TRISHNA & THUKRAL

[2020] FamCA 372

FAMILY COURT OF AUSTRALIA

TRISHNA & THUKRAL [2020] FamCA 372

FAMILY LAW – INTERIM – Order for the wife to have exclusive occupation of the former matrimonial home – Where the wife seeks an Order for litigation funding – Where there is no source of funds identified for such an Order – Where the husband has no capacity to pay spousal maintenance – Where the husband has no capacity to pay additional Child Support – Applications for litigation funding, spousal maintenance and child support dismissed.

Child Support (Assessment) Act 1985 (Cth) ss 116, 117(2)
Family Law Act 1975 (Cth) ss 72, 79, 114(1)(e), 117(2).
Family Law Rules 2004 (Cth) r 4.15

APPLICANT: Ms Trishna

RESPONDENT: Mr Thukral

FILE NUMBER: SYC 3986 of 2019

DATE DELIVERED: 18 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 18 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Acorn Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED

1. That the wife have the right to solely occupy the premises at F Street, Suburb G in the state of New South Wales (“the property”).

2. That the husband is restrained from attending at or entering on the property.

3. That the husband forthwith do all acts required to transfer to the wife the legal title to the motore vehicle motor vehicle registered number ….

4. That the husband pay, as they fall due, the mortgage payments, building insurance, council rates and water rates relating to the property.

5. That the wife’s application for litigation funding be dismissed.

6. That the wife’s application for interim spousal maintenance be dismissed.

7. That the wife’s application pursuant to section 116 of the Child Support (Assessment) Act 1985 (Cth) for a departure order be dismissed.

8. That the solicitor for the wife file a notice of Address for Service by 4pm on 18 May 2020.

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 Trishna & Thukral 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 3986 of 2019

Ms Trishna

Applicant

And

Mr Thukral

Respondent

REASONS FOR JUDGMENT

1. Ms Trishna (“the wife”) and Mr Thukral (“the husband”) married in 2009 and separated physically in June 2019. They have one child who lives with the wife in the former matrimonial home (“the home”) and is nine years old.

2. The parties are in dispute about the parenting arrangements for their son and about financial matters. Only the financial aspects of the application are being dealt with in this application.

3. The wife, by an application in a case filed on 13 November 2019, seeks orders in the following terms:

   1.Sole occupation of the home.

   2.That the husband pay the mortgage payments and outgoings relevant to the home.

   3.Litigation finance in the sum, of $100,000.

   4.That the husband assign to the wife the legal title in a motor vehicle which she currently drives.

   5.Spousal maintenance in the sum of $3,245 per week.

   6.A departure from the current child support assessment such that the husband pays $1,288 per week plus private school fees, private health insurance, gap payments in relation to medical expenses and pharmaceutical expenses.

4. The husband agrees that the wife should have the occupation of the home and he agrees that he will transfer the vehicle but he opposes all of the other relief sought.

5. The husband was not legally represented although he was represented when his response and affidavit was prepared.

6. The wife was represented by a solicitor who had recently come into the matter. The wife’s documents had been prepared by her previous solicitors.

7. The wife relied on an affidavit sworn by her on 13 November 2019 and a Financial Statement sworn 21 October 2019.

8. The husband relied on an affidavit sworn 18 December 2019, an affidavit sworn 12 May 2020 and a Financial Statement sworn 17 December 2019. He also provided a bundle of documents including financial records relating to their jointly owned property in Country H.

PAYMENT OF OUTGOINGS ON THE HOME

1. In the wife’s application, this order is characterised as a property order.

2. The power to make the order can be found in section 114(1)(e) of the Family Law Act 1975 (Cth) (“the Act”). It is not, therefore necessary to determine whether such an order should be made by way of partial or interim property settlement.

3. The husband deposed that the mortgage payments are $125 per week and home insurance is $48 per week. In his Financial Statement sworn 30 August 2019, the husband deposed that he was paying $62 per week for council and water rates.

4. The total of those outgoings is $262 per week.

5. The property is jointly owned. The husband has historically made the payments. He has the capacity to continue to do so. It is in the interests of both parties that the equity in the property be maintained.

6. The orders will provide that the husband pay the outgoings specified above.

LITIGATION FUNDING

1. The wife deposed that, during the marriage, the husband controlled their finances and that she is not aware of the current financial position other than that, at separation in June 2019, she withdrew $104,000 (the husband says the amount was $114,000) from the mortgage account and the husband withdrew $140,000.

2. The wife asserts that she has spent all or almost all of the money she withdrew. After separation in June 2019, until the wife moved back into the home in October 2019 she paid rent of $450 per week. The trust account statement of her former solicitors shows that the wife paid legal fees of some $45,000.

3. The husband asserts that the wife has funds which she has not disclosed but the evidence available does not allow me to make a finding about that issue.

4. The husband deposed to spending some $128,000 on legal fees.

5. The parties own the home in which the wife lives and a property in Country H which is mortgaged and not currently tenanted. Other than a small share portfolio owned by the husband, their respective Financial Statements do not disclose any asset that could be utilised to pay the order sought.

6. In the substantive proceedings, the wife wants to retain the home and the husband wants to retain the property in Country H.

7. The wife does not point to any fund from which the payment of $100,000 which she seeks could be sourced.

8. In those circumstances, it is not necessary to determine whether the order sought should be made or whether the power to make the order is found in section 117(2) or section 79 of the Act.

9. The application for litigation funding will be dismissed.

SPOUSAL MAINTENENACE

1. The wife does not work and has the care of the parties’ child.

2. The husband in his affidavit concedes that she has not worked either before or during the marriage except for doing some administration work for his medical practise for which she was paid $400 per week by him. That work was done from home.

3. That employment ceased on separation.

4. I accept that the wife satisfies the threshold test in section 72 of the Act of not being able to support herself.

5. The wife’s claimed expenses are $3,302. That sum includes education expenses of $1,553 per week in relation to a tertiary course which she commenced in 2018. In her affidavit, the wife deposed that she ceased the course in 2019, not attending the last semester. Although she deposed to her intention to resume the course in March 2020, there is no evidence that she has done so and I have assumed that she has not had the funds available to her to pay the requisite fees to re-commence her studies.

6. The husband challenges the reasonableness of the wife’s claimed expenses. He deposed that the claims exceed the amounts the wife was accustomed to spending during the marriage.

7. I propose to consider the wife’s application with reference to the husband’s ability to pay.

8. The husband deposed that he earns $3,531 per week. He is a self-employed health professional.

9. The husband conducts his business through a company. The company’s financial statements were not in evidence.

10. The Family Law Rules 2004 (Cth) contain provisions about the documents that are to be provided in cases such as this in the following terms:

    Rule 4.15  Evidence to be provided

    (1)  On the first court date and the hearing date of an Application for spousal or de facto maintenance, each party must bring to the court the following documents:

    (a)  a copy of the party’s taxation returns for the 3 most recent financial years;

    (b)  the party’s taxation assessments for the 3 most recent financial years;

    (c)  the party’s bank records for the period of 3 years ending on the date on which the application was filed;

    (d)  if the party receives wages or salary payments—the party’s payslips for the past 12 months;

    (e)  if the party owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and

    (f)  any other document relevant to determining the income, needs and financial resources of the party.

11. Compliance with rules 4.15 (a), (b), (c) and (e) is of particular importance in this case.

12. The wife deposed that in September 2019 and in October 2019, her then solicitors wrote to the husband’s solicitors requesting that he give proper disclosure but that, as at the date of swearing her affidavit, he had not done so.

13. The evidence does not allow a finding in relation to the allegations of non- disclosure by the husband. The husband makes similar complaint about non-disclosure by the wife, specifically that she has failed to provide bank statements, failed to disclose all of her bank accounts and failed to disclose money held by her in Country H.

14. The husband deposed to the following fixed personal expenses:

    Tax  $1,071

    Rent  $530

    Mortgage on the Country H property                   $240

    Rates on Country H property  $74

    Life insurance  $46

    Health insurance (family)  $117

15. In addition he pays or will pay:

    Outgoings on the home  $262

    Child support  $401

    Costs of the child’s therapy with Dr J

    in accordance with orders  $160

    Costs of supervised contact  $465

    TOTAL  $3,366

16. On the basis of the husband’s asserted income, he has an excess of income over necessary expenses of $165 per week, from which to pay his own living expenses, and he has no capacity to pay spousal maintenance.

17. I note that for the purpose of this exercise, I have disregarded the husband’s claim for credit card repayment of $829 per week as those payments must be in respect of items already counted as expenditure and to allow the repayments would be to double count the expense.

18. I have also taken into account the husband’s evidence that his practice company pays various business expenses on his behalf including superannuation, car expenses, various professional insurances, business loan expenses (including the loan for his car) and education expenses.

19. On the basis of the evidence before me, I cannot find that the husband has a capacity to pay spousal maintenance and the application will be dismissed.

CHILD SUPPORT

1. Having regard to my finding about the husband’s capacity to pay spousal maintenance, I also find that, on the evidence currently available, he has no capacity to pay any further amount by way of child support.

2. I am therefore unable to find that the wife has met the conditions specified in s117(2) of the Child Support (Assessment) Act 1985 (Cth).

3. The application for a departure order pursuant to s116 of the Child Support (Assessment) Act 1985 (Cth) with therefore be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 May 2020.

Associate:

Date:  18/05/2020