ZUBCIC & ZUBCIC &ORS
[2015] FamCA 771
•17 September 2015
FAMILY COURT OF AUSTRALIA
| ZUBCIC & ZUBCIC &ORS | [2015] FamCA 771 |
| FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where consent orders were made for the sale of the former matrimonial home – Where the wife now seeks to be appointed as sole trustee for the sale – Where the husband now opposes the sale and has failed to do all things necessary to cause the sale of the property – Where the wife is facing enforcement action by two creditors for jointly owed debts – Where the wife seeks an interim property settlement for legal expenses as well as periodic spousal maintenance – Capacity of the husband to pay in circumstance where the husband has failed to disclose his financial circumstances – Where the husband has previously consented to pay the wife periodic spousal maintenance – Where the Court finds it in the interests of justice to make the orders as sought by the wife. |
| Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 80 Efthimiadis & Efthimiadis (1993) FLC 92-361 Mitchell & Mitchell (1995) FLC 92-601 |
Weir & Weir (1993) FLC 92-338
| APPLICANT: | Ms Zubcic |
| 1st RESPONDENT: | Mr Zubcic |
| 2nd RESPONDENT: | Mr B Zubcic |
| 3rd RESPONDENT: | Mr Gomes |
| 4th RESPONDENT: | Ms Gomes |
| INTERVENOR: | Dooley & Associates |
| COMMISSIONER OF TAXATION: | Mr Shizas |
| FILE NUMBER: | SYC | 6290 | of | 2013 |
| DATE DELIVERED: | 17 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 19 August 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Connor |
| SOLICITOR FOR THE APPLICANT: | M Legal |
| FOR THE 1ST RESPONDENT: | Mr Zubcic appeared for and on his own behalf |
| SOLICITOR FOR THE 2ND RESPONDENT: | Mr Sivsothy of Family Legal |
| SOLICITOR FOR THE 3RD & 4TH RESPONDENTS | Mr Tilley of Tilley Family Law & Mediation |
| COUNSEL FOR THE INTERVENOR: | Mr Fermanis |
| SOLICITOR FOR THE INTERVENOR: | Not applicable |
The Court orders, pending further order, that:
Order 1 of the Orders made on 24 February 2015 by Johnston J be discharged.
The wife is appointed sole trustee for the sale of the property situated at and known as B Street, Suburb C, being the whole of the land contained in certificate of title folio identifier … (“the B Street property”).
The wife shall do all acts and things necessary to sign all documents (on her behalf and on behalf of the husband) as may be necessary to cause the B Street property to be listed for sale by private treaty.
The husband is hereby restrained from interfering, disrupting or otherwise impeding the sale of the B Street property.
The wife must sell the B Street property for an amount not less than $3 000 000.
In respect to the sale of the B Street property, the wife shall appoint:
6.1.an independent solicitor to act on the sale; and,
6.2.an agent for the sale.
If the B Street property remains unsold within two (2) months from the date of the first listing for sale, then the wife shall forthwith relist the B Street property for sale by auction on a date nominated by the wife and the reserve price shall be not less than $3 000 000.
The net proceeds of sale of the B Street property are to be distributed in the following manner and priority:
8.1.Firstly, in payment of all outstanding council rates and charges, agents commission, advertising expenses, legal expenses and any other expenses associated with the sale of the property;
8.2.Secondly, in payment of the discharge of all mortgages secured over the property, including but not limited to, the existing mortgage secured against the property to the Commonwealth Bank of Australia, being registered number ….
8.3.Thirdly, payment to D Lawyers in the amount of $35 333.31, plus interest, as and from 13 May 2015, in respect of the debt owed to J Pty Ltd.
8.4.Fourthly, payment to the wife in the sum of $120 000 by way of interim property settlement; and,
8.5.Fifthly, the balance then remaining shall be paid into a controlled monies account to be held by M Lawyers on behalf of both parties with such funds not to be released except for, as provided in Order 9 below, and otherwise with the consent of both parties in writing or by further Order of the Court.
Upon completion of the sale of the B Street property, and after payment of the amounts set out in Orders 8.1 to 8.5 above, the wife is to be paid from the controlled monies account which holds the balance of the proceeds of sale of the B Street property, the sum of $1 500 per week by way of spousal maintenance.
10. Within twenty-eight (28) days of these Orders, the husband shall do all acts and things and sign all documents as may be necessary to transfer to the wife all his right, title and interest in the Motor Vehicle registration number ….
11. In the event that the husband fails to comply with Order (10), the Registrar of the Family Court of Australia at Sydney is permitted to sign all such documents as may be necessary to comply with Order (10) herein pursuant to section 106A of the Family Law Act 1975 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zubcic & Zubcic & Ors 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 SYDNEY |
FILE NUMBER: SYC 6290 of 2013
| Ms Zubcic |
Applicant
And
| Mr Zubcic |
1st Respondent
And
| Mr B Zubcic |
2nd Respondent
And
Mr Gomes
3rd Respondent
And
Ms Gomes
4th Respondent
And
Dooley & Associates
Intervenor
And
Commissioner of Taxation
REASONS FOR JUDGMENT
Introduction
This matter concerns an application by Ms Zubcic (“the wife”) to be appointed as sole trustee for the purpose of effecting the sale of the former matrimonial home situated at B Street, Suburb C (“the B Street property”). Additional orders are sought for the net proceeds of the sale to be deposited into a controlled monies account and for the wife to have access to that account to obtain funds for legal fees, pay an outstanding debt owed jointly by the parties and to draw a regular amount by way of spousal maintenance. Finally, the wife seeks orders to the transfer of ownership of a motor vehicle to her. Mr Zubcic (“the husband”) opposes the application and was self-represented at the hearing.
History
It is difficult to make findings of fact in the abbreviated process of hearing an application for interim orders. Nevertheless, the following facts appear to be agreed or, at least, not contested.
·The husband was born in 1964 and the wife in 1969. They have three children, Ms E born in 1994, Mr F born in 1997 and G born in 1999.
·The parties were married in 1991 and separated on 1 August 2013.
·On 4 November 1994 the parties purchased the former matrimonial home at B Street, Suburb C, for the sum of $265 000.
·In 1996 the husband commenced an animal breeding and training business as a sole trader. The wife subsequently joined the business as a partner.
·On 11 May 2000 the parties purchased a property at H Street, Suburb C (“the H Street property”). That property was purchased jointly with the wife's parents. The purchase price was $1.2 million. The current value of the property is approximately $10 million.
·In 2004 the business was expanded to sell dog food online and the parties refinanced their home loans with the additional loans from the Commonwealth Bank being secured over the B Street property.
·In 2006 a further line of credit was obtained from the Commonwealth Bank.
·In 2011 the husband left the former matrimonial home with Mr F and E. The wife remained living at the former matrimonial home with G.
·On 27 August 2012 the parties and the wife's parents accepted an irrevocable offer for the purchase of the H Street property for $10 million.
·On 3 February 2014, orders were made by Watts J which included that the wife be paid a sum of $1 500 per week from the accounts of the family business and that the husband also be entitled to draw an amount not exceeding $1 500 per week for his personal expenses.
·In October 2014 default judgment was entered in favour of J Pty Ltd for the sum of $33 678.45. The debt related to supplies provided to the parties’ business.
·On 24 February 2015, by consent, Johnston J made orders for the sale of the B Street property with obligations imposed on both parties to take such steps as were required to effect the sale. The orders also required the net proceeds of the sale to be applied to discharge existing mortgages over the property including those of the Commonwealth Bank of Australia. From the remaining balance the wife was to then be paid, at the rate of $1500 per week, spousal maintenance.
·On 2 May 2015 the wife was served with a bankruptcy notice in respect to the judgment debt to J Pty Ltd, in the sum of $35 207.82.
·On 29 July 2015 judgment was entered into in favour of the Commonwealth Bank in respect to the mortgage over the B Street property.
Procedural History
As at the date of the interim hearing, the wife had filed six interim applications and Mr B Zubcic, the husband's father, had filed two. This matter has been before the Court on fourteen separate occasions. In their case outline document the solicitors for the wife set out a procedural chronology, a copy of which has been included below.
| Date | Events |
| 3 February 2014 | Application in a Case filed by the wife, Husband appears with a solicitor on the day but only for that day’s appearance. Orders are made by Watts J (interim financial). Matter adjourned to 21 March 2014. Orders made as follows: 1. Husband to serve financial statement within 30 days; 2. Husband and wife to provide documents to the accountant to enable the taxation returns to be completed within 30 days; 3. Current freeze on the accounts of the business is removed; 4. Wife to be paid the sum of $1,500 per week from the accounts; 5. Husband at liberty to draw no more than $1,500 per week for his personal expenses from the account. He is only to pay business expenses, the mortgage on the former matrimonial home and the amount payable to the wife; 6. Parties to make two bank accounts operational, Respondent is restrained from using accounts 1807 and 8405 for any other purpose other than trading; 7. Orders made in terms of order 4.1, 5 and 6 of the amended application in a case filed by the wife; 8. Directions regarding the filing and serving of further affidavit material. |
| 7 February 2014 | Case Assessment Conference. Husband appears at the case assessment conference. He is unrepresented, Registrar Chayna makes directions for the husband to file and serve his response and financial statement as he has not complied with orders of 7 February 2014. |
| 21 March 2014 | Directions Hearing before Watts J. His Honour adjourned the wife’s application for exclusive occupancy and the appointment of a receiver. He adjourned the proceedings to 7 May 2014 for an interim hearing. Husband is not represented on that day. Directions are made for filing and serving material. 1. Noting the husband is unrepresented and that he has filed a financial statement today; 2. Within 7 days the husband is to communicate with the wife’s lawyers and inform them of the number of his post office box at the Suburb K Post Office. 3. Service directions relating to the husband in the proceedings; 4. Adjourning the matter until 7 May; 5. Directions as to the filing and serving of further affidavit material. |
| 28 April 2014 | Telephone mention. Husband appears, but is not legally represented. Registrar McNamara extends the time for the husband to file his response and advises the husband to obtain legal representation as he has failed to comply with previous orders and directions. |
| 7 May 2014 | Before Le Poer Trench J in relation to the wife’s application for exclusive occupancy and the appointment of a receiver. Husband appears represented by Mr Todd (who advises the Court that he is only instructed to appear on that day). The proceedings are adjourned to 10 June 2014 for a hearing. |
| 27 May 2014 | Telephone mention before Registrar McNamara. Husband does not appear. The Registrar makes directions and adjourns the substantive proceedings to 10 June 2014. |
| 4 June 2014 | Husband files Response to Initiating Application and an Affidavit |
| 10 June 2014 | Return date for the wife’s application for exclusive occupancy and the appointment of a receiver. Matter adjourned to 15 July 2014, after Johnston J adjourns the proceedings and orders ATO to be notified of the proceedings. |
| 15 July 2014 | Matter not reached and adjourned to the next day. |
| 16 July 2014 | Orders made restraining the net proceeds of sale of Suburb L property. ATO and Mr B Zubcic joined as a party to the proceedings. |
| 14 October 2014 | Hearing date before Johnston J – matter adjourned to 24 February 2015. |
| 25 February 2015 | Adjourned date before Johnston J – order made for the sale of the former matrimonial home. Matter adjourned. |
| 8 April 2015 | Hearing of Mr B’s application for the release of the funds in the controlled monies account representing the net proceeds of the sale of the Suburb L property. Matter relisted by the wife regarding sale of the former matrimonial home. Johnston J varies the orders of 25 February 2015 in respect of the sale of the home and lists the application in a case filed by Mr B for a hearing on 19 August 2015. |
| 19 August 2015 | Hearing date in regards to Mr B’s application, the wife’s application in a case filed 27 May 2015 and her amended application in a case filed 2 July 2015. |
At the interim hearing on 19 August 2015, the parties indicated that the outstanding applications of the second respondent (the husband’s father) and the intervenor would be pressed at the final hearing. Whilst there was an appearance on behalf of the third and fourth respondents (being the wife’s parents), they were not heard in respect of the applications before the Court. Their appearance had been in anticipation of the Court potentially dealing with two further interim applications that had been filed the day prior to the hearing. One of those applications was for the wife’s parents to be removed as parties to the proceedings. The Court declined to hear those applications. The Commissioner of Taxation indicated to the Court that the Commissioner’s position was unclear pending the completion of an ongoing audit and, accordingly, was also excused from participating in the hearing.
Orders sought
The orders sought by the wife were a combination of orders that had been extracted from three separate applications. Various parts of affidavits filed in respect to those separate applications were relied upon. This presented considerable difficulty for the Court in preparing for and dealing with this matter, particularly in the relatively short hearing time that is generally allocated for interim applications. The Court would also have been assisted by a consolidated Minute of Orders sought by the wife. Nevertheless, the orders sought by the wife appear to be to the following effect:
(1)The wife be appointed sole trustee for the sale of the B Street property.[1]
[1] Order 3 of the wife’s Application in a Case filed 2 July 2015.
(2)The net proceeds of the sale of the B Street property be redistributed in the following manner and priority:[2]
[2] Order 4 of the wife’s Application in a Case filed 2 July 2015.
(a)Firstly, in payment of any agent's commission and advertising expenses and legal expenses of the sale
(b)Second, in payment of the discharge of all mortgages secured over the property including but not limited to the existing mortgage secured against the property to the Commonwealth Bank of Australia
(c)Third, in payment of the balance then remaining into a controlled monies account to be held by M Lawyers on behalf of both parties with such funds not to be released except with the consent of both parties in writing first obtained or further order of the Court.
(d)Fourth, in payment to the wife from the controlled monies account, the sum of $1 500 per week by way of spousal maintenance pending further order.
(3)Upon settlement of the sale of the B Street property the wife shall receive a payment of the sum of $120 000 from the controlled monies account by way of interim property settlement.[3]
(4)Order 1 of the Orders made on 24 February 2015 be varied to include an order that prior to the net proceeds of sale being paid into the controlled monies, account an amount of $35 333.31, plus interest, be paid to D Lawyers in respect to the J Pty Ltd debt.[4]
(5)Within 28 days from the date of these Orders the husband do all acts and things and sign all documents as may be necessary to transfer to the wife all his right, title and interest in the motor vehicle registration number ...[5]
[3] Wife’s Application in a Case filed 27 May 2015.
[4] Wife’s Application in a Case filed 27 May 2015.
[5] Order 5 of the wife’s Application in a Case filed 8 April 2015.
The Issues
Having noted that, on 24 February 2015 the husband consented to orders being made for the sale of the B Street Property (Order 1) and for the wife to receive $1 500 per week by way of spousal maintenance (Order 1.4), the issues to be determined in these proceedings are the following:
·Should the wife be appointed as the sole trustee for the sale of the B Street property?
·Is it appropriate for the wife to have access to the following amounts by way of an interim property settlement:
oan amount of approximately $920 000 to discharge the mortgage over the B Street property and indebtedness to the Commonwealth Bank;
o$120 000 in respect to legal fees; and
oapproximately $36 000 in order to pay the debt owed to J Pty Ltd?
·Should the motor vehicle be transferred to the wife?
Submissions
Submissions of the wife
The wife argued that, despite consenting to the Orders by Johnston J on 24 February 2015 for the B Street property to be sold, the husband has failed to do all that is reasonably required of him to effect that sale.
As a result, the wife is facing potential eviction from her home and being made a bankrupt.
It was argued that it is in the interests of both parties to avoid a forced sale. It was further argued that appointing the wife as sole trustee for the purpose of effecting the sale of the B Street property would enable her to negotiate with the Commonwealth Bank, with a view to deferring any further enforcement action by them pending completion of the sale of the property.
The wife noted that, if the debt is left unaddressed, she and her son G will be evicted from the B Street property. In those circumstances, it would be impractical and, contrary to G's interests, for the mother and G to be forced to live with the mother's parents. G suffers from autism and can become frustrated and occasionally aggressive.
Submissions of the husband
The husband consented to the B Street property being sold but did not think it should be sold at this point in time because it was appreciating in value and he did not want it to proceed as a “fire sale”.
The husband also opposed the wife being appointed as sole trustee for the purpose of effecting the sale of the B Street property because he believed that she would sell it at undervalue and possibly to relatives.
The husband acknowledged that the wife has a genuine need for resources for daily living expenses but that need should be satisfied from a sale of the H Street property instead.
The husband also argued that the wife is financially irresponsible and was not familiar with property transactions or relevant zoning laws and, therefore, if the Court was minded to appoint a trustee to sell the B Street property, the Court should appoint him to that role.
The husband opposed the motor vehicle being transferred to the wife’s name and argued, instead, that orders should be made for the vehicle to be sold and the proceeds of the sale divided between the parties.
The Law
Interim property settlement
Section 79 of the Family Law Act 1975 (Cth) (“the Act”) confers a discrete power to make orders for property settlement. The Court may exercise the power conferred by section 79 through “a succession of orders until the power ... is exhausted” or until a final order dealing with all the known property of the parties is made.[6]
[6] Gabel v Yardley (2008) FLC 93-386, as cited in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [113] at 85,640.
There are two stages to the hearing of an application for interim property orders.
i)The first stage is a “procedural step” which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) to make an order for partial property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice.
ii)The second stage is the “substantive step” where the provisions of section 79 must be considered and applied but with limitations, given that it is not the final hearing.[7]
[7] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [118] at 85,641.
While the usual section 79 considerations apply to the second stage of the process, a detailed analysis of those considerations is not required in an interim hearing. The Full Court has said in that respect:
137. Once a court proceeds to exercise the power in s 79 of the Act, being in the substantive phase, a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that “it seems likely to the Court that ... the applicant ... will be likely 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”: Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, “provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter”. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.[8]
[8] Ibid at 85,646.
Nevertheless, because the very nature of an interim hearing is such the Court is not in a position to properly evaluate the evidence, the Court should take a conservative approach including in respect to determining whether there are likely to be sufficient resources of the parties available at final hearing to accommodate any “adjustment issue”.[9]
[9] Harris & Harris (1993) FLC 92-378 at 79,929-79,930.
The overriding consideration at all stages of the process is that the Court is satisfied that it is “just and equitable” to make the order in circumstances before the Court.[10] In evaluating the competing contentions, it is necessary to have some regard to the fact that, in family law proceedings, one party may have the predominance of resources.[11]
[10] Stanford & Stanford (2012) FLC 93-518 at 86,640 – 86,642.
[11]Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at 85,643 referring to Wenz v Archer (2008) 40 FamLR 212.
A common situation in which the Court will be prepared to entertain an application for interim property orders is when the party with access to the least resources requires funds to conduct their own litigation.
Other instances where interim property orders have been made include situations where:
i)a party may need access to resources “to meet debts which may result in the party being pursued by creditors”,[12]
ii)“where it is necessary to exercise this power if injustice to be avoided, and
iii)cases (beyond the maintenance power) where an order in favour of one party is necessary to preserve or obtain a home for or is otherwise necessary for the welfare of the children.”[13](Emphasis added)
[12] Ibid.
[13] Harris & Harris (1993) FLC 92-378 at 79,929 –79-930.
Interim spousal maintenance
Section 74(1) empowers the Court to "make such order as it considers proper for the provision of maintenance” in accordance with Part VIII of the Act.
Section 72, requires an applicant to establish that he or she “is unable to support herself or himself adequately” by reason of the matters set out in sub-paragraphs (a), (b) or (c), and “having regard to any relevant matter referred to in subsection 75(2)”.[14]
[14] Mitchell & Mitchell (1995) FLC 92-601 at 81,996.
In McCrossen & McCrossen (2006) FLC 93-283, the Full Court, after referring to a number of earlier authorities, said that the question as to whether or not a person is able to support themselves “adequately” :
…is not to be determined upon a “subsistence level” but upon consideration of whether the applicant can support himself or herself “adequately” importing a standard of living reasonable in the circumstances.[15]
[15] at 80,839 referring to Mitchell & Mitchell (1995) FLC 92-601 at 81,995.
Once the applicant crosses the evidentiary threshold of establishing the requisite financial need, it is necessary to then establish that the respondent has a capacity to pay.[16]
[16] Zadenev & Zadenev [2013] FamCA 838 at [25].
The evidentiary requirements in respect to interim applications for spousal maintenance were considered by the Full Court in The Marriage of Redman.[17] In that case, the Full Court, said that it was appropriate to maintain some flexibility in approach.[18]
Consideration
[17] (1987) FLC 91-805.
[18] Ibid at 76,081 referring to Nygh J.
Interim property settlement
Although the husband argued that any sale should be deferred for essentially commercial reasons, he had previously consented to the B Street property being sold. Further, the husband acknowledged that the wife will, by way of final property settlement, receive considerably more than the amounts which she seeks.
In terms of the first stage discussed by the Full Court in Strahan,[19] the Court considers that it is in the interests of justice for the wife to be appointed sole Trustee of the sale of the B Street property and for the debts owed to both the Commonwealth Bank and J Pty Ltd to be paid from the proceeds received from that sale.
[19] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 at [118] at 85, 641.
Failure on the part of the wife to satisfy the parties’ joint debt to the Commonwealth Bank would be likely to result in her being evicted from the property with her son. Those circumstances would prevent her making an orderly transition to other accommodation. This is particularly significant given G’s disabilities.
The failure to pay the debt to J Pty Ltd would likely result in the wife being declared bankrupt. It would be unjust for that to occur, particularly where there are sufficient assets available to satisfy those debts.
In terms of the second stage referred to in Strahan,[20] a detailed examination of section 79(4) and section 75(2) considerations is not necessary in an interim application. However, the Court has noted those matters set out in paragraphs 2 through to 23 of the wife’s affidavit of 18 November 2013. Having regard to those matters, the Court is of the opinion that it is just and equitable, in terms of section 79 of the Act, for the wife to have access to the proceeds of sale for the purpose of discharging the debts to the Commonwealth Bank and J Pty Ltd.
[20] Ibid at 85,646
For similar reasons, it is also in the interests of justice for the wife to have access to those funds to fund her legal expenses. The Court notes that the wife has faced a particularly difficult task in litigating this matter. The Court experienced a great deal of difficulty in understanding the substance of the husband’s submissions which were presented in a highly emotional tone and were, at times, quite inconsistent with the position he had previously agreed to. The Court notes that the amount of the wife’s legal costs as at 26 May 2015 have been assessed as $88 988.53 and the anticipated costs to the point where the matter is completed are $116 600.[21] These amounts were not challenged in the husband’s submissions.
[21] Affidavit of the wife’s solicitor sworn 26 May 2015 at paragraphs 20 to 23.
As a result of the husband’s failure to do all that could reasonably be expected of him to effect the sale of the B Street property,[22] it has been necessary for the wife to incur substantial legal fees both in terms of trying to achieve that outcome and also to address the complications associated with being pursued by creditors. The wife is clearly entitled to retain competent legal advisors to deal with these matters.
[22] Affidavit of the wife sworn 13 August 2015 at paragraphs 9 to 14.
The Court has power to appoint the wife as sole trustee to ensure that the sale of the property proceeds.[23] With debtors literally knocking on the wife’s door, that action should be taken as soon as soon as possible.
[23] Family Law Act 1975 (Cth), sub-paragraphs (d), (e) and (k) of section 80(1).
It is also in the interests of justice for the title of the motor vehicle to be transferred into the wife’s name. The wife already has exclusive use of the motor vehicle which she requires to transport herself and her son, G who, as noted, suffers from autism. Transferring title of the motor vehicle to the wife will facilitate the wife receiving notifications in respect to insurance, registration and servicing. The relevant section 79(4) factors have been referred to.
Spousal maintenance
The order sought by the wife in respect to spousal maintenance appears to replicate Order 1.4 made by Johnston J on 24 February 2015. Nevertheless, as the wife is seeking that Orders 1, 2, 3 and 4.4.2 and 4.4.4 of those orders be discharged, it has been necessary for the wife to include a specific order regarding spouse maintenance in her current application. It is noted that the order made by Johnston J on 24 February 2015 in respect to spousal maintenance was made by consent.
It is clear that the wife has the care of a child under the age of 18, for the purposes of section 72(1)(a). In having regard to relevant matters referred to in subsection 75(2), the appropriate approach for the Court to follow is to determine:
a)To what extent, if any, the applicant wife is able to support herself;
b)What are the wife’s reasonable weekly needs;
c)The capacity of the husband to meet an order if one is warranted; and
d)The order which is reasonable in the circumstances.[24]
[24] Saxena & Saxena (2006) FLC 93-268 at 80,551.
In the proceedings the husband conceded that the wife has a need for financial support. The husband’s main objection to the order sought by the wife was that the funds would be sourced from the sale of the B Street property as opposed to the H Street property.
Having regard to the wife’s Financial Statement, which noted her weekly expenditure for herself and G as $1 708 in the context of having a weekly income of just $48, it is apparent that the wife is unable to support herself adequately.[25] The amount of $1 500 per week is an appropriate quantification of the need for her to be able to do so. As noted, the husband has previously conceded that the amount of $1 500 is an appropriate level of support and the wife was receiving that amount by way of withdrawal from the parties business account until 27 March 2014.[26]
[25] Financial statement of the wife filed 14 October 2014.
[26] Affidavit of the wife sworn 22nd of April 2014 at paragraph 26.
There is some difficulty in determining the husband’s capacity to pay because the husband has failed to provide the wife disclosure of his financial circumstances as required by Part 13.2 of the Family Law Rules 2004 (Cth) (“the Rules”). In that context in Efthimiadis,[27] the Full Court said as follows:
So far as the [party] is concerned, there is no doubt that [the party] should be treated as substantially understating [the parties] income…..The circumstances that the [party] had a significantly greater income than [the party] deposed to was very damaging to [the party] on issues of credit overall and virtually ensured that [the party] was put out of court as far as Section 75(2) factors was concerned.”
[27] Efthidmiadis & Efthidmiadis (1993) FLC 92-361 at 79,805.
In the case of Weir,[28] the Full Court, stated:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party.
[28] Weir & Weir (1993) FLC 92-338 at 79,594.
The failure of the husband to disclose relevant documents required of him, pursuant to the Rules, is to be viewed in the context of his statements, made during the course of submissions, to the effect “we are rich” and “your Honour, we are making a fist load of money”. It is to be noted that these statements were made in circumstances where the husband was in quite an emotional state however, they are consistent with the husband having access to substantial financial resources.
I further note the wife’s reference to the husband’s participation in international poker tournaments as evidenced by internet records annexed to the wife’s affidavit. [29] The husband did not contest the accuracy of those assertions in the proceedings. Given the statements made by the husband in these proceedings, the evidence regarding his ability to embark on international travel and his failure to disclose his financial records together with his past agreement for the wife to be paid the sum of $1 500 per week by way of spousal maintenance, the Court concludes that the husband has the capacity to pay spousal maintenance on an ongoing basis. Accordingly, it is appropriate to characterise the wife’s drawing of $1 500 per week from the controlled monies as being in respect to spousal maintenance rather than a drawdown against her entitlement to the property of the marriage.
[29] Affidavit of the wife sworn 22 April 2014 at Annexure ‘O’.
For the reasons set out above the Court makes the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 17 September 2015.
Associate:
Date: 17 September 2015
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Civil Procedure
Legal Concepts
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Consent
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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Standing
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