of three years – Superannuation splitting order made as sought by the wife. |
| Family Law Act 1975 (Cth) ss 60CA, 72, 74, 75 |
| APPLICANT: | Ms Taha |
| RESPONDENT: | Mr Taha |
| FILE NUMBER: | SYC | 3809 | of | 2015 |
| DATE DELIVERED: | 22 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 19 December 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Mahoney |
| SOLICITOR FOR THE APPLICANT: | TS Lawyers & Co. |
| COUNSEL FOR THE RESPONDENT: | Mr Jauncey |
| SOLICITOR FOR THE RESPONDENT: | Steven Stefanou & Co. |
Orders
The children:
·G born on … 2007; and
·H born on … 2010 ("the children")
will spend time with the father from 10.00 am until 3.00 pm on religious holidays.
Each of the parties will pay one half of the children's school fees within such time limit as is fixed from time to time by the school principal.
The mother is restrained from enrolling the children at any school other than Q School without the written consent of the father.
The parties will effect changeovers, for the purposes of implementation of these Orders, at McDonalds Restaurant at Suburb R when such do not take place at the children's school.
(5.1) Pursuant to section 90MT of the Family Law Act 1975 (Cth), whenever a splittable payment within the meaning of section 90ME becomes payable by the husband from his interests in CBus Superannuation fund, the wife is entitled to a base amount of 90 per cent of the balance of each such fund and there is a corresponding reduction in the amount that the husband would be entitled to receive but for this order.
(5.2)The operative time for Order 5.1 is four (4) days from the date of service of a certified copy of these Orders on the trustees of the Rest Superannuation fund and the CBus Superannuation fund, subject to Order 5.3.
(5.3)The trustees of the Rest Superannuation fund and the
C-Bus Superannuation fund have liberty to apply within twenty-one (21) days of the date of service of these orders.
(6.1) The husband will pay to the wife spouse maintenance of $100 per week, with the first such payment to be made within seven (7) days of the date of these Orders.
(6.2)The husband will make all payments of spouse maintenance directly to a bank account nominated in writing by the wife.
(6.3)The husband will make such payments of spouse maintenance to the wife for a period of three (3) years from the date of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Taha & Taha has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3809 of 2015
| Ms Taha |
Applicant
And
| Mr Taha |
Respondent
REASONS FOR JUDGMENT
The proceedings
Ms Taha and Mr Taha are parties to litigation in relation to parenting and financial issues. They have two daughters:
·G born in 2007 (nine); and
·H born in 2010 (six).
The proceedings were listed for a four-day trial to commence on 19 December 2016. With the valuable assistance of their solicitors and counsel, the parties were able to resolve most outstanding issues on the first day of the trial. By consent I made the following orders:
PARENTING
1.That the children, [G] (born … 2007) and [H] (born … 2010) (“the children”) live with the mother.
2.That the parties have equal shared parental responsibility for the children.
3.That the children spend time with and communicate with the Father as follows:
(a)Each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday;
(b)Each alternate Thursday from the conclusion of school to 7.00pm;
(c)During the April and September school holidays, from 7.00pm on the first Sunday of the school holiday period to 7.00pm on the following Sunday (i.e. the first week of the school holidays for this period);
(d)During the July school holidays, from 7.00pm on the 3rd Sunday following the conclusion of school to 7.00pm on the following Sunday, if the school holidays are a total of 3 weeks (i.e. the last week of the school holidays for this period);
(e)During the July school holidays, from 7.00pm on the 2nd Sunday following the conclusion of school to 7.00pm on the following Sunday, if the school holidays are a total of 2 weeks (i.e. the last week of the school holidays for this period);
(f)During the Summer School holidays commencing in December, on the second and third week of the holidays, commencing 7.00pm on the second Sunday following the conclusion of school to 7.00pm on the Sunday, 14 days later;
(g) Or otherwise as agreed between the parties.
4.That otherwise as provided for in these Orders, the children are to spend time with the parents as follows:
(a)With the Mother from 10.00am to 7.00pm each Mother’s Day if the children are not otherwise in the Mother’s care at the time;
(b)With the Father from 10.00am to 7.00pm each Father’s Day if the children are not otherwise in the Father’s care at the time.
5. That the children spend time with the parents as follows:
(a)On the Mother’s birthday, being …, from 9.00am to 5.00pm if the birthday falls on a weekend, or otherwise after school to 7.00pm if the birthday falls on a weekday.
(b)On the Father’s birthday, being …, from 9.00am to 5.00pm if the birthday falls on a weekend, or otherwise after school to 7.00pm if the birthday falls on a weekday.
6.That the parties have the sole responsibility for making decisions about the day-to- day care, welfare and development of the children during the periods when the children are living with them except as otherwise provided for in these Orders.
7.Each party must ensure that the other party is kept fully informed of:
(a)Any medical problems or illnesses suffered by the children whilst in that party’s respective care, including giving the other party notice within a maximum of two hours, should a child be hospitalized and giving 7 days’ prior notice of any specialist appointments;
(b)Any prescription or non-prescription medication, treatments or medicines prescribed for or given to a child;
(c) Any other matter relevant to the children’s welfare.
8.For the purposes of communicating information between the parties the mother and father must:
(a)Disclose their current residential address;
(b)Keep the other informed of any change to their residential address, or telephone number, and advise the other party of any change to those details at least 7 days prior to such change occurring;
(c)Communicate by SMS any matters relating to a change in the arrangements regarding the time each parent spends with the children, and call the other party within 2 hours of an emergency arising;
(d)Allow the children telephone time with the other party, when requested by the children; and
(e)Each parent is at liberty to contact the children via telephone, when the children are not in their care.
9.Each party must fully comply with each child’s special medical requirements (including any specific medical, dietary, bedding and environmental special needs).
10.That each party shall refrain from harassing, stalking, intimidating, or making critical or derogatory remarks about the other parent or members of their family in the presence of or hearing of any of the children and that each party shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of any of the children.
11.That both parties are restrained from commencing or proceeding with any application for a passport for the children from the Australian Government Department or Agency which issues or has the power to issue passports or the consulate of any other appropriate authority of any other country, unless otherwise agreed in writing.
12.That the name of each of the children shall be forthwith placed on the PACE Alert System of the Australian Federal Police and the Department of Immigration and Border Protection.
13.That the mother and father shall do all things necessary to obtain copies of all school reports, weekly bulletins, correspondence, and school photo applications.
14.That both parents shall be entitled to attend all events involving the children, including:
(a)Sporting Fixtures.
(b)Extracurricular activities that allow for parental attendance.
(c)School functions and events that allow for parental attendance, including but not limited to concerts, school assemblies, sports days, parent teacher interviews, canteen duties, and other social functions.
15.That whilst the children are in their care, the parent who has care at the time shall determine the extracurricular activities of each child during that time.
16.That the Father shall ensure that the children have sufficient uniforms for school attendance in his care.
17.The Australian Federal Police give effect to Order 16 by placing the names of the children: [G] [a female] born on … 2007, and [H] [a female] born on … 2010, on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the Court orders its removal.
18.Each party is to notify the other party in writing, of their intent to travel interstate with the children at least 3 days prior to their intended travel.
FINANCIAL
19.That the applicant/wife and respondent/husband have sole right to title and interest in:
(a)All chattels, goods, furnishings and other personal property, which are at the date hereof, in their possession and control respectively.
(b)All shares, debentures, unit trusts, bank, building society or credit accounts, insurance policies standing in their sole name respectively at the date hereof.
20.That otherwise then as provided for in these orders, the applicant and the respondent be declared the sole beneficial owner of all motor vehicles, monies in bank accounts, real property, shares in public or private companies and any other property that stands in that party’s name or that’s in that party’s possession as at the date of these orders.
OTHER
21.That each party shall be and remain solely responsible in relation to any and all liabilities (including any respective credit card liabilities), presently in the sole name of each of them respectively. Each party shall indemnify and keep indemnified the other party in respect of any claim arising from any such liabilities.
22.That each party forthwith do all acts and things and sign all such documents as may be necessary to give effect to these orders.
The following issues remained for determination by the Court:
1.The time which the children should spend with each parent on religious holidays;
2.Whether the mother should be restrained from changing the children's school;
3.Whether the father should contribute to payment of the children's school fees;
4.Whether changeovers should occur at a McDonalds Restaurant at Suburb R or Suburb S;
5.Whether the wife should receive a superannuation splitting order in relation to the husband's Cbus fund or as to ninety percent of the total of his three benefits; and
6.Whether the husband should pay to the wife spouse maintenance of $1,200 per month for ten years.
Counsel for the parties dealt with these outstanding issues in a most efficient manner. All issues with the exception of a spouse maintenance proceeded by way of submissions. Only the husband was required for cross-examination in relation to the issue of spouse maintenance.
The evidence and witnesses
The applicant relied upon the following affidavits:
1.Ms Taha affirmed on 24 March 2016 paragraphs 27-41, 47 and
51-56
2.Ms Taha affirmed on 14 December 2016
3.Financial Statement of Ms Taha verified by affidavit affirmed on 14 December 2016.
The wife was not required for cross-examination on any of the outstanding issues.
The respondent relied on the following affidavits:
1.Mr Taha sworn on 15 February 2016 paragraphs 177-184
2.Mr Taha affirmed on 13 December 2016
3.Financial Statement of Mr Taha verified by affidavit affirmed on 13 December 2016.
As noted, the husband was required for cross-examination only in relation to the issue of spouse maintenance.
Background
The husband and the wife, who are aged 33 and 32 respectively, began to live together on 19 April 2003 following a religious ceremony which was not recognised by Australian law. They separated in April 2005 but reconciled and married in a binding ceremony in 2006.
In 2012 the parties purchased vacant land at Suburb S and caused a house to be built, utilising in part borrowed funds. The husband was the sole mortgagor and registered proprietor of this property, which was occupied as the family home until its sale in May 2015. The husband sold the property for $875,000, with the net proceeds amounting to approximately $414,000.
A sum of $414,945, being the net proceeds of sale, was deposited into an account in the joint names of the husband and his mother on 27 May 2015. By 26 June 2015 the husband had dissipated all but $2,020 of these funds. The husband deposed in a previous affidavit that he gambled and lost $405,390. He deposed further that he spent the balance of these funds on the purchase of a quad bike and repayment of a debt of $15,500 to the wife's sister.
On 22 June 2015, on the application of the wife, I made the following orders on an ex parte basis:
IT IS ORDERED PENDING FURTHER ORDER AND ON AN
EX PARTE BASIS THAT:1.Having regard to the contents of the affidavits of the wife sworn on 12 June 2015 and [Mr T], Lawyer, sworn on 22 June 2015, Orders and directions are made in accordance with paragraphs 1, 2, 3, 6, 7, 8, 9 and 10 of a document headed “Short Minute of Order Sought by the Wife” dated 22 June 2015 (as amended), filed herein as set out hereunder:
1.Pending further order and pursuant to section 90AF(2) of the Family Law Act 1975 the Commonwealth Bank shall be and is hereby directed to:
(a) Do all things necessary to immediately suspend all and any access by the Husband and the Second Respondent [Ms B Taha] also known as … to banking facilities associated with all and any accounts in the names of Mr Taha on his own or an account held jointly by the said Mr Taha with [Ms B Taha] nee …, including but not limited to Commonwealth Bank account BSB … number …, Suburb S branch.
(b) Do all things necessary to ensure that no person can operate any of the accounts in the names of [Mr Taha] on his own or an account or accounts held jointly with [Ms B Taha] nee ... and so as to ensure that the balance presently held in those accounts (subject only to withdrawal by the Bank of fees, charges and administrative costs relating to compliance with these orders) are not reduced from their present balances.
2.That the issue of any costs incurred by the bank and costs generally be reserved.
3.Pursuant to s.114(3) the Husband alone or jointly with [Ms B Taha] nee ... shall be and is hereby restrained from dealing with, disposing, affecting any transaction or reducing the balance held in any account in which he has an interest (whether in his sole name, jointly with any other person or held in trust with any other person including [Ms B Taha] nee ...).
4.
Pending further order pursuant to s.90AF (2) [U Storage]. at [Suburb V] is hereby required to allow and facilitate [Ms Taha] to enter [Mr Taha’s] storage facility at [U Storage Pty. Ltd.] at [Suburb V] and inspect or seize documents or other property.5.
That the First Respondent Husband be and is hereby required to permit the Applicant Wife, alone or with another person, to enter the Respondent Husband’s storage facility at [U Storage Pty. Ltd.] at [Suburb S] and inspect or seize documents or other property.6.That the Wife cause this order to be served on the Commonwealth Bank within 48 hours or by 4pm 24 June 2015, such service to occur by email and/or facsimile in the first instance.
7.That the Commonwealth Bank be granted liberty to restore the proceedings to the list on 24 hours’ notice.
8.That the Wife cause this order and the Wife’s Initiating Application, Application In a Case, Affidavit and financial statement filed 15 June 2015 to be served on the First Respondent Husband and the Second Respondent within 7 days of the date of this order.
9.That the Husband file and serve a Response, Financial Statement within 28 days from the date of these orders.
10.That this matter be listed for a continuation of the interim hearing before Justice Stevenson at 9.30 am on Wednesday, 29 July 2015.
(Emphasis in original)
I then adjourned the proceedings to 29 July 2015.
The husband was served with the orders of 22 June 2015 on 25 June 2015. On 29 July 2015 I could do nothing other than make orders to the effect that the husband and his mother do all things necessary to transfer to the wife the remaining funds of $2,020.56.
The Financial Statements of the parties indicated that they now own negligible property. The husband has three superannuation benefits with a total value of $14,344. Otherwise, the parties each own household contents to which they assigned a value of $5,000 and personal effects.
Approach to these proceedings
I will consider and determine in turn each of the outstanding issues. Parenting matters will be determined with the best interests of the children as the paramount consideration, in accordance with section 60CA of the Family Law Act 1975 (Cth) ("the Act"). The spouse maintenance application will be determined by reference to sections 72, 74 and 75 of the Act.
Outstanding issues
Religious holidays
On 24 August 2016 the parties consented to interim orders which provided that the children spend time with the father from 9.00 am until 3.00 pm on religious holidays. The mother now seeks that the children spend time with the father from 9.00 am until 2.00 pm and he proposed a period of 10.00 am to 3.00 pm in his care on these occasions.
The difficulty appeared to be that each parent has a family lunch on these special occasions. Further, I was informed by counsel for the father that celebrations commence at 2.00 pm on these days. If such were the case, it might reasonably be considered that the parties would alternate afternoons with the children on a yearly basis but no such proposal was put to me.
I infer that the parties considered that the best interests of the children were met by their spending the morning / early afternoon period in the care of the father on religious holidays when they consented to the interim orders on 24 August 2016. It was common ground that the children's time with the father should now be reduced from six to five hours on these days.
Counsel for the father submitted that a 3.00 pm conclusion to the children's time in his care would allow a short period of time with the paternal family while the celebrations are in progress. It seems to me that there is merit in this submission and I will make the order proposed by the father.
Restraint on the mother's changing of the children's school
The children currently attend Q School. They were enrolled at this school unilaterally by the mother at the commencement of the 2016 school year, having previously attended W School. At all times the children have attended private religious schools.
The mother deposed that the children's education expenses amount to $120 per week. She has been paying the school fees without any contribution from the father. In his Minute the father sought orders to the effect that the mother continue to pay the whole of the school fees and that she be restrained from removing the children from Q School without his consent. The mother sought an order that the father pay all of the children's school fees but both of the parties seemed to consider that the real issue was what contribution, if any, the father should make to these expenses.
The mother managed to pay the school fees during 2016 from her social security benefits and child support from the father of $21.70 per week. The father is a self-employed tradesman, who deposed to a gross weekly income of $700.
The children's school reports (Annexure B to the mother's affidavit of 14 December 2016) suggest that they are settled and making good educational progress at their current school. In my view, it is in their best interests that they continue to attend Q School and that the father contribute to payment of the fees. I will order that each of the parties pay one-half of the school fees and that the mother be restrained from changing the children's school without the consent of the father.
Changeover point
On 24 August 2016 the parties consented to orders which provided for changeovers at McDonalds Restaurant at Suburb R, when such do not take place at the children's school. The mother and the children live at Suburb R and the father recently moved into rented accommodation at Suburb O. The father now proposes that the changeover point be altered to McDonalds Restaurant at X Street in Suburb S.
The only reason advanced on behalf of the father in support of this change was that he would need to leave for Suburb R at 2.30 pm on [religious] holidays. I was informed by counsel for the father that there are two such relevant days per year.
I am not persuaded that there is any real justification for an alteration to the arrangement consented to by the parties as recently as 24 August 2016. I will make no amendment to the order in relation to the point of changeover.
Superannuation splitting order in favour of the wife
As noted, the wife sought a superannuation splitting order to the effect that she receive ninety percent of the total value of the husband's three funds. The husband proposed that the wife receives a splitting order only in relation to his Cbus fund with a value of $7,809.
In circumstances where the husband, by his own admission, has wasted over $400,000 of matrimonial funds I have no hesitation in acceding to the wife's application. It may be that she will be able to access these funds on the basis of hardship.
I was provided with no evidence that notice of the wife's application has been given to the trustee of the two relevant funds. Accordingly, there must be an order that affords the trustee procedural fairness.
Spouse maintenance
The first step in the determination of the wife's application for spouse maintenance is the question whether she is unable to support herself adequately for the purposes of section 72 of the Act. This section provides as follows:
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).
(2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
In my view, the wife clearly is unable to support herself adequately within the meaning of section 72. She has the primary care of the parties' two children, who are aged nine and six years. The wife's income consists solely of social security benefits and a sum of $21.70 per week by way of child support. The Court is directed by section 75(3) to disregard the wife's entitlement to an income-tested pension allowance for the purposes of section 74.
The issue, accordingly, is whether the husband is "reasonably able to maintain" the wife in accordance with section 72(1). It is also necessary to determine whether it is "proper" to make an order for spouse maintenance, as required by section 74(1).
As noted, the husband deposed in his Financial Statement of 13 December 2016 to a gross weekly income of $700 from his business known as Mr Taha trading as Company Y. In his affidavit of 15 February 2016 the husband deposed that his taxable income for the years 2012, 2013 and 2014 was $22,252, $20,987 and $20,340 respectively.
The husband annexed to his affidavits of 15 February 2016 and 13 December 2016 income statements for his business for the years 2012, 2013, 2014, 2015 and 2016. The revenue received by the business ranged from a minimum of $65,125 in 2014 to a maximum of $130,758 in 2013. The expenses of the business were in the range of $42,535 in 2014 to $109,793 in 2013.
The husband's principal source of work is subcontracting to C Pty Ltd ("CPL"), a company operated by his brother. The husband said that he issues invoices to CPL on a weekly basis and payment is then made into his Westpac bank account. A bundle of such invoices was in evidence (Exhibit 3) and the billed amounts varied within a range of about $1,000 to $2,000 per week.
The husband's most recent income statement (Annexure MT2 to the affidavit of 13 December 2016) read as follows:
Company Y Income Statement ABN … 01/07/2015 – 30/06/2016 Revenue 2015 Sales revenue 77,438 Interest revenue - Other revenue Total Revenues 77,438 Expenses Cost of goods sold 23,955 Accounting Fees 1,000 Advertising 70 Depreciation 8,333 Insurance 1,658 Internet 828 Maintenance and repairs 85 Motor vehicle expenses 11,240 Office supplies 614 Telephone 1,560 Total Expenses 49,343 Net Income 28,095
If depreciation in the sum of $8,333 is added to net income, the husband has available funds of $36,428. In his Financial Statement he stated that he pays tax of $53 per week, thus his net annual income is about $33,672 or around $647 per week. The difficulty in any determination of the husband's actual disposable income lies in his failure to include Part N in his Financial Statement of 13 December 2016.
It may appear somewhat unusual that the husband elected to acquire a lease liability of $600 per week on an asserted gross income of $700 but that matter can be taken no further on the available evidence. I cannot go behind the information contained in the husband's tax returns and infer that, in fact, he has a greater income.
The evidence established, however, that the wife pays rent of $380 per week to accommodate herself and the parties' two children. The husband has elected to pay rental of $600 per week to accommodate only himself.
The husband's credit card statements (Exhibit 2) contain items of discretionary expenditure such as restaurant meals, clothing and a holiday at Jindabyne. I accept the husband's evidence that the holiday in Jindabyne was taken with the children, after he had been separated from them for approximately twelve months, and that he shared the cost with his sister.
These facts, coupled with the husband's failure to complete Part N of the Financial Statement upon which he relied for trial, persuade me that it is proper that there be an order for spouse maintenance. I cannot find that the husband has the capacity to pay spouse maintenance of $1,200 per month. I am satisfied, however, that any amount of spouse maintenance will ease the financial burden upon the wife. I will order that the husband pay to the wife spouse maintenance of $100 per week, bearing in mind that he will also meet the cost of half of the children's school fees.
I cannot see my way clear to make an order for spouse maintenance of ten years' duration, given that the parties' respective financial circumstances may well change during that period. I will make an order for spouse maintenance of three years' duration.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 22 December 2016.
Associate:
Date: 22 December 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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