Byrd and Byrd

[2010] FamCA 838

FAMILY COURT OF AUSTRALIA

BYRD & BYRD [2010] FamCA 838

FAMILY LAW – PROPERTY – Interim

APPLICANT: Mr Byrd

RESPONDENT: Ms Byrd

FILE NUMBER: SYC 767 of 2009

DATE DELIVERED: 4 August 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Cohen

HEARING DATE: 4 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC
with Mr Campton

SOLICITOR FOR THE APPLICANT: Gibsons Lawyers

COUNSEL FOR THE RESPONDENT: Mr Foster

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. That the husband’s application for summary dismissal is hereby dismissed.

2. That the wife’s application for exclusive occupation of the property situate at B, New South Wales is hereby summarily dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Byrd & Byrd is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 767 of 2009

MR BYRD

Applicant

And

MS BYRD

Respondent

REASONS FOR JUDGMENT

1. In this matter the wife seeks orders which provide her with interim property, namely cash, so she can purchase a house.  She also seeks to have exclusive occupation of a holiday home at B which is solely in her name. Currently there are orders on foot for the parties to share its occupation equally; that is, for half the time each.  The husband has applied for summary dismissal of the exclusive occupation matter and to adjourn the interim property application so that it can be heard with a further application by the wife which is not yet ready for hearing but is for child support.

2. The wife opposes the adjournment application. She says that the child support application is really quite different from the interim property application and she wants to buy a house which is available now and may be sold if her application for interim property is not heard.  Because it seems to me to be appropriate to give the wife the opportunity to purchase the house if it is otherwise appropriate for her to do so or to get sufficient by way of interim property cash to do so, and an adjournment would undermine her opportunity to purchase it, I should refuse the husband’s application to adjourn the interim property application and should hear it forthwith.

3. The application for exclusive occupation of the B holiday home is made in circumstances where Loughnan JR, as he then was, heard an identical application and delivered judgment on 1 September 2009 making the orders which currently exist for an equal sharing of occupation of that home.  In late 2009, after the wife had sought to appeal from his decision by way of re-hearing, she, by consent, took part in the making of orders dismissing that appeal.  Therefore, one must ask whether there has been any sufficient change in circumstances to warrant reconsideration of her claim for exclusive occupation.  The wife claims that the change in circumstances is an amalgam of two things:  the first being that the husband replaced, or took, some of the contents of the B home.  He replaced some with what she says are inferior contents and failed to replace other of the contents. On the evidence, as it stands, what the husband did, in view of what is left in the home, could not amount to a significant matter which would warrant revisiting the issue over exclusive occupation of the B home.  He has, in effect, admitted taking some of the contents and replacing some of what he took with what might be said to be inferior contents.  All in all it is likely that what he did would involve approximately $10,000 to make the situation as it was when the judicial registrar made the orders.  That, in my view, is, alone, not sufficient basis to say that there has been a significant change in circumstances.  However, Mr Foster, counsel appearing for the wife, says that a whole lot of other changes have taken place and that although that change in itself may not be sufficient, when it is taken together with the other changes, there is a substantial change.  The changes mainly relate to other living conditions of the parties.

4. Loughnan JR also had to deal with an application for exclusive occupation of the parties’ home in E. Since he dealt with that, the parties have sold E property and as a result the husband has moved out but has been able to purchase a home for himself with some of the proceeds of sale. The wife received something like $1.7 million in cash from the sale. She says that now, because she has to rent a home, the income from the cash goes on the rent and the real change of circumstances is that she can no longer live on the income she has from the cash because she has to pay rent and really needs the B home as the exclusive occupant so she can rent it and therefore live off the rent. 

5. I cannot accept that this is a proper view of the circumstances.  I think that the issue of change in circumstances ought to be entirely limited to the husband’s taking of the furniture and replacing some of it with inferior furniture and other contents and that her change in circumstances relates not to the B home but to circumstances that were well within the Judicial Registrar’s knowledge at the time in that the house in E was going to be sold and the wife would have to leave and purchase or rent other property. 

6. I shall summarily dismiss the application for exclusive occupation of the B property and get on with the hearing of the application for interim property.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              22 September 2010