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 of 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zacharia & Zacharia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4589 of 2014

Mr Zacharia

Applicant

And

Ms Zacharia

Respondent

REASONS FOR JUDGMENT

Introduction  

1. The respondent wife, Ms Zacharia (“the wife”) sought interim orders in the Further Amended Response to the Initiating Application filed on 22 January 2016.  These included the following:

   5.That, pending the trial of these proceedings, the wife be granted the sole use and occupation of the former matrimonial home located at [C Street, Suburb D].

   6.That the husband do vacate the former matrimonial home within 7 days of the Order and the husband thereafter be restrained and an injunction granted restraining the husband from entering, attending at or loitering near the former matrimonial home save and except for handovers of the child.

   7.That the husband do forthwith produce for the wife’s sole use and for the child’s use, the items listed in annexures A and B of the Affidavit filed contemporaneously herein.

   8.That by way of interim spousal maintenance, the Husband do pay the Wife the sum of $300 per week.

   9.Pursuant to pursuant (sic) to section 116(1)(b)(ii) of the Child Support (Assessment) Act this Honourable Court do grant leave to the wife to apply to this Honourable Court to seek orders for departure from administrative assessment of child support.

   10.Pursuant to section 118 of the Child Support (Assessment) Act, this Honourable Court do make an Order for departure from administrative assessment from child support such that the husband do pay to the wife the sum of $500 per week.

   11.That within 28 days the Husband pay to the Wife (by way of payment to the [E] Trust Account) the sum of $50,000 (to be categorized at trial).

   12.That the Husband do forthwith sign all documents required in order for the Wife to complete a passport Application for the child.

   13.That the wife be at liberty to travel interstate or overseas (to Country F or Country G) with the child for a period of two weeks commencing after 6 August 2016.

2. The final orders sought by the applicant husband Mr Zacharia (“the husband”) include orders in relation to the child of the parties and what appears to be an application for a property settlement order “that the net matrimonial estate be divided between the parties on a just and equitable basis”.  (Paragraph 3 of the final orders sought in the Amended Initiating Application filed on behalf of the applicant husband on 23 February 2016).

Hearing

1. At the hearing before me on 9 March 2016 the husband was represented by Ms Horvat of counsel and the wife by Ms Lewis of counsel.

2. In support of the orders sought the parties relied upon recent affidavit material filed in 2016, together with previous documents filed which provided financial information.

3. On 24 November 2015 Registrar Paxton made orders listing the interim issues of spouse maintenance, child support departure, sole use and occupation and interim property settlement for hearing before me.

Summary of relevant background

1. The husband was born in 1979 and is now aged 36.  He gives his occupation as a builder.  The wife was born in 1983 and is now aged 33.  She describes herself as a health professional.

2. Although there appears to be a dispute as to the actual date of commencement of cohabitation and the date of marriage, the parties agree that they commenced living together in late February 2012 and were married in 2012.  The husband alleges they separated on 26 October 2014.  The wife alleges the date of separation was 4 November 2014.

3. Proceedings were commenced on 12 December 2014 by the husband who brought proceedings in relation to the only child of the parties B (“the child”) who was born in 2014.

4. On 28 October 2015, Judge Cole of the Federal Circuit Court of Australia in Adelaide transferred the matter to the Family Court of Australia and made detailed orders in relation to the child which provided that the child live with the mother and spend time with the father at particular times three days a week, increasing as and from 28 April 2016 to each Tuesday 10.00 am to 5.00 pm;  each Thursday 10.00 am to 5.00 pm;  and each Saturday from 7.30 am to 4.30 pm.  The orders also contained particular arrangements for special occasions and other ancillary orders.

5. The matter has been placed in the list awaiting allocation for trial dates in relation to both children’s issues and financial matters.

The law

1. There is little dispute about the law which is applicable in this matter.  Although interim orders are sought the Court must give consideration to the provisions relating to interim property settlement and spouse maintenance set out in s 79 and s 75(2) taking into account the provision of s 80 of the Family Law Act 1975 (Cth) (“the Act”).

   Section 72 – Right of spouse to maintenance

   (1)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 subsection 75(2).

   (2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

   Section 74(1) – Power of court in spousal maintenance proceedings

   (1)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.

   Section 75(2) - Matters to be taken into consideration in relation to spousal maintenance

   (2)      The matters to be so taken into account are:

   (a)       the age and state of health of each of the parties; and

   (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; and

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

   (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; and

   (e)the responsibilities of either party to support any other person; and

   (f)subject to subsection (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; and

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

   (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; and

   (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; and

   (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; and

   (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; and

   (l)the need to protect a party who wishes to continue that party's role as a parent; and

   (m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

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

   (i)         the property of the parties; or

   (ii)vested bankruptcy property in relation to a bankrupt party; and

   (naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

   (i)        a party to the marriage; or

   (ii)a person who is a party to a de facto relationship with a party to the marriage; or

   (iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

   (iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

   (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; and

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

   (p)the terms of any financial agreement that is binding on the parties to the marriage; and

   (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

   (3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

   (4)      In this section:

   “party” means a party to the marriage concerned.

   Section 79 – Alteration of property interests

   (1)In property settlement proceedings, the court may make such order as it considers appropriate:

   (a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

   (b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;

   including:

   (c)an order for a settlement of property in substitution for any interest in the property; and

   (d)an order requiring:

   (i)     either or both of the parties to the marriage; or

   (ii)    the relevant bankruptcy trustee (if any);

   to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

   …

   (2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

   (4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d)the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e)the matters referred to in subsection 75(2) so far as they are relevant; and

   (f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g)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.

   Section 80 – General powers of court

   (1)The court, in exercising its powers under this Part, may do any or all of the following:

   (a)order payment of a lump sum, whether in one amount or by instalments;

   (b)order payment of a weekly, monthly, yearly or other periodic sum;

   (ba)order that a specific transfer or settlement of property be made by way of maintenance for a party to a marriage;

   (c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;

   (d)order that any necessary deed or instrument be executed and that such documents of title produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

   (e)appoint or remove trustees;

   (f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;

   (h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

   (i)impose terms and conditions;

   (j)make an order by consent;

   (k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and

   (l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.

   ii)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.

   iii)The applicable Rules of Court may make provision with respect to the making of orders under this Part in relation to the maintenance of parties to marriages (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

   iv)If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(d) directed to the bankrupt.

   v)If the trustee of a personal insolvency agreement is a party to a proceedings before the court, the court may make an order under paragraph (1)(d) directed to the debtor subject to the agreement.

   vi)Subsections (4) and (5) do not limit paragraph (1)(d).

2. Section 114 relates to the sole use and occupation orders sought.  Relevant provisions are s 114(1) and (3) which provide:

   Section 114 - Injunctions

   (1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

   (a)an injunction for the personal protection of a party to the marriage;

   (b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

   (c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

   (d)an injunction for the protection of the marital relationship;

   (e)an injunction in relation to the property of a party to the marriage; or

   (f)an injunction relating to the use or occupancy of the matrimonial home.

   …

   (3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

1. In relation to overseas travel and the issue of the child’s passport the provisions of Part VII dealing with children are relevant.  In particular, the best interests of the child is the paramount consideration when making an order.

Child support

1. The Child Support (Assessment) Act 1989 (Cth)

   Section 116 - Application for order under Division

   (1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:

   (b)both of the following apply:

   (i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;

   (ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or

   (c)in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).

   Note 1: For the orders that a court may make under this Division see section 118.

   Note 2: With a court's leave, a court may make an order under this Division in respect of a day that is more than 18 months earlier than the day on which the relevant application was made (see subsection 118(2B)). A person is taken to have applied under this section if leave is granted.

   Note 3: A court may make an order under this Division if the court sets aside a child support agreement under section 136.

   (2)An application may be made by the carer entitled to child support, or the liable parent, in relation to the child.

   (3)Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the liable parent and the carer entitled to child support.

2. The wife sought orders pursuant to s 116(1)(b)(ii) seeking leave to seek orders for departure from the administrative assessment of child support and an order pursuant to s 118 of the Child Support (Assessment) Act 1989 that the husband pay the wife the sum of $500 per week.

   Section 118 - Orders that may be made under Division

   (1)The orders that a court may make under this Division are as follows:

   (a)an order varying the annual rate of child support payable by a parent;

   (b)an order varying a parent's or non-parent carer's cost percentage for a child;

   (c)an order varying a parent's child support income;

   (d)an order varying the parents' combined child support income;

   (e)an order that:

   (i)     the column in the Costs of the Children Table that covers a parent's child support income or combined child support income that is, or is ordered to be, greater than 2.5 times the annualised MTAWE figure for the relevant June quarter, is the column headed "2 to 2.5"; and

   (ii)    the column is to apply as if the second dollar amount in the heading to that column did not apply;

   (f)an order varying a parent's child support percentage;

   (g)an order varying a parent's adjusted taxable income;

   (h)an order varying a parent's relevant dependent child amount or multi-case allowance;

   (i)an order varying a parent's self-support amount;

   (j)an order varying the costs of the children.

   (2)An order under this section may make different provision in relation to different child support periods and in relation to different parts of a child support period.

   (2B)A court may only make an order under this Division in respect of a day in a child support period, being a day that is more than 18 months earlier than the day on which the application for the order is made under section 116, if the court has granted leave under section 112 for the order to be made.

   (2C)If the court has granted leave under section 112, the court may only make an order under this Division in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.

   (3)If the court makes an order under this section, the court must:

   (a)give reasons for making the order (including reasons for its satisfaction as required by paragraph 117(1)(b)); and

   (b)cause the reasons to be entered in the records of the court.

   (4)Subsection (3) does not apply in relation to an order if:

   (a)it is an order made by consent; and

   (b)the carer entitled to child support concerned is not in receipt of an income tested pension, allowance or benefit.

   (5)A contravention of subsection (3) in relation to an order does not affect the validity of the order.

Discussion and findings

1. In considering all of the interim orders sought there is considerable difficulty due to the untested and disputed evidence. The Court is therefore not yet able to make a decision after determining the disputed factual matters.

(a)Sole use and occupation

1. The wife seeks an order that she be permitted to return to and remain in the former matrimonial home at C Street, Suburb D pending trial.

2. It is agreed that the wife left the former matrimonial home in October 2014.  It is not agreed however that the circumstances were such that this was necessary because of the violent behaviour of the husband.

3. The wife is currently living in her parents’ home with the child.  Accommodation available to her is limited.  The husband disputes some of the allegations made by the wife about the adequacy of that accommodation.  The wife refers to her chronic back injury causing difficulty in her need to go up and down stairs carrying the child.  In the former matrimonial home the wife says the main bedroom and the child’s bedroom are downstairs.  The husband disputes the difficulties caused by the wife’s alleged chronic back injury maintaining that no expert medical evidence has been provided.

4. The husband opposes the order that the wife seeks.  One basis for his opposition is his financial and “emotional” involvement with the property which he purchased and assisted in the development.  He maintains that the property is used as a “showpiece” of his building skills.  He also maintains that it provides him with storage facilities in relation to his business. 

5. The husband maintains that the wife and child have the entire upstairs area of her parents’ home for their sole use.

6. Whilst the Court has the judicial discretion to make the orders for sole use and occupation sought by the wife, the discretion must not be exercised lightly.  The authorities also indicate that the onus is on the wife to establish the necessary basis for the Court to exercise the discretion to order the husband out of the former matrimonial home and provide her and the child with sole use of that property.

7. The Full Court of the Family Court of Australia decision of  S & S (2002) FamCA 59 referred to the earlier authorities of Davis v Davis (1976) FLC 90-062; Page v Page (1981) FLC 91-025 and Sieling v Sieling (1979) FLC 90-627. In particular the Full Court referred to the general powers pursuant to the injunction provisions of s 114 and quoted Sieling v Sieling (Supra) at 36:

   The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly.  The Court must balance the hardship to each party of granting or refusing an order, and frame its order in such a way as to impose no further restriction than is necessary to achieve the protection of the applicant’s interest.  It will not lightly interfere with the rights of an owner of property on the basis of a vague or uncertain claim.  There must be circumstances arising out of the marital relationship which make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.

8. In this matter the Court needs to take into account the detriment alleged to be incurred by the husband and the benefit to the wife and child of returning to the former matrimonial home.  Significantly, the wife has been absent from the property since the separation of the parties in November 2014.

9. The wife currently has, and has had, accommodation with her family.  Whilst the husband disputes that the accommodation is not satisfactory for the wife and young child, the Court accepts the arrangements that require the wife to share accommodation with her family are not ideal.  Nevertheless, it is not established that this disadvantage outweighs the disadvantage to the husband of vacating the home which he built and which he uses for business purposes.

10. The Court is not able to “lightly interfere” with the husband’s rights on the basis of disputed material put forward by the wife.

11. On the disputed evidence therefore I am not satisfied that the current circumstances create a situation where it is necessary, on an interim basis, to remove the husband from the former matrimonial home.

(b)      The items the wife seeks delivered

1. The wife seeks an order that the husband deliver up for her sole use, and for the child’s use, items in annexures “A” and “B” of her affidavit.

2. The items in annexure “A” are detailed items which the wife describes as owned “premaritally and many of sentimental value”.  They refer to kitchen and cooking equipment, glassware as well as other items including furniture.  The child’s belongings referred to are described as “[B’s] belongings gifted to him and [Ms Zacharia] from [Ms Zacharia’s] family and friends (this does not include items purchased for the child with matrimonial funds).  The annexures also include numerous photographs.

3. In response the husband says:

   29.As to paragraphs 22 and 23 – I agree that during the course of these proceedings my solicitor has received requests for certain items from the home and I say that I have returned to [Ms Zacharia] most items that she wanted and my solicitor ahs (sic) always responded in a timely manner to such correspondence.  I continue to say that I have only retained nominal items that are age appropriate and most of what [Ms Zacharia] is asking for no longer fits our son nor did it at the time of separation.

   30.By further response I say that there are (sic) may be a few of [Ms Zacharia’s] items such as some DVD’s that I am happy to box up for her but there is very little of her items at the home as I have already provided them.”

4. The evidence of the husband does not explain his failure to return the items requested by the wife as set out in the annexure “A”.  His response that he has returned “most items that she wanted” is not a satisfactory explanation.  His reference to “there may be a few items of [Ms Zacharia’s] items such as some DVD’s” (emphasis added) is also unsatisfactory, as is the reference to “but there is very little of her items at the home”.

5. Similarly, in relation to the retention of items belonging to the child referred to in the wife’s affidavit, the husband responds that he has “only retained nominal items”.  His allegation that they no longer “fit the child nor did at the time of separation” is not an adequate explanation for his failure to deliver them to the wife.

6. Taking into account the failure of the husband to adequately explain his failure to return items which he does not dispute belong to the wife, it is appropriate, just and equitable to make the orders sought by the wife in regard to the items in annexure “A”.

7. The information provided by the wife in relation to the items of furniture and household goods referred to in annexure “B” is insufficient to justify an order at this interim stage.

8. It is therefore just and equitable and appropriate that the husband forthwith produce for the wife’s sole use and for the child’s sole use the items listed in annexure “A” of the affidavit filed by the wife on 22 January 2016.

(c)       Spouse Maintenance

1. The wife seeks interim spouse maintenance at $300 per week. 

2. The parties were in dispute about whether the wife has an ability to support herself adequately.

3. The wife’s occupation is physiotherapist.  In her affidavit filed on 22 January 2016 she refers to returning to work in January 2016 after maternity leave.  In paragraph 47 of that affidavit she refers to her estimated weekly wage of $528 per week net of tax.  She refers to delaying her redundancy by obtaining a contracted position which will end on 30 June 2016.  She says that she anticipates being made redundant after that date.

4. Paragraphs 50, 51 and 52 of the affidavit are as follows:

   50.I have estimated that the gross income (inclusive of pension and before tax) available to me is $891 per week before tax (including $95 per week by way of single parent pension, and $42 per week in child support) and exclusive of pension total $796 per week before tax.  If the father was to pay the assessed child support payment ($95.33) then the income available to me (without the pension) is approximately $849 per week before tax.

   51.After 30 June 2016 I will have no income from employment, unless I can find another role.

   52.I do have difficulty in obtaining employment, and cannot work in a full-time capacity due to my chronic back injury.  If I have difficulty finding work, then there will be a period of time whereby I will be solely reliant on the single parent pension and child support.

5. The affidavit then set out her total expenses and anticipated costs if she resides in rental accommodation and not with her parents.

6. The husband referred to paragraph 52 of the wife’s affidavit as “speculation” by the wife.  He also asserted that he had not been provided with any up to date medical evidence in relation to her chronic back injury and its impact upon her ability to work.

7. The husband did not accept the wife’s expenses as reasonable.

8. The affidavit and statement of financial circumstances indicates a significant gap between her income and expenses.  The husband says in paragraph 56 of his affidavit filed 23 February 2016 when commenting upon the wife’s expenses:

   As to paragraph 54 – I note what [Ms Zacharia] says but I suggest that she needs to be more financially responsible and tailor her lifestyle to the change of circumstances that she initiated and once again say I do not trust her ability to estimate accurately for reasons given earlier.

9. The Financial Statement filed by the wife on 22 January 2016 refers to expenses which, taking into account the previous lifestyle of the parties, are not unreasonable save and except for the items, holidays of $100 per week and hairdressing, toiletries of $100 per week. 

10. The husband in his Financial Statement filed on 26 February 2016 claims expenses in Part N totalling $654 per week made up of $569 for himself and $85 for the child.  The wife’s Part N claimed $518 per week for herself and $385 per week for the child.

11. Even if the wife’s expenses were reduced, the evidence at this stage before the Court clearly indicates that the wife is unable to adequately support herself.  On an interim basis her evidence provides justification for at least $300 per week spousal maintenance if the wife continued to reside with her parents and much more should she be required to find private rental accommodation for herself and the child.

12. Taking into account therefore the wife’s occupation, her care of the young child and her capacity to work suitable hours, I am satisfied that the wife has established a basis upon which the Court may find that she is unable to support herself adequately.  This is based primarily upon the necessary commitments of the wife to support herself and the child and a standard of living that in all the circumstances is reasonable (s 75(2)(b), (d), (g), (l)).

13. Another significant issue in this matter is the findings this Court can make on an interim basis as to the income, property and financial resources of the husband.

14. There is considerable dispute about the husband’s control of, and involvement in, the Zacharia Group.  The husband holds a trade licence.  There is however considerable ongoing dispute about the husband’s income, whether from the Zacharia Group or otherwise.  The husband in his affidavit refers to the numerous entities in which he and his family have an interest, including various corporations and trusts.  He denies receiving any cash payments which are not being properly accounted for.

15. The Financial Statement filed by the husband maintains that his average weekly income is $411.48 being income described as “[Mr Zacharia] and all other business interests see annexure A”.  Annexure A refers to this only being an estimate which is based upon his gross taxable income for the last financial year of $21,383.  As previously referred to he claims expenses in Part N totalling $654, which together with his small mortgage payment ($87.50) and claimed rates and insurances and other items in Part G, bring his total expenditure (including $95.65 per week child support) to $1,047.81.

16. Albeit that there is significant dispute concerning his capacity to earn income and the benefits he receives from the various family trusts and other entities, the Court is not in a position at this interim stage to determine that the husband has the capacity to pay the spouse maintenance sought by the wife.

(d)      Child Support Departure

1. The wife seeks leave to apply to the Court pursuant to s 117(1)(b)(ii) and if granted that there be an assessment pursuant to s 118 of the Child Support (Assessment) Act 1989 (Cth) providing for the husband to pay to the wife the sum of $500 per week. (She claimed if she was unsuccessful in this regard that her spouse maintenance be increased by $500 per week but for reasons which appear above this cannot be granted).

2. The Child Support (Assessment) Act 1989 (Cth) s 116 requires the Court to be satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the Court to consider whether an order should be made under this division in relation to the child in special circumstances of the case. There are relevant proceedings before the Court.

3. The factors set out in s 117 refer to the special circumstances upon which the Court can find a basis for a departure order.  Taking into account the considerable amount of disputed evidence in this matter the Court is not yet in a position to determine the necessary facts upon which such special circumstances are established.

4. In due course there may be facts determined about the income, earning capacity, property and financial resources of the parties as set out in the provisions of s 117 (7A) and (7B).

5. The Court however is not able to determine at this interim stage that there should be a departure from the administrative assessment for child support.

(e)       Lump Sum Payment

1. In the Further Amended Response to the Initiating Application the wife seeks:

   That within 28 days the Husband pay to the Wife (by way of payment to the [E] Trust Account) the sum of $50,000 (to be categorized at trial).

2. If this is treated as an application for lump sum spousal maintenance the basis for such an interim order has not been established.  If it is treated as an interim property settlement matter or payment to the wife’s solicitors to assist her in the cost of litigation, the husband’s capacity to pay the same needs to be considered.

3. The only evidence that is currently before the Court concerning his capacity to pay such a sum is in his affidavits.  This is disputed by the wife who maintains that he has a much greater interest in the businesses or significant financial resources.

4. The husband says in his affidavit filed on 23 February 2016 that the former matrimonial home has been valued at $1,250,000.  The mortgage referred to in the wife’s affidavit is described as a total of “approximately $84,000” leaving equity in the property in excess of $1 million.

1. The wife maintains that the property is worth $1.5 million.

2. On behalf of the wife it is submitted that the husband can draw on the loan facility which currently has credit of $795,000.  I accept the submissions that the husband does not have an asset available to make the interim payment to the wife, whether it is described as an interim property settlement or spouse maintenance.

3. The husband does have a capacity to borrow the funds and therefore has what could be described as the financial resource.

4. Having such borrowing capacity does not however establish the basis upon which an interim property settlement of such an amount should be paid to the wife.  Drawing on the facility would increase liabilities.

5. Taking into account the issues yet to be determined, it is not just and equitable to make an order for the payment of $50,000 either as a lump sum maintenance payment or as an interim property settlement.

(f)       Passport and overseas travel

1. Paragraphs 12 and 13 of the Further Amended Response to the Initiating Application filed by the wife seeks orders that the husband sign documents to enable the wife to obtain a passport for the child and to be at liberty to travel interstate or overseas with the child for a period of two weeks commencing after 6 August 2016.

2. The husband opposes the orders.

3. The wife refers to the proposed travel being travel with family and friends and “all expenses will be paid by my parents”.  The wife also proposes that the husband be given “make up” time with the child.

4. The husband says in his affidavit at paragraph 109:

   As to paragraphs 79 to 83 – I do not agree with the wife travelling overseas with our son.  I would love to be able to spend more time with my son.  I can’t afford the luxury of overseas travel and I fail to see how the wife can reasonably do so.

5. This does not establish an appropriate basis upon which a short overseas or interstate holiday is to be denied the wife and child.

6. Paragraph 75 of the affidavit of the wife filed on 7 March 2016 says:

   I refer to paragraph 109 of the husband’s February Affidavit say that I have already offered to provide make-up time to the husband for any period missed should I be permitted to travel for a holiday as sought.  The husband’s response makes no reference to the child and his best interests, nor any consideration for my need to take a break from the extraordinary stress I have experienced following the breakdown of our marriage.

7. Although the provision of the Act permit opinion evidence I consider that the weight to be given to the parties’ personal opinions in this matter is not significant.

8. The child is young only just over two years of age.  Overseas travel and holidays may not be of direct benefit to him, however, I accept that the benefit to the wife of enjoying a holiday with her son paid for and with her family and friends is likely to provide indirect benefit to the child.  Any disadvantage caused by interrupting the regular time the child spends with the husband can be overcome by providing make-up time.

9. With suitable conditions it would be in the child’s best interests and otherwise appropriate for there to be an order permitting the wife to travel overseas with the child for a brief holiday.

10. The wife will be permitted to travel interstate or overseas with the child in August 2016 such overseas travel to be to either Country G or Country F provided she provides the appropriate information to the husband.

11. For the above reasons I make the orders which are set out at the commencement of these reasons.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 April 2016.

Associate: 

Date:  12 April 2016