A NSW Wife v A NSW Husband

[2016] NSWSC 455

Supreme Court

New South Wales

Medium Neutral Citation:

A NSW Wife v A NSW Husband [2016] NSWSC 455

Hearing dates:

13 April 2016

Date of orders:

13 April 2016

Decision date:

13 April 2016

Jurisdiction:

Equity - Duty List

Before:

Slattery J

Decision:

Order made for the cross-vesting of the proceedings to the Family Court. Relief granted under the Family Law Act 1975 for the wife to occupy the family home before its sale. Costs reserved.

Catchwords:

FAMILY LAW - Family Law Act 1975 - urgent interlocutory application – wife seeks restoration of possession of the family home - husband locked wife out of family home approximately 3 weeks before proceedings commenced – wife claims she needs to be close to medical care which is near the family home – no issue in the proceedings that the wife can live in the family holiday house but which is more distant from medical care – parties reached agreeable arrangements about the living arrangements for the children - whether the wife should be restored to possession of the family home – action commenced in the Supreme Court of New South Wales, seeking remedies in aid of an action in common law trespass – whether relief more appropriately granted under the Family Law Act 1975.

CROSS VESTING OF ACTIONS - wife brings proceedings against husband in relation to the occupation of a home which is matrimonial property – parties agree that the action in the Supreme Court should be cross vested to the Family Court of Australia under Jurisdiction of Courts (Cross-Vesting) Act 1987, (NSW), s 51(1)(b) and the Court is of the opinion that it is an appropriate case to do so – exercise of the Court’s jurisdiction under Jurisdiction of Courts (Cross-Vesting) Act 1987, (Cth), s 4(1) to make orders under the Family Law Act 1975.

Legislation Cited:

Jurisdiction of Courts (Cross-Vesting) Act 1987, (NSW), s 51(1)(b)
Jurisdiction of Courts (Cross-Vesting) Act 1987, (Cth), s 4(1)

Cases Cited:

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Category:

Principal judgment

Parties:

Plaintiff: A NSW Wife
First Defendant: A NSW Husband
Second Defendant: The Second Defendant

Representation:

Counsel:

 

Plaintiff: A. Gruzman
First & Second Defendants: R. Glasson

  Solicitors:
Plaintiff: Anthony Gye, Cappello Rowe Lawyers
First and Second Defendants: Julien Castaldi, Laycock Burke Castaldi lawyers

File Number(s):

2016/102827

Publication restriction:

No

EX TEMPORE Judgment

1. A wife, now separated from her husband, brings these proceedings against him in the Equity Division of this Court. In her Summons she seeks, as plaintiff, the restoration of possession of the family home and a holiday house, both of which are registered in her name, to end what she says is a trespass to her land by her husband, the first defendant.

2. This action should have been commenced in the Family Court of Australia. It is now being transferred there pursuant to the Jurisdiction of Courts (Cross-Vesting) Act(NSW) 1987 (“the NSW Cross Vesting Act”), s 5 (1)(b). In the Court’s opinion the proceedings should be so transferred. The parties both agree with this course.

3. But urgent issues confront this couple. In the Equity Duty list the wife seeks immediate possession of this matrimonial property, the family home and the holiday home, and other incidental relief, to restrain the continuation of what she claims is a trespass before the proceedings are transferred to the Family Court.

4. The wife says she was forcibly excluded from the family home about a month ago. She seeks to restore her possession to what she claims is the status quo ante with a Court-ordered reversal of her eviction by the husband. She also seeks restoration of possession as against the husband’s new partner, the Second Defendant, who the wife claims also now occupies the family home with the husband.

5. This Court has limited jurisdiction to decide matrimonial disputes under the Family Law Act (Cth) 1975. The Jurisdiction of Courts (Cross-Vesting) Act(Cth) 1987 (“the Commonwealth Cross-Vesting Act”) s 4(1) confers that power on this Court and allows urgent interlocutory orders under the Family Law Act to be made.

6. When these proceedings are transferred to the Family Court and are joined up with the proceedings which the parties are commencing there, the Family Court will also have jurisdiction to decide at a final hearing the trespass to land and related causes of action, which are the subject of the wife’s present summons: the Commonwealth Cross-Vesting Act s 4(2).

7. The Court has made a pseudonym order in the proceedings. This is consistent with the principles that would apply were the proceedings to have been commenced in the Family Court. Throughout these reasons the Court refers to the husband and the wife by those generic names. To ensure the anonymity of the parties the addresses of the family home and the holiday house and anything which might identify the parties have been eliminated from these reasons.

8. The proceedings were commenced before Justice Kunc in the Court’s Equity Duty List on Friday of last week, 8 April 2016. The Summons was made returnable before me for hearing today, 13 April 2016. As the issues were urgent and the parties could not resolve them, the Court held an interlocutory hearing into the early evening. In the result, the Court has granted some of the relief, which the wife seeks.

9. Mr A. Gruzman of counsel appeared for the wife and Mr R. Glasson of counsel appeared for the husband. The Court has been much assisted by the detailed submissions from the lawyers on both sides. Substantial evidence was gathered on both sides for this urgent hearing. And everything has been put on both sides that seems reasonably to arise out of the agreed and the contentious facts.

A Matrimonial Dispute about a Family Home and a Holiday House

10. The husband and the wife own two houses. The wife is the registered proprietor of both properties. Their main residence, their family home, is a large two-storey structure with many rooms, more rooms indeed than are required for their immediate needs, or the needs of their two children. They also own family pets, a number of dogs.

11. Bitter matrimonial disputes arose between the husband and the wife by the second half of last year. On 20 November 2015 they signed an informal settlement document between themselves with the assistance of a family friend. It was not drafted by lawyers. It was not approved by the Family Court. It was never made the subject of court orders. At best it represents an informal arrangement between the parties.

12. The 20 November document did provide for the wife to live at least temporarily in the holiday house. But the wife says that this was only a short-term arrangement, whilst she was collecting her thoughts and planning what she would do when divorce proceedings began. She says that she never agreed to a permanent arrangement that she would only occupy the holiday house and not the family home. The 20 November document is consistent with her case. But because of its informal drafting, it is also consistent with the husband’s case on this issue.

13. The husband claims to have continued to live in the family home after 20 November. It is not possible to determine the truth of his contention of continuous occupation on an application such as this. The wife says that he was living elsewhere during this period, at his mother’s home and at the house of his new partner, the Second Defendant. But I accept he was living in the family home in January this year. He says that in the middle of that month he was threatened by the wife who suddenly appeared at the property and threatened him with violence and threatened to commit suicide. What happened in this incident is highly contentious. But I accept that, whatever happened, he was present in the property at the time. He says that he left the property, concerned for his own safety.

14. The wife claims that she was living at the family home between late January 2016 and 20 March 2016. The husband disputes her contention of continuous occupation during this period. He says that she was living elsewhere much of the time, including in Sydney. There are a number of indications to support her case of occupation during this period, the strongest of which seems to be what happened on 20 March, when the husband admits that he intentionally excluded her from the property.

15. But there are others. The husband sought an AVO on 16 March. In support he provided a statement to the police that, as recorded, includes the statement that on 20 February 2016 he had agreed to reside at the holiday house, not the family home. He says that that does not reflect reality and that there was no such agreement made on 20 February 2016. He says that the police told him that he could no longer live at the family home after he went there on 20 February to try and meet the wife to discuss their living arrangements and other issues between them. He may be right that there was no agreement on this day for him to live at the holiday home. But the police statement is a record taken by an independent authority that does provide some support for the fact that from mid-February to mid-March the wife was living at the family home.

16. The second week of March this year marked an unfortunate escalation of marital hostilities between husband and wife. The husband makes a reasonable case that in this period the wife engaged in conduct that interfered with his quiet and orderly occupation of the holiday house.

17. The husband then took strong steps to defend himself from his wife’s actions at the holiday house and to secure himself against what he feared she might do in relation to both properties. The circumstances to an extent moulded his fears. The marriage was unravelling. The wife was the registered proprietor of the two properties, the family home and the holiday house. The wife was proposing to list both properties for sale. The husband became extremely concerned that the wife was in control of the sale and that she may give sale instructions to agents that she had engaged that may result in the properties being sold at less than their best price.

18. His fears were not groundless. There was no Court control of any kind over the dissolution of this marriage at that time. No proceedings had been commenced in the Family Court. The parties were making their own informal and unenforceable agreements about their matrimonial property. The filing of proceedings in this case was the first time that the parties have sought any court supervision or control to assist in the resolution of their differences.

19. Partly out of fear of having the couple’s real estate sold without him having any say in the sale partly from a fear that the sale proceeds might be spirited away, and partly because he was concerned about the various threats that he says had been made against him, on 16 March 2016 the husband applied for and was given an interim apprehended violence order. A final AVO hearing has not taken place. The grounds of the AVO that was granted included the alleged attack on him in January and threats that the wife had allegedly made against him since then.

20. The AVO order he sought was wide. It does not permit the wife to live at the holiday house. This is another reason why, in my view, it is highly likely that both parties accepted, by 16 March at least, that the wife was living at the family home rather than the holiday house. It seems improbable that the husband would have sought an AVO excluding the wife from property in which she was then living.

21. On 20 March 2016 the husband acted. He executed a plan which resulted in the wife being locked out of the family home. The Court can make findings about this incident based upon the husband’s own admissions about it. The husband frankly conceded, in answer to the Court’s own questions, the following about the events of 20 March at the family home. He entered the property deliberately and with security guards at a time he knew that the wife was temporarily absent from the property. She had gone shopping. He had the locks changed before she returned. When she came back, she could not get in.

22. I infer that he entered the property with security protection, because he suspected she might make an immediate effort to re-enter the property. His actions point to his having a state of mind that she who had just been excluded from the property, would have a claim of right to stay there and that she may try by force to re-enter. Why else would the security guards be necessary?

23. It is perhaps not surprising that he thought this. After all, the property was in her name as registered proprietor. But the best explanation for his actions is that he thought at the time that she would want to get back into the property because she had been living there. She says that when she was locked out she was immediately deprived of medicines that were necessary to treat her heart condition.

Consideration

24. The summons in this case seeks a mandatory injunction to restore the wife to possession of the family home, and to neutralise the trespass which she alleges. The action is also brought against the Second Defendant, because there is some evidence that she was seen on at least one occasion at the family home with the husband.

25. Leaving aside the matrimonial character of this case, the bare facts to which the wife deposes, raise a case of common law trespass to land by the dispossession of its registered proprietor. Equity would grant an injunction in its auxiliary jurisdiction to restrain the commission of this tort. A plaintiff must show a serious question to be tried at final hearing before an interlocutory injunction will be granted: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The wife has reached this threshold. But for the matrimonial element, what kind of final relief would be granted would no doubt be contested. Mr Glasson submits that actions for trespass in such circumstances could be answered by his client’s claim of right to an interest in the property. Mandatory injunctive relief is difficult to obtain and even more difficult on an interlocutory basis.

26. But the family home and the holiday house are both matrimonial property. The Court is exercising a broad interlocutory discretionary jurisdiction conferred under the Family Law Act, to deal with matrimonial property that may be the subject of Family Court orders at a final hearing: Family Law Act, s 114(1)

27. The Court must now consider the balance of convenience. This marriage has already broken down. The husband seems to have formed a relationship with another woman. The hostilities between husband and wife, as each of them gave their short evidence on the interlocutory application, were clear. The two have lived separately apart for many months. In the last three months there have been acts of mutual harassment and forcible removal from matrimonial property.

28. The husband and the wife put their arguments the following way. I hope I do no disservice to the party’s arguments at this hour to summarise them only briefly.

29. The husband says he needs to stay at the family home, because he travels often to Sydney for business and personal reasons and it is closer to Sydney. It is also closer to his mother, who lives in a nearby suburb. The husband also says that his whole office is there at the family home and the alternative of living at and working from the holiday house is not available to him, because internet access at the holiday house is poor.

30. Against that, the wife says that in February 2015 she had a heart operation and had a stent placed in her coronary arteries. This is not contested. She has been on a number of heart-related medications since then. She is concerned that she wants to stay close to the doctors and the hospitals with which she is familiar, which are a local Private Hospital and the treating doctors associated with her there. These are only about 10 minutes away from the family home. These are the main arguments put on both sides, but they are elaborated in different ways.

31. But the counter arguments reveal what the Court should do on the balance of convenience. The husband’s arguments in relation to access to Sydney and closeness to his mother and the office at the family home can be dealt with in this way. Closeness to Sydney is an important thing for both the husband and the wife. But I am not sure that there is a great deal of difference for the husband between travelling to Sydney, as required, from the family home and travelling from the holiday house. I am aware that they are about 40 minutes apart by road. So far as being close to his mother is concerned, if the husband wants to spend more time with her he can live with her for a period of time, as he has in the recent past. There are other options for staying close to his mother, including staying with the Second Defendant.

32. As to the office at the family home, provided that such items located there at the office can be relocated to the holiday house if they are needed, I do not accept in modern Australia that there is not some reasonable mobile internet access in the region of the holiday home, which is a built up area and is not remote.

33. The husband then says in answer to the wife’s arguments that if she has heart trouble, she is only 50 minutes by road, or by helicopter, from the holiday home to her hospital of choice. But it seems to me that there is a great deal to be said simply for the confidence a person with the wife’s medical history has in knowing that she is close to a hospital and that she is in easy reach of her doctors.

34. It has been said by the husband that the wife has acted inconsistently with that argument by being prepared to live at the family house for a period of time. She says in answer to that though that she was only there for short periods on holiday. I do not accept that a helicopter trip would be the first choice of anyone who was under stress from a heart condition. Without criticising the quality of regional hospitals in New South Wales, I can accept that being close to a major hospital. In such circumstances in itself would reduce stress for the wife.

35. I do not accept the wife’s argument though about being homeless. This same argument seems to apply to both the wife and the husband. The real argument in this case is whether they should live in one or other of these two houses that are available to them for their occupation. Both of them reject the option of living in neither house, in that case, their argument about homelessness seems to fall away.

36. So the question that really presents itself to the Court is should the husband on an interim basis, on the balance of convenience, be displaced from the family home and have to live in the holiday house. For the reasons I have given, I think he should. And I will make interim orders for the wife to occupy the family home.

37. But the significance of these orders may be much reduced by the simple fact that the Court will adjourn these proceedings to tomorrow, so that the Court can make orders for the appointment of trustees for sale of both the family home and the holiday house. It seems to me that a very important part of reducing the stress these parties are under is to place the sale of the property in the hands of third party professionals, who will assure both parties that the sale will not be mishandled by the other party and that the sale proceeds will be under proper control by trustees, and ultimately by the Court.

38. The properties will probably be sold within two to three months from now. These orders will probably only have that effect for that period. But the practical issue now is when the orders can be put into effect. I want to hear the submissions about that from the parties now.

Conclusions and Orders

39. The Court directs the parties to bring in Short Minutes of Order to give effect to these reasons.

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Decision last updated: 18 April 2016