Arias & Grasso
[2022] FedCFamC2F 47
Federal Circuit and Family Court of Australia
(DIVISION 2)
Arias & Grasso [2022] FedCFamC2F 47
File number(s): NCC 4198 of 2021 Judgment of: JUDGE CARTY Date of judgment: 24 January 2022 Catchwords: FAMILY LAW – DE FACTO PROPERTY – Interlocutory application for injunction – application for property orders made more than 2 years after the breakdown of the de facto relationship – leave pursuant to s.44(6) yet to be determined – if leave granted de facto wife seeks 60% of the proceeds of sale of real property owned by de facto husband, along with her superannuation- de facto wife is registered proprietor of another parcel of real estate, in which she lives– de facto wife contends that there is a risk that de facto husband will use proceeds of sale to live in Country R or otherwise remove funds from court’s jurisdiction – de facto wife contends that her claim for final relief is likely to be defeated if injunctive relief is not granted – de facto husband proposes to use proceeds of sale to purchase a unit in retirement village – whether wife has prima facie case for final relief sought – whether interlocutory injunction is necessary – de facto wife’s application for injunction dismissed. Legislation: Family Law Act 1975 (Cth), ss.4(1), 44, 90SB, 90SK, 90SM, 114(2A) Cases cited: Norton v Locke (2013) 284 FLR 51; (2013) 51 FamLR 517; [2013] FamCAFC 202
In Marriage of Waugh (2000) 158 FLR 152; (2000) FLC 93-052
Jackson v. Sterling Industries Limited (1987) 162 CLR 612; [1987] HCA 23
Stowe & Stowe (1981) 6 FamLR 757; (1981) FLC-027Division: Division 2 Family Law Number of paragraphs: 89 Date of last submission/s: 17 January 2022 Date of hearing: 17 January 2022 Place: Newcastle Counsel for the Applicant: Mr Weightman Solicitor for the Applicant: Baker Love Lawyers Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Dawson & Gardiner Solicitors ORDERS
NCC 4198 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ARIAS
Applicant
AND: MR GRASSO
Respondent
order made by:
JUDGE CARTY
DATE OF ORDER:
24 JANUARY 2022
THE COURT ORDERS THAT:
1. The wife’s application for interlocutory injunction is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Arias & Grasso has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODUCTION
Ms Arias, the applicant de facto wife (for convenience referred to in these Reasons as “the wife”) and Mr Grasso, the respondent de facto husband (for convenience referred to in these Reasons as “the husband”) are in dispute about whether leave ought to be granted to the wife to institute de facto property proceedings more than two years after the breakdown of the parties’ de facto relationship, pursuant to section 44(6) of the Family Law Act 1975 (Cth.) (“the Act”).
The wife’s application for leave to institute property proceedings outside of the standard application period is listed for hearing on 14 April 2022.
Against the background of that dispute the wife seeks interlocutory injunctive relief in relation to the proceeds of sale of a real property at E Street, Town F, New South Wales (“the E Street, Town F property”). The husband was the sole registered proprietor of the E Street, Town F property and he lived there up until it was sold, with settlement of the sale due on or about 17 January 2022.
The husband opposes the wife’s application for interlocutory injunction and seeks that the wife’s application be dismissed.
BACKGROUND
The wife was born in 1962 and is currently 59 years old. She is employed as a cleaner and discloses a gross income in the sum of $1,700.00 per week.
The husband was born in 1945 and is currently 76 years of age. He is retired and is in receipt of an age pension in the sum of $483.00 per week.
The parties commenced cohabitation in 1999 and never married.
There is one adult child of the relationship, Ms B born in 2000, currently 21 years old.
The wife has one surviving adult daughter from a previous relationship. Sadly the wife’s son from her previous relationship passed away in 2020. The husband has five adult children from previous relationships.
The de facto relationship between the parties broke down finally in February 2010.
It is common ground that the wife caused a caveat to be lodged over the title to the E Street, Town F property on or about 16 February 2016. The wife’s current solicitors are noted on the Caveat as the address for service of notices on the caveator.[1]
[1] Exhibit C pages 1-2
The wife says that she received a notice of proposed lapsing of Caveat, on 30 November 2021, and that prior to 9 December 2021 she was unaware that the husband had sold the E Street, Town F property.
The wife’s initiating application was filed on 17 December 2021.
By way of interim relief the wife seeks, inter alia, that leave be granted pursuant to s.44 (6) of the Act to institute proceedings for property settlement, and an order that the husband be restrained by injunction from dealing with the proceeds of sale of E Street, Town F, other than to cause such proceeds to be deposited into the trust account of his solicitors immediately upon settlement of the sale.
The matter was listed urgently before the court on 24 December 2021 at which time the husband was legally represented but had filed no documents. By consent, an interim order was made restraining the husband from dealing with the proceeds of sale of the E Street, Town F property, other than to cause such proceeds to be placed into the trust account of his solicitors. The matter was adjourned until 17 January 2022 for interim hearing on the issue of the injunction.
The husband filed his response documents on 11 January 2022. By way of interim relief he seeks an order that the wife’s application for leave to proceed out of time be dismissed and the wife pay his costs. By way of final relief the husband seeks an order that the proceeds of sale of the E Street, Town F property be distributed to him and that the wife pay his costs.
At the interim hearing on 17 January 2022 the husband’s counsel opposed the injunction sought by the wife and indicated that reasons would not be required in the event that the court found against the husband on the injunctive relief issue, noting that the hearing of the leave issue is listed on 14 April 2022.
The husband did not oppose the making of an interim order until 24 January 2022, extending the operation of the interlocutory injunction made on 24 December 2021. By consent, on 17 January 2022, the interlocutory injunction was extended until 24 January 2022.
MATERIAL RELIED UPON
In support of her application the wife relied upon:
(a)Outline of Case Document ( Interim Hearing);
(b)Initiating Application filed 17 December 2021;
(c)Financial Statement filed 17 December 2021;
(d)Her affidavit filed 17 December 2021 and annexures thereto;
(e)Exhibit A- a copy of what purports to be a Will made by Mr Arias on 30 October 1997; and
(f)Exhibit B- loan application dated 13 October 2000 completed by the applicant and the respondent seeking $50,000 to assist the purchase of the E Street, Town F property and noting the L Street, Suburb M property as security.
The husband relied upon:
(a)Response to initiating application filed 11 January 2022;
(b)His affidavit filed 11 January 2022 and annexures thereto;
(c)Financial statement filed 11 January 2022; and
(d)Exhibit C- tender bundle prepared by the respondent comprising pages 1 to 19 and 30 to 39.
THE LAW
The court’s power to grant injunctive relief in a de facto financial cause is found at section 114(2A) of the Family Law Act 1975 (Cth) (“the Act”). Section 114(2A) provides:
(2A) In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:
(a) make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and
(b) if it makes an order or grants an injunction under paragraph (a)—make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:
(i) that residence; or
(ii) a specified area in which that residence is situated; and
(c) make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.
Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.
The husband does not contend that the court lacks jurisdiction to grant the interlocutory injunction in this case, notwithstanding that the issue of leave to institute the proceedings is yet to be determined.
The wife’s Counsel referred the court to the case of Norton and Locke[2]. That case concerned the jurisdiction of the Federal Circuit Court to grant an interlocutory injunction pursuant to s.114 (2A) of the Act, in circumstances where the court had not yet determined the jurisdictional facts as to whether or not a de facto relationship had existed between the parties, and whether the requirements of s.90SB and s.90SK were met.
[2] Norton v Locke (2013) 284 FLR 51; (2013) 51 FamLR 517; [2013] FamCAFC 202
In Norton v Locke the Full Court found that the power in s.114 (2A) is expressly confined to circumstances where the relevant jurisdictional facts have been determined, and that the trial judge erred in granting the injunction relying on s.114 (2A) when those relevant jurisdictional facts had not yet been determined.
In the present case there is no dispute that the jurisdictional facts are established, namely:
(a)The parties were in a de facto relationship between late 1999 and February 2010;
(b)The de facto relationship endured for more than 10 years (satisfying s.90SB in relation to length of the relationship); and
(c)The parties were ordinarily resident in New South Wales throughout the duration of their relationship (satisfying s.90SK in relation to participating jurisdiction).
The court considers that the relevant jurisdictional facts required to enliven the jurisdiction conferred by s.114 (2A) exist in the present case and that the court has power to grant the injunction sought by the wife.
Is the imposition of an injunction necessary in this case?
Before the court can grant an injunction, the court is required to consider whether the imposition of an injunction is necessary.
Any injunction that is granted ought to go no further than necessary, “to prevent abuse or frustration of the court’s process in relation to the matter within its jurisdiction.”[3]
[3]In Marriage of Waugh (2000) 158 FLR 152; (2000) FLC 93-052, at 162
In assessing whether the injunction sought goes no further than necessary to prevent frustration of the court’s process, it is necessary to have regard to the nature of the wife’s claim in the property proceedings.
The purpose of an injunction is not to create security for the wife but is rather to prevent the husband from disposing of his assets so as to frustrate the process of the court by depriving the wife of the fruits of any judgment she may obtain in the action.[4]
[4]Refer In Marriage of Waugh where , in the course of discussing the purpose of a “Mareva” injunction, the court quotes Dean J in Jackson v. Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 612, at 625
The wife’s case for injunctive relief is based on two express concerns, namely:
“…that…[the husband]… may utilise the proceeds of sale unilaterally and without consultation and in circumstances where the former matrimonial home is the only significant asset of our relationship and this would result in me being unable to being (sic)an Application for Property Adjustment”[5]; and
“… the funds could enable…[the husband]…to move to [Country R] to live. Alternatively …transfer the funds to a jurisdiction outside of Australia”.[6]
[5] Wife’s affidavit paragraph 51
[6] Wife’s affidavit paragraph 52
The husband deposes that he plans to use the proceeds of sale of the E Street, Town F property
“…to find suitable accommodation and have some funds to make life a little more comfortable…if the funds are tied up in litigation, I will have nowhere to live”.[7]
He deposes that he has been looking at retirement villages in the Region S area[8].
[7] Husband’s affidavit paragraphs 59 and 61
[8] Husband’s affidavit paragraph 58
The wife submits that if an injunction is not granted, and the husband applies the proceeds of sale of the E Street, Town F property to purchase a unit in a retirement village in Sydney, it may be impossible, or at least difficult, to extract funds sufficient to satisfy her claim for property adjustment.
The wife must establish an existing or potential claim for an order pursuant to s.90SM, and demonstrate by evidence, and not by mere assertion, that such claim may be defeated or prejudiced unless an injunction is granted.
The leave issue
In the present case the wife is yet to satisfy the court that discretion ought to be exercised in her favour to grant leave to apply out of time for an order under s.90SM of the Act.
Section 44(5) of the Act provides relevantly that, subject to subsection (6), a party to a de facto relationship may apply for orders under s.90SM only if the application is made within the standard application period, which is two years after the end of the de facto relationship.
At the date of filing of the wife’s initiating application the parties in this case had been separated for eleven years and ten months.
Section 44(6) of the Act provides that the court may grant leave to apply after the end of the standard application period if the court is satisfied, relevantly, that hardship would be caused to the party or a child if leave were not granted.
The wife bears the onus of satisfying the court that the hardship she may suffer if leave is not granted will outweigh hardship to the husband if leave is granted.
The wife deposes that the husband perpetrated family violence upon her during the parties’ relationship, including an assault while she was pregnant, which she says required hospitalisation. She deposes that the husband verbally abused her post-separation. She contends that, as a result of the husband’s conduct towards her, she has been too fearful to bring an application for property settlement, or to progress the negotiations which she initiated in 2016.
The wife says that she did not have the funds post separation to bring an action for a property settlement, and did not have the legal knowledge to do so without legal representation.
The husband denies that he perpetrated family violence. He deposes that the parties engaged in verbal arguments only and that he has never physically touched or harmed the wife. He admits that the police attended around the time of the parties’ final separation in 2010 and that an ADVO was made against him, which he says he did not contest, as he wanted to end the relationship and get on with his life.
The husband says that the wife regularly attended his home post separation to have dinner, attend parties and borrow items. He annexes to his affidavit, what he deposes are, photos of the parties together at Ms B’s 18th birthday party at the E Street, Town F property in 2018[9].
[9] Husband’s affidavit Annexure G
The wife’s allegations of family violence and her alleged fear of the husband, along with her assertion that she had neither the funds, nor the legal knowledge, to bring an application for property settlement, are the foundation of her case for leave to commence proceedings out of time.
Does the wife have a prima facie case for the relief she seeks?
By way of final relief the wife seeks that 60% of the proceeds of the sale of E Street, Town F are distributed to the wife and the balance to the husband and that otherwise, effectively, the parties each retain, for their sole use, all other property in their possession currently.
The wife deposes that the E Street, Town F property is the only significant asset of the relationship, and she says that she has no interest in any other real estate or any other assets of significance[10]. The wife’s evidence in respect of those matters is inaccurate, for the reasons which follow.
[10] Wife’s affidavit paragraphs 51 and 56
It is apparent, from the evidence tendered on behalf of the husband[11], that on or about late 2000 the wife made a Transmission Application, as executor of the Estate of her late husband Mr Arias, pursuant to letters of administration, to be registered as the proprietor of a real property at L Street, Suburb M, New South Wales (“the L Street, Suburb M property”).
[11] Exhibit C page 3
The wife became registered as the legal owner of the L Street, Suburb M property by virtue of a transmission application which was made on or about late 2000. The wife declared in that application that she was;
“…entitled as the Executor of the estate of the deceased registered proprietor (who died [in] 1999) pursuant to…letters of administration…granted [in] 1999 to [Ms Arias].”[12].
The deceased registered proprietor is Mr Arias.
[12] Exhibit C page 3
The wife tendered into evidence what purports to be a Will of Mr Arias dated 1997[13] however there is no evidence that that Will, or any other Will of the deceased, was ever admitted to probate, and the Transmission Application notes the grant of letters of administration in respect of the relevant estate, not probate of a Will of the deceased. The probity and relevance of Exhibit A is in issue, and does not assist the court to determine the current dispute.
[13] Exhibit A
The wife is the sole registered proprietor of the L Street, Suburb M property, although she did not disclose that fact in her affidavit nor in her financial statement. There is no evidence currently before the court as to the value of the L Street, Suburb M property.
The husband deposes that the L Street, Suburb M property was in a bad condition and that he did some construction work on the property to render it safe.
In late 2000 the wife and the husband borrowed about $50,000.00 from Bank N[14]. There is currently a registered mortgage secured over the L Street, Suburb M property, in respect of that loan, in favour of the Bank N[15]. It appears that the amount currently outstanding in respect of that loan is $8,381.00.[16]
[14] Exhibit B
[15] Husband’s affidavit, Annexure C
[16] Husband’s affidavit , Annexure B
The parties appear to be in dispute as to how the borrowed funds secured over L Street, Suburb M were applied, with the husband contending that the wife borrowed the monies to pay down her debts, and that it was necessary for him to be named on the mortgage as the wife had a bad credit rating [17] and the wife contending that the funds were used to assist the purchase of the E Street, Town F property.[18] The court is not able, and nor is it necessary, to resolve that factual dispute in the context of this interim proceeding.
[17] Husband’s affidavit paragraphs 26 and 27
[18] Wife’s affidavit paragraph 25
In 2000 the husband purchased the E Street, Town F property for the sum of $130,000.00. The husband borrowed $104,000.00 from Bank N and a mortgage was registered over the E Street, Town F property in favour of the Bank N. The amount outstanding as at 8 December 2021 was $57,763.00[19].
[19] Husband’s affidavit paragraph 11 and Annexure A
It appears common ground that renovations and additions were undertaken to the E Street, Town F property during the de facto relationship, and it appears that the parties lived together at the E Street, Town F property until their relationship broke down finally in February 2010.
Upon the breakdown of the de facto relationship it appears that the wife moved to the L Street, Suburb M property, where she has lived ever since. The husband remained living at the E Street, Town F property until at least settlement of the sale of that property, which took place on or about 17 January 2022.
The parties appear to be in dispute as to who was responsible for repayment of the loan secured by the mortgage over the E Street, Town F property, although the evidence reveals that they may be at cross purposes. The wife deposes that post separation she has been responsible, and the husband has not contributed[20], in respect of Loan account …02, which appears likely to be the loan account number for the loan secured by mortgage over the L Street, Suburb M property, and not over the E Street, Town F property.
[20] Wife’s affidavit paragraphs 25-26 and Annexure A
The husband deposes that he has been solely responsible for making the repayments in respect of the loan secured by mortgage over the E Street, Town F property during the relationship and post separation[21], which is Loan account …06. The wife makes no specific reference to that Loan account in her evidence.
[21] Husband’s affidavit paragraph 23
The apparent controversy as to which party has made the loan repayments in respect of the E Street, Town F property cannot be determined at this interim stage of the proceedings and will likely be the subject of further evidence at the hearing on the issue of leave.
The wife remains the sole registered proprietor of the L Street, Suburb M property[22] where she has lived for almost the past 12 years. The value of the L Street, Suburb M property is currently unknown. The L Street, Suburb M property is subject to a modest loan in the sum of just over $8,000.00. The wife discloses that she owns a car, some shares and some modest savings with a total net value of around $21,246.00, along with her superannuation in the sum of $106,028.00.
[22] Husband’s affidavit Annexure C
The husband has sold the real property at E Street, Town F and expects that the net proceeds of sale will be about $767,800.00[23]. He now requires an alternative home in which to live. In addition to the proceeds of sale he discloses savings of $11,000.00 and a Motor Vehicle 1. The husband has no superannuation.
[23] Husband’s affidavit paragraph 18
The evidence is that the asking price for the 2 bedroom apartment in Sydney, which the husband says he is interested in purchasing, is $645,000.00[24]. That figure does not include legal fees and stamp duty on the purchase.
[24] Husband’s affidavit paragraph 58; Exhibit C page 31
The estimated current net value of the pool on the current state of the evidence, does not include the value of L Street, Suburb M nor the value of the Motor Vehicle 1.
Without including the L Street, Suburb M property or the Motor Vehicle 1, the net pool has an estimated value currently in the sum of $906,074.00.
On the current state of the evidence, the wife’s claim, if wholly successful, would see her retain almost 65% of the estimated net pool currently (and the retain the whole of her interest in the real property at L Street, Suburb M) and would result in the following division of the assets:
Wife
(a)60% proceeds of E Street, Town F E $ 460, 680.00
(b)Car and shares ( net) 21,246.00
(c)Super 106, 028.00
E $ 587,954.00
Plus
(d)L Street, Suburb M property value unknown
Husband
(a)40% proceeds of E Street, Town F E $ 307,120.00
(b)Savings 11,000.00
318,120.00
Plus
(c)Motor Vehicle 1 value unknown
The husband’s claim for final relief seeks that he receive the whole of the proceeds of E Street, Town F and, inferentially at least, that there be no adjustment of the legal interests in the property of the parties.
On the current state of the evidence the husband’s claim, if wholly successful, would see him retain just over 86% of the estimated net pool ( which does not include the L Street, Suburb M property), and would result in the following division of the assets:
Husband
(a)100% proceeds of E Street, Town F E $ 767, 800.00
(b)Savings ,000.00
778,800.00
Plus
(c)Motor Vehicle 1 value unknown
Wife
(a)Car and shares ( net) 21,246.00
(b)Super 106,028.00
$127,274.00
Plus
(c)L Street, Suburb M property value unknown
68For the purposes of this interlocutory application, the court is not able to come to a firm conclusion about the total net value of the pool of assets available for division, due to the absence of disclosure in respect of the L Street, Suburb M property, and the absence of a current value attributed to the husband’s Motor Vehicle 1.
69The court accepts and allows for the possibility that the evidence adduced at any final hearing may lead to a different conclusion as to the assets and liabilities of the parties and the net asset pool available for division between them.
70The court is yet to hear the evidence and the submissions on the wife’s application for leave to commence the property proceedings out of time and cannot draw any firm conclusion as to the wife’s prospects of success on that issue, other than to say that the wife’s case and the husband’s case on that aspect of the matter each appear arguable.
71If the wife is successful in her application for leave, then she will bear the onus of satisfying the court that, in all the circumstances of the case, it is just and equitable to make an order pursuant to s.90SM of the Act[25] and, if it is, then she will bear the onus of satisfying the court that the order she proposes is appropriate, taking into account the matters set out in s.90SM (4) of the Act and the matters in s.90SF(3), in so far as they are relevant, including but not limited to: the age and state of health of each of the parties to the de facto relationship; 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 a standard of living that in all the circumstances is reasonable.
72The court observes that the wife is 17 years younger than the husband, and that she continues to work and is capable of earning an income. The husband is well past retirement age and he is reliant on an age pension.
73The court draws no conclusion as to the likely outcome of this matter if it proceeds to final hearing. It is possible that the wife may succeed in obtaining the final relief she seeks however, noting the competing contentions outlined above, the court cannot conclude, on the current state of the evidence, that the wife has a sufficient likelihood of success in obtaining an order for her to receive 60% of the proceeds of sale of the E Street, Town F property to justify in the circumstances the preservation of the status quo pending the trial[26].
74The final outcome will likely depend on the value of the L Street, Suburb M property, which is yet to be determined, and noting the modest loan affecting that property.
Is there evidence of any intention by the husband to dispose of assets pursuant to any scheme designed or likely to defeat any judgment that the wife might obtain?
[25] S. 90SM(3)
[26] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 per Gummow & Hayne JJ
In order to grant an injunction the court must be satisfied that there is evidence of an objective risk of disposal of property in order to defeat a judgment[27].
[27] Stowe & Stowe (1981) 6 FamLR 757; (1981) FLC-027, at 76,273-4
The injunctive relief the wife seeks is premised on her apprehension that if the injunction is not granted the husband:
“…may utilise the proceeds of sale of [E Street, Town F] unilaterally…in circumstances where the …home is the only significant asset of our relationship...I am concerned that the funds could enable… (the husband) to return to [Country R] to live…may transfer the funds to a jurisdiction outside of Australia.”[28]
[28] Wife’s affidavit paragraph’s 51, 52
As noted previously, it is evident that the home at E Street, Town F is not the only significant asset of the parties’ relationship. While not disclosed anywhere in her material filed to date in these proceedings, the evidence prima facie establishes that the wife is the registered proprietor of the L Street, Suburb M property in which she currently resides, and where she has resided for almost the past twelve years since separation.
There is an absence of evidence of an intention on the part of the husband to dispose of property in order to defeat the wife’s claim. The wife provides no evidence that the husband has ever told her, or anyone else, that he may return to live in Country R nor is there any evidence that the husband has told the wife, or anyone else, nor taken any action to suggest, that he will transfer the proceeds of sale of E Street, Town F, or any other property he may in future own, to a place outside the jurisdiction of the court. The wife’s express concerns appear to be based upon nothing more than bare assertion.
The husband’s evidence as to why he has sold the E Street, Town F property and how he proposes to utilise the sale proceeds from the sale is as follows:
“Approximately 2 years ago I was found unconscious in my home at [E Street, Town F] by [Ms B]…I was taken to hospital…placed into an induced coma and later diagnosed with sepsis”[29]
“Although I recovered, I am hesitant to live alone as I am fearful of another event like this occurring. Therefore, I decided to sell my property at [E Street, Town F] with prospects of moving to Sydney near to my other children, to live in a retirement village. I believe this will better suited for me as I get older”[30] (sic)
“I have been looking at retirement villages in [Region S] area, the ingoing contribution for units varies from $575,000.00 to $669,900.00”[31]
“…I have no superannuation and was planning to use the proceeds of sale to find suitable accommodation and have some funds to make life a little more comfortable.”[32]
[29] Husband’s affidavit paragraph 53, 55
[30] Husband’s affidavit paragraph 57
[31] Husband’s affidavit paragraph 58
[32] Husband’s affidavit paragraph 59
“…if the funds are tied up in litigation I will have nowhere to live”[33]
[33] Husband’s affidavit paragraph 61
The husband has lived in Australia for some time[34] and has remained living in the home at E Street, Town F for the period of almost twelve years since the parties separated.
[34] Wife’s affidavit paragraph
His evidence as to why he has chosen to sell the E Street, Town F property and use the funds to buy appropriate accommodation for himself is credible and does not permit of an inference that his decision to sell the E Street, Town F property, or his proposed use of the proceeds of sale of E Street, Town F to buy a retirement unit for him to live in, is a course of action designed by him or, irrespective of his design, likely to defeat the wife’s claim for final relief.
The wife does not establish, on the evidence, a factual basis for her submission that if the husband pays an “ingoing contribution” into a retirement village, the proceeds of sale of E Street, Town F will be incapable of being extracted so as to satisfy a judgment in the wife’s favour.
The wife provides no evidence upon which the court may infer that the husband will be unable to sell an interest he might acquire in a retirement unit. On the contrary, the evidence of the husband[35] indicates that the retirement unit he contemplates purchasing is capable of being bought and sold in the ordinary course of real estate transactions.
[35] Annexure “H” to his affidavit and in Exhibit C pages 11-19
The balance of convenience in this case and the need to do justice between the parties, requires consideration of the hardship the husband will likely suffer if he is unable to apply the proceeds of the sale of E Street, Town F to purchase suitable housing for himself, against the evidence of hardship to the wife.
The injunctive relief sought by the wife will likely have far reaching effects on the husband. Given the evidence as to his need for suitable accommodation, it follows that if the husband is unable to utilise the proceeds of sale to purchase a retirement unit for himself then his capacity to house himself appropriately, and to meet his future needs, including to secure funds to meet the cost of this litigation, may be jeopardised, and create hardship for the husband.
The usual undertaking as to damages may be inadequate to compensate the husband for such hardship. The loss of opportunity for the husband, at this stage of his life, to secure stable long term housing for himself is not a hardship that is readily compensable simply by way of a monetary sum payable sometime in the future.
The wife has the benefit of remaining in the L Street, Suburb M property for the foreseeable future. In the circumstances of this case where: the wife is the legal owner of the L Street, Suburb M property; she (and the husband) have borrowed monies using the property as security; and she has lived in the property for the past twelve years with no evidence of any challenge to such living arrangement; and noting that Ms B is now 21 years of age and there is no evidence that she is unable to live independently of each of her parents, the court places little weight on the wife’s evidence that:
“My need when this case is over will be to buy a house for myself…The house I am living in is owned by my daughter [Ms C]…I cannot expect [Ms C] to house me and [Ms B] forever.” [36]
[36] Wife’s affidavit paragraph 63
The court is of the view that any legitimate claim of the wife can be satisfied from equity that the husband will have in the retirement unit he proposes to purchase and that the balance of convenience favours the husband being able to apply the proceeds of sale of E Street, Town F to purchase an alternative home in which he can live in his retirement, consistent with the evidence he gives to the court as to his intention.
The evidence of the wife falls short of establishing a basis for the interlocutory relief by way of injunction, and the wife’s application for interlocutory injunction will be dismissed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Dated: 24 January 2022
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