Brady and Wilmore
[2018] FCCA 1993
•3 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRADY & WILMORE | [2018] FCCA 1993 |
| Catchwords: FAMILY LAW – Interim – property – exclusive occupation. |
| Legislation: Family Law Act 1975 |
| Cases cited: Keogh & Meys [2008] FMCAfam 719 Price (unreported) 12 July 1982 |
| Applicant: | MR BRADY |
| Respondent: | MS WILMORE |
| File Number: | SYC 3483 of 2018 |
| Judgment of: | Judge Henderson |
| Hearing date: | 3 July 2018 |
| Date of Last Submission: | 3 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | The Norton Law Group |
| Counsel for the Respondent: | Mr Johnston |
| Solicitors for the Respondent: | Craddock Murray Neumann |
ORDERS
The matter is stood over to 14 August 2018 at 9:30am.
The husband is to vacate the property situate and known as Property A New South Wales (“Property A property”) within 28 days and thereafter the wife is to have exclusive occupation of the Property A property.
The wife will provide to the husband’s real estate agent, the monies for a bond and six weeks rent, at a cap of $500 per week.
At the expiration of the first six weeks of rent, the wife to pay the husband’s rent, for twenty-two weeks.
Upon the husband vacating the Property A property, the wife is to forthwith provide to the husband $10,000 paid into his account, or as he may otherwise direct.
The nature of the payments in these Orders will be determined by the trial judge at any Final Hearing of this matter.
IT IS NOTED that publication of this judgment under the pseudonym Brady & Wilmore is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3483 of 2018
| MR BRADY |
Applicant
And
| MS WILMORE |
Respondent
REASONS FOR JUDGMENT
This is an application by the former wife for exclusive occupation of the former matrimonial home. The application was resisted by the husband. If I determine the wife’s case has merit, I can grant her exclusive occupation on terms, including provision to the husband of funds for alternative accommodation, amongst other things. Mr Wong of counsel acted for the wife and Mr Johnston of counsel for the husband.
I read the following for the parties.
a)For the wife:
i)Her Financial Statement filed 7 June 2018;
ii)Affidavits of 7 June 2018, 2 July 2018;
iii)Affidavit of her son Mr J dated 7 June 2018;
iv)Affidavit of her solicitors Ms Gillian Wright dated 2 July 2018;
v)Affidavit of her psychologist Mr M dated 7 June 2018; and
vi)I read the case outline prepared by her lawyer.
b)For the husband I read:
i)Affidavit and Financial Statement filed 4 June 2018; and
ii)Affidavit filed 29 June 2018.
The short relevant chronology is as follows.
The husband was born in 1955. He will be 63 in.
The wife was born in 1969 in (country omitted). Her son Mr J was born in 1998. The wife and her son immigrated to Australia in 2011.
The wife purchased the property at Property A, the former matrimonial home, in 2011.
The parties first meet in 2012.
The husband and wife commenced co-habitation when the husband moved into the wife’s property at Property A in 2012.
The parties married in 2014.
They are the relevant factors as I see for me today.
The exhibits were voluminous as both parties asserted the other had failed to provide disclosure as required under the rules.
For the wife:
a)Exhibit 1, an aide memoire, which I did not use in this matter, prepared by her lawyer;
b)Exhibit 2, husband’s Bank 2 statements, account up to 5 March 2018;
c)Exhibit 3, Bank 2 account for the husband, up to 3 November 2017;
d)Exhibit 4, another Bank 2 account of the husband, statements from 6 April 2015 to 5 October 2017;
e)Exhibit 5, husband’s credit card with the Bank 2 account from 24 January 2018 to 23 February 2018;
f)These documents were tendered as much for what was in them as for the fact that this was the most up-to-date disclosure of bank accounts, credit cards and the like.
g)Exhibit 6, a document discovered to the wife by the husband – headed “Mr Brady Newstart claim” a typed letter signed by him, dated 13 April 2018;
h)Exhibit 7, assessments of the husband’s income for 2015, 2016 and 2017;
i)Exhibit 8, a Bank 3 bank account opened by him on 4 October 2017, not disclosed in any material; and
j)Exhibit 9, a shelf company which he was the director of in 16 March 2018.
Husband’s Exhibits:
a)Exhibit 1, wife’s accounts up to 18 June 2018; and
b)Exhibit 2, wife’s Bank account, ending up to 18 June 2018.
I accept Mr Wong’s submissions that the husband has not provided up-to-date bank statements, credit-card statements and the like to support the evidence now contained in his financial statement filed 4 June 2018. Particularly if I go to paragraph 51 of that document, where from a financial position in March 2018 set out in Annexure C to the wife’s affidavit dated 7 June 2018 of:
a)$100, 000 in an Bank 2 bank account;
b)$13,722 in Bank 2 account;
c)$29,000 available in his Bank 2 credit card which he now asserts is in debit of $30,000.
His financial statement now asserts an Amex credit-card debt of $5,000 a Bank 1 loan of $15,000, none of which appear to have been in existence in March 2018.
There are no documents discovered by him to date that support this expenditure. His current position is entirely inconsistent with his financial position, set out in annexure C to the wife’s affidavit of June 2018, where – at that time, in March 2018, he had over $100,000 in his Bank 2 bank account, $13,722 in his bank account, and had a credit facility, some 29,000, with a Bank 2 credit card.
He now asserts he spent all that money in three months and he has these debts. None of this money now exists. Now, the husband’s explanation of this, supporting himself and buying properties in (country omitted) in paragraph 21 of his affidavit of 29 June 2018, is not supported by even one document showing purchase, money transfers and the like. Just the words he says. Or the expenditure, he says, of the money.
The husband ceased fulltime work in November 2016, and that is significant, given his taxable income for the end year June 2017 was $159,000 and he also received a refund of $8293. Although he ceased work in November 2016, he, certainly, had an income on his tax return.
If I take off the income he earnt and the tax he paid by looking at the note of assessment he was nett about a $100,000 for that year. So since ceasing work in November 2016 – a period approaching two years now he has received:
a)his tax refund of $8293;
b)$100,000 being his net income for the tax year ended 2017;
c)$100,000 he had in the Bank 2 account in March 2018;
d)$13,000-odd he had in his Bank 2 account in March 2018; and
e)The $30,000 spent on his credit card.
That totals almost $259,000 spent by him since November 2016. He was earning a good income up to losing his job in November 2016. This expenditure will require more fulsome explanation than that has been currently given. There is no doubt about that. However, despite these failures by the husband, it is the wife’s application I am determining today.
For today’s hearing I accept the husband has spent all his money, income, savings, super, et cetera and he has about $105,000 currently in his superannuation account. He has been without work since November 2016, other than a few contacts in the (employment) industry, and I note he will be aged 63 this year. His decision to purchase, as he says, property in (country omitted) and other decisions he made he may now regret, or as the wife asserted to me, has he not done. The wife says this is simply not true. I do not know. This is an interim hearing. I cannot make those findings.
The husband’s failure to carefully record all his bank accounts and their current balances and explain and to provide, when requested by the wife early in the proceedings, documents to support his assertions of expenditure is cause for concern for the court and for the wife.
However, the wife has also failed to disclose any documentary evidence, or any evidence at all to support her assertion that she has unsecured loans totalling $1.7 million from family and friends which – she says with the Bank 4 loan have assisted her to purchase a most impressive property portfolio. The wife says that these very generous loans are the source of her capacity to now own three investment properties, at Property B, Property C and Property D, all purchased, it would appear, during the marriage – as well as having purchased the matrimonial home at Property A well before the parties commenced a relationship.
This is a short marriage on anybody’s stretch of the imagination, 2012 to March 2018, six years, with no children. Before any practitioner can give advice to their clients in relation to their entitlement to the extensive property portfolio now in existence, both the husband and wife need to do a lot more work to disclose the documents or provide further evidence to support what they assert is their current asset position and what has been their financial position throughout the marriage.
Now, despite the husband resisting the wife’s application for exclusive occupation he says he is penniless, “I’ve got nowhere to live, if I don’t live here” it is clear to me, as it is clear to him, it is not reasonably practical, tenable in any way or proper, that these people continue to live under the one roof.
Wife’s exhibit 1 is a document the husband prepared. It was discovered by him to her and is dated 19 April 2018. It is a letter written to obtain amongst other things, a Centrelink benefit, disability pension. He is obtaining or has just received some Centrelink benefits and yet again no documentary evidence to support this. The letter, which he signed says.
My anxiety and panic attacks and tremors and hearing impairment and tinnitus have now become severe, chronic and permanent. I suffer from bouts of dizziness, lack of balance, fainting, vomiting and depression. This has been brought on by the forced marriage-separation demanded by my wife in February this year and the subsequent threats and harassments from her lawyer of being evicted from my home based on false accusations of violence to her and being a danger to her son. I’m unable –
He goes on to talk about the difficulties he is experiencing.
The wife’s evidence of the difficulties they have, living together, is far more explicit. She goes back to behaviour in 2014. However, she recounts in paragraphs 19 and 20 of her June affidavit a truly awful event, where the husband forced his way into her bedroom at 2 o’clock in the morning, and he had been drinking. I do not even think the husband resiles from that behaviour. This was a frightening event for anyone to experience happening in their own home in the middle of the night. The wife says his behaviour in excessive drinking, his demeaning of her, running her down, the difficulties they have with locked doors, sharing facilities with he, she and her son, the fear and aggravation that these two living together causes both of them.
No one should have to live like this, unless it is absolutely the only way you can be living in accommodation at all. Neither the husband nor the wife should have to endure the behaviour that the wife speaks of in her affidavit and the husband talks of in the letter he discovered to the wife.
As he then was, Brown FM said in the decision of Keogh & Meys[1] and as expressed by Lindenmeyer J in the matter of Price[2] in Mr Wong’s case outline there had been a softening of the Court’s attitude in exclusive occupation matters. When I was a young lawyer, you could, virtually, never get anyone out of a home. You, certainly, could not get the husband out of the home, if he owned it. It was just an impossibility. In 2008 Lindenmeyer J was saying there had been a softening of the Court’s attitude towards exclusive-occupation orders. There was now no onus an applicant for such an order to demonstrate irrational, intolerable, awful behaviour on the part of the party who they sought to exclude. Rather, the Court should regard the situation between the parties as being such that it would not be reasonable or sensible or practical, to expect them to continue to remain in the home together.
[1] Keogh & Meys [2008] FMCAfam 719.
[2] Price (unreported) 12 July 1982.
Judge Brown said:
In my view, these authorities demonstrate that the Court must move cautiously in determining whether to exclude a spouse from a jointly held property pending resolution of competing claims.
The Court must examine the entire circumstances of the parties concerned and determine whether on the facts of the particular case such an order is justified. Now, the first point I make about this is that this is not a jointly owned home. Indeed, it is the wife’s home. She purchased it prior to the marriage. That may not be a relevant factor at the end of the day. The husband, clearly, has an equitable interest in that property. But this is not a jointly held home. So there is a significant difference from the decision his Honour faced in Keogh & Meys[3].
[3] Above, note 1.
I also accept as the husband admits he drinks alcohol. I do not say he is drinking to excess. I could not possibly make that finding. But it is clear, that the husband drinks alcohol, and the wife has found his behaviour when so doing particularly difficult for her to deal with. The husband may believe he is not being particularly difficult or his behaviour is acceptable, but that is not the test. It is the reaction of the wife and the impact of his behaviour upon her, that I am tasked to deal with.
The wife has, clearly, found his behaviour offensive, demeaning and frightening as the incident on 14 January 2018, in paragraphs 19 and 20 of her affidavit demonstrate. It is clear to me that one of these people ought to now be excluded from their home to protect both parties’ emotional functioning, mental health and their safety. I accept that the husband has been keeping out and away from the home recently as he is fearful of further allegations being made against him and that is a proper approach.
That is exactly one of the issues that results in a circumstance which I must examine in this particular matter. The competing balance, as I see it, is this.
The husband is penniless. I am satisfied today, on an interim basis that this is the case. He has received, I think, his first Centrelink benefit, he tells me in his most recent affidavit, not that we have any evidence of that and apart from the superannuation he has, he has spent large sums of moneys in various endeavours. The purchase of properties in (country omitted), yet to be proven to the wife’s satisfaction. Travelling business class to (country omitted) to obtain a job. We know nothing about that job only the business class ticket. Pursuing his career options and paying for his own support. He has been unemployed for a period approaching two years and will be 63 this year.
Going to the wife. The home is the wife’s home, purchased by her pre-cohabitation and marriage, and is the home of her 19 year old son. The wife’s financial position could not be more opposite.
She earns $3000-odd per week as a (occupation omitted). She is clearly skilled and good at her job and she is a good financial, money manager. I have no doubt of that. Her total income is about $5367 when you add together the rent she receives from the three investment properties. She has $50,000 in the bank. She has no credit card debts. I cannot see any evidence that even if these loans of $1.7 million from family and friends exist, that she has to repay them. There is just no evidence at all to support that.
The wife has a mortgage in relation to the Property A property but it is of small compass, some $434,000. As best I can estimate as there was no balance sheet, there might be some $6 million worth of property in this matter, perhaps more, perhaps less, I am not entirely sure, gross. I accept the debt situation is yet to be determined. The wife has a mortgage over the Property B property secured over the Property A property for $447,000 and unsecured and unproven loans, she asserts, of $1,766,797.
Despite the wife saying in her financial statement that she has an excess of expenditure over income, I have gone through that document and it is my view that she is clearly able to fund the husband’s move from the property and ongoing costs for a period of time. The wife asserts her personal expenditure is $2849 per week and $1407 for her adult son’s university fees. There is simply no requirement to pay that cost. He is a student, I accept, but that is just not necessary.
This is what anyone would regard as a fairly high standard of living. The wife claims an income, as I said, of $5357 and expenses of $9023. There is no debt to support her going out backwards on a weekly basis to the tune of $4000 otherwise she would not have $50,000 in the bank.
Unlike the husband she has no significant credit card debt. The reality is, in her financial statement there are errors. At paragraph 30 she said she is paying $1513 per week on a credit card yet at paragraph 51 of the financial statement she only has a credit card debt of $1000. In addition to that additional income the wife asserts she repaid a personal loan, again, no evidence to support this loan, to Mr W on 23 May 2018 in the sum of $200,000. If you are going out backwards to the tune of $4000 a week, this would be an impossibility.
Therefore, I accept the positions both Counsel put to me. Neither of these parties have provided full and frank disclosure to the court or each other. There are discrepancies and they abound in the documents and that often happens in urgent matters when they come on quickly and particularly at the commencement of proceedings. What does all this evidence and the circumstances I refer to lead me to? That the wife’s application must succeed. It is her home, it is the home of herself and her son.
It is impossible and I think ultimately it would be dangerous for these two people to continue to co-exist in the one home, a home that the wife, as I have said, purchased prior to separation and wants to retain as part of the property settlement. However, I accept the husband is penniless. I think he has just received his first Centrelink benefit payment and I find that the wife has a capacity to support him for a period of about six months from today’s date, at which time the matter should have resolved or the husband can bring a proper maintenance application bringing proper supporting evidence and the wife can respond to that.
The orders I propose to make is that the husband will vacate the home within 28 days. The wife will provide him with money sufficient to cover his bond, which is usually four weeks, and six weeks’ rent which is what I understand is the requirement these days, which would be about some $5000, and an additional sum of $10,000 for furniture and his ongoing support. The wife will pay, after the expiration of the initial six weeks’ rent, rent at no more than $500 per week for a further five calendar months or 22 weeks.
At the expiration of that time, as I have said, if the matter has not resolved it is up to the husband to bring an application and properly prove any maintenance claim he says he has. The order I made today and the nature of the payments that I will order the wife to make, be they spousal maintenance, interim property or some other payment, will be a matter to be determined by the court at a final hearing. The payment by the wife of this money in the support of her spouse will always be a matter taken into account at any final hearing.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 23 July 2018
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