Ye & Cai (No 3)
[2022] FedCFamC1F 477
•21 June 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ye & Cai (No 3) [2022] FedCFamC1F 477
File number(s): CAC 1379 of 2021 Judgment of: AUSTIN J Date of judgment: 21 June 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of decision – Where the husband seeks review of an order compelling him to pay the wife interim spousal maintenance – Where the wife failed to discharge the onus of proving her need for financial support – Where the husband’s capacity to pay maintenance need not be considered in the absence of the wife demonstrating the need for it – Application for interim spousal maintenance dismissed – Orders of the senior judicial registrar set aside. Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.07, 5.08)
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 20–21 June 2022 Place: Newcastle (via video link) Solicitor for the Applicant: Brigitte Smithies and Associates The Respondent: Litigant in person ORDERS
CAC 1379 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YE
Applicant
AND: MR CAI
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
21 June 2022
THE COURT ORDERS THAT:
1.Orders 1, 2 and 3 made on 8 March 2022 are discharged.
2.Orders 1 and 2 made on 3 May 2022 are discharged.
3.Otherwise:
(a)The application for interim spousal maintenance contained within the Initiating Application filed on 30 June 2021 is dismissed;
(b)The application for interim spousal maintenance contained within the Response filed on 13 August 2021 is dismissed;
(c)The Application for Review filed on 14 March 2022 is dismissed;
(d)The Application in a Proceeding filed on 17 March 2022 is dismissed;
(e)The Response to an Application in a Proceeding filed on 5 April 2022 is dismissed; and
(f)The Application for Review filed on 6 May 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ye & Cai is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AUSTIN J:
By an Initiating Application filed on 30 June 2021, the wife sought an interim order compelling the husband to pay her spousal maintenance of $1,500 per fortnight. That application was entertained by a senior judicial registrar and, on 8 March 2022, the senior judicial registrar ordered the husband to pay the wife spousal maintenance of $500 per week (Orders 1–3).
The husband objected to the decision and did two things. First, he filed an Application for Review on 14 March 2022 seeking to set aside Orders 1–3 inclusive made on 8 March 2022. Secondly, he filed an Application in a Proceeding on 17 March 2022 seeking to do exactly the same thing, to which application the wife joined issue by her Response to an Application in a Proceeding filed on 5 April 2022.
The senior judicial registrar heard those applications in late April 2022, but made orders on 3 May 2022 to dispose of the dispute. The senior judicial registrar did not discharge the spousal maintenance order, but rather suspended payments until 12 June 2022, when the husband would again be fit for work (Order 1). The senior judicial registrar also dismissed the Application for Review filed by the husband on 14 March 2022 (Order 2).
The husband objected to that decision also. He filed another Application for Review on 6 May 2022, which is the review application now listed before me.
At the commencement of the hearing, the husband acknowledged his only purpose was to review the spousal maintenance orders made on 8 March 2022 and 3 May 2022, covered by proposed Order 1 in the review application. The husband acknowledged his abandonment of the application for proposed Orders 2, 3 and 4 within the review application.
The wife’s solicitor acknowledged that the second review application (covering Order 2 made on 3 May 2022) revived the first review application and so the spousal maintenance orders of both 8 March 2022 and 3 May 2022 were under review.
Evidence
As this is a hearing de novo, the parties were invited to nominate the evidence upon which they relied to prosecute and defend the underlying spousal maintenance application.
The wife relied upon:
(a)her financial statement filed on 1 December 2021;
(b)her affidavit filed on 3 December 2021 (but only from [67] onwards); and
(c)the affidavit of her mother filed on 12 January 2022.
The husband relied upon:
(a)his financial statement filed on 12 August 2021; and
(b)his affidavit filed on 22 March 2022.
The wife’s solicitor successfully took objection to the husband’s reliance on his affidavit filed on 16 June 2022, on the basis that it was late (r 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) and he was only entitled to rely upon one affidavit (5.08(1)).
At the end of the hearing, the husband applied to re-open the evidence and tender some of his bank statements to try and prove the preservation of $10,000 in his bank account to meet certain visa requirements, but leave was refused over the wife’s objection.
Legal Principles
This is an application by the wife for interim spousal maintenance pursuant to ss 72(1)(a) and 74(1) of the Family Law Act 1975 (Cth) (“the Act”), they having married in 2017 and separated in 2021.
The wife contended that, by reason of having the care and control of the parties’ two young children (now aged four and two years respectively) she is unable to support herself adequately.
Further, she contended that by reference to factors prescribed within s 75(2) of the Act, principally the husband’s income earning capacity, he has the financial capacity to meet her need.
The Wife’s Need
If the wife’s financial statement is accepted at face value, she demonstrates the need for financial support. She has no income, save for welfare benefits which must be ignored (s 75(3)) and child support payments which are applied to support of the children.
The husband did not contend the wife had any unexercised income earning capacity, given her continuing primary care of the two children.
The wife deposed her only assets are the sum of about $13,000 saved in two bank accounts and a car of modest value. However, the husband contended the wife’s evidence as to her assets was false and incomplete. In summary, he alleged:
(a)the wife’s evidence about disposing of her proprietary interest in two Country B properties (referred to as No. 201 and No. 401) for no consideration was false; and
(b)she is in default of her disclosure obligations, because she still has not complied with orders for disclosure made 6 October 2021 (husband’s affidavit at [18] and pages 6–7) and so she has not satisfactorily proven she cannot support herself by resort to assets.
The evidence adduced by the husband plausibly purports to show these things:
(a)the wife retains her partial proprietary interest in No. 201 (husband’s affidavit at page 13);
(b)on 28 July 2021, the wife gave her mother power of attorney to sell the wife’s partial proprietary interest in No. 401 to her father (husband’s affidavit at page 22), pursuant to which the wife’s one-third interest was transferred to her father for a sum of Country B currency (husband’s affidavit at page 19) on or about 12 August 2021 (husband’s affidavit at page 17); and
(c)the wife has not disclosed the destination of the Country B currency.
The documentary evidence adduced by the husband called into question the veracity of the wife’s evidence about disposal of the two Country B properties for no consideration.
The husband’s affidavit referred to and annexed the opinions of a “Country B property expert”, the opinions of whom tended to align with the inferences capable of being drawn from the translated Country B source documents. The wife’s solicitor did not object to the admissibility of that evidence, even though it seems no order has been made for the appointment of a single expert witness and the husband neither sought nor was granted leave to elicit evidence from an adversarial expert witness. Nonetheless, I pay the opinions of the “Country B property expert” little heed because I do not know what instructions he was given, I know no useful proof of his credentials and experience, and the translated document purporting to contain his opinions does not reveal his awareness of the duty of impartiality.
The affidavit filed by the wife’s mother did not offer the wife the corroboration she assumed. The wife asserted in her financial statement filed on 1 December 2021 that she had already transferred her interest in No. 201 back to her parents, but her mother later deposed on 11 January 2022 that that was yet to happen (at [2]). The wife’s mother deposed she and her husband are the “real owners” of the two Country B properties (at [3]), but that bare opinion is not probative, particularly when it conflicts with the search documents produced by the husband. I am unable to see how Annexures A, B and C to the wife’s mother’s affidavit verify what she alleges within the text of her affidavit (at [4]). The evidence of the wife’s mother that no money was paid to the wife for the transfer of her one-third share in No. 401 (at [2]) cannot be reconciled with the documents produced by the husband, nor with the deponent’s concession (at [13]) that the Country B currency sum was indeed paid for the transfer of No. 401. I do not understand the meaning of the wife’s mother’s evidence that such sum was paid “essentially to calculate the taxes that should be paid”. It may be that some form of tax or duty is payable on the transfer, but I cannot infer the whole sum is held to meet tax.
The husband alleged, without dispute, that the sum of Country B Currency amounted to about $150,000 AUD. I cannot infer that whole amount is payable in tax on the transfer of a one-third interest in a property, which the wife’s mother says is only “40.1 square meters” in size.
The wife’s solicitor accepted she bore the onus of proving the wife’s need for financial support. She has not discharged the onus. I do not know what to make of the conflicting evidence when none of it was tested by cross-examination. This being an interim hearing, I have to do the best I can with what I have. There are no reasonable inferences to be legitimately drawn from the available evidence about the extent of the wife’s assets and resources – just unanswered questions. Guesses are not valid inferences.
In the face of the husband’s evidence, the wife has failed to prove (as she sought to assert):
(a)she no longer has any proprietary interest in No. 201;
(b)she has no entitlement to any part of the sum of Country B Currency paid by her parents for the transfer of her one-third interest in No. 401 to her father; and
(c)she has fully complied with the disclosure orders made on 6 October 2021, particularly in relation to:
(i)bank account statements which show her receipt of child support payments from the Child Support Agency;
(ii)sufficient particulars about the alleged disposal of her proprietary interest in the two Country B properties; and
(iii)her tax returns for the 2020 and 2021 financial years.
It may well be the wife has assets and resources which she can use to support herself.
I am not satisfied on the evidence of the wife’s need for spousal maintenance.
The Husband’s Capacity
It is common ground the husband was employed in the public service until about mid-March 2022. There is some dispute about the circumstances under which his employment then ceased.
The wife alleges his resignation was voluntary and so, while she accepts he has no current income, she contends his income earning capacity is now as it once was, at least since 11 June 2022 when the evidence shows he was certified as being fit to return to work (husband’s affidavit Annexure B).
The wife alleged the husband also divested himself of income-producing properties (wife’s affidavit at [67]). The husband deposed he used the sale proceeds of those properties to repay debt to a third-party (husband’s financial statement at [59]). The husband’s evidence on that issue is unsatisfactorily vague and, as the wife suspects, he may be an unreliable witness. Nonetheless, his capacity to pay maintenance need not be considered until the wife has demonstrated need, which she has failed to do.
Conclusion
The wife’s application for spousal maintenance is dismissed and the orders of the senior judicial registrar are set aside.
Any and all other outstanding applications for interim financial relief are dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 7 July 2022
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