BELCHER & GARDENER - [2019] FamCA 205

FAMILY COURT OF AUSTRALIA

BELCHER & GARDENER

[2019] FamCA 205

FAMILY LAW – PROPERTY – Sole use and occupation – husband sought sole use of a beach house – valuable asset pool – wife living in city home – children intending to use holiday home – children estranged from their father since their parents’ separation – children stating they will not use holiday home if their father is present – father financially able to rent alternative accommodation – father not wanting to do so – application refused.

Family Law Act 1975 (Cth) s 114

In the Marriage of Briers (1978) FLC 90‑483
In the Marriage of Davis (1976) 1 Fam LR 11,522
In the Marriage of Dean (1977) 2 Fam LR 11,691
In the Marriage of Fedele (1986) 10 Fam LR 1069
In the Marriage of Gillie (1978) 4 Fam LR 127
In the Marriage of Healy [1979] FLC 90‑706
In the Marriage of Jolly (1978) FLC 90‑458
In the Marriage of Rowe (1980) 6 Fam LR 435
In the Marriage of Stone (1976) 2 Fam LR 11,235
In the Marriage of Wolifson (1977) 3 Fam LR 11,627
Mullane v Mullane (1983) 158 CLR 436
Plowman v Plowman (1970) 16 FLR 447

APPLICANT:

Mr Belcher

RESPONDENT:

Ms Gardener

FILE NUMBER:

MLC

1705

2019

DATE DELIVERED:

5 April 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Wilson

HEARING DATE:

3 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Bartfeld one of her Majesty’s counsel

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr T J O North of senior counse

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

The husband’s ore tenus application made on 19 February 2019 for sole use and occupation of the property situate at B Street, C Town, between 3 April 2019 and 7 June 2019 is refused.
The further hearing of this proceeding is listed on 7 June 2019 at 10am.

Note: The form of the order is subject to the entry of the order in the court’s records.

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

Note: This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1705 of 2019

Mr Belcher

Applicant

And

Ms Gardener

Respondent

REASONS FOR JUDGMENT

introduction

The husband’s application in a case filed on 26 February 2019 came before me in the judicial duty list on 3 April 2019. After briefly hearing from the counsel about the most expeditious manner to proceed, counsel told me they favoured going forward in such manner that –
a)each party gave disclosure to the other of further documentation within 28 days of 3 April 2019;
b)the husband filed a further affidavit material by 15 May 2019;
c)the wife filed a further affidavit material by 27 May 2019; and
d)a one‑day interlocutory hearing be conducted on 7 June 2019.
That one day hearing has been fixed so as to determine whether interim orders should be made for the husband to have sole use and occupation of property located at B Street, C Town (“the C Town property”).
After announcing to counsel that I could hear that application on that day, Mr Bartfeld, one of Her Majesty’s Counsel, applied ore tenus for his client to have sole use and occupation of the C Town property between now and 7 June 2019. Mr Bartfeld contended that the power to make such an order was reposed in s 114 of the Family Law Act and that the High Court’s decision in Mullane v Mullane[1] supported the husband’s application. The wife opposed the application.
[1] (1983) 158 CLR 436.

synopsis

For the reasons that follow, this interim application is refused.

background

Certain facts, either agreed or common, underpinned this application. In no special order they included the following –
a)the husband and wife commenced living together in August 1993, they married in November 1994 and they separated in July 2018 when the husband vacated the former matrimonial home in F Street, Suburb E (“the Suburb E property”);
b)the husband and wife have four children together, one aged 20, one aged 18, one aged 16 and one aged 14, the younger two of whom still attend secondary school while living with the mother in the Suburb E property;
c)on the wife’s preliminary estimate (derived largely from incomplete discovery from the husband), the matrimonial pool is valued in the vicinity of $20 million;
d)the husband and wife each owned one share in G Pty Ltd, of which the husband is sole director, the company being the trustee of several trusts and a shareholder in several other companies; and
e)the estimated value of the Suburb E property is $7.5 million and the estimated value of the C Town property is $3.5 million, the registered proprietor of both being the wife.
The wife is a health professional, although at present she does not work. The husband is a qualified finance professional. The wife’s affidavit material revealed that the husband undertook studies for a degree in the USA, he worked for a time at H Company working subsequently over many years with J Bank, K Bank and L Bank. In 2017 the husband commenced employment with M Company. According to the husband’s affidavit filed in support of this application, he currently is a director of a company that provides consultancy services to M Company in capital raising.
In the period 1993 to 2006 or thereabouts the wife practised, very successfully it seems, as a health professional. While in the United States, she was an administrator at USA Hospital 1 as well as at USA Hospital 2. For her exceptional ability she obtained a green card through which the husband also obtained a green card to work in the United States. Since returning to Australia in 2006, the wife has not pursued her career as a health professional.
Both husband and wife hold substantial parcels of shares. According to the wife, the husband holds an interest in N Pty Ltd, a diverse operating entity one arm of which has a draft sales budget in the sum of $50 million with another arm having a draft sales budget in the sum of over $6 million. It seems the disclosure of documentation concerning N Pty Ltd has been deficient.
The wife addressed the husband’s income in her affidavit based on such documentation as she was able to obtain subsequent to the husband’s departure from the former matrimonial home, the Suburb E property. She said he receives a base fee of $37 500 per quarter. She said he also received commissions from his contracting work to M Company. She said she estimates he will earn upwards of $750 000 each calendar year. She also said the husband has denied generating management fees. The wife deposed to distributions in 2017 from various trusts, one of which was for more than $80 000 and another of which was for more than $110 000. In the same year, N Pty Ltd declared a franked dividend to a trust associated with the husband of approximately$360 000 as well as a franked dividend of over $240,000 to G Pty Ltd with a further franked dividend in a corresponding sum to O Pty Ltd in which the husband had a one third interest.
The husband did not descend into the details of his sources of money in his affidavit. This being his application, it fell to him to do so.
The wife also deposed to a collection of unilateral or unexplained withdrawals from the home loan since January 2017. The wife said those withdrawals had the effect of increasing the home loan by over $620 000. In addition, the wife swore that the husband withdrew $224 000 from the joint Commonwealth account on 1 November 2017. In June 2018 the wife said the husband transferred $125 000 from a trust account to P Pty Ltd. She gave other illustrations of unauthorised withdrawals.
The wife swore that the husband cancelled the wife’s credit card in November 2018. She said she made that discovery as she was attempting to purchase Christmas gifts. Since January of this year the husband has proposed transferring $5 000 per month to the wife on which she can operate. She said the husband has cash savings in excess of $250 000. She said the husband maintains a lavish lifestyle, holidaying overseas with his current partner and maintaining a collection of club memberships.
The husband did not address the details of his assets, especially his access to cash at bank nor to his discretionary spending. His version of events was incomplete.
The wife swore that the husband has formed a new relationship which she discovered early in 2018 leading to their separation in mid‑2018. Since separation, the husband’s relationship with his children has been tense.
So far as the use of the C Town property was concerned, the wife swore that between November 2018 and February 2019 she and the children used the beach house and three of the four children took jobs in C Town and D Town during that time. She said the eldest daughter will stay at the C Town property in April this year during a university break and that the eldest son will stay there at Easter this year.
In support of his application for sole use and occupation of the C Town property, the husband urged a collection of grounds. They may be condensed as follows –
a)his current accommodation in Suburb Q is insufficient for his needs and is inappropriate (his words);
b)he is able to work remotely;
c)his proposal is the most commercially viable and cost-effective arrangement as the wife can live in the Suburb E property and he can live in the C Town property;
d)he can avoid the expenses associated with renting a residence closer to the city as the C Town property is currently vacant;
e)he has no privacy in a one‑bedroom apartment or where he is renting with his cousin and those premises are not conducive to fostering a relationship with his children; and
f)the wife will suffer no prejudice if he were to occupy the C Town property.

preliminary factual observations

From the foregoing, a collection of observations may be stated, recognising of course that so far I have heard only a very brief examination of the evidence and the evidence, especially of a financial nature, is incomplete. That said, the following is a fair distillation of the existing material –
a)over their 24 marriage the husband and wife amassed a substantial asset base, yet a complete version of the details is not presently available;
b)accepting for this application the best evidence presently available, the husband presently has access to cash at bank of over $250 000 or assets that could readily be converted into cash;
c)since the marriage breakdown, the husband has formed a new relationship, the husband has travelled overseas with his new partner since separating from the wife and husband maintains his several club memberships;
d)the husband’s relationship with his children is strained, he being described as estranged from them;
e)in the period between this date and the hearing on 7 June 2019 two of the children will use the C Town property;
f)the husband is presently financially able to meet the reasonable rental expenses of accommodation between this date and the hearing on 7 June 2019 and most likely thereafter;
g)the husband’s occupation of the beach house in the manner he proposes is likely to occasion ongoing disputation between husband and his children;
h)the husband’s assertion that the beach house is vacant is not strictly correct as it is available for occupation by his children and by the wife if they choose to do so.
The onus of demonstrating an entitlement to sole use and occupation fell to the husband.

legal principles

It is accepted that the relevant source of power to make an order for sole use and occupation is s 114 of the Family Law Act. The Full Court decision in In the Marriage of Davis[2] provides ample authority for the point. In that case, the Full Court held that the relevant criteria to be established are as follows –
a)the means and needs of the parties;
b)the needs of children;
c)the hardship to either party or to the children; and
d)where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.
[2] (1976) 1 Fam LR 11,522.
It was contended in debate before me that the decision in Davis was a fact‑specific case, very different to the present case. To the extent that this case involves an application for sole use and occupation of a beach house and not of a primary residence, the case of Davis is different yet the points of principle extracted above nevertheless apply. It is appropriate therefore to address each criteria mentioned above.

The means and needs of the parties

It is first relevant to consider the means and needs of the parties. In the Marriage of Gillie,[3] Woods SJ found that the income and financial resources of the parties, presence and availability of alternative accommodation and the degree to which the home is an essential part of any business owned or run by a party forms part of the consideration of this criterion. As to means, the wife –
a)has not worked since December 2006, instead performing the role of primary homemaker and parent;
b)has an interest in a joint account maintained at L Bank;
c)has a share portfolio with R Group;
d)has a nominal amount in CBA accounts;
e)is jointly liable to the mortgagee in relation to the mortgage over the Suburb E property;
f)is jointly liable in relation to a loan of a little over $45 000;
g)has received a small number of instalments from the husband since separation; and
h)is the registered proprietor of the Suburb E property and of the C Town property.
[3] (1978) 4 Fam LR 127.
Conversely, the husband’s means were made up of shares, interests under trusts, real estate in Town S, cash at bank in a T Company account, cash at bank in a J Bank account of $465 000, cash at bank in another J Bank account of the sum of $247 985 and in other real estate. He is jointly liable to the mortgagee in relation to the Suburb E property and under the personal loan for $45 000. The wife estimated the total asset base of the parties was almost $20 million of which a large number, and possibly the majority, are assets to which the husband alone is entitled.
As to needs, the husband asserted that his needs supported his application for sole use and occupation of the C Town property. I find it difficult to accept that he has an actual need for sole use and occupation of that property. It is true, he has a wish to occupy the property and he said that, to him anyway, it made commercial sense for him to have sole use of real estate in the pool that is otherwise vacant.
In my view the husband had no financial need to properly support his application for sole use. He has the financial capacity to pay for his accommodation now and into the future from cash at bank in his own name. In my view his personal wishes about the appropriateness of the C Town property as his primary residence missed the point. Further, his views about the commercial viability and cost effectiveness of his living in the C Town property do not equate to matters he needed to demonstrate in order to obtain an order for the sole use and occupation of C Town property.
It may fairly be said that the wife has no financial need for her use of the C Town property. That said, as recently as last summer’s long vacation she and the children used the C Town property in circumstances where some of the children worked in C Town and in D Town.
A relevant issue in the determination of this application is whether the husband’s financial needs supported the order he sought. It seemed to me the answer was in the negative. In his affidavit affirmed 19 February 2019 he spoke of the appropriateness of his residing in the C Town property. He also spoke of the commercial viability and cost effectiveness of his residing in the C Town property. He spoke of the C Town property being a venue that is suitable for his plan to rebuild his relationship with children as it gives him the requisite space to do so. The appropriateness, the commercial viability, the cost effectiveness and the spatial dimensions of the C Town property do not tell of need. His real reason for wanting to reside at the C Town property was his desire to contain or, to use his word, to “minimise” his rental expenses. That is not the same as need.
I was not persuaded of his need for sole use of the C Town property nor was I persuaded that his means necessitated such an order. On the first proposition, he failed.

Means and needs of the children

Next it was relevant to consider the needs of the children. In circumstances where there is a need to parent children of the marriage, predominant consideration for sole occupancy has been given to the party who has care and control of the children although this is not a conclusive consideration.[4] At once it must be stated that the C Town property it is a holiday home and not a place of primary residence. The children do not live there permanently as two are residential university students and two live with the mother in the Suburb E property. That said, several of the children use the C Town property on an ongoing basis. The children are in disputation with their father. If he is given sole use of the C Town property the children are unlikely to use it. They have come to enjoy using the C Town property on an unrestricted basis for many years. That changed upon the parents’ separation since which time the children’s interaction with their father has been extremely limited. The wife described the children as being estranged from their father. She also said the children’s relationship with the father had completely broken down (her words) and that they will not spend time at the beach house if their father is present. The wife also said that in her view the children’s best interests are promoted by their use of the beach house in view of the difficult year 2018 was for them. The wife deposed to the husband not paying expenses of the children and threatening to not pay one child’s college fees. According to the wife, the husband allegedly described one of his daughters as a brat after the daughter challenged her father about stopping the wife’s use of the wife’s credit card.
[4] In the Marriage of Stone (1976) 2 Fam LR 11,235; In the Marriage of Gillie (1978) 4 Fam LR 127; In the Marriage of Jolly (1978) FLC 90‑458; In the Marriage of Briers (1978) FLC 90‑483; In the Marriage of Davis (1976) 1 Fam LR 11,522.
It could not be said that the children’s financial needs are affected by the husband’s sole use and occupation of the C Town property. However, it is readily apparent that the presence of the husband at the C Town property when the children are also present will be deleterious to the children’s emotional fabric. To the extent that their needs include their sense of tranquillity and contentment, that will be turned on its head by the presence of the husband at the beach house when the children are also present. To make an order in favour of the husband for sole use and occupation of the C Town property will procure the result that the children will not use that property and, if they do, conflict will inevitably arise. That does not advance their needs.

Hardship on the children or either party

It then became relevant to consider whether the making of the order sought by the husband will orchestrate hardship to the wife or to the children. In the passages immediately above I have already addressed the adverse effect such an order will have or will be likely to have on the children. The wife addressed in her affidavit sworn 28 March 2019 that the husband belittles and intimidates her on an ongoing basis. It cannot be ignored that such an approach will continue if an order is made for the husband’s sole use of C Town property.

The conduct of the parties

Finally, the conduct of the parties may be relevant to a consideration of sole use. For example, misconduct by one party may establish a necessity for the other party to leave. Authority has held that one party must not be ordered to leave to simply allow the other to live more peacefully. Conduct that is annoying is not sufficient to establish a need, as was held in In the Marriage of Healey.[5] The conduct must be more serious, for example, physical assaults causing fear in someone for his or her life, as was the case in In the Marriage of Wolifson.[6] In this case, there is no evidence of physical abuse although on the wife’s version of events the husband has spoken in uncharitable terms about the wife in front of the children insinuating that the wife’s mental health is deteriorating.
[5] [1979] FLC 90‑706.
[6] (1977) 3 Fam LR 11,627.
It must be emphasised that the four criteria mentioned above emanating from the decision in Davis are guidelines only and are not a fixed or immutable set of mandatory requirements. That was made plain by the decisions in In the Marriage of Fedele[7] and In the Marriage of Dean.[8]
[7] (1986) 10 Fam LR 1069.
[8] (1977) 2 Fam LR 11,691.
It has also been held that where either party to a marriage would have an equally good basis for excluding the other, the balance of convenience may properly decide the matter especially in cases of intense disharmony between husband and wife. The holding in In the Marriage of Healy[9] makes good that point. While it seemed the parties were in dispute, “intense disharmony” was not exhibited, bearing in mind that the test for making the order sought is an objective one, as was held in In the Marriage of Rowe.[10]
[9] [1979] FLC 90‑706.
[10] (1980) 6 Fam LR 435.

outcome

In my view the husband failed in his application for exclusive use and occupation of the C Town property until 7 June 2019.
The proceeding will remain listed for 7 June 2019.

I certify that the preceding thirty‑five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 5 April 2019.

Associate:

Date: 5 April 2019