Chow and Harris

[2008] FamCA 551

FAMILY COURT OF AUSTRALIA

CHOW & HARRIS [2008] FamCA 551

FAMILY LAW – PROPERTY - Sole use and occupation - Interim hearing

Family Law Act 1975 (Cth)

Harris (1993) FLC 92-378

APPLICANT: MS CHOW

RESPONDENT: MR HARRIS

FILE NUMBER: MLC 5261 of 2008

DATE DELIVERED: 3 JULY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 27 JUNE 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STEWART

SOLICITOR FOR THE APPLICANT: ADRIAN ABRAHAMS FAMILY LAWYER

COUNSEL FOR THE RESPONDENT: MR HANNAN

SOLICITOR FOR THE RESPONDENT: MASON SIER TURNBULL

Orders

1. That each of the parties forthwith do all such acts and things as may be necessary to serve notices upon the tenant/s of Unit 1, N, to vacate the said property as soon as practicable and in accordance with the law of the State of Victoria.

2. That on or before 7 days of the tenant vacating Unit 1 (“the occupation date”) the wife vacate the property situated at and known as M property, in the state of Victoria (“the former matrimonial home”).

3. That until further order and as and from the occupation date:-

   (a)The wife have sole use and occupation of Unit 1 to the exclusion of the husband;

   (b)The husband have the sole use and occupation of the former matrimonial home to the exclusion of the wife;

   (c)The wife shall be responsible for the occupation costs of Unit 1, including but not limited to rates, taxes and insurances;

   (d)Each of the husband and the wife shall be responsible for and pay as and when the same falls due one half of the mortgage instalments pursuant to the mortgage secured over Unit 1, N, and Unit 2, N, in the state of Victoria (“Unit 2”) “the investment mortgage”;

   (e)Each of the husband and the wife shall do all such acts and things as may be necessary to ensure that rental proceeds received from Unit 2 shall be applied in reduction of the investment mortgage and paid into that mortgage account and the same in relation to the rental proceeds received from Unit 1 until the tenants vacate.

4. That until further order the husband shall be responsible for the occupation costs of the former matrimonial home, including but not limited to rates, taxes and insurances.

5. That each of the parties forthwith do all such acts and things as may be necessary to:-

   (a)Sell any BHP shares held in their respective sole or joint names and the proceeds of such sale/s shall be divided equally between them; and

   (b)Re-draw any remaining monies left in the ANZ Supplementary Loan Account No. … (to its limit of $60,000) (“Supplementary Loan”) and divide the proceeds thereof equally between them;

   and the characterisation of each parties receipt of the abovementioned sums shall be reserved to the trial judge in these proceedings.

6. That until further order the husband shall be solely responsible for the payment of instalments on the supplementary loan.

7. That the wife be at liberty to remove the chattels referred to in annexure A hereof from the former matrimonial home (and this order is without prejudice to either of the parties rights to argue for the return of or receipt of further chattels).

8. That within 7 days of the date hereof and until further order each of the parties do all such acts and things as may be necessary to ensure that the wife has the sole use and enjoyment of the Toyota Camry motor vehicle registration number … and the husband has the sole use and enjoyment of the Mercedes motor vehicle registration number …, and thereafter each of the parties to be responsible for the costs associated with the vehicle in their respective possession and each party return forthwith to the other party the spare key to the car each party shall use.

9. That with no admission as to the need for this order the husband and the wife be restrained by themselves, their servants and/or agents from disposing of, dealing with, encumbering or otherwise diminishing the value of all personal or real property in which they have a legal or equitable interest including but not limited to:-

   (a)All monies held to their credit or on their behalf in any account in any bank or financial institution including bank funds in the following names:-

   (i)Bank accounts in the sole or in any joint name with the husband and/or the wife;

   (ii)Bank accounts in the name of “[the husband]” or “[Harris] & Associates Pty Ltd”

   save for usual day to day living expenses and/or in the ordinary course of the business.

   (b)All entitlements in any superannuation fund or other work related entitlement;

   (c)The husband’s interest in the former matrimonial home at M (“the former matrimonial home”), and the husband and the wife’s interests in the investment properties at Unit 1 & 2 in N.

10. That with no admission as to the need for this order the husband and the wife be further restrained by themselves, their servants and or agents from selling, disposing of, transferring or otherwise parting with the possession or control of the following:-

    (a)Any items of furniture or other items presently in the former matrimonial home (including any items removed by the wife pursuant to order 7 hereof) until court order or agreement in writing between the parties;

    (b)Any shares in their respective names or under their control (subject to order 5a) hereof).

11. That each of the parties do all such acts and things as may be necessary to conduct a joint valuation of the former matrimonial home, Unit 1 and Unit 2 with such valuer as may be agreed and each of the parties pay one half of the cost thereof.

12. That each of the parties provide, within 7 days of a request in writing, a copy of any relevant documents in their respective possession, power or control.

13. Usual orders for a conciliation conference.

14. Dismiss all extant interim applications.

15. Certify for advocacy.

BY THE COURT:

A.That the wife vacate the study of the former matrimonial home on or before 4:00 pm on 13 August 2008 (and in the event Unit 1 is not available she be entitled to sleep in one of the second or third bedroom) until the time provided in order 2.

B.That on or before 2:00 pm on 1 July 2008 the husband provide a letter from F Company saying whether or not he has or has had a computer supplied by that organisation for his use (“computer use”).

C.That in the event that the husband does not have computer use each of the parties do all acts and things to copy the hard drive to a new hard drive (at the joint expense of the parties) and the wife be entitled to retain the new hard drive.

D.In the event that the husband does have computer use the wife may retain the entire computer in the study until further order.

E.The husband be entitled to remove the printer/photocopier/fax from the study and the wife facilitate the same within 48 hours.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5261  of 2008

MS CHOW

Applicant

And

MR HARRIS

Respondent

REASONS FOR JUDGMENT

1. The husband is a 63 year old sales consultant and the wife is a registered nurse.  They commenced living together in 1992, married in July 1994 and separated on 16 March 2008 under the one roof.  There are no children of their relationship.

2. The wife filed an application in this Court on 11 June 2008 including seeking urgent interim orders.  A registrar was satisfied that the matter was sufficiently urgent to place it in a very busy Duty List on 27 June 2008.

3. Both parties filed appropriate material and were represented by counsel.

4. The basis of the urgency as set out in the wife’s application related to spousal maintenance, health care cover, the use of a motor vehicle and various personal and commercial restraining orders as well as issues associated with discovery. 

5. As with many of these cases, coming to the court door crystallises issues and with dispassionate, objective and competent advice, most matters resolve themselves giving the parties an opportunity to settle into a routine enabling them to more objectively resolve their issues to enable each to get on with their respective lives.  That happened here save for what Ms Stewart of counsel appropriately described as a “chattels” issue.

6. Both counsel were somewhat reticent and embarrassed about the fact that late on a Friday afternoon in a busy Duty List, they had a chattels issue having regard to the fact that they had settled all other issues.  On the basis that there were a number of other matters to be dealt with, each very appropriately and competently put their respective client’s arguments succinctly and I was able to determine the matter almost on the run and indicted what I intended would occur.  Counsel then drew the orders along the lines of what I had said was the outcome. 

7. Although each party was somewhat ambivalent about my giving reasons for what I had ordered, I felt it was appropriate that there should be some note of what was the basis of the orders that I made not only to assist the parties to settle into the routine of sorting the matter out on an objective basis in the foreseeable future but also in case there is a future dispute that remains unresolved.  Each party therefore said that they would appreciate reasons and these are those reasons.

8. On 16 March 2008, as I have said, the parties separated under the one roof.  Only the husband and the wife live in this house.  It is a three-bedroom home.  There is in addition to that, a study.

9. As might be expected, the relationship of two unhappy persons under the one roof was not simple or easy.

10. This particular home in M had been the husband’s property prior to the marriage but it was subject to a mortgage and, apparently unknown to the wife, subject to a debt to the husband’s sister.  Sadly, those sorts of issues were holding up the parties resolving the matter overall and hence, the application in relation to discovery.

11. With the good sense of counsel, all interim applications before me were to be dismissed after I determined the issue as I did.

12. The parties in addition to having an interest in the home in M have an interest in two investment properties.  They are heavily mortgaged and negatively geared. 

13. The parties’ intention by the orders that I have now made is that they will jointly pursue the eviction of one of the tenants so that the wife can move into that property.  I was told that that could be done in a minimum of 30 days but it may be as much as 45 days.

14. There were two issues before me to be determined.  The first was that the husband wanted the wife out of the study immediately and his compromise, until she could move into the investment property, was that she move into a bedroom.  As I said, there are two vacant bedrooms.

15. The wife’s response was that she had been in the study since March and was obviously moving out in the foreseeable future and therefore, there was no reason to move from the study.  She had set up a mattress on the floor and paid $100 to have a lock put on the door for privacy reasons. 

16. The husband said that he wanted the study back because it was his place of work as a sales consultant.  The computer and all of the communication technology were in that study along with shelving and a desk.

17. Ms Stewart on behalf of the wife said that the wife did not use the relevant technology equipment and I made clear that it could be shifted to another room in the house and in so far as there were power point or computer point connections in the study, a cable could be run from those to the other room and I would make clear that the wife was not to interfere with the husband’s use of that facility.

18. I had some difficulty in understanding why it was essential that the husband have the use of the study otherwise.  The use of a desk and shelving would hardly be a basis to be ordering someone to be removed from a room in a house.  There was no evidence that I could see to show that the absence of the use of the study severely impacted upon his livelihood.  That was particularly so in relation to a computer which is in the study and which was very much in dispute.  That issue forms part of the second matter to be determined.

19. Attached to the material of the wife was a list of chattels that she wanted.  This was not an application for a partial distribution of property and even if it was, based on the Full Court’s decision in Harris (1993) FLC 92-378, I would have not heard it having regard to the complications associated with making partials distributions of personalty.

20. The basis of the wife’s application for the items which were disputed was that she was moving to an empty residence. Most of the items in dispute were furniture that were practicable rather than of sentimental value. There were certainly some exceptions to that or so it seemed. I made clear to the parties that the wife could take the items save for the computer on the basis that she is effectively holding them on trust for further determination by the Court on a final hearing. As I pointed out, the absurdity of the parties arguing about chattels at horrendous costs was not lost on me. I said to the parties that ultimately, a court would make a decision based upon what was just and equitable and claims to ownership and sentimental matters associated with chattels are only factors to be taken into account in determining what is just and equitable as between the parties. The provisions of s 79 of the Family Law Act 1975 (Cth) (“the Act”) are very clear.

21. Accordingly, I ordered that the wife be entitled to remove the items in dispute save for the computer. However I wished to make it clear that the wife is not getting these items pursuant to a division of property but rather pursuant to the injunctive power under s 114 of the Act to which I shall turn in a moment.

22. That leaves me with the issue of the computer.  The husband’s argument was that he has no computer and that it is integral to his business operation.  The wife said that it was integral to her studies because all of her information was on it.  She said that the husband had two laptops or at least that he had two laptops and may now only have one.  Although none of this was clearly in the evidence, Mr Hannan on behalf of the husband said that the husband had only recently commenced work for his employer and did not have a computer.  The wife disputed that.  As I pointed out, I was not in a position to make a determination of issues of fact that were in dispute.  The pragmatic solution to the problem on an interim basis was for the husband in a very short space of time, to produce a letter from his employer confirming one way or the other whether or not he has access to a computer.  If he does not have access to it then it seems to me that on the balance of convenience, he should have it because it is the computer that generates his livelihood.  A compromise situation was offered by Ms Stewart in which the parties jointly arranged for the transfer of all of the information on the computer over to a model and she takes that away with her and I think that is a proper and appropriate solution to the problem.

23. All of these orders today have been based upon the provisions of s 114 of the Act. The legal issues were not argued before me but the power to make an order of the nature to which I have referred is set out in s 114. That provision provides that the Court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate including, and by which I understand that to mean, but not exclusively, an order in relation to the property of a party to the marriage, the use or occupancy of the matrimonial home and the personal protection of a party to the marriage.

24. There are no clear guidelines in s 114 as to how the provision is to be interpreted or what its basis is for making an order. There is no doubt that it is a discretionary remedy. It is not intended to be a provision used to affect property rights in the way s 79 of the Act is intended. The only basis upon which s 114 should be used is if the Court is satisfied that the order is proper. Having regard to the matters that I have set out and the way in which counsel helpfully put their submissions, I am satisfied on the evidence, these orders are proper.

25. I canvassed with each of the parties the fact that in their case, there was a very small pool of assets.  The arguments in relation to the question of liabilities are also very modest.  The issue about contribution is not a significant one notwithstanding that the husband had the house prior to the commencement of the relationship.  It is a long marriage.  The parties were confident that they could resolve a lot of the issues at a conciliation conference.  If they were not able to do so, each expects that the case will be transferred to the Federal Magistrates Court of Australia for final hearing.

I certify that the preceding Twenty Five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  3 July 2008