Weisman and Weisman - [2006] FMCAfam 404

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEISMAN & WEISMAN

[2006] FMCAfam 404

FAMILY LAW – Spousal Maintenance – application by husband – s.75(2) factors considered – failure to provide recent, reliable evidence of income – application refused.

FAMILY LAW – Barro order – husband likely to receive significant property settlement – application granted.

Family Law Act 1975, ss.72(1), 74(1), 75(1), 75(2), 75(3), 79, 117(2). 117(2A)

Re JJT; Ex parte Victoria Legal Aid (1998) FLC 92-812
Zschokke and Zschokke (1996) FLC 92-693

Applicant:

BELLA WEISMAN

Respondent:

SAMUEL WEISMAN

File Number:

MLM 3633 of 2006

Judgment of:

Riley FM

Hearing dates:

25 July & 26 July 2006

Date of Last Submission:

26 July 2006

Delivered at:

Melbourne

Delivered on:

7 August 2006

REPRESENTATION

Counsel for the Applicant:

Mr Lipshutz

Solicitors for the Applicant:

Cohen Woolf & Weinberg

Counsel for the Respondent:

Ms Stoikovskia

Solicitors for the Respondent:

Glezer Lanteri & Associates

THE COURT ORDERS THAT:

Until further order, the applicant wife have the sole use and occupation of the former matrimonial home situate at and known as 26 Daley Street Bentleigh and during such right of occupation, the wife pay and be responsible for all instalments pursuant to the mortgage on that property and all rates, taxes and other like apportionable outgoings on the property as they fall due.
On or before 4pm on 21 August 2006, the wife pay to the trust account of the husband’s solicitors the sum of $14,009 by way of interim provision for the costs of the husband of and incidental to these proceedings.
The husband’s solicitors have liberty to draw upon that sum from time to time to meet the reasonable and proper costs and disbursements of the husband in relation to these proceedings.
The husband’s solicitors pay any accounts for the reasonable and proper costs and disbursements of the husband as and when they fall due for payment but otherwise hold the money on trust for the husband and the wife, pending the further order of the Court.
The payment made by the wife in accordance with these orders is to be taken into account at the final hearing of the property proceedings.
The husband’s application for spousal maintenance is dismissed.

THE COURT ORDERS BY CONSENT THAT:

On or before 4pm on 4 September 2006, each party make, file and serve an affidavit of documents.
On or before 4pm on 4 September 2006, each party provide to the other party’s solicitors the following documents or information:
(a)copies of the financial returns and tax returns for the last three financial years in respect of the party personally and any company, trust or other entity of which the party is a director;
(b)copies of all the party’s credit card statements for the last 12 months;
(c)copies of all bank statements for any savings, cheque or other account in respect of which the party is the sole or joint account holder, or in respect of which the party is or was a shareholder and/or director of the account holder;
(d)details of the party’s superannuation entitlements including the name of the fund, the trustee, the last available member statement and, in the event the fund is a self managed fund, copies of the superannuation deed and financial statements for the last three financial years;
(e)all AIS/BAS statements for the last three years;
(f)in relation to any trust in respect of which the party or his or her agent is the appointor or the trustee or the director of any trustee company or the guardian, beneficiary, guarantor or otherwise:
(i)a copy of the trust deed or any amended deed thereto;
(ii)financial statements for the last three financial years; and
(iii)loan account ledgers.
In addition to providing the documents and information required by order 8 hereof, each party make, file and serve an affidavit of documents on or before 4pm on 4 September 2006.
The parties attend a Conciliation Conference with a Registrar at Melbourne on 14 September 2006 at 11.00am.
Any subpoena issued at the request of a party be returnable not later than 25 September 2006.
On or before 4pm on 29 September 2006, each party make, file and serve any further affidavit to be relied upon.
On or before 4pm on 29 September 2006, each party make, file and serve an updated Financial Statement.
The matter be adjourned to 9 October 2006 at 10.00 a.m. for final hearing (with an estimated hearing time of 2 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them 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 Federal Magistrates Court Regulations.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules2001, the Court certifies that it was reasonable for the parties to employ an advocate.
Liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3633 of 2006

BELLA WEISMAN

Applicant

And

SAMUEL WEISMAN

Respondent

REASONS FOR JUDGMENT

This is an application for interim property and spousal maintenance orders. The applicant wife seeks an interim order that she have the sole use and occupation of the former matrimonial home on the basis that she pays all the outgoings on the property. The respondent husband does not oppose that order and in fact seeks an order that the wife pays the outgoings on the property. The respondent husband also applies for interim spousal maintenance in the sum of $250 per week and an order in the nature of a Barro order that the wife pay to the husband's solicitors $15,000 by way of litigation funding. The wife opposes those applications. The parties are in agreement about certain procedural orders.

Background

The husband was born in Ukraine on 16 February 1947 and is now

59 years old. The wife was born in Ukraine on 28 November 1949 and is now 56 years old. They were married on 30 December 1971 in Ukraine. At the time of the marriage the husband was qualified as an electrical engineer and was employed with a company in Ukraine. The wife was in her final year or so of her studies to become a doctor. The parties have two sons who are now adults. In 1974, the parties migrated to Israel. The applicant wife worked as a doctor in Israel for approximately 15 years until the parties migrated to Australia. The husband worked in Israel as an electrical engineer. At some times he was employed and at other times he was self employed.
The wife alleges that while the parties lived in Israel, she paid all of her income into a joint account but the husband paid his money into his own separate account. According to the wife, the husband refused to discuss his separate money and would not consult the wife in relation to financial decisions. On one occasion, the wife says that the husband said to her, "If you tell me to do something, I will do the opposite". The wife also says that on one occasion the husband took NIS 10,000 from the joint account and lost it in what the wife believes to have been a fraudulent business venture. The husband denies these allegations. These are matters for determination at the final hearing stage.
The parties came to Australia in February 1991. They brought with them approximately $A128,000 realised from the sale of their flat in Israel. The wife subsequently brought to Australia her Israeli superannuation benefit in the amount of approximately $A86,000. The wife says that the husband did not bring any money with him. However, he says that they brought an extra $A10,000 to $A20,000 in savings. Again, this is a matter for determination at the final hearing stage.
Between 1991 and 1995, the wife undertook various TAFE courses to improve her English to a level where she could be accredited in Australia as a doctor. During that time, the family was supported by the husband's income as a taxi driver. In 1995, the husband bought a business consisting of dry cleaning, key cutting and repairs of electrical appliances. The purchase price of the business was $65,000 and, according to the wife, the purchase was funded with the savings of the parties. The husband did a lock-smithing course and introduced that to the business as well. The husband and the wife both worked in the business initially. Later in 1995, the wife also commenced working about four to five hours per day for about three days per week for a pathology collection company. After completing that work, the wife would assist in the business.
In 1994 or 1995, the parties bought the matrimonial home for approximately $150,000 to $160,000. The house was bought with the balance of the funds brought from Israel and some funds borrowed from the Commonwealth Bank of Australia.
In 1997, the wife's parents came to Australia. The wife's parents deposited in the parties’ bank account $100,000 to $120,000 to renovate the parties’ home to provide accommodation for the wife's parents. The renovation was done. However, things did not work out and the wife's parents returned to Israel in 2000. The husband says that an unspecified part of the funds deposited by the wife’s parents was the parties’ own money that they had left in Israel and the remainder was a gift from the wife’s parents to the parties. The wife says that the total amount of $120,000 was lent by her parents. The amount provided by the wife’s parents has not been repaid. Whether the funds provided by the wife’s parents were a gift or a loan or partly the parties’ own funds is a matter for determination at the final hearing stage.
In 1997 approximately, according to the wife, the husband became frustrated at the wife's lack of progress in obtaining her medical qualifications in Australia. The husband, according to the wife, used $110,000 of the couple’s funds, contrary to her clearly expressed wishes, to pay some people who claimed to be able to arrange for the wife to obtain her medical qualifications in Australia. The wife says that the $110,000 was lost. The husband denies all these allegations. He says that he gave about $100,000 to some couriers to give to the wife’s parents after their return to Israel. He said it was difficult to transfer money to that country through the normal channels, partly for reasons concerned with the pension entitlements of the wife’s parents. This is also a matter for determination at the final hearing stage.
In about 1997, the wife says that she began working at the Royal Park Hospital under supervision as a psychiatric medical officer. The husband denies this. In about 1998, the wife obtained medical work at Burnie in Tasmania and was paid $800 per fortnight. She worked shifts and would return to the family in Melbourne about once a month for two days. In about 1998, the wife obtained employment at the Ballarat Base Hospital as a senior medical officer, although her medical qualifications were still not fully recognised in Australia. The wife had two days off per week, which she would spend with the family in Melbourne, but she otherwise lived in Ballarat.
In 2000, the husband sold the business. The wife says that, during the marriage, the husband refused to provide her with copies of the documents relating to the sale of the business but that he claimed that it was sold for $35,000. Of this, the wife says that he paid $30,000 in reduction of the mortgage on the family home. The husband does not appear to dispute these matters.
Also in 2000, the wife’s father died and her mother later returned to Australia to live with the wife. They continue to reside together. Prior to leaving Israel, the wife says that her mother sent the parties a loan of about $A70,000. The husband does not appear to dispute this allegation.
In about 2001 or 2002, the wife obtained work as a general practitioner rotating between Moe and Morwell as she was able to work in regional areas prior to her medical qualifications being fully recognised in Australia. The wife has not told the court what she earned at this time. However, it seems to be implicit in her material that it was appreciably more than she had been earning previously. Throughout the time that the wife was working outside Melbourne, she contributed her income to the family, except the amount that she needed for her own food and accommodation away from home.
In about April or May 2004, the parties separated. In May 2004, the wife passed her final exams and became a Fellow of the Australian College of General Practitioners. The wife since that time has worked as an independent contractor and in clinics in Clayton and Bentleigh.
The wife says that, except when she was studying to qualify as a doctor in Australia, she has always earned more than the husband. She also says that she did all of the domestic duties within the home. The husband says that he at times has earned amounts similar to the wife and when the wife was studying, he supported the family entirely from his own income. He also says that the wife did the cooking during the marriage but he did all the cleaning and always took the children to their various activities. The parties appear to be in agreement that neither of them brought any assets of significance to the relationship. They also appear to be in agreement that they lived fairly modestly in Australia until the wife qualified as a general practitioner. This event occurred at about the same as they separated.
In December 2005, the parties attempted to reconcile. They had a holiday in Queensland together. The wife paid for the airfares and accommodation and the husband paid at least $600 for car hire. The reconciliation did not last.
The husband has given an undertaking to the Magistrates Court of Victoria that he will not attend the former matrimonial property.
In her financial statement sworn on 24 April 2006 the wife says that she has a total average weekly income of $2500 and a total personal weekly expenditure of $939. That expenditure consists of $440 per week for income tax (which is surprisingly little), $400 per week for her mortgage and various small amounts for car, house and health insurance and for motor vehicle registration. The wife appears to have a current weekly surplus of $1561. However, as she has not completed part N of her financial statement and has not included any amount in item 32 of her financial statement, her apparent current weekly surplus of $1561 may be overstated.
The wife shares a household with her mother who is aged 78 years and receives an income of $480 per week. The husband and wife both estimated that the matrimonial home is worth $600,000 in total and has a mortgage of about $30,000 outstanding. The wife is living in the home and is making the mortgage repayments. According to her financial statement, the wife also has $34,000 in the bank in the name of Weisman Services Pty Ltd and $120,000 in the bank in the name of Treasure Holdings Pty Ltd. She also has approximately $2,500 in a bank account in her own name. The wife has a car which she values in her financial statement at $20,000 and superannuation which she values at $22,000. The wife also says that she owes her mother $190,000.
In his financial statement sworn on 14 July 2006 the husband says that he has a total average weekly income of about $300 and a total weekly personal expenditure of about $317. He says that his income is derived from his company, Automatic Control Electrical Engineering Pty Limited (“the company”), which mostly does repairs of electrical appliances. He says that he pays $150 per week in rent and spends $80 per week on food and $62 per week on various other items. He says he has superannuation of $17,000 and has $817 in the bank in an account in his own name. He values his interest in the company at $2,000.
The wife was given leave to file on the first day of the interim hearing an affidavit sworn by her on that day, being 25 July 2006. It responded to the husband’s application for spousal maintenance and a Barro order. The wife said in that affidavit that during the marriage the husband had been paid significant sums in cash and that he had not declared all of his income to the Australian Taxation Office (“ATO”). She said that during their holiday in Queensland in December 2005, the husband told her that he had been earning significant sums that were not disclosed to the ATO. The wife also alleged that the husband was living in a domestic relationship with Ms Olena Akimova.
One of the sons of the parties, Simon Weisman, gave oral evidence at the interim hearing. He had been unable to make an affidavit because he had just arrived from interstate. He said that after his father's business closed, the husband worked from home doing service calls and electrical appliance repairs. He said that the husband would often work from 11 am until 7 or 8 pm. He said that the husband had made comments to him about his business being a cash business and indicated that he was not paying the appropriate amount of tax. At one time when the father was very busy, according to the son's evidence, the father said he could not engage anyone to help him in the business because he would then have to start showing his income to the ATO.
The son also gave evidence to the effect that his father kept a diary of his work which showed what jobs he had and how much he would be paid for each of them. The son said that the father would add up the amount he was due to be paid at the end of each week and would also add up in the diary his annual income. The son said that he believed that his father earned $60-70,000 per annum, based on what he had seen in the diary. The son said that he remembered seeing several cheques payable to his father in sums of more than $1,000.
The son agreed, in cross-examination, that an intervention order had been taken out against him by his father following a physical assault by the son and following the son's verbal threats to kill his father. However, the son said that they had kissed and made up at the following Jewish New Year. The intervention order was taken out after that. The son said that he had not spoken to his father since the intervention order was made because he had given the court an undertaking not to speak to him before November 2006. The son denied that he had any animosity towards his father and said that his anger had been only momentary and that he wished both his parents well. While the son had at first said that he saw several cheques of over $1,000 in his father's hands, he later said that in 2002, 2003 and 2004 he frequently saw his father with cheques of over $1,000. He later said that he had seen his father with many such cheques but that there were fewer than 100 such cheques.
In response to an affidavit of the wife filed on 25 July 2006, the husband gave oral evidence that he had lived with Ms Akimova from the time of his separation from the wife, being about April 2004, until May 2005. He said that since then he had rented a single bedroom in a succession of different houses. He said that he stopped living with

Ms Akimova because he wanted to reconcile with his wife. That wish to reconcile led to the holiday in Queensland in December 2005.
The husband said that the $150 per week that he spent on rent also included bills. He said that he has resumed his relationship with Ms Akimova and he spends most weekends at her house and said they are boyfriend and girlfriend. Ms Akimova lives above a shop where she runs a business of clothing alteration. The residence has two bedrooms, one of which is occupied by one of Ms Akimova's adult daughters. The husband said that he did not live with Ms Akimova. However, he did use her address as his contact address on his divorce application. He said this was because he might change his residential address.

The husband vigorously denied that he had income that he had not declared to the ATO and denied saying anything to his wife or son to the effect that he had received cash payments that he had not declared for tax purposes. He said that in the last year before the parties separated (that is, in 2003-4), he did very little paid work and was involved primarily in helping the wife edit some videotapes that she needed to present for the purposes of her accreditation as a medical practitioner.
Initially the husband denied that he kept a diary of his jobs but did say that he kept invoices for the work he did and believed that he has kept them for the last seven years. However, on the second day of the hearing, the husband did produce three diaries, one each for 2002, 2003 and 2004. The diaries had very few entries of either a business or personal nature. The husband said he had kept only one diary for each year. When the husband produced the diaries the son was no longer available to give evidence about whether they were the diaries that he had seen. The husband also produced some deposit books for the bank account in the name of his company. The deposit books indicated that there were numerous deposits of cash as well as some deposits of cheques. Few deposits appeared to be over $1,000. The period covered by the deposit books was 4 January 2002 to 12 November 2003.
The husband also produced some bank statements for his company for the period 23 July 2002 to 21 July 2003. There were a handful of deposits over $1,000. For the period 23 July 2002 to 21 October 2002 there were total credits of $8,235. For the period 22 October 2002 to 20 January 2003 there were total credits of $12,618. For the period

21 January 2003 to 22 April 2003 there were total credits of $7,205. For the period 23 April 2003 to 21 July 2003 there were total credits of $7,888. The total credits for the 12 month period were $34,083 which makes an average weekly amount of $655 for the year ended 21 July 2003.
The husband also produced a copy of his personal income tax return for the 2005 year in which he disclosed an income from his company of $14,100. The husband produced a copy of the tax return for his company for the year ended 30 June 2005. That return disclosed a total income of the company of $30,693 and claimed deductions of $30,612. There was no indication that the husband had been audited by the ATO so as to verify the figures in the husband's personal and company tax returns.
The husband was asked in cross examination why he did not get a job. He replied, facetiously, that he could get a job as a doctor or lawyer. He was asked why he had not sought employment. He said that there were no jobs for him in this country and also said that he had been a taxi driver. The husband did not provide any details of any jobs that he had sought in recent times and did not give any explanation for not having a job at present.
The wife produced some bank statements of the husband's company's bank account. Those statements showed that for the period 20 April 2004 to 16 July 2004 the company had total credits of $10,152, for the period 14 October 2004 to 10 January 2005 the company had total credits of $13,059 and for the period 11 January 2005 to 11 April 2005 the company had total credits of $6,896.13,. These amounts total $30,107 for three quarters of the year. On my calculation this is about $771 per week. The company’s tax affairs have apparently not been audited by the ATO. Accordingly, it is not clear how much the company actually earned or how much it may have needed to expend in order to earn its income.
The wife also produced a bank statement of an account held by the husband in his own name. That statement concerned the period

10 November 2004 to 31 December 2004. During that period of approximately seven weeks there were credits to the bank account of $4,835. That averages at about $690 per week. That bank statement also showed one cash withdrawal in the amount of $400 and two cash withdrawals in the amount of $800 (that is, $2000 in total) all in the space of five days.

Spousal maintenance

The issues in this proceeding in relation to spousal maintenance are essentially the matters required to be considered under sub-s.75(2) of the Family Law Act 1975 (“the FLA”) and, more particularly, the actual income level of the husband and whether he is cohabiting with

Ms Akimova. The spousal maintenance provisions of the FLA are, of course, gender neutral. The husband says that he needs an extra $250 per week to bring his income level up to about $550 per week.
Sub-section 72(1) of the Family Law Act 1975 (“the FLA”) 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 sub-section 75(2).
Sub-section 74(1) of the FLA provides that:
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.
Sub-section 75(1) of the FLA provides that:
In exercising jurisdiction under s74 the Court shall take into account only the matters referred to in sub-section (2).
Sub-section 75(3) of the FLA provides that:
In exercising its jurisdiction under s74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
I deal with the matters set out in sub-section 75(2) of the FLA in the order contained in the legislation.

(a) The age and state of health of each of the parties.

The husband is 59 years old and the wife is 56 years old. There is no suggestion that either of them have any health problems. While the husband’s age might make it difficult for him to retrain and commence a new type of employment, he does have a number of skills that he could utilise. He has worked in the past as a taxi driver and there was no suggestion that this line of work is no longer available to him. He is also able to repair electrical appliances and is licensed to gas refrigerators. The husband’s age is not a bar to him continuing in the types of employment that he has had in recent years. It seems clear that his prospects of obtaining work in Australia as an electrical engineer are negligible.

(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.

The income of the wife is accepted to be about $2,500 per week or $130,000 per year. She is presently living in the family home and will continue to do so pending the final resolution of the property application.
The family home is worth about $600,000 and has a $30,000 mortgage. The wife has control of bank accounts containing more than $150,000. The parties possibly owe the wife’s mother about $190,000. On any view, it appears that the property of the parties amounts to at least $530,000. There is no suggestion that either of the parties has any physical or mental incapacity.
The income of the husband is vigorously disputed. The husband says that he earns $300 per week. The wife suggests that he earns over $60,000 per year or over $1,150 per week. Because the husband is self-employed, he has not been able to produce pay slips from an independent third party which would show reasonably definitively what he earns from his employment.
The husband said that he had retained copies of all of the invoices that he has issued for his work for the last seven years, but he did not produce them to the court. The invoices are centrally relevant to the husband’s claim to have the capacity to earn only $300 per week. The husband’s failure to produce them has left the court with little more than his oral assertions on which to base its decision.
Additionally, the husband did not produce to the court his personal or company bank statements for 2005 or 2006. It was a matter for the husband to adduce such evidence to persuade the court that his income is really as low as he says. His failure to produce such evidence lends weight to the wife’s claim that his income is more than the $300 per week that the husband asserts.
The husband did produce his personal tax return and his company’s tax return for 2005. However, as there is no indication that the husband’s taxation affairs have been subject to an audit, and in view of plausible the evidence that the husband has understated his taxable income, it would be unsafe at this stage to place any significant weight on the tax returns.
The husband did produce some diaries for 2002, 2003 and 2004 in which his counsel says that he recorded the jobs he had that lasted more than one day. The court was not taken to any entries in the diary that support that contention and nor were the diaries analysed by counsel in any detail. The diaries, on my brief examination of them, do not appear to be a record of jobs that lasted more than one day. Nor do they appear to reflect work on the dates on which payments were made to the bank account of the husband’s company. For example, the company’s bank account shows credits in April 2004 of $227.62, $100, $520, $150 and $395 while the diary for that month has no entries at all.
Of course, it is possible that the husband was paid in April 2004 for work that he had done in March 2004 or earlier. However, it is by no means clear that the few entries in the diary from January 2004 to March 2004 concern business as opposed to personal matters. Moreover, given the nature of the husband’s work, it would be surprising if he had been paid in April for five jobs that he had done much earlier. Also, it is difficult to see why the husband would record in his work diary only matters that took more than one day. I consider that claim to be inherently implausible. Overall, I am not persuaded that the diaries are a reliable indication of the work that the husband did in 2002, 2003 or 2004.
More significantly, the husband initially said in his oral evidence that he did not have any work diaries. Notwithstanding that evidence, he produced to the court the diaries for 2002, 2003 and 2004 the following day. At that stage, the parties’ son was no longer available to say whether the diaries that were produced were the ones that he had seen. The husband’s change in his evidence about the very existence of his work diaries, as well as his failure to produce his invoices and recent bank statements, lead me to conclude that the husband has not been an entirely honest and forthright witness.
The bank statements of the husband’s company that have been produced to the court indicate weekly credits of more than $600 per week for the period which they cover. The company may have had business expenses. However, apart from the list of expenses in the company’s tax return, which I do not consider to be reliable, there was no evidence about the company’s legitimate business expenses.
Additionally, the husband admitted that he had paid $600 for car rental during the parties’ holiday in Queensland in December 2005. This outlay appears to be inconsistent with an income in the vicinity of $300 per week. Moreover, the cash withdrawals from the husband’s personal bank account in December 2004 totalling $2,000 in the space of five days appear to be inconsistent with a weekly income of $300.
The husband says that he earns $300 per week and that he needs $250 per week from the wife to meet his reasonable needs. According to the statement for the husband’s personal bank account for the period

10 November 2004 to 31 December 2004, he was in receipt of about $690 per week for that period. That is the most recent and reliable evidence that is available to the court. On the basis of that evidence, it appears that the husband is actually in receipt of as much money as he says he needs.
Even if the husband did earn only $300 per week, he has not explained why he does not earn more. He has not pointed to any health issues that have prevented him from working. He has not explained why he cannot work as a taxi driver. He has not explained why he has not been able to get a job of any description. He seems to imply that there is not a great deal of work available for a person with his range of skills but he has not detailed the efforts that he has made to get work. When asked about this, his responses were off hand and dismissive.
I note the husband’s evidence that he rents a room in a house and pays board. It was submitted that living in such a way supports the husband’s claim that his income is only $300 per week. However, I am not persuaded that that is so. It may be that the husband chooses to rent a room in a house because he does not want to commit himself, while the property proceedings are on foot, to the purchase of a house, or even to a lease. In my view, renting a room in a house, in the circumstances of this case, is not self-evidently indicative of a low income.
Overall, and on the evidence that has been put before the court, I am not persuaded that the husband is in receipt of less than $600 per week. It is the husband’s application for spousal maintenance and it was incumbent upon him to provide sufficient reliable evidence to the court to support his claim.

(c) Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years.

There is no child of the marriage who has not attained the age of 18 years.

(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.

There was no suggestion that either party had a duty to maintain any other person. The wife, from her income, is clearly able to meet the commitments necessary to support herself. Given that I am not persuaded that the husband earns less than $600 per week, it appears that the husband has sufficient funds from his own income to meet the commitments he considers necessary to support himself.

(e) The responsibilities of either party to support any other person.

It was not suggested that either party has a responsibility to support any other person.

(f) Subject to sub-section (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.

It was not suggested that either party is eligible for any relevant pension, allowance or benefit, or was being paid any such pension, allowance or benefit.

(g) Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable.

Since arriving in Australia, the parties appear to have had a fairly modest standard of living. The husband’s counsel in fact submitted that the parties had not lived luxuriously but in a modest manner. The wife fully qualified as a doctor at about the same time as the parties separated, though it appears that the family income may have increased a few years earlier when the wife was able to work as a doctor in regional Victoria under supervision. There was no detailed evidence to the effect that the husband’s present standard of living is significantly lower than the standard of living he enjoyed when the parties were living together, except that the husband now lives in a single room in rented accommodation rather than in a house that he and the wife were purchasing.
The husband has apparently managed, at least since he stopped cohabiting with Ms Akimova in May 2005, on his income, whatever it might be. There was no evidence of any sudden drop in income in the past few months. In my view, the husband’s present standard of living, which I take be based on an income of at least $600 per week, and which included a holiday in December 2005 when the husband paid at least $600 for car rental, is reasonable in all the circumstances of this case.

(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.

It was not suggested that the payment of the maintenance sought by the husband would enable him to increase his own earning capacity.

(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.

There was no suggestion that the parties have any significant creditors, except the amounts the wife alleges are owed to her mother and the amount outstanding on the matrimonial home. Those matters are not of particular significance at the present stage of the proceedings.

(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.

The husband says that he has contributed to the income and earning capacity of the wife by supporting her at least partially while she was gaining her accreditation in Australia as a doctor. It appears that there were a few years when the husband was supporting the family almost alone. However, overall, in the course of their 33 year marriage, on the evidence presently available, it appears that both of the parties have worked, both inside and outside the home, although overall it appears that the wife contributed more financially.
In the Ukraine, the wife was almost qualified as a doctor when the parties married. In Israel, both parties had professional work and professional incomes, though it appears that the wife’s employment was more consistent and generally better paid. In Australia, it appears that the husband was the sole bread winner initially, but that later the wife worked in their business, worked for a pathology centre part time and then undertook a number of fairly low paid jobs away from home, before ultimately becoming fully accredited as a doctor.
The husband maintains that he spent the best part of a year editing tapes for the wife to submit as part of her accreditation process. This claim seems exaggerated. On the evidence as it stands, it is not possible to properly assess the husband’s contribution to the wife’s present earning capacity. It does appear however, and for present purposes I accept, that the husband has contributed to a significant extent to the wife’s present earning capacity.

(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.

The marriage lasted 33 years. However, it was not submitted that the marriage, in itself, diminished the earning capacity of the husband.

(l) The need to protect a party who wishes to continue that party's role as a parent.

The children of the parties are now grown up and no longer live at home.

(m) If either party is cohabiting with another person - the financial circumstances relating to the cohabitation.

The wife alleged that the husband was cohabiting with Ms Akimova. That allegation was based on two documents. The first was an affidavit sworn by the husband on 24 November 2004 in which he said that he was the de facto partner of Ms Akimova. In the affidavit, he gave his address as Unit 2/20 Crimea Street St Kilda. The second was the divorce application dated 21 April 2006 in which the husband gave his postal address as the business and residential address of

Ms Akimova, being 91A Chapel Street Windsor.

Additionally, the husband admitted in oral evidence that he had cohabited with Ms Akimova from the time of his separation from the wife, in about April or May 2004, until about May 2005. He said that he had then sought to reconcile with his wife. That culminated in the holiday in Queensland in December 2005. He said that after that, he had rented a single room in a succession of houses, although he had resumed his relationship with Ms Akimova. He said that they were boyfriend and girlfriend and that he spent weekends at her place and she stayed at his place about once a month.
The address given by the husband in his divorce application is patently an address for service. It does not purport to be a residential address. I accept his claim that he used Ms Akimova’s business and residential address as his address for service because he was not sure for how long he would remain in his rented room. Using Ms Akimova’s address as his address for service in the legal proceedings is a strong indication that he intends to continue to see her regularly. However, it is not necessarily an indication of where he actually lives.
The affidavit sworn by the husband on 24 November 2004 obviously preceded the holiday with the wife in December 2005. It is not a strong indication of where the husband presently lives.
Based on the existing evidence, I am not persuaded that the husband does cohabit with Ms Akimova. However, I do note at this stage that the husband has produced no evidence supporting his claim to rent a single room in someone else’s house. I make no findings about whether the husband cohabits with the person from whom he claims to rent a room as no evidence or submissions went to that issue.

(n) The terms of any orders made or proposed to be made under section 79 in relation to:

(i) the property of the parties;

(ii) the vested bankruptcy property in relation to a bankrupt party.

There was no evidence that either party is bankrupt. It is not presently proposed to make a final order under s79 of the FLA.

(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.

Neither party suggested that there were any present or prospective child support liabilities.

(o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.

There appear to be no relevant factors additional to those stipulated by the legislation.

(p) The terms of any financial agreement that is binding on the parties.

The mortgage on the property and the alleged loan from the wife’s mother will be dealt with in the final property proceedings. There do not appear to be any other relevant financial agreements.

Conclusion on spousal maintenance

In my view, the husband has not put forward sufficient evidence to reasonably satisfy the court that he earns only $300 per week. He has not produced recent bank statements or any invoices. He was able to pay $600 for car rental in December 2005. He does not claim to have any health problems that would limit his ability to work. He has a number of skills that he has been able to utilise in the past to support himself. On his own evidence, he was the sole breadwinner for his family when they first arrived in Australia. He did not seek to explain why his earning capacity would have diminished.
The most recent and reliable evidence, being the husband’s personal bank statements for the period 10 November 2004 to 31 December 2004, indicate that he was in receipt of at least $690 per week at that time. That does not take account of any cash receipts that he may have had that did not go through a bank account. In all the circumstances, and on the evidence available, it appears that the husband is in receipt of the amount that he says he needs to support himself. Accordingly, in my view, it is not appropriate in this case to make an interim order for spousal maintenance.

The Barro order

In support of his application for litigation funding, the husband relies on an affidavit sworn by his solicitor, Ralph Glezer, on 14 July 2006. Mr Glezer says that he rendered an account for $3,009.60 to the husband on 30 June 2006. Since then, he says that he has done a further $3,000 worth of work. He says that he expects the further costs up to and including an interim hearing to be $5,000 and the costs of attending a conciliation conference to be an additional $3,000. That makes a total of $14,009. I accept Mr Glezer’s evidence on these matters.
Under sub-s.117(2) of the FLA, the court may make such order as to costs as it considers just, subject to certain exceptions that are not presently material. That provision permits the court to make an order for litigation funding: Re JJT; Ex parte Victoria Legal Aid (1998) FLC 92-812. In relation to litigation funding, the Full Court of the Family Court said in Zschokke and Zschokke (1996) FLC 92-693 at 83,216 that:
“If on a brief consideration of those matters [being the matters referred to in sub-section 79(4) and sub-section 75(2) of the FLA], it seems likely to the Court that the party who is the applicant for the interim order for the advance of funds from the other party will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made”.
I have briefly considered the matters specified in sub-ss.75(2) and 79(4) of the FLA. In my view, it is clear that the husband is likely to receive by way of property settlement an amount sufficient to cover the amount sought. Both parties have made substantial contributions to the welfare of the family and the present asset pool of the parties over the course of a 33 year marriage. There can be no doubt, on the present state of the evidence, that the husband would be entitled to receive a significant proportion of the asset pool.
I also note that the wife is well able to meet an order for litigation funding in the amount sought. She has in her control in bank accounts more than $150,000. While the husband has not put before the court sufficient reliable information for the court to be at all confident about his present level of income, there is no material suggesting that he has access to a pool of funds that could be used for the present litigation. Although the case is not particularly complex, having seen the husband in court, in my view, he would greatly benefit from legal assistance in the conduct of these proceedings.
In all the circumstances, it is appropriate to make an order for the husband’s litigation funding in the sum of $14,009, being the amount Mr Glezer has quantified.

Sole use and occupation

The husband does not oppose an order for the wife having the sole use and occupation of the matrimonial property. They are in agreement that the wife should continue to pay the outgoings on the property. The husband has given an undertaking to the Magistrates Court of Australia that he will not attend the property. Nevertheless, to ensure that there is no confusion about the matter, in my view, it is appropriate to make an order that the wife have the sole use and occupation of the property until further order.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:

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