ZACHARIA & ZACHARIA - [2016] FamCA 229

FAMILY COURT OF AUSTRALIA

ZACHARIA & ZACHARIA

[2016] FamCA 229

FAMILY LAW – PROPERTY – sole use and occupation – where the wife seeks an order that she be permitted to return to the former matrimonial home – where the husband alleges the property is used for business purposes – where the Court is not satisfied that the husband should be removed – where it is ordered that the husband return items belonging to the wife.

FAMILY LAW – PROPERTY – spousal maintenance – where the wife seeks orders for the husband to pay spousal maintenance – where consideration is given to the reasonable living expenses of the parties – where the wife is unable to support herself – where the wife also seeks a lump sum payment – where the husband does not have the capacity to pay.

FAMILY LAW – CHILD SUPPORT – where consideration is given to a departure order – where the Court is not in a position to determine special circumstances.

Family Law Act 1975 (Cth) s 72, 74, 75, 79, 80, 114
Child Support (Assessment) Act 1989 (Cth) s 116, 118

S & S (2002) FamCA 59
Sieling v Sieling (1979) FLC 90-627

APPLICANT:

Mr Zacharia

RESPONDENT:

Ms Zacharia

FILE NUMBER:

ADC

4589

2014

DATE DELIVERED:

12 April 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

9 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Horvat

SOLICITOR FOR THE APPLICANT:

Judith Jordan

COUNSEL FOR THE RESPONDENT:

Ms Lewis

SOLICITOR FOR THE RESPONDENT:

Howe Jenkin

Orders

Within fourteen [14] days the wife nominate in writing to the husband’s solicitors the address to which the items in annexure “A” to the affidavit of the wife filed on 22 January 2016 (“the said items”) are to be delivered.
Within twenty-eight [28] days the husband take all steps and make all necessary arrangements at his cost to ensure that all the said items are delivered to that nominated address and provide the wife’s solicitors with 48 hours notice of the date and time of delivery.
Should the husband fail to sign the child B born on … 2014 (“the child”) passport application forms and provide them to the wife by 6 May 2016 the wife is authorised and permitted to apply for and receive an Australian passport for the said child without first obtaining the written consent of the husband.
The orders requiring the wife to ensure that the child spends time with the husband are suspended for that part of August 2016 when the wife and child are overseas or interstate.
The wife is hereafter permitted to travel interstate or overseas with the child in August 2016 such overseas travel to be either to Country G or Country F and on condition that:
(i)the wife provide to the husband’s solicitors before the 18 July 2016 a detailed itinerary setting out the proposed flight details, accommodation arrangements and names of persons accompanying the wife and child on the overseas or interstate holiday…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ZACHARIA & ZACHARIA [2016] FamCA 229
Case: [2016] FamCA 229
Decision Date: 12 April 2016

CaseChat Overview and Summary

In the matter of ZACHARIA & ZACHARIA, Dawe J considered disputes between a wife and husband concerning property and spousal maintenance. The wife sought orders for the sole use and occupation of the former matrimonial home, which the husband opposed, alleging it was used for business purposes. The wife also sought spousal maintenance, asserting her inability to support herself, and a lump sum payment, while the husband contended he lacked the capacity to pay.

The court was required to determine whether the husband should be removed from the former matrimonial home, given his alleged use of the property for business purposes and the wife's desire to return. Additionally, the court had to assess the wife's entitlement to spousal maintenance, considering her reasonable living expenses and the husband's financial capacity. The wife's claim for a lump sum payment was also a key issue.

Dawe J was not satisfied that the husband should be removed from the property. The court ordered the husband to return specific items belonging to the wife within a stipulated timeframe. Regarding spousal maintenance and the lump sum payment, the court noted the wife's inability to support herself but also indicated that the husband did not have the capacity to pay. The court also made orders concerning the child's passport and travel arrangements, suspending certain time-spent-with-child orders during the wife's overseas or interstate travel in August 2016, with provisions for compensatory time. Certain interim orders sought by the wife were dismissed, and further consideration of the husband's application was referred for directions.

Orders

Orders of the court

Within fourteen [14] days the wife nominate in writing to the husband’s solicitors the address to which the items in annexure “A” to the affidavit of the wife filed on 22 January 2016 (“the said items”) are to be delivered.

Within twenty-eight [28] days the husband take all steps and make all necessary arrangements at his cost to ensure that all the said items are delivered to that nominated address and provide the wife’s solicitors with 48 hours notice of the date and time of delivery.

Should the husband fail to sign the child B born on … 2014 (“the child”) passport application forms and provide them to the wife by 6 May 2016 the wife is authorised and permitted to apply for and receive an Australian passport for the said child without first obtaining the written consent of the husband.

The orders requiring the wife to ensure that the child spends time with the husband are suspended for that part of August 2016 when the wife and child are overseas or interstate.

The wife is hereafter permitted to travel interstate or overseas with the child in August 2016 such overseas travel to be either to Country G or Country F and on condition that:

(i) the wife provide to the husband’s solicitors before the 18 July 2016 a detailed itinerary setting out the proposed flight details, accommodation arrangements and names of persons accompanying the wife and child on the overseas or interstate holiday travel;

(ii) the orders which provide for the husband to spend time with the child are suspended during the period the wife and child are absent interstate or overseas in August 2016;

(iii) on or before 18 July 2016 the wife provide to the husband in writing full particulars of the dates and times the wife proposes the husband spend time with the child to compensate the husband for time missed whilst the wife and child are interstate or overseas in August 2016 such time to take place before the end of November 2016.

Paragraphs 5, 6, 8, 9, 10 and 11 of the interim orders sought in the Further Amended Response to the Initiating Application filed on 22 January 2016 are dismissed.

Further consideration of the husband’s Application in a Case filed on 25 February 2015 is referred to the Docket Registrar for directions on a date to be advised.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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