Varma and Menon

[2018] FCCA 3715

FEDERAL CIRCUIT COURT OF AUSTRALIA

VARMA & MENON [2018] FCCA 3715

Catchwords:
FAMILY LAW – Interim maintenance.

Legislation:

Family Law Act 1975, ss.72, 74, 75(2)(e), 75(2)(k), 75(3)

Cases cited:

Bevan & Bevan [1993] FamCA 95

Applicant: MS VARMA

Respondent: MR MENON

File Number: MLC 3466 of 2018

Judgment of: Judge Harland

Hearing date: 16 November 2018

Date of Last Submission: 16 November 2018

Delivered at: Melbourne

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the Applicant: Ms Teicher

Solicitors for the Applicant: Cathleen Corridon and Associates

Counsel for the Respondent: Mr Jassar

Solicitors for the Respondent: Maganty Lawyers

ORDERS

1. Pending further order, the husband pay to the wife $220 per week with the first payment to be made on Monday 19 November 2018 and then each Monday thereafter.

2. The wife inform the husband or his solicitor as soon as she obtains employment.

3. The proceeding be adjourned for a contested hearing on 20 February 2019 at 10.00am (with an estimated hearing duration of one day).

4. The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 upon which they intend to rely at trial on or before 14 days before the final hearing.

5. Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.

6. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

7. At least 72 hours prior to the trial each party provide to the other party and to the Associate to the Judge a Case Outline document as follows:

   Property

   (a)a list of the documents to be relied upon;

   (b)a brief chronology;

   (c)a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;

   (d)the main contentions on disputes as to:

   (i)what items are to be included in the pool; and

   (ii)the value of each asset in the pool;

   (e)a list of contributions claimed or contended for;

   (f)a list of other factors relied upon (s.75(2) factors);

   (g)the percentage adjustment contended for; and

   (h)a statement of the precise orders sought.

8. Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.

9. Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

10. Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.

AND THE COURT NOTES THAT:

A.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a)the filing of documents; or

(b)any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

IT IS NOTED that publication of this judgment under the pseudonym Varma & Menon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3466 of 2018

MS VARMA

Applicant

And

MR MENON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is the wife’s application for interim maintenance.  It had been described in the alternative as an application for urgent maintenance but given that both parties have filed affidavits and financial statements and several financial documents have been tendered, it is more properly an interim maintenance application. Therefore, different considerations apply.  Due to the lateness of the hour and the extensive exchanges during the course of submissions, I am not going to outline all the submissions made or the evidence relied on. 

3. The parties were married for a short period, it was an arranged marriage and they lived together for about 16 months.  Both parties are from India and both parties are now permanent residents of Australia.  The wife recently obtained permanent residency in [date] and the husband in fact is now a citizen, having lived in Australia since 2008.  The wife makes allegations about family violence which the husband denies.  There had previously been a controversy between the parties as to whether or not there were proceedings on foot in India about the same subject matter but that issue has been resolved.  There is very little property and the application by the wife for final orders seeks the return of some jewellery and seeks that maintenance be paid for a period of two years.  The wife is seeking payment of maintenance on an interim basis of $2000 a month. 

4. The husband’s response seeks that the wife’s application be dismissed. The wife is reliant on Centrelink benefits and is currently receiving a special benefit payment but will shortly be receiving Newstart benefits and, therefore, s.75(3) applies and I have to disregard that payment as it is an income-tested benefit. In effect, that means her income is nil. The husband earns approximately $2000 a week. The husband has tendered several financial documents including his payslips. Both parties have filed financial statements. When looking at part N of the parties’ financial statements, both are spending similar amounts on items such as food. The expenses that they refer to for things such as telephone and utilities are modest.

5. The husband says that the amounts that the wife has for clothing and shoes is excessive. In his own financial statement he includes $200 a week being expenses with respect to his parents.  He says his parents had come to Australia to stay with him and were staying with him until yesterday to provide him with emotional support after the breakdown of the relationship.  Both parties refer to suffering from depression after the breakdown of their relationship.  There is a dispute between the parties, which I cannot resolve on an interim basis, as to whether or not the husband prevented the wife from obtaining employment during their relationship or whether the husband encouraged her to obtain employment and the wife refused. 

6. There is a real issue in dispute between the parties as to whether or not the wife has made her best efforts to find employment.  Both parties have qualifications in the [employment omitted] industry and the wife has not worked in that industry in Australia, although she has worked in India.  The wife annexes responses she has received with respect to job applications that she has made in October 2018.  The husband annexes job applications he said he found on an internet search for [occupation omitted] positions and is critical of the wife in saying that the types of jobs that she has been looking are [occupation omitted] positions, which are not in her areas of experience. He says that she has not made a serious attempt to find employment and maintain herself. 

7. The principles that apply to maintenance applications are well known. In both an interim application and a final application it is necessary to be satisfied that sections 74 and 72 apply. When considering whether or not to make an interim maintenance order, the inquiry is necessarily a truncated one and not the type of inquiry that would be made at a contested final hearing. The husband’s position is that the wife has not established that she is in need of maintenance because he says she has not made full disclosure and has not made serious efforts to find employment. Nonetheless, the husband has said that he is prepared to pay $120 a week in interim maintenance but says that he cannot pay more than that because of the other commitments that he has. The issue of the husband’s commitments is one of the areas in dispute and both parties make complaints about the disclosure of the other.

8. The husband owns a 50 per cent share of a property in India with his father. The husband pays the mortgage on that property which he attests to being approximately $250 a week and my understanding is that from the submissions made, that is the entire mortgage amount rather than half. The husband is also paying rent of $344 a week which is fairly modest and when looking at the credit card statements that he has tendered they do not indicate excessive spending. It is the husband’s case that he is obliged to provide financial support for his parents and whilst acknowledging that this is not a legal obligation, it is a moral and cultural obligation as the eldest son. It is his view that he is obliged to support his parents and in that respect his counsel referred to s.75(2)(e).

9. Both parties referred to the husband’s Indian bank account which was also tendered as an exhibit and it is clear from submissions that it is accepted that he transfers funds to India. What the husband says is that that account is used for expenses that he has in India with respect to the property he owns, the mortgage as well as land tax and also Indian life insurance policies, and that he has also used that account for expenses when he visits India. The wife points to the transfers as showing the husband having capacity to pay maintenance to her and that the obligation to pay maintenance to the wife, if I am satisfied that s.74 applies, is a legal obligation that is placed higher than moral obligations.

10. The wife is paying $550 a month board for a room which is about $126 a week and in addition to that expense she has expenses for clothing and other personal expenses.  The husband’s financial statement filed on 12 September 2018 shows that on the financial summary, part B, that he has $53 a week left after expenses.  That does not allow for the fact that he is not currently paying the $200 a week towards his parents’ expenses when they were staying in Australia which included amounts for food, entertainment and air fares. 

11. It is clear that if this matter proceeds to a final hearing, there will be a real dispute about the extent to which the wife is unable to support herself adequately. One of the controversies I anticipate will be with respect to s.75(2)(k) which is whether or not the marriage had any impact on the wife’s earning capacity and certainly, given the brevity of the marriage. The only context that I could see that being raised would be with respect to moving from India to Australia. I note that on a final basis she is seeking maintenance for a longer period than the period of the cohabitation.

12. As I indicated, the inquiry when considering interim maintenance is somewhat more limited and truncated and with respect to the principles that apply to maintenance applications I refer to Bevan & Bevan [1993] FamCA 95 and I have already referred to the relevant sections of the Family Law Act 1975.  I am satisfied on the state of the evidence that currently the wife is not able to support herself adequately and that the husband does have a capacity to contribute towards her maintenance.  I am not satisfied that he has the capacity to pay $2000 a month as sought as that would be approximately $460 a week.  I am satisfied that he has the capacity to pay maintenance of $220 a week.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 17 December 2018